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2019 DIGILAW 270 (JHR)

Susen Bhandari v. Tumpa Bhandari @ Lata Bhandari

2019-01-28

B.B.MANGALMURTI, D.N.PATEL

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JUDGMENT B.B.Mangalmurti, J. - Heard learned counsel for the appellant and learned counsel for the respondent. 2. This appeal has been preferred by the appellant-husband whose matrimonial suit was dismissed by the court below. 3. Aggrieved by the judgment dated 30 th June, 2016 and the decree following thereto dated 14th July, 2016 passed by Principal Judge, Family Court, Dhanbad, instant appeal has been filed. 4. The short fact of the case is that appellant-Susen Bhandari married with respondent-Tumpa Bhandari @ Lata Bhandari on 5th May, 2001, who started living as husband and wife at village Laheria, Kalubathan, P.S. Nirsa, District-Dhanbad and two children were born. It was alleged that respondent-wife is a characterless lady having illicit relationship with Bibhishan Bhandari and due to which she does not want to live with the appellant. She used to blackmail the appellant and also subjected him to cruelty. On 16th May, 2008, she left the house of appellant without his consent and since then she is living at her Maike and refused to return to her matrimonial home. The further case is that appellant went to bring her back then respondent and his in-laws abused, assaulted and respondent refused to accompany him and deserted the appellant since 16th May, 2008. In this situation, suit for dissolution of marriage was filed on the ground of cruelty, desertion and involvement in illicit relationship. 5. The respondent appeared and contested the suit by filing written statement and took the plea that in order to save himself from the case instituted against the appellant under Section 498A of the Indian Penal Code being Nirsa P.S. Case No.85 of 2006, instant case has been filed. She denied the allegation of illicit relationship with Bibhishan Bhandari. Actually, the respondent was ousted from her matrimonial house due to nonfulfillment of demand of additional dowry consisting money and a motorcycle. She was never approached by the appellant for her return to the matrimonial home. 6. The court below framed the following issues in the suit :- (i) Is the suit maintainable in its present form? (ii) Is there any illicit relation of the respondent with one Bibhishan Bhandari? (iii) Whether the respondent treated the petitioner with cruelty by her objectional behaviour? (iv) Whether the petitioner treated the respondent with cruelty for dowry of cash amount and motor- cycle? (ii) Is there any illicit relation of the respondent with one Bibhishan Bhandari? (iii) Whether the respondent treated the petitioner with cruelty by her objectional behaviour? (iv) Whether the petitioner treated the respondent with cruelty for dowry of cash amount and motor- cycle? (v) Whether the petitioner is entitled to get the decree of dissolution of marriage? (vi) Whether the petitioner is entitled to get any other relief? 7. In order to prove their respective case, three witnesses were examined from the side of petitioner/appellant whereas three witnesses were examined on behalf of respondent. The court below on scrutiny of evidence found that adulterer Bibhishan Bhandari has neither been made as party respondent nor any circumstances were proved to show that the respondent-wife was having illicit relationship with Bibhishan Bhandari. The court below found that the respondent was ousted from her matrimonial house by the petitioner/husband for nonfulfillment of demand of dowry and admittedly he brought her back on 2nd February, 2008 after compromise arrived at in a criminal case lodged against him. Thus, the allegation of illicit relationship of respondent with Bibhishan Bhandari was not held to be proved. 8. The other ground of cruelty was also decided against the petitioner/appellant on the ground that the respondent was living outside from her matrimonial house under compulsion as she was not being allowed by the petitioner to live with him under the same roof, although after compromise they were living together. 9. The allegation that respondent deserted the petitioner from 16th May, 2008 was also not found proved as the petitioner/appellant has himself admitted during his evidence that respondent was brought back to his house after compromise of the criminal case and thereafter she remained there for three and half months. From 16th May, 2010, they were on litigating terms. The court below found that after compromise of the criminal case, the respondent returned to her matrimonial home on 2nd February, 2008, but, she was ousted by the petitioner-husband from the matrimonial house on 16th May, 2008 and since then she is living in her Maike. Therefore, desertion by the respondent-wife was also not found proved. The respondent was ready to live and want to continue conjugal life with the petitioner-husband, but, it was appellant who refused to allow her to join his company. So the separation was not voluntary act of respondent. Therefore, desertion by the respondent-wife was also not found proved. The respondent was ready to live and want to continue conjugal life with the petitioner-husband, but, it was appellant who refused to allow her to join his company. So the separation was not voluntary act of respondent. The court also found that petitioner has filed suit for dissolution of marriage on the ground that respondent deserted the petitioner on 16th May, 2008 and the suit was filed on 16th June, 2008 i.e. after one month of the alleged date of desertion, but, according to Section 13(1)(ib) of Hindu Marriage Act the marriage can be dissolved by decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two year immediately preceding the presentation of the petition. Thus, the suit was not brought within the statutory mandate of the Sections. Therefore, this issue was also decided against the husband and the court found that the grounds taken by the petitioner has not been proved and held that the petitioner-husband is not entitled to a decree of divorce and the court below dismissed the suit. 10. We have perused the evidences on record and the depositions of the witnesses. We have also perused their cross examination, wherein they have failed to prove the adultery by the respondent with Bibhishan Bhandari. On the contrary, looking to the evidences on record, it appears that there was a cruelty on the part of the appellant by way of demand of dowry. However, the case was compromised. Nonetheless, the fact remains that every compromise presumes existence of dispute. Looking to the evidences on record, the ground of cruelty is not proved by this appellant. The learned trial court has properly evaluated the evidences on record and has rightly arrived at a conclusion for dismissing the divorce application being Matrimonial Suit No.321 of 2008 preferred by this appellant vide judgment dated 30th June, 2016. 11. As a cumulative effect of the aforesaid facts and circumstances of the case, it appears that this appellant has failed to prove adultery by the respondent as well as this appellant has failed to prove the desertion by the respondent. 12. 11. As a cumulative effect of the aforesaid facts and circumstances of the case, it appears that this appellant has failed to prove adultery by the respondent as well as this appellant has failed to prove the desertion by the respondent. 12. In view of the aforesaid evidences on record, we are of the opinion that no error has been committed by the learned Principal Judge, Family Court, Dhanbad while deciding Matrimonial Suit No.321 of 2008 vide judgment dated 30th June, 2016. We also see no reason to take any other view than what is taken by the learned trial court 13. Hence, there being no substance, this appeal is hereby, dismissed.