Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 333 (JHR)

Shivesh Kumar Jha v. Minu Jha @ Golden

2017-02-15

H.C.MISHRA, S.N.PATHAK

body2017
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the sole respondent. Both the parties are also present in Court in person. 2. The plaintiff appellant is aggrieved by the Judgment and Decree dated 22nd of August, 2014, passed by the learned Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 228 of 2009, whereby the suit, filed by the appellant husband for dissolution of marriage between the parties, by a decree of divorce, under Section 13(1)(i-a) of the Hindu Marriage Act, has been dismissed by the learned Court below on contest. 3. The facts of the case lie in a short compass. Both the parties were married, according to the Hindu rites and customs on 11.2.2008. Soon after the marriage, i.e., on 13.2.2008, father of the plaintiff appellant died due to cancer, and as such the holy rituals of Chaturthi, which is performed in the community of the parties, could not be performed, and the Bidai of the respondent to her matrimonial home, also could not be done. According to the plaintiff appellant’s case, after the death of his father, it was agreed in his family that the plaintiff appellant will be getting the appointment on compassionate basis, whereas the other death-cum-pensionary benefits shall be left for his mother and others in the family. This arrangement was not liked by the father of the respondent, and he was having a greedy eye at the death-cum-pensionary benefits of the father of the plaintiff appellant. It is alleged that on 3.6.2008, while the plaintiff appellant was at his father-in-law's place, there was a hot discussion between the parties, over this issue, in which the respondent wife hurled slipper, which hit the chest of the plaintiff appellant. It is again alleged that on 8.7.2008, the respondent and her father came to the matrimonial home along with 5-6 unknown persons and assaulted the mother and bhagini of the respondent and ransacked the household articles. The matter was reported to the local police, which did not take any step, but an informatory petition being Misc. Case No. 1846 of 2008 was filed in that regard. Thereafter the plaintiff appellant filed a suit for restitution of conjugal rights, under Section 9 of the Hindu Marriage Act, against the respondent wife, being Title Matrimonial Suit No. 375 of 2008, on 14.7.2008, in the competent Court. Case No. 1846 of 2008 was filed in that regard. Thereafter the plaintiff appellant filed a suit for restitution of conjugal rights, under Section 9 of the Hindu Marriage Act, against the respondent wife, being Title Matrimonial Suit No. 375 of 2008, on 14.7.2008, in the competent Court. It is also alleged that the father of the respondent, who is an advocate in the local Court had also misbehaved with the plaintiff appellant. The matter was sent for conciliation between the parties to the Mediation Centre and it is alleged that the respondent wife misbehaved with the Presiding Officer of the Mediation Centre, for which also, Misc. Case No. 3347 of 2008 was brought. The plaintiff appellant again wanted to contact the respondent for restoration of the marital relationship, but he had been threatened by the respondent, for which also, a petition was filed in the said Title Matrimonial Suit No. 375 of 2008, which was filed by the plaintiff appellant for restitution of conjugal rights. It is also alleged that during the Court proceeding, the respondent wife had addressed the plaintiff appellant as Kamina, which also amounted to cruelty. With these allegations, the suit for dissolution of marriage between the parties was filed by the plaintiff appellant in the Court below. 4. Upon notice, the respondent appeared and filed her written statement, in which, all the allegations of cruelty and having greedy eye over the death-cum-retirement benefits of appellant's father have been denied. According to the respondent, she was being subjected to cruelty for the demand of dowry. Out of the wedlock a handicapped child was born, and it is an admitted fact that the said child died, after some months. It is the case of the respondent wife that she is always ready and willing to live with the plaintiff appellant as his wife and the respondent, who is present in the Court, also reiterated her stand and stated that she always wants to live with her husband. 5. It may be stated that at this point itself, the plaintiff-appellant, who is present in the Court, flatly refused to live with his wife and asserted that the matter may be decided on its own merits. 6. 5. It may be stated that at this point itself, the plaintiff-appellant, who is present in the Court, flatly refused to live with his wife and asserted that the matter may be decided on its own merits. 6. This Court also had taken efforts for re-conciliation between the parties and the matter was even sent for reconciliation at the hands of trained Mediator at JHALSA, Ranchi, but the said effort has also failed. Accordingly, the matter is now decided on merits. 7. In the Court below, five witnesses were examined on behalf of the plaintiff appellant including the plaintiff appellant himself, who was examined as P.W.-1. The other witnesses examined on behalf of the plaintiff appellant are P.W.-2, Jitendra Jha, the brother of the plaintiff appellant, P.W.-5, Murari Kumar, the maternal uncle of the plaintiff appellant and P.W.-3 and P.W.-4, who are Bijay Yadav and Rajesh Kumar Sao are some outsiders, who have only come to say that the respondent is a women of cruel nature. Apart from the oral evidence, certain documents were also proved by the plaintiff-appellant in the Court below, which were mainly the certified copies of the cases, between the parties. 8. On the other hand, the respondent, also examined two witnesses, who were O.P.W.-1, Mritunjay Kr. Jha, the father of the respondent and O.P.W. No. 2, Minu Jha, the respondent herself. The respondent also proved certain documents in the Court below, which again relate to the cases between the parties. 9. From the evidence, discussed in the impugned judgment, it is apparent that though the plaintiff appellant has supported his case in his evidence, but in his cross-examination, he has stated that within one year from the death of his father, any auspicious function was not possible, and even the Bidai of the respondent was not possible. Again from the discussion of the evidence in the judgment, it is apparent that even though it is alleged that on 8.7.2008, the respondent along with her father and 5-6 unknown persons came to the matrimonial home and assaulted the mother and bhagini of the plaintiff appellant and ransacked the household articles, but neither the mother, nor the bhagini of the plaintiff appellant has been examined to support this allegation. It is further alleged that during the mediation proceeding, the wife had misbehaved with the Presiding Officer, but the said Presiding officer had also not been examined in the Court below to support the allegation of the plaintiff appellant. 10. On the other hand, the respondent and her father, who were examined on behalf of the respondent and fully supported the case of the respondent that there was no cruelty on the part of the respondent. 11. On the basis of the evidence on record, the Court below has come to the conclusion that the plaintiff appellant has not been able to prove his case of cruelty by the wife against him, and accordingly, the suit was dismissed on contest. 12. Learned counsel for the appellant has submitted that the impugned Judgment and Decree, passed by the learned Court below, are absolutely illegal and cannot be sustained in the eyes of law. It is also submitted that there are series of false litigations filed by the respondent wife as also by the father of the respondent, who is practicing lawyer in the local Court, against her husband, and this also amounts to cruelty. Learned counsel has further submitted that by leading cogent evidence in the Court below, the appellant has been able to prove the case of the cruelty against the respondent right from the beginning of the marriage when the respondent had hurled slipper on him, till the conciliation proceeding in the Court below, when the respondent addressed the plaintiff appellant as Kamina, and accordingly, it is a fit case, in which, the Court below ought to have decreed the suit. It has further been submitted that on 16.7.2014 also, criminal cases were filed by both the sides on each other, for an occurrence in the Court premises, which also shows that the relationship between the parties has completely broken down and they are now on the point of no return. Learned counsel, accordingly, submitted that it is a fit case, in which, the marriage between the parties be dissolved by a decree of divorce. 13. Learned counsel for the respondent has opposed the prayer and has submitted that the suit was filed with false allegations against the respondent and her father and all the allegations have been denied. Learned counsel, accordingly, submitted that it is a fit case, in which, the marriage between the parties be dissolved by a decree of divorce. 13. Learned counsel for the respondent has opposed the prayer and has submitted that the suit was filed with false allegations against the respondent and her father and all the allegations have been denied. It is submitted by learned counsel that the wife is always ready to lead a conjugal life with the appellant husband and even today she is ready to live with her husband, but it is only the husband, who wants to get rid of his wife, coming out with false allegations. Learned counsel has submitted that the plaintiff appellant has utterly failed to prove his case in the Court below. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the marriage between the parties was solemnized on 11.2.2008, and soon thereafter, the father of the appellant died on 13.2.2008, due to cancer, and all the differences between the parties appear to have been started after this death in the family. Though the husband has made allegation that after only few months of the marriage, i.e., on 8.7.2008, the respondent along with her father and 5-6 unknown persons came to the matrimonial home, and assaulted the mother and bhagini of the plaintiff appellant and ransacked the household articles, but the fact remains that neither the mother of the plaintiff appellant nor his bhagini has come to support the case of the plaintiff appellant in the Court below. Upon query, made by us to learned counsel for the plaintiff appellant, as to why the mother and bhagini of the plaintiff appellant had not been examined in this case, learned counsel, upon instructions from the plaintiff appellant informed us that the mother refused to come as a witness in the Court. 15. We again find that, though, the said alleged occurrence of assaulting the mother and bhagini of the plaintiff-appellant is said to have taken place on 8.7.2008, we see no occasion for filing the suit for restitution of conjugal rights by the husband on 14.7.2008 soon thereafter. 15. We again find that, though, the said alleged occurrence of assaulting the mother and bhagini of the plaintiff-appellant is said to have taken place on 8.7.2008, we see no occasion for filing the suit for restitution of conjugal rights by the husband on 14.7.2008 soon thereafter. We also see no occasion for filing the suit for restitution of conjugal rights by the husband on 14.7.2008, in view of the fact that admittedly the father of the plaintiff appellant had died on 13.2.2008, and according to admission of the plaintiff appellant himself in his cross-examination, no auspicious function was possible within a period of one year from the date of death of his father, including the bidai of the respondent. This clearly shows that the said suit was filed with ulterior motive. 16. Again we find that though it is alleged that the respondent misbehaved with the Mediator during a mediation proceeding, but the Mediator has not been examined by the plaintiff appellant to prove this allegation. 17. These instances clearly show that the plaintiff appellant has filed the suit in the Court below against the respondent with absolutely false allegations, which he could not substantiate in the Court below by his own admissions in cross-examination, and accordingly, the Court below has rightly dismissed the suit. 18. As regards the submission of filing false criminal cases by the respondent and her father against the appellant, we find that the parties are in highly litigating terms and criminal cases have been filed against each other by both the parties, and at this stage it is not possible to ascertain as to which are them are true or false. 19. In view of the fact that we have come to the conclusion that the plaintiff appellant has filed the suit in the Court below on the ground, which he could not prove, we do not find any illegality in the impugned Judgment and Decree dated 22nd of August, 2014, passed by the learned Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 228 of 2009. 20. There is no merit in this appeal, and the same is, accordingly, dismissed. Let the LCR be sent back forthwith.