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2024 DIGILAW 973 (JHR)

Priya Pandey, W/o Vivek Dwivedi v. Vivek Dwivedi, S/o Sachhidanand Dwivedi

2024-11-27

PRADEEP KUMAR SRIVASTAVA, RONGON MUKHOPADHYAY

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JUDGMENT : Rongon Mukhopadhyay, J. Heard Mr. Sheo Kumar Singh, learned counsel for the appellant and Mr. Hemant Kr. Shikarwar, learned counsel for the respondent. 2. This appeal is directed against the judgment and decree dated 28.01.2023 (decree signed on 02.02.2023) passed by Shri Alok Kumar Dubey, learned Principal Judge, Family Court, Bokaro in Original Suit No. 527 of 2022, whereby and whereunder, the suit preferred by the respondent herein has been allowed and the marriage between the parties have been dissolved. 3. For the sake of convenience both the parties are referred to in this judgment as per their status before the learned Trial Court. 4. The petitioner/husband (respondent herein) had filed a suit for dissolution of his marriage with the respondent/wife (appellant herein) u/s 13(1) (i) (ia) (ib) of the Hindu Marriage Act, 1955, wherein it has been stated that the marriage between the petitioner and the respondent was solemnized on 29.05.2019 as per Hindu Rites and Customs at Sector-V Club in Bokaro. The parties do not have any issue out of the said wedlock. The petitioner is an Engineer who works in Pune while the respondent is the daughter of a Police Inspector who is a spoiled woman with fits of anger and a prickly nature and she works in a private firm in Bangalore. After the marriage was solemnized, the petitioner had taken the respondent to Pune on 05.06.2019 and on 08.06.2019, the respondent left for her workplace at Bangalore. It has been stated that post-marriage the families of the petitioner as well as the respondent wanted the respondent to leave her job at Bangalore and take up a job at Pune and the sister and brother-in-law of the respondent had arranged for a job for the respondent at Pune but the respondent postponed taking a final decision on one pretext or the other. The respondent had stayed with the petitioner for a day on 20.07.2019 when she had come to meet her mother who had come to Pune to meet her other daughter Ranu Pathak and son- in-law Prem Pathak. The petitioner had arranged for a job for the respondent having a good salary and had also prepared the respondent for the written test and the respondent qualified in the exam and since the interview was to be held online the respondent left for Bangalore. The petitioner had arranged for a job for the respondent having a good salary and had also prepared the respondent for the written test and the respondent qualified in the exam and since the interview was to be held online the respondent left for Bangalore. However, when the HR of the Company had called the respondent on several occasions for the interview she deliberately did not pick up the phone. The respondent wanted to stay in Bangalore and she used to reside with a roommate in PG Hostel and she became addicted to drugs at the behest of her roommate. It has been stated that the respondent stopped conversing on phone with the petitioner. In August, 2019 the respondent had gone to Nandi Hills on a motorcycle and since the petitioner was worried he had called the respondent several times but she did not pick up the phone and in the evening the respondent called up the petitioner on phone and on a furious note she stated that she is an independent person having her own desires and is not shackled by any bindings. The respondent conducted herself as per her whims and she did not listen to anyone. It has further been stated that on 12.10.2019 which was the birthday of the respondent the petitioner had purchased gifts and wanted to surprise the respondent for which he had gone to the PG Hostel of the respondent along with her brother and was shocked to see drugs scattered in her room. The petitioner expressed his desire to spend some time with the respondent but she refused and she did not even heed the advice of her mother, brother, sister and brother-in-law and misbehaved with the petitioner forcing the petitioner to leave for Pune. In the year 2019, during Chhath Puja the respondent after much persuasion from her family members agreed to come to Bokaro and on 30.10.2019 the petitioner and the respondent came to Bokaro and on 04.11.2019 the respondent left for her parents place in spite of efforts made by the family members of the petitioner that bedai can be done only on an auspicious time. In November, 2019, the petitioner put pressure upon the respondent to come and reside with him at Pune after leaving her job at Bangalore but she refused. In November, 2019, the petitioner put pressure upon the respondent to come and reside with him at Pune after leaving her job at Bangalore but she refused. In the meantime, the respondent had a quarrel with her roommate who disclosed about the taking of drugs and her other misadventures to the petitioner and the family members of the respondent. In December, 2019, the parents and sister as well as the brother-in-law of the respondent put pressure upon the respondent to leave the Company of a male colleague who used to take drugs and come to Pune but she refused and ultimately the mother of the respondent went to Bangalore and forced her to resign and started keeping a watch over the respondent. The respondent was of the belief that such act of her mother was instigated by the petitioner for which the petitioner was subjected to threats and abuses by the respondent. After much persuasion the respondent agreed to come to Pune. On 05.02.2020 the respondent came to Pune and within two days her parents came but the respondent distanced herself from others and shrieked at the petitioner whenever he came close to her. When the petitioner left for his office the respondent started smoking two packets of cigarette a day and also started taking cannabis which forced the petitioner to stop giving cash to the respondent. The respondent had expressed her intention to consume liquor which the petitioner permitted on the condition that the respondent should take liquor inside the house. The relation between the petitioner and the respondent improved to some extent and she started taking care of the petitioner. In the first week of March the respondent refused to stay at Pune and started insisting of going to Bangalore to stay with her friends. On 16th of March just prior to the lockdown the family members of the petitioner had come to Pune to see a prospective bridegroom for his sister but the respondent misbehaved with them and the family members of the petitioner left Pune on 17.03.2020. As the lockdown started availability of cigarette and liquor became scarce which angered the respondent and she started torturing the petitioner resulting in the petitioner spending his nights on the Sofa. As the lockdown started availability of cigarette and liquor became scarce which angered the respondent and she started torturing the petitioner resulting in the petitioner spending his nights on the Sofa. It has been stated that in May, 2021 the respondent became unconscious at which the family members of the respondent disclosed that the respondent suffers from such bouts and they advised administering Glucose to the respondent. When the respondent woke up in the morning she complained of chest pain and in spite of there being a lockdown the Hospital authorities after much persuasion from the petitioner admitted the respondent but at night the petitioner received a telephonic call from the Hospital in which it was stated that the respondent is refusing to get admitted in the Hospital and is throwing tantrums. On being advised by the father of the respondent the petitioner at his own risk took the respondent home. In May, 2020, the respondent after quarreling with her mother cut her hand at various places with a blade and she was somehow extended treatment with the assistance of a local compounder. When the entire episode was narrated by the petitioner to his parents as well as the parents of the respondent, the respondent become furious and wanted to go to her parents place with a caveat that if she is not sent she will commit suicide. On 04.06.2020 the respondent was sent to her parents place by flight and she took with her all her valuables including ornaments. In spite of the best efforts made by the petitioner and his family members the respondent refused to return to her matrimonial house. On 13.11.2020 the ornaments and other valuables of the respondent kept in the locker of SBI Sector-IV Branch were taken out by the petitioner and handed over to the uncle, brother-in-law and cousin brother of the respondent. It has been stated that on 31.05.2022 the brother of the respondent had called the petitioner over phone and threatened him of dire consequences if the petitioner does not leave his parents and his job and stay with the respondent at Bangalore. This information was given to the S.P., Bokaro and Officer-in- Charge of Sector-VI P.S. had called the father of the respondent and the petitioner and directed the father to have the bedai of his daughter which was flatly refused. This information was given to the S.P., Bokaro and Officer-in- Charge of Sector-VI P.S. had called the father of the respondent and the petitioner and directed the father to have the bedai of his daughter which was flatly refused. The petitioner on 08.06.2022 had filed a case for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955 and on receiving notice the relatives of the respondent came and said that the respondent will neither appear in Court nor will she go to her matrimonial house. When the petitioner became sure that the respondent will never resume her matrimonial life with the petitioner he had withdrawn the suit. 5. The respondent in spite of publication of notice did not appear and the suit proceeded exparte. 6. On the basis of the materials available on record the following points of determination were formulated for adjudication of the suit. (i) Is the suit maintainable in its present form ? (ii) Whether the petitioner has valid cause of action for the suit ? (iii) Whether the respondent (Wife) has subjected the petitioner (Husband) to mental and physical cruelty after marriage ? (iv) Whether the respondent (Wife) deserted her husband (Petitioner) since last two years prior to filing of the suit and is entitled to get a Decree of dissolution of marriage on the basis of Section- 13 (1) (i) (ia) (ib) of the Hindu Marriage Act, 1955? (v) Whether the petitioner is entitled to get the reliefs as prayed for ? 7. The petitioner has examined three witnesses in support of his case including himself. 8. P.W.1 (Vivek Dwivedi) is the petitioner who has stated about solemnization of his marriage with the respondent on 29.05.2019 as per Hindu Rites and Customs and after marriage the respondent resided at his house at Sector-VI for six days. The respondent works in Bangalore while he has a private job in Pune and since the respondent earns a much higher salary she always looked down upon him. The respondent is an arrogant lady who used to frequently abuse him. He has stated that on 05.06.2019 both had gone to Pune where after staying for 1-2 days the respondent left for her workplace at Bangalore. The respondent is an arrogant lady who used to frequently abuse him. He has stated that on 05.06.2019 both had gone to Pune where after staying for 1-2 days the respondent left for her workplace at Bangalore. His family as well as the family of the respondent wanted the respondent to leave her job at Bangalore and search for a job at Pune and for this purpose his father had purchased a flat at Pune. He had taken initiative to secure a job for the respondent at Pune and though the respondent had given her written test but she did not participate in the interview. In reality, the respondent did not want to leave Bangalore as she stayed in a PG Hospital and was involved in taking drugs along with her roommate. In the month of August, 2019, the respondent had gone with her friends to Nandi Hills on motorcycle and when he showed his concern the respondent curtly told him that whatever she likes she will indulge herself as per her choice. On 12.10.2019, which was the birthday of the respondent the petitioner had wanted to give a surprise for which he took a flight from Pune and when he reached the PG Hostel of the respondent along with her brother he found drugs scattered in her room. He had expressed his desire to spend some time with the respondent but she refused and by abusing him asked him to leave the Hospital and being crestfallen he came back to Pune. He has stated that his family members wanted him and the respondent to join in the Chhath Puja celebration at Bokaro and after much persuasion the respondent agreed but after staying for three days at Bokaro she insisted for going to her parents place and after creating a scene she left for her parents place along with her father on 04.11.2019. The respondent indulged in taking drugs at Bangalore and the frequency had increased which was confided to him by the roommate of the respondent and he had communicated such information to the family members of the respondent. After much persuasion by the mother of the respondent she resigned from her job and she was kept under observation. The respondent indulged in taking drugs at Bangalore and the frequency had increased which was confided to him by the roommate of the respondent and he had communicated such information to the family members of the respondent. After much persuasion by the mother of the respondent she resigned from her job and she was kept under observation. On 05.02.2020 the respondent on account of the pressure of her family members had come to Pune and though he tried to reason with the respondent to stay properly but the respondent used to keep a distance and shrieked at him whenever he came near her. The respondent started having two packets of cigarette a day and also started having cannabis and when he stopped giving her cash she insisted of having liquor. He had agreed to such demand only on the condition that the respondent should take liquor in the house and not too frequently. For a few days the respondent behaved herself but again she started insisting of going to Bangalore to stay with her friends. On 16.03.2020 when his parents had come to Pune to find a boy for his sister the respondent misbehaved with them due to which they left for Bokaro on the next day itself. In the meantime lockdown started and there was an embargo on liquor and cigarette and this angered the respondent who started throwing tantrums and agonized him mentally. He has stated that during lockdown the health of the respondent deteriorated and though he tried to get her admitted in the Hospital she refused and created a ruckus due to which he had brought back the respondent to his house at his own risk. In May, 2020 the respondent had a hot talk with her mother and consequently she had cut her hand at various places by a blade and she was got treated by the local compounder. When the incidents were disclosed by him to the parents of the respondent she became furious and refused to stay with him and threatened of committing suicide if she was not allowed to go to her parents place. On 04.06.2020, the respondent left for her parents place and also took with her the entire streedhan and she never stayed or met with him thereafter. Despite repeated efforts the respondent had refused to come to Bokaro. On 04.06.2020, the respondent left for her parents place and also took with her the entire streedhan and she never stayed or met with him thereafter. Despite repeated efforts the respondent had refused to come to Bokaro. In November, 2020, the relatives of the respondent had taken away the jewellery kept in the locker of SBI, Sector-IV, Branch. He has stated that on 31.05.2022, the brother of the respondent had threatened him over phone of dire consequences if he does not leave his parents and stay with the respondent at Bangalore. An information, in this regard was given to the S.P., Bokaro. On 08.06.2022, he had instituted a case for restitution of conjugal rights being O.S. Case No. 340/2022 in which in spite of summons having been served upon the respondent she did not appear. On 29.07.2022, the parents and relatives of the respondent had come to his house and committed assault upon him and his family members, damaged some articles and also took away some valuables from his house. In this context, he had instituted C.P. Case No. 1125/2022. He has stated that on 18.08.2022, he had withdrawn the suit for restitution of conjugal rights and instead filed a suit for divorce. The respondent after receiving the summons had got instituted Daltonganj (Sadar) P.S. Case No.77/2022 against him and his entire family members. In cross-examination, he has deposed that the respondent is staying separate since 04.06.2020. He has also deposed that the respondent is at present working in Pune. 9. P.W.2 (Sant Kumar Dwivedi) is the uncle of the petitioner who has reiterated what has been stated by P.W.1. In cross-examination, he has deposed that the respondent is staying separate from the petitioner since 2020. The petitioner had filed a suit for restitution of conjugal rights in which the respondent did not appear and the petitioner ultimately had to withdraw the suit. 10. P.W.3 (Gyan Prasad) is a neighbor of the petitioner who has stated similar to that of P.W.1. In cross-examination, he has deposed that from the year 2020 the respondent is staying separate from the petitioner. 11. It has been submitted by Mr. 10. P.W.3 (Gyan Prasad) is a neighbor of the petitioner who has stated similar to that of P.W.1. In cross-examination, he has deposed that from the year 2020 the respondent is staying separate from the petitioner. 11. It has been submitted by Mr. Sheo Kumar Singh, learned counsel appearing for the respondent (appellant herein) that the petitioner has failed to prove cruelty and desertion and in fact no concrete finding has been recorded by the learned trial court on the said issue and the suit has been allowed only on the ground of irretrievable break down of marriage. It has been submitted that the respondent was working in Bangalore and was forced to leave her job and search for a job at Pune in order to stay with the petitioner. Learned counsel adds that unsubstantiated allegations have been made against the respondent of taking drugs and if at all the respondent was disinclined to leave Bangalore there was no occasion for her to relocate to Pune where she was at present working as stated by the petitioner (P.W.1) in his evidence. The respondent has filed a criminal case against the petitioner which would indicate that it was the petitioner who treated the respondent with cruelty. 12. Mr. Hemant Kr. Shikarwar, learned counsel for the petitioner (respondent herein) has submitted that both the parties are living separately since long and the marriage for all practical purposes has become dead which has been appropriately considered by the learned trial court. It has been submitted that the petitioner had made every effort to restore normalcy in the conjugal life and had also made efforts to secure a job for the respondent at Pune but the affinity of the respondent towards Bangalore made her adamant not to stay at Pune. Mr. Shikarwar has submitted that the petitioner has even filed a suit for restitution of conjugal rights which shows the intention of the petitioner to revive his marital ties with the respondent but neither she appeared in the said suit nor in the present suit and the assertion of the petitioner regarding mental cruelty and desertion having remained unrebutted, the learned trial court has rightly allowed the suit in favour of the petitioner. 13. We have heard the learned counsel for the respective sides and have also perused the trial court records. 14. Issue No. (iii) and (iv) constitutes “cruelty” and “desertion”. 13. We have heard the learned counsel for the respective sides and have also perused the trial court records. 14. Issue No. (iii) and (iv) constitutes “cruelty” and “desertion”. The findings recorded by the learned trial court with respect to the said issues are as follows: “11. Thus, on perusal of evidence of the petitioner, following facts have been emerged; (i) The petitioner is the legally married husband of the respondent. (ii) The respondent has been living separately from her husband/petitioner since the year 2020 and since then there is no marital relationship between the parties. (iii) The respondent did not bother to appear in this case in spite of having knowledge of this case. (iv) The respondent also did not bother to appear in Original Suit No. 340 of 2022 filed u/s 9 of Hindu Marriage Act, 1955 by the Petitioner and thus she has abandoned her husband/Petitioner without any reasonable cause. (v) The petitioner tried to lead his conjugal life with his wife/respondent but could not succeed. (vi) The respondent did not appear in support of her defence, so evidence of the petitioner remained unrebutted and intact. 12. Thus, on perusal of evidence of the petitioner, it appears to me that the respondent has been living separately from her husband since the year 2020 without any reasonable cause. She is living separately for her husband/petitioner on her own volition. The Petitioner tried to bring her back and lead their conjugal life but the respondent is adamant not to lead her conjugal life with her husband/petitioner, which goes to show that the marriage in between the parties has broken down irretrievably and in future there is no chance of their reunion or reformation. Hence, points for determination Nos. iii, iv & v are decided in favour of the Petitioner. Therefore, the petitioner/husband is entitled to get a Decree of divorce from his wife/respondent. ” 15. Whether the allegations made by the petitioner constitutes “cruelty” and “desertion” are conspicuously absent in the findings recorded by the learned trial court. The only aspect which has been considered is the irretrievable break down of marriage between the parties presumably on the ground that they are staying separate since long. The Hindu Marriage Act, 1955 does not provide for “irretrievable break down of marriage” as one of the grounds under which a divorce can be sought for. The only aspect which has been considered is the irretrievable break down of marriage between the parties presumably on the ground that they are staying separate since long. The Hindu Marriage Act, 1955 does not provide for “irretrievable break down of marriage” as one of the grounds under which a divorce can be sought for. The learned trial court should have confined itself to the issues framed for determination and recorded a finding in that respect instead of travelling in unchartered territory which was beyond the domain of the learned trial court. The impugned judgment and decree dated 28.01.2023 (decree signed on 02.02.2023) passed by Shri Alok Kumar Dubey, learned Principal Judge, Family Court, Bokaro in Original Suit No. 527 of 2022, in such circumstances, becomes unsustainable and consequently the same is hereby set aside and the matter is remanded back to the learned trial court to pass a fresh order in accordance with law by confining itself in answering the issues which have been framed for determination. The said exercise shall be concluded within a period of three months from the date of receipt/production of a copy of this order. 16. This appeal is allowed. 17. Pending I.A.s, if any, stand closed. 18. Office is directed to send back the trial court records immediately and forthwith.