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2017 DIGILAW 656 (JHR)

Srikant Mallick v. Sukla (Roy) Mallick

2017-04-10

H.C.MISHRA, S.N.PATHAK

body2017
I. A. No. 900 of 2017 The present interlocutory application has been filed for condonation of delay of 47 days in filing this appeal. In view of the statements made in the interlocutory application that the appellant was not present in the Court below, on the date when the Judgment and Decree was passed, and he was informed about it on a later date, the delay in filing this appeal, is hereby, condoned. The aforesaid interlocutory application, thus, stands allowed. F.A. No. 213 of 2016 Heard learned counsel for the appellant in the admission matter of the appeal. 2. The appellant-husband is aggrieved by the Judgment and Decree dated 8th of September, 2016, passed by the learned Additional Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 27 of 2013, whereby the suit, filed by the appellant-husband for a decree of divorce on the ground that the respondent-wife had not obeyed the decree of restitution of conjugal rights, passed against her, has been dismissed by the Court below. 3. According to the appellant’s case, the marriage between the parties had solemnized at Sitarampur in the State of West Bengal, on 11.2.1992, according to Hindu rites and customs. Thereafter both the parties were living together as husband and wife at Dhanbad, and they were blessed with a female child on 1.1.2000. It is alleged that after the birth of the child, there was change in the conduct and behavior of defendant-wife and on being asked, she did not assign any reason for change in her behavior, she used to remain quiet, to refuse household work and she withdrew herself from the society of her husband. It is also stated that ultimately on 17.7.2000, the defendant-wife without any knowledge and consent of her husband, left the matrimonial home with her belongings. The plaintiff appellant also went to bring her from her parents place, but they refused to send the defendant-wife with the plaintiff. This compelled the appellant to file an application under Section 9 of the Hindu Marriage Act, being T.M.S. No. 170 of 2000 in the Court below, which was contested by the respondent-wife, but finally decree was passed in favour of the husband on 19.8.2002, whereby the defendant-wife was directed to stay with the plaintiff and discharge her marital obligations as wife. It is also stated that during the pendency of T.M.S. No. 170 of 2000 in the Court below, the defendant-wife had also filed a Misc. Case No. 66 of 2001, before the learned Judicial Magistrate, Asansol, in West Bengal, under Section 125 of the Cr.P.C., in which, the defendant was allowed the maintenance allowance for herself and her daughter, which was being paid by the plaintiff-appellant at the rate of Rs. 2,500/-per month. Stating that in spite of the judgment in T.M.S. No. 170 of 2000, the defendant willfully and negligently failed to comply the decree of restitution of conjugal rights, the suit for dissolution of marriage by a decree of divorce under Section 13(1-A)(ii) of the Hindu Marriage Act was filed in the Court below. 4. Upon notice, the defendant-wife appeared in the Court below, and filed her written statement, in which, she admitted the marriage between the parties and the birth of a daughter, out of the wedlock. She alleged that she was being subjected to cruelty and torture for demand of dowry by the appellant-husband and his family members and on 17.7.2000, she was brutally assaulted and driven out from her matrimonial home. The defendant-wife had also filed a C.P. Case No. 778 of 2000, under Sections 498-A and 404 of the Indian Penal Code and Sections 3/4 of the D.P. Act before the Judicial Magistrate against her husband and his family members, in which, the husband and his family members were found guilty and convicted for the aforesaid offences. They filed an appeal against the judgment of conviction and order of sentence before the Court of Sessions, being Criminal Appeal No. 7 of 2008, which was also dismissed so far as the appellant-husband is concerned, by judgment dated 4.2.2011 by the learned Appellate Court. According to the respondent wife's case, she had not left the matrimonial home on her own, rather she was compelled to leave the matrimonial home and driven out from the matrimonial home, after being subjected to cruelty and torture for demand of dowry. 5. The impugned Judgment itself shows that the present appeal was filed by the appellant-husband in the Court below after more than 10 years of the decree of restitution of conjugal rights in his favour, but there is no explanation for moving the Court below after such an inordinate delay. 6. 5. The impugned Judgment itself shows that the present appeal was filed by the appellant-husband in the Court below after more than 10 years of the decree of restitution of conjugal rights in his favour, but there is no explanation for moving the Court below after such an inordinate delay. 6. It also appears from the impugned Judgment that both the parties examined their witnesses in the Court below and the appellant-husband, who had himself examined as a witness, admitted in his cross-examination that the respondent-wife had filed the case with respect to cruelty and torture for demand of dowry, in which, he was convicted, against which he also preferred the appeal, which was also dismissed. It was thus, found that the appellant-husband had not moved the Court below with clean hands. The impugned Judgment further shows that the Court below has taken into consideration the provision of Section 23(I) (d) of the Hindu Marriage Act, which clearly provides that there should not be any unnecessary or improper delay in instituting the proceeding, and accordingly, has dismissed the suit. 7. Learned counsel for the appellant has submitted that the impugned Judgment and Decree, passed by the Court below, cannot be sustained in the eyes of law, inasmuch as, the appellant-husband has filed revision in this Court against the judgment of conviction and order of sentence, passed against him in the criminal case, which is still pending. It is also submitted that there is no limitation provided for institution of a suit under Section 13(1-A)(ii) of the Hindu Marriage Act. 8. Having heard counsel for the appellant and upon going through the record, we are satisfied that both the grounds taken by the Court below for dismissing the suit, are good grounds, on which, the suit was dismissed. The impugned Judgment clearly shows that the appellant-husband had suppressed the material facts that the respondent-wife was being subjected to cruelty and torture for demand of dowry, for which, the appellant-husband had been convicted and sentenced by the competent Court and the appeal against the said conviction was also dismissed by the competent Appellate Court, and these facts could come only in the cross-examination of the husband in the Court below. As such, we find that suppressing these material facts, the present suit was filed in the Court below, which clearly showed that the appellant had not moved the Court below with clean hands. 9. The fact also remains that Section 23(I)(d) of the Hindu Marriage Act clearly prescribes that there should not be any unnecessary or improper delay in instituting the matrimonial proceedings. Admittedly, the decree of restitution of conjugal rights was passed in favour of appellant on 19.8.2002 itself, and the present suit has been filed only in the year 2013, i.e., after more than 10 years, and there is no explanation for this inordinate delay. 10. In the backdrop of the aforesaid discussions, we are of the considered view that in the facts and circumstances of the case, the suit of the appellant has been rightly dismissed by the Court below, on both the grounds, i.e., the appellant husband had not moved the Court below with clean hands; and that the suit was filed after an inordinate delay. 11. Accordingly, we do not find any illegality in the impugned Judgment and Decree dated 8th of September, 2016, passed by the learned Additional Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 27 of 2013. There is no merit in this appeal and the same is, accordingly, dismissed in limine.