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2017 DIGILAW 698 (JHR)

Manoj Kumar Bhagat v. Kamal Manjari

2017-04-17

H.C.MISHRA, S.N.PATHAK

body2017
ORDER : Heard learned counsel for the appellant and learned counsel for the respondent. 2. The appellant husband is aggrieved by the Judgment and Decree dated 10.4.2012 passed by the learned Principal Judge, Family Court, Pakur, in Matrimonial (Divorce) Suit No. 04 of 2009, whereby, the suit filed by the husband under Section 13 (1) (i-a) of the Hindu Marriage Act, for dissolving the marriage between the parties by a decree of divorce on the ground of cruelty, has been dismissed by the Court below. 3. It may be stated that during the pendency of this appeal in this Court, an effort of mediation between the parties was taken for amicable settlement of their matrimonial dispute, but the effort has failed. As such, we have heard this appeal on merits. 4. According to the appellant's case, the marriage between the parties was solemnized on 15.2.20107 in accordance with Hindu rites and customs at parents' place of the respondent wife at Arah in the State of Bihar. A son was born out of the wedlock, but he died soon thereafter. Both the parties came to Debinagar within the district of Pakur, at their matrimonial home, and thereafter they went to Delhi where they were living together as husband and wife. According to the appellant's case, during the stay of wife at Delhi, the appellant felt that the respondent wife was not giving proper love to him and she gave more importance to her sister's husband living in Assam, and she always used to talk about him. She was arrogant by nature and tried to humiliate her husband. It is also alleged that without information to her husband, the wife had also gone to Assam where her sister was living with her husband and lived there for some time. It is also the case of the appellant that on 23.9.2007 the appellant had met with an accident at Delhi and he was admitted at hospital, but the respondent wife went back to Arah, staying there for about 8 to 9 days only, and she came back in the month of November 2007. It is also alleged that the respondent wife had stated that she was against this marriage as she was in love with someone else. The appellant has also alleged that the respondent had also tried to commit suicide as she was not allowed to go to Assam. It is also alleged that the respondent wife had stated that she was against this marriage as she was in love with someone else. The appellant has also alleged that the respondent had also tried to commit suicide as she was not allowed to go to Assam. In May 2008, both the parties again came to Debinagar in the district of Pakur, for attending the marriage of the younger brother of the husband and thereafter, the respondent went to her parents place severing all her relationship with him. Thus, it is stated that the respondent is living separately from the appellant since the month of May 2008 and accordingly, the suit for a decree of divorce was filed. 5. Upon notice, the respondent wife appeared in the Court below and fled her written statement, in which all the allegations were denied. The marriage between the parties and the birth of a son were admitted and it is alleged that the son died due to the behavior of the husband. The respondent wife has also denied the allegations of any cruelty by her and she has also stated that she had all love and affection for her husband and even when her husband met with an accident, she had served him with proper care and attention. On the other hand it is the case of the respondent wife that, the husband was treating her with cruelty and torture for demand of dowry, which could not be met by her father and he had also taken her obscene photographs, threatening her to circulate it amongst her parents and villagers. It is also alleged that while staying at Delhi, she was given some intoxicating material at a Hotel in a soft drink. 6. On the basis of the pleadings of the parties, issues were framed by the Court below, including the issue whether in the facts of the case the appellant husband was entitled to a decree of divorce. In the Court below, four witnesses were examined on behalf of the appellant husband. The husband examined himself as P.W.1. Two other witnesses were his friends from Delhi and Gaziabad, who were only the hearsay witnesses and had no personal knowledge about the affairs between the parties. In the Court below, four witnesses were examined on behalf of the appellant husband. The husband examined himself as P.W.1. Two other witnesses were his friends from Delhi and Gaziabad, who were only the hearsay witnesses and had no personal knowledge about the affairs between the parties. One witness was the maternal uncle of the petitioner appellant, who had only come to depose that good relationship was not prevailing between the parties, but the Court below has found that he was residing at a distance of 25 KM from the house of these parties and he had visited them only once. Thus, the only material evidence on behalf of the petitioner was the evidence of the petitioner himself, in which he had supported his case stating only that his wife treated him with cruelty and praised her sister's husband before him and she insulted him. The Court below has given a clear cut finding that no specific case of any such cruelty so as to enable the husband to a decree of divorce was either pleaded or proved by the husband. 7. Though, in his evidence the petitioner husband had stated that the respondent wife used to go to her parents' place and Assam alone, but he has not deposed that she used to go without his consent. The respondent wife in her evidence as R.W.1 has also admitted that she had gone to Assam at her sister's place, but she had gone there with her parents and never went there alone. A suggestion was given to her about the illicit relationship with the husband of her sister, which she has denied. However, there is no allegation nor any evidence brought by the appellant that there was any illicit relationship between his wife and her sister's husband. In that view of the matter there was no occasion for giving such suggestion in her cross-examination. 8. The discussion of the evidence on record further shows that the petitioner husband has stated in his deposition that the respondent wife had attempted to commit suicide by consuming poison, and one suicide note was also proved by the husband as Exhibit-4, but the fact remains that in her evidence, the respondent wife has clearly stated that the said note was forcibly taken under pressure by her husband. There is no medical proof of the fact that she had actually attempted to commit suicide by taking poison as there is no evidence that she was ever medically treated for poisoning. There is no cross-examination of the respondent wife whether she had attempted to commit suicide by poisoning. 9. On the other hand, the respondent wife has examined herself and her father and they have supported the case of the respondent wife. It is also stated in their evidence that she was being subjected to cruelty and torture for demand of rupees two lakhs in dowry. The respondent wife has also stated in her evidence about her obscene photographs, taken by her husband and black mailing her. 10. Learned counsel for the appellant has submitted that the impugned Judgment and decree passed by the Court below are absolutely illegal, inasmuch as, by the evidence on record, the husband has been able to prove the charge of cruelty against the respondent wife and accordingly, it is a fit case for decree of divorce. It is also submitted that the parties are living separately since the month of May 2008 itself, which clearly shows that the marriage between the parties had irretrievably broken down and on this ground also, the appellant husband is entitled to a decree of divorce. In support of his contention, learned counsel has placed reliance upon the decisions of the Hon'ble Apex Court in Parveen Mehta Vs. Inderjit Mehta, reported in 2002 (4) Supreme 596 and Durga Prasanna Tripathy Vs. Arundhati Tripathy, reported in 2005 (5) Supreme 766 . 11. Learned counsel for the appellant has also submitted that the allegations leveled in written statement, if not proved, shall also amount to cruelty and has submitted that the respondent wife has failed to prove the allegation of subjecting her to cruelty and torture for demand of dowry. In this connection, learned counsel has placed reliance upon a decision of Delhi High Court in Savitri Balchandani Vs. Mulchand Balchandani, reported in AIR 1987 Del 52 . Learned counsel accordingly, submitted that the impugned Judgment and decree cannot be sustained in the eyes of law. 12. In this connection, learned counsel has placed reliance upon a decision of Delhi High Court in Savitri Balchandani Vs. Mulchand Balchandani, reported in AIR 1987 Del 52 . Learned counsel accordingly, submitted that the impugned Judgment and decree cannot be sustained in the eyes of law. 12. Learned counsel for the respondent wife, on the other hand, has submitted that the appellant has not been able to prove his case of any cruelty against the respondent wife and in fact, it is a case in which no such cruelty has either been pleaded or proved by the appellant husband, so as to entitle the husband to a decree of divorce. It is submitted that there are only general allegations against the respondent wife. 13. Having heard the learned counsels for both sides and upon going through the record, we find that the present suit has been filed for a decree of divorce only on the ground of cruelty. Though some illicit relationship has sought to be alleged between the respondent wife and her sister's husband, but the fact remains that there is no specific allegation of adultery against the respondent wife. It is only alleged that she used to show more love towards her sister's husband. In our considered view, this allegation cannot amount to adultery and admittedly, the present suit was not even filed for divorce on the ground of adultery. However, an attempt has been made to impute this allegation during evidence of D.W.-1 the respondent wife, by putting a suggestion to her about the alleged illicit relationship between her and her sister's husband, which has been denied by the respondent wife. The allegation, that she had tried to commit suicide, could also not be proved the respondent wife has stated that suicide note was got prepared under force and duress by the husband. We find substance in it, in view of the fact that in spite of such suicide note, there is nothing in the record to show that the wife had actually taken any step for committing suicide or she was ever treated for consuming poison, as alleged by the husband. The other allegations either pleaded or proved by the husband are only general allegations and no specific allegation of any cruelty so as to entitle the appellant husband to a decree of divorce, has either been pleaded or proved by the appellant husband. The other allegations either pleaded or proved by the husband are only general allegations and no specific allegation of any cruelty so as to entitle the appellant husband to a decree of divorce, has either been pleaded or proved by the appellant husband. In the facts and circumstances of this case, we find that no case is made out for a decree of divorce on the ground of cruelty, by the appellant husband. 14. We do not find any illegality in the impugned Judgment and Decree dated 10.4.2012 passed by the learned Principal Judge, Family Court, Pakur, in Matrimonial (Divorce) Suit No. 04 of 2009. 15. There is no merit in this appeal and the same is accordingly, dismissed.