Smt. Ila Das vs Shri Sukriti Ranjan Das
2022 Latest Caselaw 6298 Chatt

                                    1

                                                                 NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                          FAM No. 200 of 2016

    Smt. Ila Das, W/o Shri Sukriti Ranjan Das, aged about 75 Years,
     R/o- Sudarshan, Purana Daga Building, Dr. Bhatthar Ke Makan Ke
     Piche, Mahila Thana Ke Pass, Bairan Bazar, Raipur, Tahsil and
     District- Raipur, Chhattisgarh, Pin- 492001.

                                                           ----Appellant

                                Versus

    Shri Sukriti Ranjan Das, S/o Late Shri Nandlal Das, aged about 82
     Years, Occupation- Advocate, R/o- Bemetara Police Thana Ke
     Piche, Post Office Ke Samne, Bazar Para, Bemetara, District-
     Bemetara, Chhattisgarh, Pin- 491335.

                                                        ---- Respondent



For Appellant           Mr. Yogesh Pandey, Advocate.
For Respondent          Mr. B.P. Singh, Advocate.


                Hon'ble Shri Justice Goutam Bhaduri &

               Hon'ble Shri Justice Radhakishan Agrawal

                         Judgment on Board


Per Goutam Bhaduri, J.

17/10/2022

1. Heard.

2. The present appeal is against the judgment and decree dated

01.08.2016 passed by the First Additional Principal Judge, Family

Court, Raipur, C.G. in Civil Suit No.177/14, wherein a divorce

petition preferred by the wife on the ground of cruelty was

dismissed. The present appeal is by the wife.

3. According to the averments made by the wife, she filed a petition

for divorce stating the fact that she was married to the respondent /

husband - Sukriti Ranjan Das on 16.07.1964. After she joined the

matrimonial home and company of husband, during their stay

together, they were blessed with five children (4 daughters & 1

son). It was alleged by the wife that after some time of the

marriage she was subjected to torture and severe assault by the

husband and because of the fact that husband was engaged in

profession of Advocacy and was a practicing lawyer, she was being

threatened that if the reports are made, she would have to suffer a

dire consequence. Hence, she did not lodge any report. It is stated

that with the passage of time, she started living separately and

certain reports were also made wherein counselling was carried

out, but eventually all efforts to reconcile the marriage failed. The

wife alleged that during her lifetime, the husband performed a

second marriage for which a report was made but since it was a

non-cognizable offence, no further action took place. It was stated

that because of the misbehaviour and ill-treatment coupled with the

fact of second marriage, she was subjected to both physical and

mental cruelty, therefore, the divorce was sought for on these

grounds.

4. Respondent/husband filed his written statement and contended that

the wife, in fact, failed to perform her matrimonial obligation and

certain dispute basically arose for the reason that the ownership of

the immovable property was put to question and litigation started in

between the parties. The husband denied the allegation of assault

and physical torture. With respect to the marriage, the husband in

his written statement admitted the fact that the appellant is the first

married wife. It was further stated that the wife claiming the right

over a property of his sister, tried to encash and take over the

property, therefore, the main reason of dispute existed. All the

adverse averments in the application were denied by the husband

and prayed for dismissal of the petition.

5. The Learned Family Court framed the issues as to whether the wife

was subjected to cruelty by the husband and the finding was given

that wife/appellant was the second wife and after the marriage of

the appellant with respondent, she had condoned the cruelty,

therefore, prayer for decree on the ground of cruelty was denied.

Being aggrieved by such finding, the present appeal is by the wife.

6. Learned counsel for the appellant/wife would submit that the finding

arrived at by the learned Court below is completely contrary to the

evidence and the pleading of parties in the case. He would submit

that an admission exists to the effect that present appellant is the

first wife, therefore, under what basis the learned Family Court

came to a conclusion that the appellant is the second wife is

without any evidence. He would further submit that the statement

made by the wife/appellant about her date of marriage, neither it

has been denied nor it has been rebutted in the cross-examination

and no questions were asked, therefore, that would also amount to

admission. He would further submit that during the lifetime of the

first wife without any lawful cause if another marriage is performed

or any lady is kept outside the matrimonial ties, it would amount to

cruelty. Therefore, the appeal be allowed and the wife may be

granted decree of divorce.

7. Per contra, learned counsel for the respondent/husband would

submit that the finding arrived at by the learned Family Court is well

merited which do not call for any interference. Referring to the

statement of the wife/appellant, he would submit that nothing has

come out to establish the fact that any cruelty was committed on

her. He would further submit that the genesis of dispute arose for

the reason that the wife tried to take over a property belonged to

the sister of the husband/respondent claiming that it is her property

and money has been invested by her so it resulted into a severe

dispute. With respect to the alleged statement made in the different

cases, he would submit that neither those statements were

confronted nor have been placed during trial and they remained

unrebutted. Therefore, the statements which are filed along with

application under Order 41 Rule 21 CPC need not be required to

be admitted. He would submit that no cruelty has been proved

which would entitle the appellant to claim for any divorce. He would

further submit that according to the statement of the husband, the

marriage between the parties took place on 16.06.1968 and

consequently, the marriage on which the appellant was banking

upon was a subsequent one and knowing fully well he got married,

therefore, the findings of the learned Court below do not require

any interference.

8. We have heard learned counsel for the parties at length.

9. Before entering into the merits, the age which is shown of the

parties are disturbing for the reason that both the parties are

octogenarian and the husband is bedridden. An idea was mooted

for settlement of the issues taking into the ripened age but the

respective counsel after taking instructions would submit that no

one wants to budge an inch and the case may be adjudicated on

merits. There being no other option left out to us, the case is being

decided on merits.

10. The records would show that wife had filed an application for

divorce on the ground of cruelty. She contended that they got

married on 16.07.1964 and out of the wedlock, five children were

born namely Supriya, (Lt.) Indrani, Smt. Lekha Mitra, Nikharika Das

and Priyankar Das. She further stated that she being a

house-maker lady was subjected to torture and physical assaults but

she did not report the issue for the reason that husband was an

Advocate and threat was extended that she would be inculpated in

some case. She further stated that subsequently when a report was

made to police for physical torture and during the counselling, she

came to know that the husband has performed a second marriage

with another lady named Kamla outside the marital relation. It was

further pleaded that without obtaining a lawful divorce from her since

the husband started living apart with another lady, as such, she was

forced to run from pillar to post.

11. In the reply of the husband, the date of marriage has been shown

as 16.06.1968. At para 13 of the written statement, the husband

admitted the fact that Smt. Ila Das / appellant is the first wife of him.

There is no denial of fact about the children who were born out of the

wedlock. In view of the clear admission, wherein the appellant /wife

was stated to be the first wife and no specific denial is made, it

would be a deemed to be an admission of the fact that appellant was

the first wife.

12. The pleadings of the parties further would show that there is no

dispute about the birth of five children out of their wedlock, however,

certain inter se dispute has also been projected in between the

children and the wife. The wife in her pleading contended that they

resided together after the marriage in 1964 and were cohabiting for

many years and the children were born. There is nothing on record

to draw an adverse inference by pleading or evidence of the

husband to negate the same. Consequently, as per the presumption

under Sections 112, 114 of the Evidence Act, when the man and

woman were living under the same roof and cohabiting for a number

of years that they lived as a husband and wife, the relation would not

be destroyed by the circumstances and children will also get a

legitimacy of that. It is also settled that when the husband and wife

cohabitated for a long, the formality and custom of a valid married

life would also be presumed to have been performed. The said

proposition is further reiterated by the Hon'ble Supreme Court in the

matter of S.P.S. Balasubramanyam vs. Suruttayan alias Andali

Padayachi and others reported in AIR 1992 SC 756.

13. Now referring to the statement of the wife - PW-1, she had made

statement that she was married to the respondent on 16.07.1964

according to the Hindu rituals. There is no cross-examination to such

statement about the date of marriage. The statement of the husband

also is silent about the date of marriage though in the pleading faint

effort has been made that the marriage took place in the year 1968.

14. The Supreme Court in the matter of Vinod Kumar versus State of

Haryana (2015) 3 SCC 138 (para 29) has considered the aspect

that if there is no cross examination on the factual matrix then what

would be the effect. The Court reiterated the observations made in

State of U.P. v. Nahar Singh (1998) 3 SCC 561 to the effect that in

absence of cross examination, the evidence of witness remains

unchallenged and ought to have been believed. Section 138 of the

Evidence Act confers a right of cross examining the witness

tendered in evidence by the opposite party. The scope of that

provision is enlarged by section 146 of the Evidence Act by allowing

a witness to be questioned: (1) to test his veracity, (2) to discover

who he is and what is his position in life, or (3) to shake his credit by

injuring his character.

15. In the case at hand, the statement of the husband is silent on the

issue about the date of marriage coupled with the fact that no cross-

examination to the statement made by the wife about the date of

marriage in the year 1964. Consequently, the analogy would follow

that the marriage in between the parties took place in the year 1964

and after that the dispute took place in between the parties, they got

separated. The husband started living with one lady outside the

matrimonial ties namely Kamla. Specific statement though was

made by the wife at para 10 of examination-in-chief that the husband

was residing with one Kamla, this fact has not been rebutted in the

cross-examination. We do not want to deliberate as to the legality of

such relation at this stage as we are dealing with the issue of cruelty

qua committed on the wife for the reason the allegations have been

made that one lady was kept outside the marriage. Consequently, if

a lady outside the marriage has been kept in absence of a divorce, it

would cause a mental cruelty to the wife. The finding of the Family

Court that the wife/appellant was the second married lady and she

has condoned the cruelty, is completely without any substance and

against the admission which exist on the record of the parties.

16. In these circumstances of the case, we are of the view that the

judgment and decree of the learned Court below requires to be set

aside on the ground since the husband has kept another lady

outside the marriage without the lawful divorce. Accordingly, we hold

it to be a mental cruelty caused to the wife for which she is entitled

for a divorce. Accordingly, the marriage dated 16.07.1964 in between

the parties is dissolved by a decree of divorce henceforth.

17. A decree be drawn accordingly.

                Sd/-                                      Sd/-
           (Goutam Bhaduri)                        (Radhakishan Agrawal)
              Judge                                      Judge



Akhilesh