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2017 DIGILAW 143 (JHR)

Jagjivan Mochi v. Shitalee Devi

2017-01-18

H.C.MISHRA, S.N.PATHAK

body2017
JUDGMENT 1. Heard the learned counsel for the appellant. 2. The sole respondent has not appeared in this case, in spite of valid service of notice upon her as way back in the year 2014 itself. 3. The appellant is aggrieved by the Judgment and Decree dated 19th May 2012, passed by the learned Principal District Judge-cum-Principal Judge, Family Court, Lohardaga, in M.T.S Case No.09 of 2005, whereby the matrimonial suit filed by the appellant under Section 13(1)(i) of the Hindu Marriage Act, with a prayer for dissolving the marriage between the parties by a decree of divorce on the ground of alleged adultery of his wife, has been dismissed by the Court below. 4. According to the appellant''s case, both the parties were married according to the Hindu rites and customs on 23.5.1994 and out of their wedlock, two children were born. Thereafter, the appellant got a job in Jharkhand Police and he went to Dhanbad, i.e., his place of posting. From Dhanbad, he was sent to Kapurthla in the State of Punjab, for training, where he completed his training and again came back and joined his job at Dhanbad. It is stated that during this period, he did not visit his village home and there was no cohabitation between the parties. The appellant returned back to his village on 25th March, 2005, when he found his wife pregnant and when he asked his wife to disclose about her pregnancy, she refused to divulge any details and concealed the facts. It is alleged that on the next morning, she left the matrimonial home and went away. It is also stated in the petition that in the month of May 2005, the applicant went to his in-laws'' place and met his wife and got her medically examined at one Prasad Nursing Home, Lohardaga, where the pregnancy of 18 weeks was confirmed. The applicant also asked his wife to get the pregnancy aborted but she refused and ultimately, she gave birth of a baby on 4th October, 2005. Stating that the baby was born due to her adulterous relationship, the suit for decree of divorce was filed by the appellant. 5. The suit was earlier decreed ex-parte, but subsequently, it appears that a miscellaneous case was filed by the respondent-wife for setting aside the ex-parte decree in the Court below, in which, she succeeded and ex-parte decree was set aside. 5. The suit was earlier decreed ex-parte, but subsequently, it appears that a miscellaneous case was filed by the respondent-wife for setting aside the ex-parte decree in the Court below, in which, she succeeded and ex-parte decree was set aside. Thereafter, the respondent filed a written statement in the case, in which, she denied all the allegations and stated that their marital life was quite cordial until the birth of two children and thereafter, the appellant got a job in police. After getting job in police, the appellant became greedy and he wanted to get second marriage, compelling her to leave the matrimonial house, as also she was being subjected to cruelty and torture. It is also stated that even during the service period, he also used to visit her and there was cohabitation between the parties, due to which, she became pregnant and taking the advantage of her pregnancy, she was driven out from the matrimonial home. 6. The impugned Judgment shows that issues were framed by the Court below, out of which, three following issues related to the allegations, i.e., (iii) whether the opposite party is a woman of bad character, (iv) is there no sexual relationship between the petitioner and the opposite party for two years prior to filing of the petition, and (v) whether the opposite party got conceived in between 10th September, 2004 to 24th March, 2004 and gave birth to a baby on 4th October 2005. The impugned Judgment further shows that three witnesses were examined on behalf of the appellant in the Court below, who are A.W.1., Jagjivan Mochi, the applicant himself, A.W.2. Mustakim and A.W.3 Dr. Ganesh Prasad. Some documents were marked for identification as ''X'' series, whereas one document was proved which was marked as Exhibit-1, which is the ultrasound report, proved by Dr. Ganesh Prasad. The impugned Judgment shows that no evidence was adduced by the respondent in the Court below. 7. It further transpires from the impugned Judgment that though the applicant supported his case in the Court below, but another witness, examined by the applicant, i.e., A.W.2 Mustakim, could not give the necessary details in his cross-examination and his evidence was not relied upon. A.W.3., Dr. Ganesh Prasad was also examined by the appellant, but this witness when confronted with certain prescriptions, did not identify the same, which clearly showed that the medical prescriptions were manufactured documents. A.W.3., Dr. Ganesh Prasad was also examined by the appellant, but this witness when confronted with certain prescriptions, did not identify the same, which clearly showed that the medical prescriptions were manufactured documents. He proved the ultrasound report, stating that the lady, who was examined, was having 18 weeks pregnancy, but this witness stated that he could not identify the respondent. The documents, which were only marked X series for identification, could not be proved by the applicant and accordingly, those documents could not be taken into evidence. 8. On the basis of the evidence on record, the Court below came to the conclusion that A.W.2 Mustakim had not supported the case of the applicant, whereas A.W.3. Dr. Ganesh Prasad had deposed only on the question of pregnancy test and he had merely proved the ultrasound report as Exhibit-1, but he stated that he could not identify the respondent. From the evidence of A.W.1., i.e., the applicant himself, the Court below found that the applicant did not give any specific dates as to when he was posted at Dhanbad and what was his tenure of posting at Dhanbad. The period, during which he had gone to Punjab, could not be proved. The Court below, accordingly, decided all the above three issues against the appellant. 9. Even otherwise, from the facts of this case, we find that according to the appellant''s case himself, he had found the pregnancy for the first time on 25th March 2005, which he alleged was due to adulterous relation of his wife, but in spite of that, the suit was not filed immediately, rather thereafter he has admitted to have gone to his in-laws'' place again in the month of May 2005 and only thereafter, the suit was filed. The appellant had not approached the Court soon after detecting the alleged adultery. 10. Learned counsel for the appellant has submitted that on the basis of the evidence on record, the appellant had been able to make out a case that the respondent wife was living in adultery, due to which she ultimately gave birth to a child, and accordingly, the Court below wrongly dismissed the suit. 11. We are of the considered view that in the facts of this case discussed above, there is no scope of any interference in the impugned Judgment and Decree passed by the Court below. 12. 11. We are of the considered view that in the facts of this case discussed above, there is no scope of any interference in the impugned Judgment and Decree passed by the Court below. 12. There is no merit in this appeal and the same is accordingly, dismissed.