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2018 DIGILAW 2377 (JHR)

Dulal Mandal v. Renu Mandal

2018-10-26

APARESH KUMAR SINGH, RATNAKER BHENGRA

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JUDGMENT : RATNAKER BHENGRA, J. 1. This appeal has been preferred against the judgment and decree dated 17.10.2012 and 1.12.2012 respectively passed by the Principal Judge, Family Court, East Singhbhum. Jamshedpur in Matrimonial Suit No. 105 of 2006 whereby and where under the learned court below has been pleased to dismiss the Suit brought by the appellant against the respondent u/s 13(ia) of the Hindu Marriage Act, 1955. 2. The case of the petitioner now appellant herein is that the marriage of the appellant was solemnized with the respondent on 19.2.1995 as per Hindu rites and customs at the residence of the father of the respondent at Potka, P.S. Potka, East Singhbhum. They lived together as husband and wife at petitioners’ house situated at Mandirpath, Shivnagar, Kadma, Jamshedpur till 15.5.2006. They were blessed with two daughters namely Nandita Mandal aged about 10 years and Shanta Mandal aged about 5 years. Petitioner is the only son of his parents. After few day of marriage respondent insisted the petitioner to live separately from his parents, which the petitioner denied and therefore respondent began to torture the petitioner mentally by using filthy words and inhuman behavior. Father of the petitioner died on 17.12.2001 due to ill behavior of the respondent. Respondent threatened to commit suicide on opposing her bad habit and finally she left the matrimonial house on 15.5.2006. Petitioner tried to satisfy the respondent in various ways but failed and therefore he filed suit for a decree of divorce. 3. The respondent appeared and contested the suit by filing a written statement alleging interalia that the present suit is not maintainable in law and on facts and it is barred by principles of waiver, estoppel and acquiescence. The respondent admitted that the marriage was solemnized with the petitioner and birth of two daughters from their wedlock. She further alleged that petitioner in connivance with his mother and sister tried his level best to drive out the respondent with her children form her in laws house. They completely deprived her from proper help, amenities and essential needs like food and cloths. She denied giving threats to the petitioner. Lastly respondent said that she had filed a petition under section 24 of the Act claiming maintenance and life time expenses. On such ground, prayer was made by the respondent for dismissal of the suit. 4. They completely deprived her from proper help, amenities and essential needs like food and cloths. She denied giving threats to the petitioner. Lastly respondent said that she had filed a petition under section 24 of the Act claiming maintenance and life time expenses. On such ground, prayer was made by the respondent for dismissal of the suit. 4. On the basis of pleadings of the parties, following issues were framed for adjudication of the suit: (i) Whether the suit is maintainable in the present form? (ii) Whether the applicant has cause of action for the present suit ? (iii) Whether the respondent has treated the applicant with cruelty ? (iv) Whether the applicant is entitled to the relief’s as claimed ? 5. In support of his case, appellant had produced and examined altogether five witnesses. They are PW-1 Dulal Mandal, the appellant himself, PW-2 Smt. Niyati Mandal, mother of the appellant, PW-3 Sushant Mandal, brother-in-law of the appellant, PW-4 Smt. Shanti Ghua and PW-5 Rameshwar Sharma. 6. Respondent on the other hand, had also produced and examined five witnesses namely R.W.-1 Smt.Renu Mandal, the respondent herself, R.w.-2 Smt. Shanti Ghosh, R.W. 3 Sushant Mandal, R.W.4 Dasrath Mandal and R.w.5 Nandita Mandal. 7. Appellant also exhibited certain documents. Ext.1 is the certified copy of informatory petition no. 135/2004, Ext.1/a the certified copy of order sheet of informatory petition no. 135/2004, Ext.2 is the office carbon copy of C/1 case no. 1593/2005, Ext. 2/a is the certified copy of order sheet of C/1 case no. 1593 of 2005, Ext. 2/b is the carbon copy of petition filed in C/1 case no. 1593 of 2005, Ext.3 is the report submitted by the police in Misc. case no. 81 of 2007,Ext.4 is the affidavit sworn by the opposite party, Ext.5 to 5/b are three letters written to S.P., Ext. 6 and 6/a are letters written to Kadma P.S., Ext.7 is the office copy of letter written to S.P.,Ext.8 is the informatory petition, Ext.9 is the affidavit dated 19.10.2005, Ext. 10 is the application given to Kadma P.S. by the signature of Nandita Mandal and Ext.11 and 11/1 are two original photographs. 8. 6 and 6/a are letters written to Kadma P.S., Ext.7 is the office copy of letter written to S.P.,Ext.8 is the informatory petition, Ext.9 is the affidavit dated 19.10.2005, Ext. 10 is the application given to Kadma P.S. by the signature of Nandita Mandal and Ext.11 and 11/1 are two original photographs. 8. P.W.-1 Dulal Mandal the petitioner himself, fully supported the entire material averments made in his plaint admitting that their marriage was solemnized on 19.2.1995 and out of the said wedlock two daughters were born who are now aged about 12 and 7 years. After few days of his marriage the respondent asked him to provide a separate residence to which he objected. Thereafter, she began to torture the appellant mentally by using filthy language and her behavior was inhuman towards him and his mother. They called for a meeting of friends and relatives in which she gave assurance that she will not repeat such type of behavior but all went in vain. He further stated that she was in habit of neglecting him and his parents as a result, the father of the appellant died on 17.12.2001. She leads her life according to her own choice and threatened to commit suicide for opposing her for her bad habits. She was residing in a separate room as per her desire and on 15.5.2006 she left the matrimonial house without his consent after threatening him that if within one month her demands will not be fulfilled then he and his other family members will face dire consequence. She never cared for his mother who was aged about 64 years. He further stated that the respondent had on several occasions beaten his mother and she used to show her chappal to his mother. Due to mental torture by the respondent his life became miserable and thus he had filed a suit for decree of divorce. He had proved informatory petition No. 135/2004 and also the order sheet of this case which have been marked as Exts 1 and 1/a. This witness had also proved the carbon copy of the complaint petition of complaint case no. 1592 of 2005 and its certified copy of order sheet and the carbon copy of the petition dated 20.3.2007 which have been marked as Exts 2 to 2/b. He has proved the certified copy of the report submitted by the police in Misc. 1592 of 2005 and its certified copy of order sheet and the carbon copy of the petition dated 20.3.2007 which have been marked as Exts 2 to 2/b. He has proved the certified copy of the report submitted by the police in Misc. Case No. 81/2007 marked as Ext.3, the affidavit sworn by the respondent marked as Ext.4, the leter written to S.P. has been marked as Ext.5 to 5/b, the letter which has been written to Kadma Police Station is marked as Ext.6 and 6/a and also the office copy of the letter written to the S.P. has been marked as Ext.7. In his cross-examination he deposed that his wife always used to abuse him but he had not written the date of this incident in his affidavit. In para 48 he deposed that since 15.5.2006 he stopped to live as husband and wife and is now living separately. 9. PW-2 Smt. Niyati Mandal is mother of the petitioner. She had fully supported the case of her son. In her cross-examination she deposed that since the last five years the respondent along with her children was living in the same house separately and her son is taking food with her since the last two years. She deposed that it is not a fact that she and her son tortured the respondent mentally and physically. She further stated that her daughter- in-law is living separately since the death of her husband. 10. P.W.-3 Sushant Mandal is the brother in law of the petitioner. He had fully supported the case of the petitioner. He deposed that it is not a fact that he had made the affidavit and the informatory petition at the instance of his brother-in-law. He further deposed that the respondent lives in two rooms attached with kitchen and verandah and his mother in law lives in the unit of three rooms. 11. P.W.-4 Smt. Shanti Guha is the neighbor of the petitioner. She had also fully supported the case of the petitioner. In her examination-in-chief she had stated that on 2.9.2008 at 9 a.m. when she went to the house of the petitioner to meet his ailing mother then in front of her the respondent was abusing her mother-in-law in filthy language and also slapped her. She had also fully supported the case of the petitioner. In her examination-in-chief she had stated that on 2.9.2008 at 9 a.m. when she went to the house of the petitioner to meet his ailing mother then in front of her the respondent was abusing her mother-in-law in filthy language and also slapped her. In her cross-examination she deposed that there was a quarrel right in front of her and in this incident the respondent had beaten her mother-in-law but the mother of the petitioner did not beat the respondent. 12. P.W.-5 Rameshver Sharma is the carpenter who had also supported the case of the petitioner. In his evidence he had stated that the respondent did not give respect to her mother-in-law and her husband and she abused them in filthy language. In para-7 of his cross-examination he deposed that he does not know about the case of the petitioner. 13. On the other hand on behalf of the respondent, respondent R.W.1 Renu Mandal herself stated in her deposition that she is the legally wedded wife of the petitioner and after the marriage she is living in the house of the petitioner continuously along with her children under the same roof and she never lives separately. She further deposed that her husband along with his mother lived in three big rooms and she along with her children lived in a small room. After the death of her father-in-law her mother-in-law and her husband tortured her mentally and physically since the year 2001 and demanded dowry. Due to said torture she had to file a case. In her cross- examination she further deposed that since the year 2006 no talk had taken place between her and her husband and also with her mother-in-law. She further deposed that she filed a case of dowry bearing case no. 443 of 2007 on 15.5.2009 and due to this the petitioner cut off her water line and after attaching the same she withdrew the case on 29.6.2009. She also deposed that she filed a case u/s 498A of the IPC and that it is not correct that after filing of this divorce case she had filed the aforesaid case u/s 498A IPC. She also deposed that she filed a case u/s 498A of the IPC and that it is not correct that after filing of this divorce case she had filed the aforesaid case u/s 498A IPC. 13-A. R.W.2 Smt. Shanti Ghosh, is the Secretary of Disharia Mahila Samitee, Bhatia Basti Kadma she had supported the entire contention of the respondent mentioned in the application dated 15.2.2003 filed by the respondent and marked the same as Ext.A. She had also proved the application dated 8.1.2004 filed by the respondent Renu Mandal which had been marked as Ext.A/1.This witness has also proved the original application dated 5.6.2005 filed by Renu Mandal which has been marked as Ext.A/2. 14. R.W.3 Sushant Mandal is the cousin of the petitioner and he had fully supported the contentions of the respondent mentioned in her written statement. He deposed that due to close relationship the petitioner regularly visited his house since the year 2005 and therefore the petitioner had illicit relationship with his wife. Whenever he went out from his house for doing his job at Adityapur, the petitioner co-habited with his wife. He further stated that still the petitioner has illicit relationship with his wife. 15. R.W.-4 is Dasrath Mandal who knew both the parties. He said he along with other members of Panchayati of Mandal Samaj had gone to the house of Dulal Mandal. When they reached there they saw that Renu Mandal was living in a small room of the house of Dulal Mandal along with her two children as she has been ousted from the family. He further stated that on the consent of both parties it was settled that from today Renu Mandal will live together with petitioner. However, after some time he was informed by the father of Renu Mandal that as before Renu is living separately in that small room along with her two children and the petitioner and his mother are living together. He further stated that the husband and the mother-in-law of the respondent did not permit Renu enter into the kitchen and no one was talking with her. 16. R.W. 5 is Nandita Mandal is the daughter of the petitioner and the respondent. She deposed that she and her younger sister along with her mother lived in the house of her father. She further deposed that the petitioner always behaved with her mother and to them very rudely. 16. R.W. 5 is Nandita Mandal is the daughter of the petitioner and the respondent. She deposed that she and her younger sister along with her mother lived in the house of her father. She further deposed that the petitioner always behaved with her mother and to them very rudely. In para 10 she deposed that her father had taken her to Kolkata in February 2012 with an inducement that he will give her best education but after few days she came to know about the intention of her father that he was inducing her to leave her mother. In her cross-examination this witness had approved her signature endorsed on the application given to Kadma P.S. about the information regarding assaulting to her by her mother, which has been marked as Ext10. Regarding this application this witness has stated that her signature was taken by her father forcibly on the said application. This witness has also proved two photographs of one relative’s marriage where this witness had gone, which has been marked as Ext. 11 to 11/1. She had further stated that she had given a note written by her in the police station that she is going to her mother on her own choice. She further deposed that she is living separately from her father since that time when she was studying in 6th standard. She further stated that she and her mother have no relation with her father and further stated that her mother always tried to talk with her father but her father never talked with her mother. 17. ARGUMENTS ON BEHALF OF APPELLANT:- Learned counsel for the appellant submitted that Dulal Mandal, the petitioner in the court below now the appellant herein has submitted that his marriage was solemnized on 19.2.1995 and out of the wed lock two daughters have been born. After few days of his marriage, the respondent his wife had asked him to provide a separate residence for living however he had objected to the same and because of his refusal to do so, she began to torture the appellant mentally. She used dirty language against his mother and her treatment towards her was inhuman. With the help of friends he tried to settle the matter and she agreed that she would not commit such behavior however, it was all in vain. She used dirty language against his mother and her treatment towards her was inhuman. With the help of friends he tried to settle the matter and she agreed that she would not commit such behavior however, it was all in vain. Counsel for the appellant has further stated that because of her behavior and the neglect committed by her towards the parents the father of the appellant died on 17.12.2001. On admonishing her regarding her rude behaviour she threatened to commit suicide. Counsel further said that the respondent herein never cares for his mother and had beaten her and also used to threaten her by showing her slippers to his mother. His mother is a very old lady and therefore such kind of behavior takes a heavy toll on her health. Finally, on 15.5.2006 she had left the matrimonial house as per her desire and running her own life and, therefore, inflicting further cruelty upon him and his mother. Counsel for the appellant further submitted that appellant had also filed an informatory petition in the court below dated 13.7.2004 marked as Ext.1 which was also accepted by the court and marked for further reference which is marked as Ext.1/a. Counsel for the appellant also submitted that a Misc. Case no. 81/2007 was filed by Smt. Niyati Mandal, mother of the appellant against his wife, the respondent herein. The police personnel concerned in this Misc. case no. 81 of 2007 had recommended for taking action under section 107 IPC vide order dated 27.1.2007. He has also argued that they have made many communications to the police authorities, the superintendent of the police of the district as well as to the Kadma Police Station against the acts of the respondent-wife. Counsel for the appellant concluded by saying for all the aforesaid acts including the evidences that have been pointed out by him the act of cruelty is surely made out by the wife-respondent against her husband-appellant and therefore, the instant appeal filed by the appellant should be allowed by this court. 18. Counsel for the appellant concluded by saying for all the aforesaid acts including the evidences that have been pointed out by him the act of cruelty is surely made out by the wife-respondent against her husband-appellant and therefore, the instant appeal filed by the appellant should be allowed by this court. 18. ARGUMENTS ON BEHALF OF RESPONDENT:- Learned counsel for the respondent on the other hand said that all the accusations made by the appellant- husband are in fact concocted and are not credible and not at all reliable rather it is the respondent-wife who is the wronged person in the case and there is ample cogent evidence to prove her case and as such the appeal should not be allowed by this court. Counsel submitted that though she is the legally wedded wife of the appellant and she is living with her children and she had never lived separately, however she has been confined along with her children in a small room in the back. Her husband, the appellant has along with his mother occupied space consisting of big rooms in the front of the house. This has put them to tremendous inconvenience because it is in the back of the house and therefore to have access to the front she will have to go through the front room. Counsel has submitted one can very well imagine the discomfort the growing daughters who are nearly in their adulthood would face in such a confined room or space which three females had to share together. Counsel for the respondent has further submitted that after the death of her father-in-law the behavior of the appellant and the mother-in-law was very distressing and she was physically and mentally tortured since the year 2001 and they have also demanded for dowry and for the non-fulfilment of such dowry they have also further abused her. Counsel has also pointed out at one instance the appellant had cut her water supply. She has also filed a case against the appellant u/s 498 A of the Indian Penal Code because of the harassment and torture meted out to her on the grounds of cruelty. Counsel further submitted that since the year 2006, there has been no talk or communication between her and her husband and neither with her mother-in-law. She has also filed a case against the appellant u/s 498 A of the Indian Penal Code because of the harassment and torture meted out to her on the grounds of cruelty. Counsel further submitted that since the year 2006, there has been no talk or communication between her and her husband and neither with her mother-in-law. Counsel for the respondent said that such a situation has only arisen because the husband has started mistreating the respondent along with the children. The extent of cruelty can be seen that he has not even cared for his children who were growing up and their mental and physical development and education were surely disturbed. At least he should have had regard for her children rather than confining them in such cramped space of one room along with the respondent. Counsel for the respondent further pointed out that from the evidence of RW-2 Shanti Ghosh who is the Secretary of Disharia Mahila Samitee it is amply made out by reading her deposition that the onus of the disruption due to cruelty and harassment squarely lies on the husband as well as to a considerable extent upon the mother-in-law. This can be made out from the evidence as marked as Ext.A Counsel for the respondent also points out that the unspeakable behavior of the appellant is also clearly made out from the evidence of RW-3 who has very painfully described the situation in which appellant has tried to break up the family of R.W.-3 by initiating illicit relationship with his wife and also manipulating the situation in such a manner that he can continue with his illicit relationship. Counsel says from the evidence of RW-3 it appears that this illicit relationship is also of immense cruelty on the part of the appellant as against the respondent–wife and it is absurd that he had filed a petition for divorce on the ground of cruelty. FINDINGS: 19. Having gone through the records of the case, the depositions and the arguments of both counsels it is seen that prayer has been made for divorce on the ground of cruelty. FINDINGS: 19. Having gone through the records of the case, the depositions and the arguments of both counsels it is seen that prayer has been made for divorce on the ground of cruelty. The appellant-husband has raised certain wrongs against the respondent-wife such as using filthy language; her behavior was inhuman against his mother; she was in habit of neglecting his parents and that she had threatened to commit suicide and also she never cares for his own mother in general and she had beaten his mother and even showed slippers to her and that she was residing in a separate room as per her desire since 1.8.1995, but nowhere appellant has been able to establish all the accusations he is making in detail. His allegations are of general nature and there is no significant incident in the general allegations he has made and therefore he has not been able to give any dates to any such incidence and the corresponding time of such incidence. He has even said that the respondent had on several occasions beaten his mother and even showed her slippers to his mother, but there is no mention of single date or corresponding time of the said incidence. Therefore, even his informatory petition and his many complaints to the superintendent of police or even to the Kadma police station have not been of much use. Appellant has also argued that she has left his company and started living in a separate room in the matrimonial house, however from the evidence of the respondent it is the reverse, rather she had been confined in a separate room in the back side of the house and rather it is the appellant or the husband who himself is responsible for imposing such situation upon his wife and two daughters in the house. 20. Of particular relevance is the evidence of his own daughter who is RW-5 Nandita Mandal and she has deposed that the appellant has always behaved with her mother vey rudely and all the time the mother had made no response to such behaviour. She in her deposition stated that she is living separately with her mother and younger sister in the same house. She in her deposition stated that she is living separately with her mother and younger sister in the same house. In the house there are five rooms and in front there are three big rooms in which her father and her grandmother live and she along with her sister and mother live in the inner singular room. From her evidence it is absolutely clear that appellant is not even treating the daughters with care and love which is the right of young children. This only demonstrates the extent to which the appellant is able and willing in inflicting cruelty against his wife and children. The daughter in her evidence also stated that appellant is always scolding her mother and he treats her as a servant. One can very well imagine the pain and hurt that the wife must be undergoing by such harsh words of her husband who is meant to be a companion for life. Therefore, from the evidence of the daughter of the appellant itself it is made out that rather than cruelty meted out by the respondent it is the husband himself who is responsible for imposing heaps of cruelty upon the wife and his two daughters and it is absurd that he could even think of seeking divorce on the grounds of cruelty from his wife. 21. The other important evidence which speaks volumes against the appellant, in fact against the very character of the appellant and also exposes his unspeakable behavior is the evidence of RW-3 Sushant Mandal who has deposed that he is the cousin brother of the appellant and he has deposed that the appellant developed intimacy with his wife because they were related and started illicit relationship. This witness has deposed how the situation was so created and manipulated that he was offered a job in the city away from his home, thereby giving ample time for the appellant to visit his house of and on to continue his illicit relationship with his wife. The evidence of this witness is surely painful and at the same time disgusting. It is shocking that the appellant can think of alleging cruelty against his wife for seeking divorce on the same grounds while indulging in such unspeakable illicit behavior towards his own close relative. He not only gave hurt and pain to RW-3 but also to his own wife. 22. It is shocking that the appellant can think of alleging cruelty against his wife for seeking divorce on the same grounds while indulging in such unspeakable illicit behavior towards his own close relative. He not only gave hurt and pain to RW-3 but also to his own wife. 22. Therefore, based on the aforesaid reasoning and in the facts and circumstances the judgment and decree dated 17.10.2012 and 01.12.2012 respectively passed by the Principal Judge, Family Court, East Singhbhum, amshedpur in Matrimonial Suit No. 105 of 2006 whereby he has been pleased to dismiss the said matrimonial suit of the appellant is sustained and upheld. 23. Accordingly, the instant appeal stands dismissed. Aparesh Kumar Singh, J. – I agree.