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2021 DIGILAW 355 (JHR)

Jitendra Kumar v. Ankita Sharma @ Thakur

2021-04-06

ANUBHA RAWAT CHOUDHARY, APARESH KUMAR SINGH

body2021
JUDGMENT : Heard learned counsel for the appellant. The respondent-wife has not entered appearance, despite valid service of notice pre-admission and post-admission in this appeal. 2. By the impugned Judgment dated 25.5.2017 and decree dated 2.6.2017, passed by the learned Additional Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 413 of 2016, the learned Addl. Family Court, Dhanbad has dismissed the suit, instituted by the petitioner/appellant-husband for dissolution of marriage with the respondent-wife on the ground of cruelty and desertion and also for not obeying the Judgment dated 18.6.2014 and the decree of restitution of conjugal right dated 25.6.2014, passed against the defendant earlier in Title Matrimonial Suit No. 177 of 2011 by the learned Principal Judge, Family Court, Dhanbad. 3. The respondent, despite valid service of notice and substituted service of notice by publication did not appear before the Family Court and was debarred from filing the written statement in Title Matrimonial Suit No. 177 of 2011, which was decreed ex-parte in favour of the plaintiff-husband for restitution of conjugal rights. 4. The parties had entered into marriage as per Hindu rites and ceremonies on 28.6.2009, as per the case pleaded by the plaintiff-husband. They were leading happy married life at their marital home, but the parents of the defendant wanted him to reside as gharjamai. On 22.3.2011, the defendant left his house with all the belongings and flatly refused to lead a conjugal life with him. Title Matrimonial Suit No. 177 of 2011 was then preferred by the husband for restitution of conjugal right. The plaintiff had filed two affidavits in T.M.S. No. 177/2011 in examination-in-chief. One by his father and the other by himself as P.W.-1 and P.W.-2. Apparently, no appeal was preferred by the defendant wife against the decree of restitution of conjugal rights. The instant O.S. No. 413 of 2016 was instituted against the respondent-wife on the ground of cruelty and desertion and also for not obeying the decree of restitution of conjugal rights, passed against her, in terms of Section 13(1) (i-a)(i-b), (1-A) (ii) of the Hindu Marriage Act, 1955. 5. In the instant suit, plaintiff examined two witnesses. P.W.-1 Kisto Thakur, an independent witness and P.W.-2 the plaintiff himself. 5. In the instant suit, plaintiff examined two witnesses. P.W.-1 Kisto Thakur, an independent witness and P.W.-2 the plaintiff himself. He adduced the certified copy of the judgment passed in Title Matrimonial Suit No. 177 of 2011 as Exhibit-1; Postal receipt, by which, legal notice dated 9th February, 2016 for restitution of conjugal rights was served upon the defendant as Exhibit-2; Photo copy of Railway reservation tickets sent along with legal notice as Exhibit-3; Photo copy of letter dated 21.12.2015, issued by the Additional Principal Judge, Family Court, Patna upon the plaintiff to file show cause regarding deduction of maintenance was adduced as Exhibit-4; Photo copy of the order dated 7.10.2013 passed in Cr. Misc. Case No. 42507 of 2013 was marked as Exhibit-5; Xerox copy of the statement of account of plaintiff was marked as Exhibit-6 and photo copy of the letter bearing Memo No. 82/1(4)/ASN dated 10.2.2017, issued by the Additional District Inspector of School (S.E.), Asansol Sub-Division, Burdwan (WB) was marked Exhibit-7. 6. During the proceedings of the instant suit also the defendant did not appear, despite valid service of notice and the suit was heard ex-parte. Upon consideration of the pleadings on record, learned Additional Principal Judge, Family Court, Dhanbad framed the following issues for consideration: (a) Whether the plaintiff was subjected to cruelty and desertion by the defendant ? (b) Whether the marriage between the plaintiff and the defendant is liable to be dissolved on the ground of cruelty and desertion and also for noncompliance of the order passed by the Court under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights by defendant? 7. Both the plaintiff witnesses stated common facts in their examination-in-chief regarding the date of solemnization of marriage on 28.6.2009. That during her stay at the matrimonial home, she always behaved in a cruel manner with the plaintiff and his family members and ultimately on 21.3.2011, she left her matrimonial home without the consent and knowledge of the plaintiff and his family members. Since then she is residing at her Maika and despite their best efforts, she refused to come back to the matrimonial home. The pleadings relating to a decree of restitution of conjugal rights and service of notice upon the defendant were supported in their evidence in examination-in-chief. Since then she is residing at her Maika and despite their best efforts, she refused to come back to the matrimonial home. The pleadings relating to a decree of restitution of conjugal rights and service of notice upon the defendant were supported in their evidence in examination-in-chief. During Court question, the plaintiff disclosed that the defendant wife had filed C.P. Case No. 3039(C)/2011, under Section 498-A of the I.P.C. against the petitioner-husband, in which, Patna High Court had granted stay in Criminal Miscellaneous No. 42507 of 2013, vide order dated 7.10.2013. The plaintiff also disclosed the fact that the maintenance of Rs. 7,000/-per month has been allowed by the learned Family Court, Patna, in M.P. Case No. 176 of 2012 in favour of wife. Upon consideration of the rival pleadings of the parties, learned Additional Family Court, Dhanbad arrived at a finding that the plaintiff had obtained a decree of restitution of conjugal rights in his favour by not pleading or bringing on record the institution of C.P. Case No. 3039(C)/2011 and M.P. Case No. 176 of 2012 and the order passed therein in favour of the defendant-wife. However, the plaintiff had not gone to bring the defendant to the matrimonial him. He had only sent notices upon her. This showed that the plaintiff had not come with clean hands, rather by suppressing the aforesaid fact had got a decree of restitution of conjugal rights in his favour. Learned Addl. Family Court also held that the plaintiff is guilty of suppression of fact. The living of the defendant separately is justified in M.P. Case No. 176 of 2012. Therefore, the learned Court held that though the decree of restitution of conjugal rights, passed in T.M.S. Case No. 177 of 2011 was not complied, but plaintiff was guilty of matrimonial wrong and desertion leveled against the defendant, so he was not entitled to divorce and the suit was accordingly dismissed ex-parte against the defendant. 8. Learned counsel for the appellant submits that the learned Additional Family Court, Dhanbad has arrived at a presumptuous finding of fact even though the defendant was not appearing to contest the suit or filing a written statement taking any such ground. 8. Learned counsel for the appellant submits that the learned Additional Family Court, Dhanbad has arrived at a presumptuous finding of fact even though the defendant was not appearing to contest the suit or filing a written statement taking any such ground. As a matter of fact the complaint case was instituted by the defendant after institution of the matrimonial suit in the Family Court at Dhanbad for restitution of conjugal rights and after refusal to accept notice. The complaint case was filed making frivolous allegation against the petitioner-husband. The defendant despite valid service of notice and even substituted service of notice failed to contest the Title Matrimonial Suit No. 177 of 2011. The plaintiff had duly served legal notice and sent Railway reservation tickets to her for resumption of matrimonial life in obedience to the decree of restitution of conjugal rights, which she failed to respond to. She never came back to the matrimonial home. Mere pendency of the C.P. Case No. 3039(C)/2011 could not be taken as a reasonable excuse for the defendant not to resume conjugal ties. More so, when she has consciously refused to appear and contest the proceedings in Title Matrimonial Suit No. 177 of 2011 and also in the instant O.S. No. 413 of 2016. Though, the Criminal Miscellaneous No. 42507 of 2013 has been dismissed, vide order dated 8th April, 2017, by the Hon’ble Patna High Court, as nobody had appeared for the petitioner and the opposite party, the C.P. Case continues to linger since the defendant/plaintiff is not coming up for giving evidence. The petitioner has not obtained the decree of restitution of conjugal rights by indulging in connivance with the defendant-wife, which could be a reason to deny the relief in the instant suit on account of taking advantage of his own wrong. However, the other two material facts relating to pendency of C.P. Case No. 3039(C)/2011 and the order passed in M.P. Case No. 176 of 2012, without being pleaded as a ground by the respondent-wife, could not be made a basis to deny the relief to the petitioner, despite non-compliance of decree of restitution of conjugal rights by the defendant, in view of Section 13(1) (1-A) (ii) of the Hindu Marriage Act, 1955. Even if the charge of cruelty and desertion may not be taken as proved on the part of the plaintiff assumingly, the plaintiff is entitled to a decree of divorce on the sole ground available under Section 13(1) (1-A) (ii) of the Hindu Marriage Act, 1955. 9. In the above circumstances, learned counsel for the appellant has placed reliance upon the decision of the Hon’ble Supreme Court in the case of Smt. Saroj Rani Versus Sudarshan Kumar Chadha, reported in (1984) 4 SCC 90 . Relying upon the aforesaid decision he submits that in the absence of any facts pleaded and the allegation made by the wife before the Trial Court or before this Court, the learned Additional Family Court, Dhanbad could not have denied the relief to the plaintiff-husband on the ground that the plaintiff is taking advantage of his own wrong, as per Section 23(1) of the Act of 1955. He submits that the manner in which the respondent has refused to appear and contest the proceedings in Title Matrimonial Suit No. 177 of 2011 and in the instant O.S. No. 413 of 2016 as also in the present appeal is indicative of her complete indifference and disinterest to the matrimonial relationship. 10. Relying upon the decision of the Hon’ble Apex Court in the case of Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511 (Para-101), he submits that such a continuous and persistent negligence of matrimonial relationship on her part without any basis, for a period of ten years by now, would in itself amount to mental cruelty. 11. In such circumstances, considering the long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair; the marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of the marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. It is not necessary that mental cruelty can only be inflicted if the spouses live together. By refusing to sever that tie, the law in such cases does not serve the sanctity of the marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. It is not necessary that mental cruelty can only be inflicted if the spouses live together. Merely by filing of frivolous cases and not prosecuting it for 10 long years and on the other hand refusing to contest the matrimonial suit for restitution of conjugal rights and, thereafter, the instant suit for a decree of divorce are enough reasons to hold that the respondent is no longer interested in maintaining matrimonial ties with the appellant. 12. Based on these submissions and pleadings and materials on record, learned counsel for the appellant has prayed that the instant appeal may be allowed by a decree of dissolution of marriage on the specific ground, available under Section 13(1) (1-A) (ii) of the Hindu Marriage Act, 1955. 13. We have considered the submissions of learned counsel for the appellant and taken into account the relevant material pleadings and evidence, available from the Lower Court Records. We have also perused the impugned judgment and the judgment dated 18th June, 2014, passed in Title Matrimonial Suit No. 177 of 2011, whereby the decree of restitution of conjugal rights was granted in favour of the appellant ex-parte against the respondent. On a careful analysis of the materials available on record, it appears that the plaintiff-husband instituted Title Matrimonial Suit No. 177 of 2011, under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights, on the plea that the respondent left the matrimonial home on 21st March, 2011 without his consent and without any reasonable cause. Title Matrimonial Suit No. 177 of 2011 was allowed and decreed in his favour without any contest, despite valid service of notice and even substituted service of notice upon the respondent. The respondent despite service of legal notice did not resume conjugal ties. It does not appear that the judgment and decree passed in Title Matrimonial Suit No. 177 of 2011 was subjected to any challenge by her. The respondent despite service of legal notice did not resume conjugal ties. It does not appear that the judgment and decree passed in Title Matrimonial Suit No. 177 of 2011 was subjected to any challenge by her. Plaintiff-husband, thereafter instituted the instant O.S. No. 413 of 2016 seeking divorce on multiple grounds of cruelty and desertion and also for not obeying the decree of restitution of conjugal rights passed against her earlier, under Section 13(1) (i-a)(i-b), (1-A) (ii) of the Hindu Marriage Act, 1955. The defendant again did not contest the suit, despite valid service of notice. Admittedly, she did not take any plea based upon institution of C.P. Case No. 3039(C)/2011 or institution of M.P. Case No. 176 of 2012 for living separately from the petitioner-husband as a reasonable excuse for leaving the matrimonial home. 14. The learned Additional Family Court, Dhanbad, however, took these two factors against the plaintiff-husband to hold that he had obtained the decree of restitution of conjugal rights by suppression of facts. As it appears from the submission of learned counsel for the appellant, the C.P. Case No. 3039(C)/2011 was instituted after the institution of Title Matrimonial Suit No. 177 of 2011 by the plaintiff-husband. The C.P. Case No. 3039(C)/2011 instituted with allegation under Section 498-A of the IPC, is said to be pending. There was no finding of the competent court of criminal jurisdiction before the learned Addl. Family Court, Dhanbad to the effect that the allegations of cruelty in marriage made in the C.P. Case No. 3039(C)/2011 were found to be true against the plaintiff-husband. Mere institution of a criminal case under Section 498-A of the IPC could or could not be a reasonable ground for leaving the matrimonial home depending upon the facts and circumstances of each case. The respondent had not chosen to raise any such plea based upon the pendency of C.P. Case No. 3039(C)/2011 against the plaintiff-husband. On the other hand respondent by refusing to contest the Title Matrimonial Suit No. 177 of 2011 or the instant O.S. No. 413 of 2016 consciously waived her right to take any such plea. In the instant appeal, the respondent has chosen not to appear and contest despite valid service of notice twice. In terms of Section 23 of the Hindu Marriage Act, 1955, no party can be allowed to take advantage of his own wrong. In the instant appeal, the respondent has chosen not to appear and contest despite valid service of notice twice. In terms of Section 23 of the Hindu Marriage Act, 1955, no party can be allowed to take advantage of his own wrong. Section 23(2) further provides that before proceeding to grant any relief under this Act, it shall be duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. The respondent by refusing to appear in the instant appeal has precluded the Court from making any such endeavour to bring about reconciliation between the parties. As a matter of fact by not only refusing to resume conjugal ties in obedience of the decree of restitution of conjugal rights and further by not contesting the instant O.S. No. 413 of 2016 and the present appeal, respondent has created an impression that she is not interested in maintaining the conjugal ties with the plaintiff-husband. In the absence of any contest by the respondent, it is not proper to draw an inference that the plaintiff is taking advantage of his own wrong. What wrong could it be, in itself, is a matter of question and speculation. The plaintiff, on the other hand appears to be pursuing his remedies lawfully, while the respondent has chosen not to appear and contest. 15. However, we are not in a position to render any finding on the ground of cruelty and desertion on the basis of the materials on record. As submitted by learned counsel for the appellant, CP case is pending since the complainant/respondent is not appearing for evidence. However, on the ground of non-compliance of the decree of restitution of conjugal rights in terms of Section 13(1-A) (ii) of the Hindu Marriage Act, 1955, in the light of the facts and circumstances discussed above, there is no reason why a decree of dissolution of marriage should not be granted in his favour. We do not find any disentitling grounds to deny the relief to the appellant, under Section 13(1-A) (ii) of the Hindu Marriage Act, 1955. 16. Accordingly, the appeal is allowed. We do not find any disentitling grounds to deny the relief to the appellant, under Section 13(1-A) (ii) of the Hindu Marriage Act, 1955. 16. Accordingly, the appeal is allowed. The impugned Judgment dated 25.5.2017 and decree dated 2.6.2017, passed by the learned Additional Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 413 of 2016 are, hereby, set aside. The marriage between the parties stands dissolved on the ground of failure on the part of the respondent to comply the decree of restitution of conjugal rights by the respondent-wife, in terms of Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955. 17. Decree accordingly. 18. Let the lower court records be returned to the court concerned.