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2023 DIGILAW 915 (JHR)

Sanjit Kumar v. Manju Devi

2023-07-21

DEEPAK ROSHAN, RONGON MUKHOPADHYAY

body2023
JUDGMENT : 1. Heard Mr. Mukesh Kumar, learned counsel for the appellant and Mr. Shashank Shekhar, learned counsel appearing for the respondent. 2. This appeal is directed against the judgment dated 31.08.2019 and decree dated 11.09.2019 passed by Sri Peeyush Kumar, learned Principal Judge Family Court, Bokaro in Original Suit No. 53 of 2017, whereby and whereunder the suit preferred by the appellant for dissolution of marriage u/s 13(1)(i-b) of the Hindu Marriage Act, 1955 has been dismissed. 3. For the sake of convenience both the parties are addressed as per their party position in the court below. 4. A suit was preferred by the petitioner (appellant herein) being Original Suit No. 53 of 2017 u/s 13(1)(i-b) of the Hindu Marriage Act, 1955, in which, it has been stated that the marriage between the petitioner and Manju Devi (respondent herein) was solemnized on 06.03.1987 at Sahebganj according to the Hindu rites and customs. Out of the said wedlock two children were born; a son namely Shashang Anurag who is aged 26 years and a daughter namely Smita Anurag aged about 28 years. Since the petitioner was treated with cruelty by his wife he had filed a suit for dissolution of marriage u/s 13(1)(i-b) of the Hindu Marriage Act, 1955 being Title Suit (Mat) No. 46/2002 after which the family members of both the sides interfered and subsequently the suit was dismissed as withdrawn on 05.01.2003 on account of a withdrawal petition filed by the petitioner. 5. It has been stated that the respondent however did not mend her ways and continued to treat the petitioner with cruelty including resorting to physical assault which constrained the petitioner to once again file a suit for dissolution of marriage u/s 13(1) (i-a), (i-b) and (1A) of the Hindu Marriage Act, 1955. The said suit being Title (Mat) Suit No. 92/2003 was dismissed by the learned Principal Judge, Family Court, Bokaro vide judgment dated 04.05.2013. After the dismissal of Title (Mat) Suit No. 92/2003, the petitioner approached the respondent for settlement and to start a fresh lease of life as a couple but the respondent was adamant and refused to live with the petitioner. After the dismissal of Title (Mat) Suit No. 92/2003, the petitioner approached the respondent for settlement and to start a fresh lease of life as a couple but the respondent was adamant and refused to live with the petitioner. The petitioner had thereafter filed another suit being Title (M) Suit No. 58/2014 for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1959 in which the respondent had filed a written statement refusing to resume conjugal life with the petitioner. It has been stated in the plaint that in spite of the best efforts made by the petitioner to save his marriage but on account of the adamant attitude and cruel behavior of the respondent there is no chance to revive the marital ties. It has been stated that the petitioner and the respondent are living separate since 2003 and the petitioner is regularly paying monthly maintenance to the respondent. As per the petitioner the marriage has irretrievably broken down and the respondent has abandoned the petitioner without any cause or reasonable excuse. 6. The respondent on being noticed had appeared and filed her written statement in which inter-alia she has stated that the petitioner is in the habit of filing cases on one pretext or the other. The petitioner had earlier filed a suit being Title Suit (Mat) No. 46/2002 while the petitioner and the respondent were living happily with each other. The said suit was withdrawn but subsequent thereto another suit was filed being Title (Mat) Suit No. 92/2003 which was dismissed on 04.05.2013. The petitioner had also filed a suit for restitution of conjugal rights vide Title (M) Suit No. 58/2014 which was withdrawn by the petitioner. It has been stated that the present suit is barred u/s 11 CPC. The grounds which have been taken by the petitioner in the present suit have already been adjudicated upon in the earlier suit. 7. Based on the pleadings of the parties the following issues were settled: (i) Whether the suit is maintainable in its present form? (ii) Whether the petitioner has valid cause of action for the suit? (iii) Whether the respondent (wife) neglected the petitioner (husband) after marriage and by deserting him has been living separately and whether the petitioner (husband) is entitled to get a Decree of dissolution of marriage on the basis of Section-13 (1) (ib) of the Hindu Marriage Act, 1955? (ii) Whether the petitioner has valid cause of action for the suit? (iii) Whether the respondent (wife) neglected the petitioner (husband) after marriage and by deserting him has been living separately and whether the petitioner (husband) is entitled to get a Decree of dissolution of marriage on the basis of Section-13 (1) (ib) of the Hindu Marriage Act, 1955? (iv) Whether the respondent has been subjected to cruelty by the petitioner (husband) for demand of dowry and ousted her from her matrimonial home? (v) Whether the petitioner is entitled to get the relief as prayed for? 8. One issue was recast on 08.03.2018 which is as follows: (i) Whether this suit is barred by res-judicata or not? 9. It has been submitted by Mr. Mukesh Kumar, learned counsel for the appellant that the learned court below had committed an error of law while coming to the conclusion that the issue in the suit was a substantial issue in the earlier suit (TMS No. 92/2003) and, therefore, the present suit is barred by the principles of res-judicata. The issue of desertion is a continuous process and any subsequent suit on the ground of desertion cannot cause impediment only on account of desertion being the primary ground in the earlier suit. Mr. Mukesh Kumar has submitted that in fact desertion was never an issue in the earlier suit which would further dissipate the findings of the learned court below. 10. Mr. Shashank Shekhar, learned counsel appearing for the respondent has referred to the cause of action as enumerated in the plaint. While submitting that there is no separate cause of action which would distinguish the grounds taken in the earlier suit regarding dissolution of marriage, he has further stated that in fact in order to initiate a fresh cause of action the suit was preferred by the petitioner u/s 9 of the Hindu Marriage Act, 1955 though for reasons best known to him the said suit was withdrawn. It has been submitted that no separate cause of action has been mentioned regarding desertion and the same is barred by the principles of res-judicata. 11. In order to appreciate the rival contentions, the evidence adduced by both the sides have been looked into. It has been submitted that no separate cause of action has been mentioned regarding desertion and the same is barred by the principles of res-judicata. 11. In order to appreciate the rival contentions, the evidence adduced by both the sides have been looked into. PW-1 is the petitioner himself who has stated about his marriage having been solemnized with the respondent on 06.03.1987 as per Hindu rites and customs and the birth of two children out of the said wedlock. On account of the cruelty meted out to the petitioner he had filed a suit for dissolution of marriage being Title (M) Suit No. 46/2002 but since a settlement was arrived at due to the intervention of the family members the said suit was withdrawn by him. Even after withdrawal of the suit the cruel behavior of the respondent towards the petitioner continued which constrained the petitioner to once again file a suit for dissolution of marriage which was registered as Title (Mat) Suit No. 92/2003 which was however dismissed vide judgment dated 04.05.2013. It has been stated that after the dismissal of the suit the petitioner had approached the respondent to resume their conjugal life but she flatly refused which led the petitioner to institute a suit for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955 being Title (M) Suit No. 58/2014. The respondent had filed a written statement in which she has specifically stated that she does not want to stay with the petitioner. The petitioner had tried his level best to reestablish conjugal relationship with the respondent but due to the adamant attitude of the respondent he could not succeed. He has also stated that from the year 2003 the respondent without any cogent reasons had refused to perform her marital obligations. In cross-examination, he has deposed that he had filed three cases against the respondent. He has stated that Title (Mat) Suit No. 92/2003 was filed on the ground of desertion and cruelty. Since the respondent refused to stay with him, he had filed the case. He has admitted about having knowledge that the hairs of the respondent were exhibited in Title (Mat) Suit No. 92/2003 but the same is not true as he had not pulled the hair of his wife. Even if the respondent refuses to accept the maintenance amount he would still pray for a divorce. He has admitted about having knowledge that the hairs of the respondent were exhibited in Title (Mat) Suit No. 92/2003 but the same is not true as he had not pulled the hair of his wife. Even if the respondent refuses to accept the maintenance amount he would still pray for a divorce. PW-2 (Mahadeo Ram Barnwal) has stated that he knows both the petitioner and the respondent. He has stated about the cases filed by the petitioner against the respondent. The respondent from the year 2003 has kept herself separate from the petitioner without any rhyme or reason. In cross-examination, he has deposed that he had already given evidence twice in the cases instituted by the petitioner; once in a case of maintenance and the other in the suit for restitution of conjugal rights. PW-3 (Ratan Kumar) is the brother of the petitioner. He has stated about the cases instituted by the petitioner. He has supported the contentions of the petitioner. In cross-examination, he has deposed that he is aware that his brother had earlier filed a suit for divorce being Title (Mat) Suit No. 92/2003 in which he had given evidence. The said case was filed on the grounds of cruelty. In Title (Mat) Suit No. 92/2003 his brother has not alleged desertion against the respondent. He and his younger brother had gone to the house of the respondent on 30.06.2013 and 30.09.2013 for a compromise but the respondent refused to talk with them and also did not even open the door. 12. The respondent has also examined three witnesses including herself. RW-1 (Manju Devi) is the respondent who has denied the allegations leveled against her by the petitioner. She in her examination-in-chief has primarily concentrated on the evidence adduced by the witnesses in Title (Mat) Suit No. 92/2003. She has also stated that the petitioner did not make any attempts to restore the matrimonial ties and that the petitioner has solemnized marriage with another woman with whom she is residing at present. In cross-examination, she has stated that her daughter stays with her at Adarsh Cooperative. Her daughter is posted at SBI, Sector-XII branch. The last time she had gone to her matrimonial house was in 2003 or 2004. She had never complained anywhere about her husband’s illicit relationship with another woman. In cross-examination, she has stated that her daughter stays with her at Adarsh Cooperative. Her daughter is posted at SBI, Sector-XII branch. The last time she had gone to her matrimonial house was in 2003 or 2004. She had never complained anywhere about her husband’s illicit relationship with another woman. She has stated that the petitioner in course of the proceeding in Title (M) Suit No. 58/2014 had stated about his desire to take her back but she did not agree. The house constructed at Adarsh Cooperative was a joint effort by the petitioner and herself as she had also invested money for the same. She has stated that it is a fact that the petitioner had taken loan for the purposes of construction of the house. RW-2 (Smita Anurag) is the daughter of the petitioner and the respondent. She in her examination-in-chief has stated that earlier to the present suit her father had instituted Title (Mat) Suit No. 92/2003 for dissolution of marriage on the grounds of cruelty and desertion which was dismissed in the year 2013. The present suit and the earlier suit were based on false and concocted allegations. Her father had never treated her mother, herself and her sibling in a proper manner. Till the time her father resided with them, he used to assault her mother and documents in support of such assault were already exhibited in Title (Mat) Suit No. 92/2003. She has stated that the present suit has been filed by her father to shield himself from the maintenance case instituted by her mother. Neither her father nor any other person had tried to resume the marital ties between her parents during the pendency of Title (Mat) Suit No. 92/2003. She has stated that whenever she had tried to converse with her father, he distanced himself by saying that for him his entire family is dead and asking them not to trouble him mentally. In cross-examination, she has deposed that Quarter No. B-1/5 in Sector-V was allotted to her by SBI. She resides in her quarter physically and she stays alone. Her father is staying separate from them since the year 2004. She has stated that her mother is given Rs. 8,000/- per month for her maintenance by her father. Her mother was not ready to go with her father even after institution of the suit for restitution of conjugal rights. She resides in her quarter physically and she stays alone. Her father is staying separate from them since the year 2004. She has stated that her mother is given Rs. 8,000/- per month for her maintenance by her father. Her mother was not ready to go with her father even after institution of the suit for restitution of conjugal rights. In the suit instituted in the year 2003 her mother had given in writing her desire to stay with her father. The last time her parents resided together was in 2004. As of now, she does not have any soft corner for her father. She has deposed that it is a fact that for the last 13 years there was no marital or social bonding between her parents. RW-3 (Shashank Anurag) is the son of the appellant and the respondent. He has stated in his examination-in-chief that his father had instituted Title (Mat) Suit No. 92/2003 to seek dissolution of marriage with his mother on the grounds of desertion and cruelty. After the dismissal of the said suit his mother stopped getting the maintenance allowance. After his mother had filed Maintenance Suit No. 111/2013 seeking maintenance his father had filed a suit for restitution of conjugal rights. The present suit has been filed by his father after he had withdrawn Title (M) Suit No. 58/2014. It is clear from the cases instituted by his father that he treats his mother not as a human being but as an object. His father has already solemnized another marriage with another woman with whom he is residing. In cross-examination, he has deposed that his parents are staying separate for the last 15 years. He works as an IT professional in Bangalore. At present his father remits Rs. 8,000/- per month as maintenance to her mother. He does not know with whom his father had solemnized a second marriage. He does not remember as to whether his mother had expressed her desire to stay with his father in any of the written statements submitted by her. 13. The petitioner has filed the following documents: Exhibit-1, certified copy of order dated 22.12.2016 passed in TMS No. 58/14 by the court of Principal Judge, Family Court, Bokaro. Exhibit-2, certified copy of order dated 14.06.18 passed in Maintenance Suit No. 111/2013 by the court of Principal Judge, Family Court, Bokaro. 13. The petitioner has filed the following documents: Exhibit-1, certified copy of order dated 22.12.2016 passed in TMS No. 58/14 by the court of Principal Judge, Family Court, Bokaro. Exhibit-2, certified copy of order dated 14.06.18 passed in Maintenance Suit No. 111/2013 by the court of Principal Judge, Family Court, Bokaro. Exhibit-3, certified copy of petition and affidavit filed for withdrawal of TMS No. 58/14 before the court of Principal Judge, Family Court, Bokaro. Marked-X for identification, certified copy of written statement with affidavit filed in TMS No. 58/14 by the respondent. 14. The respondent has also placed reliance on several documents as well which have been marked in the following manner: Exhibit-A, certified copy of judgment and Decree of TMS No. 92/2003 dated 04.05.2013 and its Decree dated 12.05.2013. Marked-Y, Xerox copy of certified copy of plaint of TMS No. 92/2003. Marked-Y/1, Xerox copy of certified copy of written statement of TMS No. 92/2003. Marked-Y/2, Xerox copy of certified copy of deposition of Smita Anurag deposed in TMS No. 92/2003. Marked-Y/3, Xerox copy of certified copy of deposition of Sanjit Kumar deposed in TMS No. 92/2003. Marked-Y/4, Xerox copy of certified copy of deposition of Shashank Anurag deposed in TMS No. 92/2003. Marked-Y/5, Xerox copy of certified copy of deposition of Manju Devi deposed in TMS No. 92/2003. Marked-Y/6, Xerox copy of certified copy of plaint of TMS No. 58/2014. Marked-Y/7, Xerox copy of certified copy of written statement of TMS No. 58/2014 and Marked-Y/8, Xerox copy of certified copy of application petitioner under order 23, Rule 1 of C.P.C. for withdrawal of TMS No. 58/2014. 15. The petitioner and the respondent appear to have adopted an endless path of litigation, the appellant being by far the dominant force in such litigation as we comprehend from a narration of the factual aspects. It is not in dispute that the marriage between the petitioner and the respondent was solemnized on 06.03.1987 and from the said wedlock two children were born; Smita Anurag and Shashank Anurag. The turbulence in the marital ties was first reflected when the petitioner filed a suit for dissolution of marriage being Title Suit (Mat) No. 46/2002 which however was withdrawn as according to the petitioner interference by family members restored some semblance of sanity between both the sides. The turbulence in the marital ties was first reflected when the petitioner filed a suit for dissolution of marriage being Title Suit (Mat) No. 46/2002 which however was withdrawn as according to the petitioner interference by family members restored some semblance of sanity between both the sides. However, it seems that such restoration was short lived as in close proximity to the earlier suit the petitioner preferred another suit for dissolution of marriage being Title (Mat) Suit No. 92/2003 which was dismissed on 04.05.2013. This was followed by a suit for restitution of conjugal rights preferred by the petitioner being Title (M) Suit No. 58/2014 which was withdrawn by the petitioner and finally the present suit was instituted. 16. The suits preferred by the petitioner were interspersed with a maintenance case filed by the respondent. 17. The primary issue for dismissal of the present suit as held by the learned court below is the same being barred by the principles of res-judicata as the issues in the present suit were already a substantial issue in Title (Mat) Suit No. 92/2003. Confronted with such finding, we have visited the judgment dated 04.05.2013 passed in Title (Mat) Suit No. 92/2003 which has been marked as Exhibit-A. The issues framed in the said suit were the following: (i) Is the suit maintainable in its present form? (ii) Whether the suit is barred by law of limitation provisions of estoppel and waiver? (iii) Whether the plaintiff is entitled to get the decree of divorce against the defendant? (iv) Whether the plaintiff is entitled to get other relief or reliefs? 18. Though no specific issue with respect to cruelty and desertion have been framed but the tenor of allegations, the evidence led and the provisions of law enunciated clearly demonstrate that divorce had been sought for on the grounds of desertion and cruelty. 19. In the suit which is the subject matter of the present appeal is concerned, it was dismissed on the grounds of res-judicata. The allegations of desertion and cruelty cannot be static as the same is of a continuous nature and would not obliterate the desire of the aggrieved party to institute a fresh suit provided the same emits a new cause of action. The allegations of desertion and cruelty cannot be static as the same is of a continuous nature and would not obliterate the desire of the aggrieved party to institute a fresh suit provided the same emits a new cause of action. The learned court below seems not to have considered as to whether a fresh cause of action has arisen necessitating the institution of a fresh suit and simply on account of cruelty and desertion being an issue in the earlier suit had dismissed the present suit on the ground of res-judicata. Any fresh cause of action has to be considered on its own merits and whether the same would be a justifiable cause for coming to a conclusion on what was previously decided depends on the facts and circumstances of the present case. 20. What we gather from the facts of the present case and the evidence led is that after dismissal of Title (Mat) Suit No. 92/2003 the petitioner had approached the respondent in order to put an end to the conflicts in their marital life and start a new inning. On the refusal of the respondent a suit was preferred by the petitioner for restitution of conjugal rights which was withdrawn. In the said suit a written statement was filed by the respondent in which she had refused to resume her conjugal life with the petitioner. These developments post the judgment passed in Title (Mat) Suit No. 92/2003 has been construed by the petitioner to be a fresh cause of action thus reviving his plea for divorce. 21. The explanation to Section 13(1)(i-b) of the Hindu Marriage Act, 1955 reads as follows: 13. Divorce: (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party: (i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty. (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. 22. Desertion, therefore, can be, (a) without any reasonable cause and without the consent of the petitioner and (b) against the wish of such party. (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty. (i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. 22. Desertion, therefore, can be, (a) without any reasonable cause and without the consent of the petitioner and (b) against the wish of such party. For a deserting spouse, the two factors which are of utmost relevance are (a) the fact of separation (factum deserendi) and (b) the intention to desert (animus deserendi). The person seeking a divorce has to prove both in order to succeed in his endeavor to secure a divorce and this has to be juxtaposed with absence of consent from the deserted spouse and absence of reasonable cause for the deserting spouse to sever all ties. 23. Desertion is of a continuous nature. The fact of separation in the present case is not disputed. The petitioner however has failed to prove that intention to desert was in absence of a reasonable cause. The fresh cause of action enumerated by the petitioner in his desire to resume his conjugal life is reflected in the suit preferred u/s 9 of the Hindu Marriage Act, 1955 and the resistance put to such effort in the written statement of the respondent wherein she had truncated such proposal by her refusal. The suit preferred by the petitioner u/s 9 of the Hindu Marriage Act, 1955 seems to be in order to create a fresh cause of action and a stepping stone to his desire to get the marriage dissolved. The intention of the petitioner manifests itself on lifting the veil. Refusal on the part of the respondent to resume conjugal life with the petitioner cannot be construed to be a willful desertion on the part of the respondent if considered in the backdrop of the judgment dated 04.05.2013 passed in Title (Mat) Suit No. 92/2003 as the brutality with which the respondent was treated by the petitioner has been clearly noted. In fact, in Title (Mat) Suit No. 92/2003 a reverse finding has been given to the effect that it was the petitioner who had treated the respondent with cruelty and absence of instituting any criminal case by the respondent against the petitioner further enhances the unwillingness of the respondent to resume her marital ties. 24. In fact, in Title (Mat) Suit No. 92/2003 a reverse finding has been given to the effect that it was the petitioner who had treated the respondent with cruelty and absence of instituting any criminal case by the respondent against the petitioner further enhances the unwillingness of the respondent to resume her marital ties. 24. The issue of cruelty as raised by the petitioner also seems to be interconnected with the plea of desertion. Non resumption of marital life by the respondent according to the petitioner indicated the adamant attitude and cruel behavior of the respondent. As noted earlier in Title (Mat) Suit No. 92/2003 the petitioner had failed to prove cruelty and no such instance has been cited by the petitioner post the judgment dated 04.05.2013 which would enliven such act as alleged. The petitioner has failed to prove desertion as well as cruelty on the part of the respondent and while we disagree with the conclusion arrived at by the learned court below that the suit is barred by the principles of res-judicata, nonetheless we dismiss the appeal based on the findings recorded above. 25. This appeal, therefore, stands dismissed.