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2017 DIGILAW 828 (JHR)

Munni Devi v. Chandeshwar Prasad

2017-05-08

H.C.MISHRA, S.N.PATHAK

body2017
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the respondent. 2. The appellant is aggrieved by the judgment and decree dated 1st of March, 2013, passed in Matrimonial Suit No. 23 of 2006, by the learned Principal Judge, Family Court, Palamau at Daltonganj, whereby the Matrimonial Suit, filed by the respondent-husband for a decree of divorce on the ground adultery and desertion, has been decreed on the ground of desertion, and the marriage between the parties was dissolved by a decree of divorce. 3. The facts of the case, as detailed in the impugned judgment lie in a short compass. The marriage between the parties was solemnized according to the Hindu rites and customs on 18.5.2002. The case of the plaintiff-respondent is that in the night of the marriage itself there was quarrel between the parties and there was no bidai of the bride to her matrimonial home as the appellant-wife was not allowed by her parents to go with the husband on the next date of marriage. There is complete denial of any sexual relationship between the husband and wife and it is alleged that the respondent-appellant wife was in illicit relationship with one Dinesh Singh, due to which she did not accompany her husband after the marriage. The efforts were also taken to bring her to matrimonial home, but she refused to come to the matrimonial home. At her parents' place, she gave birth to a child in the month of July, 2006. The matrimonial suit was filed by the husband claiming that his wife had an adulterous relationship with Dinesh Singh, out of which, the child was born and also claiming that the wife had deserted him for a continuous period of more than two years. 4. Upon notice, the appellant-wife put her appearance in the Court below and filed her written statement, according to which, the marriage between the parties was admitted. According to the appellant's case, she went to her matrimonial home and started leading a conjugal life, resulting in birth of a child. However in the written statement, it is also stated that it is true that parents of the appellant-wife did not allow her to go to her sasural and as a matter of fact the plaintiff husband never took interest in bidai of his wife. However in the written statement, it is also stated that it is true that parents of the appellant-wife did not allow her to go to her sasural and as a matter of fact the plaintiff husband never took interest in bidai of his wife. It is, however, the case of the respondent -wife that the child is born out of the wedlock due to physical relationship between the husband and wife. 5. On the basis of the pleadings, the Court below framed the issues, including the issues related to adultery as also for the ground that the wife had deserted her husband for a continuous period of more than, two years. 6. The impugned judgment shows that three witnesses were examined on behalf of the plaintiff, including the plaintiff himself, and five witnesses were examined on behalf of the respondent, including the respondent-appellant herein. The witnesses have supported the cases of their respective parties. Though the witnesses examined on behalf of the appellant supported the case of the appellant that the appellant, after the marriage went to her matrimonial home and she was living at her in-laws' place, but the cross-examination of these witnesses show otherwise. O.P.W. No.1, Ram Keshwar Ram, examined on behalf of the respondent-appellant in the court below, specifically admitted in his cross-examination that the respondent had been residing at her parents' place for 7 -8 years and the child was aged about four years. Similarly, O.P.W. No.2 Rajdeo Sao, who is the brother of the respondent-appellant, though he has supported the case of the respondent-appellant, but admitted in his' cross-examination that she has been residing at her parents' place for four years. The respondent-appellant herself examined as O.P.W. No. 5 and she fully supported her case in her Examination-in-Chief, filed through affidavit. However, she admitted in her cross-examination that she had not gone through the contents of the affidavit, neither the draft had been read over to her. Her counsel has drafted the affidavit and she has only affixed her thumb impression thereupon. She has admitted that after the marriage she lived at her matrimonial home for 7 days and she had been residing at her parents' place since 4 to 5 years. She has also admitted that she had given birth to the child at her parents' place. 7. She has admitted that after the marriage she lived at her matrimonial home for 7 days and she had been residing at her parents' place since 4 to 5 years. She has also admitted that she had given birth to the child at her parents' place. 7. The Court below has found that the factum of sexual relationship between the parties is completely denied by the petitioner-respondent, whereas it is admitted by the respondent-appellant, but there was no D.N.A. Test in the Court below, and accordingly, the Court below found that the petitioner had not been able to prove the case of adultery against the respondent. The Court below, however, on the basis of the evidence on record, came to the conclusion that the petitioner had been able to prove the case of desertion in view of the admission of the respondent wife, in her written statement itself that she was not allowed to go to her sasural by her parents, and accordingly, on the ground of desertion, the Court below has decreed the suit and dissolved the marriage between the parties by a decree of divorce. 8. During the pendency of this appeal in the Court, both the parties were directed to be present in Court in person on 16.2.2017, on which date, both the parties were present in person in the Court. As it could not be established whether the plaintiff-respondent is actually the biological father of the child or not, proposal was given for D.N.A. Test of both the parties and child, to which, both the parties present in Court, readily agreed for D.N.A. Test. Accordingly, both the parties were directed to appear along with their child on 16th of March, 2017 before the Director or any responsible officer of the State- Forensic Science Laboratory, Hotwar, Ranchi, for the D.N.A. Test, but thereafter the appellant-wife did not appear for D.N.A. Test. On 3.4.2017 when the matter was again taken up, learned counsel for the appellant submitted that the appellant-wife had not gone for D.N.A. Test and he would ask her to be present in the Court on the next date. Today, we are informed by the learned counsel for the appellant that in spite of the instructions given by him, the appellant-wife is not present in the Court. Today, we are informed by the learned counsel for the appellant that in spite of the instructions given by him, the appellant-wife is not present in the Court. Learned counsel for the respondent-husband has also submitted that even the husband had informed her to be present for D.N.A. Test, but she did not come for that. It is submitted by the learned counsel for the respondent-husband that the husband is present in the Court today also, and he is always ready for the D.N.A. Test, but it is the appellant-wife who is deliberately avoiding the D.N.A. Test. This circumstance certainly goes against the appellant -wife. 9. Faced with this situation, learned counsel for the appellant, arguing on merits of the case, submitted that the impugned judgment and decree, passed by the Court below is absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, it is the case of the appellant-wife that after the marriage, she went to her in-laws' place where they established physical relationship as husband and wife and the child is also born out to their wedlock. Learned counsel, accordingly, submitted that this evidence was also adduced by all the witnesses, examined on behalf of the respondent-appellant in the Court below, and accordingly, on the basis of evidence on record, the suit ought to have been dismissed by the Court below. 10. Learned counsel for the plaintiff-respondent, on the other hand, has opposed the prayer and submitted that at least the fact of desertion is admitted in the written statement itself, wherein she has stated that she was not allowed by her parents to go to the matrimonial home and the evidence adduced by her in the Court below was against this pleading. Even though the witnesses examined on behalf of the appellant wife, though stated that after the marriage she went to her matrimonial home and lived with the petitioner-respondent as husband and wife, but witnesses have admitted in the cross-examination that she is living at her parents' place for a long time and a child was also born at her parents' place. Indeed O.P.W. No.1, Ram Keshwar Ram specifically admitted that she was living at her parents' place for the last 7-8 years and the child was also aged about 4 years. Indeed O.P.W. No.1, Ram Keshwar Ram specifically admitted that she was living at her parents' place for the last 7-8 years and the child was also aged about 4 years. The O.P.W. No.2, Rajdeo Sao, who was the brother of the appellant-wife, has admitted that she was living at her parents' place for about 4 years and the respondent-appellant, who had examined herself as O.P.W. No.5 has clearly stated in her cross-examination that she had no knowledge, as to what was stated in her evidence, brought on record by way of affidavit. Though, in the affidavit, she has supported her case, but in her cross-examination she admitted that she lived at her matrimonial home only for seven days, and the child was born at her parents' place. Coupled with these facts, the attitude of the appellant in this Court to deliberately avoid the D.N.A. Test also supports the claim of the petitioner-respondent that the child is not born out of the wedlock. Learned counsel for the respondent accordingly, submitted that there is no illegality in the impugned judgment and decree, whereby the marriage between the parties was dissolved by a decree of divorce. 11. Having heard learned counsels for both the sides and upon going through the record, we find force in the submission of learned counsel for the respondent. The evidence on record clearly show that the appellant had been residing at her matrimonial place for a long time, during which, a child was also born, and during this period, there appeared to be no connection between both the parties. The attitude of the appellant in avoiding the D.NA Test, though, she had herself agreed for the same in this Court on 16.2.2017, is a circumstance going against her, and supporting the claim of the respondent-husband. We however, purposely avoid to interfere with the finding of the Court below on the issue of adultery, as the suit is decreed on the other ground. 12. In the facts and circumstances of the case, we find no illegality in the impugned judgment and decree dated 1st of March, 2013, passed in Matrimonial Suit No. 23 of 2006, by the learned Principal Judge. Family Court, Palamau at Daltonganj, whereby the marriage between the parties was dissolved by a decree of divorce. 13. There is no merit in this appeal and the same is accordingly, dismissed.