Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 1516 (JHR)

Awadhesh Singh v. Baby Singh

2017-08-25

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. Heard learned counsel for the petitioner appellant and learned counsel for the opposite party respondent. 2. The appellant is aggrieved by the Judgment and Decree dated 20.01.2016, passed by the learned Principal Judge, Family Court, Deoghar, in Matrimonial Suit No. 80 of 2009, whereby the matrimonial suit filed by the husband appellant for dissolution of the marriage between the parties by a decree of divorce, under Section 31(I) (i-a), (i-b) and (iii) of the Hindu Marriage Act, 1955, on the grounds of cruelty and desertion by the respondent wife, as also on the ground of her mental disorder, has been dismissed on contest. 3. It may be stated that prior to this impugned Judgment, the appellant had been able to obtain an ex-parte decree of divorce against his wife, which was set aside by this Court and, thereafter, the suit was contested by the respondent wife, which has been dismissed on contest. 4. By order dated 28.03.2017, the effort was made for amicable settlement of the matrimonial dispute between the parties at the hands of a trained Mediator, at JHALSA, Ranchi, and the matter was sent for mediation between the parties, which, as per the report received from the trained Mediator, has failed. As such this matter is being decided on merits. 5. According to the appellant-husband's case, the marriage between the parties was solemnized on 27.06.2004 as per the Hindu rites and customs. It is alleged by the husband that his wife was suffering from mental disorder and this fact was concealed by her parents. After the marriage, as soon as she came to her matrimonial home, she started behaving abnormally and she did not allow the husband to consummate the marriage. It is the specific case of the husband that whenever he wanted to consummate the marriage, the respondent-wife used to become violent and used to throw utensils, stones etc., towards him and his family members, which made the life of the husband hell. The husband also tried to get the respondent-wife treated medically and tried to take the help of the parents of the respondent wife for her treatment, but she refused and her parents also refused the said request. It is also stated that she used to assault the old mother-in-law and her widow sister-in-law. The husband also tried to get the respondent-wife treated medically and tried to take the help of the parents of the respondent wife for her treatment, but she refused and her parents also refused the said request. It is also stated that she used to assault the old mother-in-law and her widow sister-in-law. It is further stated that the respondent-wife ultimately deserted the appellant-husband in the month of February, 2007, and started residing with her parents and since then she had deserted him. Mainly with these allegations the suit for dissolution of marriage between the parties, was filed by the petitioner-husband. 6. The respondent-wife filed her written statement, wherein marriage between the parties was admitted, but the allegations of cruelty and desertion by her, or that she was suffering from mental disorder, are completely denied. It was stated that she was mentally fit and after her marriage she led the conjugal life with her husband and the marriage had also been consummated, but they could not be blessed with any issue. It is the case of the respondent-wife that for the fact that she had not conceived, she was also got medically treated by her husband. The allegations of mental and physical cruelty made by the husband against her was also denied in the written statement and it was stated that she was being subjected to cruelty and torture, both mentally and physically, in various ways by her husband and his family members, also for the demand of dowry, for which she had no option, but to file the criminal case against her husband under Section 498-A of the Indian Penal Code and she had also filed a case under the Domestic Violence Act. The allegation that she had deserted her husband, was also absolutely false as she was continuously living and residing in her matrimonial home. She has also stated that by playing fraud upon the Court, her husband had obtained an ex-parte decree of divorce, which was set aside by the High Court vide order dated 29.01.2015, and she has also denied the allegation of assaulting her husband and his family members, or of quarreling with them. She has also stated that she is always ready to live with her husband peacefully. 7. She has also stated that she is always ready to live with her husband peacefully. 7. On the basis of the pleadings of the parties, the issues were framed by the Court below, including the issue relating to the alleged cruelty and desertion by the respondent-wife, as also the unsoundness of mind of the respondent-wife. It would, however, be appropriate to state at this stage that as on today, it is an admitted fact that the respondent-wife is living at her matrimonial home, as admitted by learned counsel for the appellant. 8. Six witnesses were examined by the husband in the Court below, out of whom, P.W.-5 Subbal Kumar did not turn up for his cross-examination and, accordingly, his evidence was not taken into consideration. The other witnesses, who were examined by the appellant, were the appellant himself, his neighbour, his brother, his cousin and one member of Mahila Samiti of Madhupur. On the other hand, the wife also examined four witnesses, including herself and her brother. 9. The petitioner-husband examined himself as PW-1 before the Court below and he has stated that his marriage was solemnized with the respondent-opposite party upon concealment of the fact by her parents that the opposite party was suffering from mental disorder. He has also stated that he was never allowed to consummate the marriage, as a result of which his family life was disturbed. He has stated that the opposite party used to quarrel with the wife of his elder brother due to which his elder brother left the house and he went to Patna along with his wife. He has also stated that the opposite party used to raise alarms on the road and she did not cook food in the house and used to direct his mother and widow sister to cook food and they used to wash the utensils. He has specifically stated that the opposite party never allowed him to establish physical relationship with her and used to visit her parents home frequently without his permission. He has also stated that he tried to get her medically treated but she did not agree for that and upon his request made to the parents of the opposite party for the same, they also did not pay any heed. He has also stated that he tried to get her medically treated but she did not agree for that and upon his request made to the parents of the opposite party for the same, they also did not pay any heed. He has stated that she had deserted him in the year 2007 and since then she was continuously living at her parents' place and she was not ready to live with him at his house, which compelled him to file this suit for divorce. He has also stated that it is not possible for him to live with his wife. In his cross-examination, this witness has admitted that at the request of the parents of his wife, he had taken his wife to some Doctor at Delhi for her treatment for begetting issue where he was also treated by the Doctor, but he could not say the cause for his wife not conceiving. 10. P.W.-2 Pinachi Bishwas is a neighbour of the appellant and this witness, apart from supporting the case of the petitioner husband, has also been examined on the point that the marriage was not consummated between the parties. He also stated that since February, 2007 the wife was living at her parents' place and she did not return at her matrimonial home. 11. P.W.-3 Anjani Kumar is the cousin of the appellant, who has also supported the case of the appellant. He has stated that the opposite party did not allow the petitioner to have physical relationship with her, and as such the petitioner could not get any child. He has also stated that the opposite party had been living at her parents' place since February, 2007 itself and she never returned back to her matrimonial home in spite of the request made by her husband. He has admitted in his cross-examination that he could not say the date and time either of assault made by the opposite party to the appellant's mother and widow sister, or the fact as to when he came to know that there was no physical relationship between the parties. 12. P.W.-4 Ramesh Singh is the elder brother of the petitioner, and he has also supported the case of the husband and he has stated that the opposite party had filed a case of rape against him also. 13. 12. P.W.-4 Ramesh Singh is the elder brother of the petitioner, and he has also supported the case of the husband and he has stated that the opposite party had filed a case of rape against him also. 13. P.W.-6 Sunita Jaiswal is a member of Mahila Samiti of Madhupur, and she has also deposed that after the marriage in the year 2004, the opposite party used to quarrel with her husband and in-laws and she used to assault them and she was also informed that the wife did not allow her husband to establish physical relationship with her. She has also stated that the wife was not residing at the house of the husband since the years 2007-2012. 14. On the other hand, the witnesses examined on behalf of the respondent-wife, have supported her case. The respondent-wife had examined herself as O.P.W.-1 wherein she has stated that she was married to the petitioner on 27.6.2004 and after that she started to lead her conjugal life with her husband. She has flatly denied all the allegations made against her. She has stated that there was physical relationship between her and her husband but unfortunately she could not conceive and hence her husband had taken her to Ranchi in the year 2010 for treatment and thereafter, she was also taken to Delhi by her husband in the year 2012 for treatment, and as such, the allegation that she had deserted her husband since the year 2007, was completely false. She has stated that she was being subjected to torture and cruelty in various ways and even the elder brother of her husband tried to commit rape upon her. While she was living with her husband, her husband obtained an ex-parte decree of divorce in his favour and when she came to know about the said fact, she moved the High Court and got the ex-parte decree of divorce, set aside by the High Court. She has stated that she still loves her husband eagerly and wants to live with him and she is ready to forget every torture meted out to her. She has stated in her cross-examination that during their treatment, some defects have been found in her husband, but her husband did not want to take medicines. She has also stated about the criminal case filed against her husband and his family members by her. She has stated in her cross-examination that during their treatment, some defects have been found in her husband, but her husband did not want to take medicines. She has also stated about the criminal case filed against her husband and his family members by her. The other witnesses, who have been examined on behalf of the opposite party, including her brother, have fully corroborated the case of the opposite party. 15. We find from the impugned Judgment that though there is specific allegation against the respondent-wife to have assaulted her mother-in-law and widow sister-in-law, but the learned Trial court below has noted the fact that though both of them were still alive, but none of them had been examined by the husband. As such the allegation against the respondent wife that she used to quarrel with them, or assault them could not be proved. 16. The deposition of O.P.W.-1, i.e., the respondent-wife in the Court below, clearly shows that the deposition had not been made by any person of unsound mind, as she appears to have made her deposition very clearly, and she also appears to have stood the cross-examination very ably. The Court below has not mentioned about any abnormality during her examination in the Court. Though it is the specific case of the petitioner-husband that the respondent-wife was suffering from mental disorder, but neither any medical prescription was adduced in evidence, nor any medical practitioner was examined by the petitioner-husband to prove the fact that the respondent-wife was suffering from any mental disorder. In the absence of any medical evidence in this regard, in our considered view, the appellant-husband has failed to prove the fact that the respondent-wife was suffering from any mental disorder to such extent that the petitioner could not reasonably be expected to live with his wife, and no case is made out for the dissolution of marriage under Section 13(1)(iii) of the Hindu Marriage Act. 17. On the basis of the evidence on record, the Court below has also come to the cogent finding that the petitioner-husband has failed to prove his case that the respondent-wife had deserted her husband since the year 2007. As stated earlier, it is now an admitted position by the appellant-husband that the respondent-wife is living in her matrimonial home. 17. On the basis of the evidence on record, the Court below has also come to the cogent finding that the petitioner-husband has failed to prove his case that the respondent-wife had deserted her husband since the year 2007. As stated earlier, it is now an admitted position by the appellant-husband that the respondent-wife is living in her matrimonial home. The fact that the appellant-husband had taken his wife to Delhi for treatment also stands admitted in the cross-examination of the husband, in which he has admitted that at the request of the parents of his wife, he had taken to his wife to some Doctor at Delhi for her treatment for begetting issue where he was also treated by the Doctor, but he could not say the cause for his wife not conceiving. This piece of evidence by the appellant-husband, clearly shows that the allegation of not allowing him to consummate the marriage, is totally false. The evidence of the respondent wife, who had examined herself as O.P.W.-1, clearly shows that for such treatment her husband had taken her to Ranchi in the year 2010 and thereafter, she was also taken to Delhi by her husband in the year 2012. As this treatment is admitted by the husband in his cross-examination, coupled by the fact that admittedly, the wife is still living in her matrimonial home, the allegation of desertion since the year 2007 is also not proved. As such no case is made out even for the dissolution of marriage under Section 13(1)(i-a), or (i-b) of the Hindu Marriage Act, i.e., either on the ground of cruelty, or on the ground of desertion. 18. For the foregoing reasons, we find that there is no illegality in the impugned Judgment and Decree dated 20.01.2016, passed by the learned Principal Judge, Family Court, Deoghar, in Matrimonial Suit No. 80 of 2009, worth interference by this Court. 19. We have not entered into the question raised by the respondent in the interlocutory application being I.A. No. 6240 of 2016 for maintenance, as it has come in the impugned Judgment that some maintenance was allowed to her under Section 125 of the Code of Criminal Procedure. However, the respondent-wife shall be free to file appropriate application in the Family Court below, under Section 25 of the Hindu Marriage Act. 20. This appeal is accordingly, dismissed being bereft of any merit. However, the respondent-wife shall be free to file appropriate application in the Family Court below, under Section 25 of the Hindu Marriage Act. 20. This appeal is accordingly, dismissed being bereft of any merit. I.A. No. 6240 of 2016 also stands disposed of.