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2017 DIGILAW 313 (JHR)

Baju Rout @ Bijan Rout v. Kanchan Devi

2017-02-14

H.C.MISHRA, S.N.PATHAK

body2017
ORDER : 1. Heard learned counsel for the appellant and learned counsel for the respondent. 2. The appellant is aggrieved by the Judgment and Decree dated 04.02.2011 passed by the learned Principal Judge, Family Court, Deoghar, in Matrimonial Suit No. 96 of 2008, whereby the suit filed by the petitioner appellant for dissolution of marriage between the parties by a decree of divorce, has been dismissed with costs. 3. It may be stated that during the pendency of this appeal, both the parties were directed to be present in the Court in person for making efforts of reconciliation between the parties. The respondent wife did not appear in the Court in spite of two orders dated 22.11.2016 and 10.01.2017 and finally it was informed on 24.01.2017 that the respondent wife is not interested for any reconciliation and the matter be decided on merits. 4. According to the petitioner appellant, the respondent is his legally married wife and out of the wedlock, a son was also born to them. It is stated that soon after their marriage, the respondent wife started behaving cruelly against the petitioner appellant and she was in habit of visiting her father's house in regular intervals without permission of the petitioner or his parents. When the petitioner raised objection, the respondent abused and threatened him to cause bodily harm through the members of MCC group, as she had come in association with the extremists group. It is stated that the wife finally left her matrimonial home on 27.08.2007 with all her ornaments and clothes and finally deserted the petitioner appellant leaving her minor child with him. The specific case of cruelty is that the respondent is a member of extremists group and her behaviour was cruel towards the appellant and as such, the suit for dissolution of marriage between the parties by a decree of divorce, was filed by the petitioner appellant in the Court below. 5. Upon notice, the respondent wife appeared in the Court and she denied the allegations made against her. According to the respondent's case, she was being subjected to cruelty and torture for demand of dowry for which there was also Panchayati, after which the husband kept her for about one month, but she was again subjected to cruelty and torture for demand of dowry and was driven out from her matrimonial home. According to the respondent's case, she was being subjected to cruelty and torture for demand of dowry for which there was also Panchayati, after which the husband kept her for about one month, but she was again subjected to cruelty and torture for demand of dowry and was driven out from her matrimonial home. Any association with extremists group is emphatically denied by the respondent wife. The respondent had also filed a criminal case against the husband for the offence under Section 498-A of the IPC, due to the fact that she was being subjected to cruelty and torture. 6. The Judgment of the Court below shows that the Court below also took steps for reconciliation between the parties in which the petitioner appellant refused to take back his wife to the matrimonial home on the same ground that she was a member of extremists group. 7. Three witnesses were examined on behalf of the petitioner appellant. The respondent wife did not adduce any evidence in the Court below. The petitioner has stated in his evidence in the Court below that after marriage they led conjugal life for about two-and-half years during which period, a child was born to them. He has stated that the wife left the matrimonial house as she came into association with the members of MCC group and since then she is living separately. In his cross examination, this witness admitted, there was no criminal case against the wife being a member of the extremists group, and neither he had ever seen her with any arms, nor had seen her attending any meeting of the MCC group. In his cross examination, the husband admitted the fact that his wife is now leading a deserted life at her parents’ house. 8. The other two witnesses examined on behalf of the petitioner in the Court below, though they stated that the wife left the matrimonial house, but they did not whisper about any association of the wife with the MCC group. Thus, on the basis of evidence on record, the only ground of cruelty that she was behaving cruelly with the petitioner, being the member of extremists group, could not be established and the Court below has dismissed the suit with costs. 9. Learned counsel for the appellant submitted that the impugned judgment passed by the Court below cannot be sustained in the eyes of law. 9. Learned counsel for the appellant submitted that the impugned judgment passed by the Court below cannot be sustained in the eyes of law. In any event, the parties are now living separately since 27.08.2007. Learned counsel accordingly, submitted that since the parties are living separately and there is no possibility of returning the respondent wife to her matrimonial home, it is a fit case in which marriage between the parties should be dissolved by a decree of divorce. In support of his contention, learned counsel has placed reliance upon a decision of Supreme Court in the Navin Kohli vs. Neelu Kohli, (2006) 4 SCC 558 . 10. On the other hand, learned counsel for the respondent has opposed the prayer and submitted that there is no illegality in the Judgment and Decree passed by the Court below, inasmuch as, the petitioner-appellant could not prove the allegation that the wife had come in association with the extremists group. It is submitted that since no evidence could be adduced by the appellant regarding the alleged cruelty. There was actually no occasion for the respondent to adduce any evidence, as the case was bound to fall on the basis of the evidence of the petitioner appellant himself. Learned counsel accordingly, submitted that there is no illegality in the impugned judgment and the appeal is fit to be dismissed. 11. Having heard learned counsels for both the sides and upon going through the record, we find that there was specific allegation made by the petitioner appellant against his wife that she had joined extremists group, due to which she was behaving cruelly with the appellant. On his own evidence, the appellant could not establish this fact and could not bring anything on record to show that the respondent wife is a member of extremists group, rather he admitted that he had never seen her with any arms nor had seen her attending any meeting of the MCC group. He also admitted that she was leading a deserted life at her parents’ house. The other two witnesses examined by the appellant did not speak a word about the respondent wife coming in association with the extremists group. 12. The impugned judgment also shows that during evidence, the husband had also taken a plea that the respondent wife was mentally sick, but there is no cogent evidence in this regard adduced by the husband. The other two witnesses examined by the appellant did not speak a word about the respondent wife coming in association with the extremists group. 12. The impugned judgment also shows that during evidence, the husband had also taken a plea that the respondent wife was mentally sick, but there is no cogent evidence in this regard adduced by the husband. Neither any medical practitioner has been examined, nor has any medical prescription been proved to show any mental illness of the respondent wife. These facts clearly show that the suit for decree of divorce was filed by the appellant only on false and baseless allegations. 13. In that view of the matter, we are of the considered view that the Court below has rightly dismissed the suit as the appellant could not establish the allegations made against his wife. We find no illegality in the impugned Judgment and Decree dated 04.02.2011 passed by the learned Principal Judge, Family Court, Deoghar, in Matrimonial Suit No. 96 of 2008. 14. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back forthwith.