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2018 DIGILAW 681 (JHR)

Anjana Devi v. Raju Rana

2018-03-26

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the appellant. Despite the fact that twice notices were effected upon the respondent/husband, he has chosen not to appear and contest the appeal 2. This appeal, by the aggrieved wife, is directed against the judgment dated 30.11.2014 passed by the learned Principal Judge, Family Court, Bokaro in Matrimonial Suit No. 286 of 2013, whereby the marriage between the parties has been dissolved at the instance of the husband/respondent herein. The consequent decree is dated 11.12.2014. 3. The case of the petitioner/husband was based on the allegations of adultery against the wife. As per the pleadings contained in the plaint, the parties entered into marital knot on 10.5.1995 as per Hindu rites and customs. They lived together at Chas, Bokaro and were blessed with four children. He has a dwelling house at Chas where one Rakesh Kumar son of Chandra Prakash Vimal of Village-Kura Nawada, Post-Punpun, P.S.-Parsa Bazar, District-Patna was living as renter and was preparing for competitive examination of Banks, Railways etc. and also working part time in the department of M.V.I. Petitioner’s old mother is half blind due to old age. The children used to go to their school at 9.30 a.m. and return home at 4 p.m. The petitioner also used to leave house for work at 10 a.m. and return home after 5.30 p.m. It is alleged that his wife and the tenant Rakesh Kumar got into illicit relationship. The opposite party also started giving slow poison in his food which resulted in deterioration of his health. The children knew about it but were threatened not to tell it to any one otherwise she would leave them. The neighbours and others also saw the illicit relationship but the applicant did not believe their statements. On 11.05.2012, he suddenly returned from his work to take a file of G.R. Case No. 502 of 2009 which he had forgotten. On entering his house he saw his wife and the renter bathing in the same bath room without any clothes. Thereafter, the tenant ran away. The children were off to school. The tenant did not return through whole of the day but in the next morning he found he had left the house along with his wife who started living with him. He has further alleged theft of Rs. 60,000/-. Thereafter, the tenant ran away. The children were off to school. The tenant did not return through whole of the day but in the next morning he found he had left the house along with his wife who started living with him. He has further alleged theft of Rs. 60,000/-. Despite information given to the parents and brother of the opposite party, they did not take any action and left her. Therefore, he has sought dissolution of marriage on the ground of adultery for which cause of action arose on 11.05.2012. 4. Lower court records were summoned at the time of admission of the appeal. From the lower court records, learned counsel for the appellant has placed the entire order sheet of the proceedings in the Title Matrimonial Suit to support his submission that no service of notice was effected in the eye of law upon the opposite party/wife. He has also pointed out that the address of the wife given in the plaint is not of her parental home but that of the said Rakesh Kumar of Village-Kura Nawada, post-Punpun, P.S.-Parsa Baza, Dist-Patna (Bihar). He has further pointed out that due to non-delivery of notice as per the endorsement of the postal peon as no such address Kura Nawada was found, the registered cover was returned. Petitioner requested the learned court for service of notice though paper publication. Vide order dated 29.1.2014 though the learned court directed the plaintiff to file a draft of notice for paper publication in the Newspaper at his own cost and posted the matter on 10.03.2014, no such draft notice was filed on or before that date on the part of the plaintiff. Instead, the order sheet shows that respondent had entered attendance through a lawyer and filed written statement along with power (vakalatnama). Both parties were directed to remain physically present on the next date. The order sheet thereafter reveals that respondent had remained unrepresented throughout till conclusion of the trial as a result the trial court had proceeded ex-parte from 11.08.2014. The examination-in-chief on behalf of all the plaintiff witnesses were filed on affidavit and were discharged as there was no representation on behalf of the respondent. The order sheet thereafter reveals that respondent had remained unrepresented throughout till conclusion of the trial as a result the trial court had proceeded ex-parte from 11.08.2014. The examination-in-chief on behalf of all the plaintiff witnesses were filed on affidavit and were discharged as there was no representation on behalf of the respondent. Learned counsel for the appellant has also pointed out from the body of the written statement and the vakalatnama filed in support thereof that the written statement is filed with signature of the respondent/wife in Hindi while the vakalatnama shows her signature in English. The averments made in the written statement at para 1(d) to the effect that the respondent will have no objection if divorce is granted in favour of the applicant as she is living with Rakesh Kumar peacefully and happily is an improbable story brought from her side by evil machinations on the part of the husband who himself is an advocate in the said court. Even if the averment at para 1(d) is believed, this would make out a case of divorce by mutual consent where no trial is needed. However, learned counsel for the appellant specifically asserts that this written statement was not filed by the wife/appellant herein. It is a subject matter of enquiry which would establish fraud having been played on the court. The manner in which the petitioner/husband has got statements from the daughter of the respondent/wife even elicited to support the case of adultery against her, all create a serious doubt on the case of the petitioner and the way in which the proceedings of the learned court were manipulated by him. The appellant has been living with her brother at the address given in the memo of appeal at Jamui. Learned counsel for the appellant, therefore, prayed for setting aside of the impugned judgment and decree and for remand of the matter to the learned family court for fresh trial after giving due opportunity to the appellant to contest the same. 5. We have considered the submissions of learned counsel for the appellant; gone through the lower court records and also perused the impugned judgment. The materials on record show certain peculiar features of the case. i. Petitioner alleges adultery against his wife but surprisingly fails to implead the adulterer in the suit in the absence of which the plea of adultery could not be adequately examined. The materials on record show certain peculiar features of the case. i. Petitioner alleges adultery against his wife but surprisingly fails to implead the adulterer in the suit in the absence of which the plea of adultery could not be adequately examined. Even otherwise, also, the person with whom the adulterous relationship has been alleged being stigmatic in nature, ought to have been impleaded as party to contest such allegations in consonance with principle of natural justice and fair play. ii. Further the petitioner/husband deliberately gives the address of the wife as that of the adulterer and not of her parental home where her father and other relatives reside. In that way impleadment of the defendant/wife with an incorrect address could be a deliberate act probably to avoid proper service of notice. iii. The notice issued upon the defendant/wife returned with the report of the postal peon that there is no such place as Kura Nawada and, therefore, the notice could not be effected. iv. Petitioner makes an overture before the learned court to effect service of notice though paper publication as registered cover notice has been returned unserved. However, despite specific direction contained in order dated 29.1.2014, no such draft of notice for publication in the Newspaper was filed. On the very next date, the defendant/wife is shown to have filed attendance through her lawyer and also filed written statement with vakalatnama. The written statement bears the signature of the defendant in Hindi whereas the vakalatnama filed on her behalf shows her signature in English. v. On 10.3.2014 the court directs both the parties to remain physically present on the next date for re-conciliation i.e. on 31.3.2014. However, from the very next date itself till the end of the trial no one filed attendance on behalf of respondent nor she is shown to have appeared. Learned court proceeds ex-parte after six dates of her non-appearance on 11.8.2014. The trial commences thereafter and all the statements of the plaintiff’s witnesses on examination-in-chief are filed on affidavit. Since defendant/wife was not represented and the proceedings were ex-parte all these P.Ws were discharged without any cross-examination or any questions put by the court also. vi. After conclusion of the plaintiff’s witnesses on 14th September, 2014 case was put up for ex-parte argument on 16.11.2014 and judgment was reserved. 6. Since defendant/wife was not represented and the proceedings were ex-parte all these P.Ws were discharged without any cross-examination or any questions put by the court also. vi. After conclusion of the plaintiff’s witnesses on 14th September, 2014 case was put up for ex-parte argument on 16.11.2014 and judgment was reserved. 6. The learned family court in the impugned judgment has referred to the case of the plaintiff as made out in the plaint and also the stand of the respondent/wife as contained in her written statement. The learned family court further also takes note of her stand that she does not want to live with her husband and she has no objection if the divorce is granted. 7. Statement of all the plaintiff’s witnesses P.W. 1 Prakash Hari, P.W. 2 Suresh Prasad, P.W 3 Asha Devi, P.W. 4 Anita Sharma, P.W. 5 Raju Rana, (petitioner) and P.W. 6 Bindu Bharti made in chief, have been taken note of to arrive at a conclusion that P.W. 1, 2, 3, 4 and 6 all have fully corroborated the petitioner in their respective examination-in-chief. P.W. 6, the daughter of the respondent has also supported the case of the petitioner that her mother was leading adulterous life with aforesaid Rakesh Kumar who was a tenant in her father’s house. Based on these discussions, pleadings of the parties and the statements of the plaintiff’s witnesses, the learned family court renders a finding on issue no. 1, 3 and 4 inter alia;- (i) Whether this suit is maintainable in its present form? (ii) Whether the respondent is indulged in adultery and she is still living with one Rakesh Kumar? (iii) Whether the plaintiff is entitled to get relief or reliefs as prayed for? That the suit is maintainable and that petitioner has a valid cause of action and is entitled for the relief prayed for. The suit is decreed in favour of the petitioner ex-parte by dissolving the marriage between the parties. 8. The peculiar features which have been observed from the materials on record leave an impression that in the first place there is no material to show that there was any effective service of notice on the opposite party wife/appellant herein. The suit is decreed in favour of the petitioner ex-parte by dissolving the marriage between the parties. 8. The peculiar features which have been observed from the materials on record leave an impression that in the first place there is no material to show that there was any effective service of notice on the opposite party wife/appellant herein. The defendant/wife suddenly appears from no where on 10.3.2014, files her written statement supported by a vakalatnama both of which carry signatures in different languages Hindi and English respectively and, thereafter, vanishes without any clue or reason. Even the advocate of the defendant/wife does not file any attendance on her behalf thereafter and the case proceeds ex-parte since 11.08.2014. The entire sequence of events since her appearance whether real or purported on 10.3.2014 creates an element of grave doubt as to the manner in which the defendant’s appearance or her disappearance was ensured. It may be a subject matter of enquiry by the learned family court to find whether a fraud was played upon it in the background facts and circumstances referred to above. 9. If the defendant in her written statement categorically stated that she had no objection to a divorce with the petitioner, since she was living with Rakesh Kumar peacefully and happily, this admission alone could have been sufficient for the petitioner to seek a decree in his favour. Unfortunately, none of the witnesses whose statements in chief have been filed on affidavit could be examined by the defendant/wife nor were any question asked by the learned court to test their veracity. The statements made in the examination-in-chief alone became the evidence to substantiate the allegations made by the petitioner in his plaint. 10. We, therefore, feel that the whole concept of fair trial has suffered in the process. We cannot shut our eyes to these revealing peculiarities of the present case and uphold the impugned judgment guided by the averments made by the defendant/wife in her written statement and the statements made in examination-in-chief on behalf of plaintiff’s witnesses. We are, therefore, of the view that the impugned judgment and decree deserves to be set aside. It is accordingly set aside. The matter is remanded to the learned Principal Judge, Family Court, Bokaro to proceed with the trial afresh. We are, therefore, of the view that the impugned judgment and decree deserves to be set aside. It is accordingly set aside. The matter is remanded to the learned Principal Judge, Family Court, Bokaro to proceed with the trial afresh. It would be open for the learned family court to enquire into the allegations of fraud in order to arrive at a proper finding thereupon. The learned family court would endeavor to conclude the proceedings expeditiously and preferably within a period of six months from the date of receipt of a copy of this order. 11. Appeal stands allowed. Decree accordingly.