Ragini Jha @ Ragani Jha vs Dilip Kumar Mishra
2023 Latest Caselaw 2831 Gua

                                                                  Page No.# 1/15

GAHC010084692022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Mat.App./14/2022

            RAGINI JHA @ RAGANI JHA
            D/O SRI LALAN KR JHA
            W/O SRI DILIP KUMAR MISHRA
            RESIDENT OF VILLAGE BARHA, PS BENIPATTI, DIST MADHUBANI, BIHAR.



            VERSUS

            DILIP KUMAR MISHRA
            S/O RATNESWAR MISHRA
            RESIDENT OF C/O RAJEN DUTTA
            OPP. PRACHI MEDICOS, F.A ROAD, KUMARAPARA, PS BHARALUMUKH,
            DIST KAMRUPM ASSAM



Advocate for the Petitioner   : MRS. P BARMAN (BORKAKOTI)

Advocate for the Respondent :




             Linked Case : Mat.App./10/2022

            RAGINI JHA @ RAGANI JHA
            D/O LALAN KR. JHA
            W/O SRI DILIP KUMAR MISHRA

            RESIDENT OF VILLAGE BARHA

            PS BENIPATTI
                                                                      Page No.# 2/15

            DIST MADHUBANI
            BIHAR



            VERSUS

           DILIP KUMAR MISHRA
           S/O RATNESWAR MISHRA
           RESIDENT OF C/O RAJEN DUTTA
           OPP. PRACHI MEDICOS
           FA ROAD
           KUMARAPARA
           PS BHARALUMUKH
           DIST KAMRUP M ASSAM


           ------------
           Advocate for : MRS. P BARMAN (BORKAKOTI)
           Advocate for : appearing for DILIP KUMAR MISHRA



                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA
                       HONOURABLE MR. JUSTICE KARDAK ETE

                                       ORDER

Date : 03-08-2023

(K.R.Surana, J)

Heard Mrs. P. Barman, learned counsel for the appellant in both the appeals. Also heard Mr. S. P. Roy, learned counsel for the respondent in both the appeals.

2) These two appeals have been filed by the appellant- wife to assail the common judgment and order dated 11.02.2022, passed by learned Principal Judge, Family Court-III, Kamrup (Metropolitan), Guwahati, in F.C.(C) Case No. 107/2013 and F.C.(C) 311/2013.

Page No.# 3/15

3) Mat. Appeal No. 14/2022 has been filed to assail the common judgment passed by the learned Principal Judge, Family Court-III (hereinafter referred to as the learned Family Court) in so far it relates to the rejection of prayer made by the appellant- wife for decree for restitution of conjugal rights in the proceedings of F.C.(C) Case No.311/2013, filed under Section 9 of the Hindu Marriage Act, 1955. The other appeal, i.e. Mat. Appeal No. 10/2022 has been filed to assail the common judgment in so far it relates to granting of a decree of divorce in the proceedings of F.C. (C) Case No. 107/2013, filed by the respondent- husband for grant of decree of divorce under Section 13 of the Hindu Marriage Act, 1955.

4) In brief, the case of the respondent-husband in F.C. (C) Case No. 107/2013 is to the effect that he and the appellant were married on 18.02.2011, in Madhubani district in Bihar as per Hindu rites and rituals. Thereafter, they came to Guwahati on 15.03.2011, and the appellant started to reside with the respondent as his wife at her matrimonial home at Guwahati. It is projected that after about two months of conjugal life, matrimonial dispute between the parties had cropped up. The nature of matrimonial disputes, as narrated in the divorce petition is not being referred to. It would suffice to mention that the grievance of the respondent-husband was that before the marriage the appellant wife was projected to be a Graduate in Arts from Bihar University, and it was alleged that later on he had discovered that the appellant was not even a matriculate. It was alleged that the respondent-husband was thus, cheated as the appellant was illiterate and mentally unsound. It is alleged that on 15.06.2011, after staying at Guwahati for about three months, the appellant had left the matrimonial home and gone to her parental home at Madhubani district in Bihar alongwith all the gold ornaments she got during her Page No.# 4/15

marriage. It was alleged that the parents of the appellant made a demand of Rs.5.00 lakh to send the appellant failing which he was threatened of being implicated in false cases.

5) Thereafter, the appellant had lodged a complaint case against the respondent and his parents, which was registered as Complaint Case No. 1080/2011, and tried before the learned Court of Chief Judicial Magistrate, Madhubani, under Sections 323, 304, 379, 498-A, 34 IPC alleging, inter alia, that after the appellant came to Guwahati on 15.03.2011, she was physically and mentally harassed by demanding car, T.V., washing machine, fridge, etc., failing which she was threatened of being burnt alive by pouring petrol on her body. It was alleged that the parents of the respondent were arrested and detained in police custody.

6) Accordingly, on the ground that the appellant wife had caused mental and physical cruelty upon the respondent and his parents, the respondent had filed divorce petition to annul the marriage between him and the appellant.

7) The appellant had contested the divorce case, being F.C. (C) Case No. 107/2013, by filing her written statement, thereby denying that she had created any nuisance or neglected her matrimonial duties and also denied all the allegations made against her in the divorce petition. It was stated that the appellant had completed her education up to Class X at Bihar, which was well known to the respondent and that she had not mislead the respondents about her educational qualification. The appellant also denied that she was mentally unsound. The appellant had stated that the respondent wanted to marry a modern town girl and he was not happy with the appellant Page No.# 5/15

and that the respondent had married the appellant only for dowry and used to demand money and materials as dowry from the parents of the appellant. It was alleged that apart from furniture, utensils, clothes and gold ornaments, the father of the appellant had also given a dowry of Rs.7,50,000/- to the respondent by selling their land in Bihar. It was further alleged that on 20.06.2011, on the pretext that the parents of the respondent were going to Bihar, took the appellant with them to Bihar and on reaching Madhubani railway station, she was made to sit in a bench in the station platform and left her. When they did not return even after several hours, the appellant called her parents who then came and took her home. Accordingly, it was denied that the appellant had left the matrimonial home of her own. It was denied that the family members of the appellant had threatened the respondent. It was also denied that the respondent was informed that the appellant was a graduate and denied the allegation that the appellant was suffering from mental disorder or schizophrenia and that those grounds were manufactured by the respondent only for obtaining a decree of divorce. It is also alleged that the respondent had filed a complaint case against the appellant and her other family members,

which was registered as Case No. 2347 c/2011, under Sections 417, 420, 379, 506 IPC before the learned Court of Chief Judicial Magistrate, Kamrup (M) Guwahati. It is projected that when the appellant and her parents came to Guwahati on 03.04.2013, the respondent had called the police personnel from Bharalumukh Police Station to arrest them.

8) Nonetheless the stand of the appellant is that despite everything that had happened with her and her family members, she wants to resume cohabitation and had approached the court for restitution of her Page No.# 6/15

conjugal rights with the respondent by expressing that she was hopeful that the respondent and his parents would understand and realise their fault. In the application filed under Section 9 of the Hindu Marriage Act, 1955 which was registered as F.C.(Civil) Case No. 311/2013, the appellant by reiterating the stand taken in the written statement filed in F.C. (C) Case No.107/2013, submitted that the appellant being a Hindu lady, divorce in her society is rarest phenomenon and therefore, she had expressed that she would try her best to adjust with the respondent family. The appellant had expressed her surprise on receiving a copy of the petition for divorce from the respondent and has taken a stand that she intends to give one more chance to save their married life and desired cohabitation and continuation of her conjugal life with the respondent.

9) It would suffice to mention that the respondent, in his written objection filed in F.C.(Civil) Case No. 311/2013, had reiterated the stand taken in the divorce petition and had prayed for dismissal of the said application.

10) The learned counsel for the appellant has submitted that the learned Family Court had decided the issues without proper discussion. It is submitted that the impugned judgment reflected one sided view of the respondent and had not discussed the stand as well as evidence of the appellant's side. It has been specifically submitted that the learned Family Court did not make any endeavour to determine as to whether or not the appellant had left the matrimonial home of her own. It has been submitted that the learned Family Court did not make any endeavour to determine that the parents of the respondent had taken the appellant to Madhubani railway station and left her alone there in the railway platform. It has also been submitted that by Page No.# 7/15

making the appellant write English alphabets in children's copy, the respondent had created evidence vide Ext.9 to Ext.12 to falsely project the appellant as an illiterate. It has been submitted that the learned Family Court had ignored the admission made by the respondent husband in his cross examination in the proceeding of F.C.(C) Case No.107/2013 that he had seen the certificate of the appellant before marriage. Accordingly, it has been submitted that a totally false and manufactured case had been made out by the respondent for seeking divorce by falsely alleging that the appellant was married to the respondent by projecting her to be a graduate. It is submitted by learned counsel for the appellant that not only a demand of money as dowry was made by the respondent for the said marriage, but after the appellant was brought to her matrimonial home at Guwahati, she was harassed for items like car, T.V, washing machine, fridge, etc. It has been submitted that the appellant does not have brother by the name of Akhilesh Jha and that the said alleged brother never resided in her matrimonial home. It was also submitted that the learned Family Court had disbelieved the stand of the appellant merely because she would not produce any documentary evidence regarding demand for dowry. In the said regard, it was submitted that it would be very difficult or rather impossible to get a proof of demand of dowry.

11) Be that as it may, by referring to the stand taken in the Memo of Appeal of both these appeals, the learned counsel for the appellant has submitted that despite being driven out from matrimonial home, demand of dowry, harassment for dowry, payment of cash amount of Rs.7.50 lakh as dowry and despite suffering from mental and physical cruelty from the respondent, the appellant still desires the restoration of her conjugal rights with the respondent. Accordingly, it has been submitted that to give restoration of family a chance, Page No.# 8/15

this was a fit and proper case for setting aside the impugned common judgment in both the cases by allowing F.C.(Civil) Case No. 311/2013, filed for restoration of conjugal rights.

12) Per contra, the learned counsel for the respondent has submitted that the solemnisation of the marriage of the parties was based on fraud because before marriage, the appellant and her family members had projected that the appellant was a graduate when she was not. It was submitted that had the respondent known that the appellant was not a graduate, he would not have solemnised the marriage. It has been submitted that it is not in dispute that in connection with the complaint case lodged by the appellant as well as the FIR lodged by the appellant, the parents of the respondent were arrested and detained by police for a day. It has been submitted that when the appellant had alleged that an attempt to murder her by burning her coupled with allegation of demand of dowry had been made, the mental and physical cruelty to the respondent had been proved. It has been submitted that when the appellant had not withdrawn the complaint case and is still prosecuting the respondent and his parents in the complaint case filed at Bihar, it would be impossible for the respondent to start cohabiting with the appellant. It has been submitted that decree of divorce has rightly been passed by the learned Family Court to annul the marriage of the parties on the ground that she had not only left the matrimonial home on her own volition but had also treated the respondent and his parents with cruelty.

13) In support of the submission that cruelty constitutes a good ground of divorce, learned counsel for the respondent has referred to the following cases:

Page No.# 9/15

1. Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

2. Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640.

3. V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337.

4. Reynold Rajamani & Anr. v. Union of India & Anr., (1982) 2 SCC 474.

5. Sujata Uday Patil v. Uday Madhukar Patil, (2006) 13 SCC 272.

6. Sanjukta Padhan v. Laxminarayan Padhan & Anr., AIR 1991 Ori 39.

7. G.V.N. Kameswara Rao v. G. Jabilli, AIR 2002 SC 576.

8. Jai Dayal v. Shakuntala Devi, AIR 2004 Del 39.

9. Dr. N.G. Dastane v. S. Dastane, AIR 1975 SC 1534.

10. Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778.

11. Narendra v. K. Meena, (2016) 9 SCC 455.

14) In para-2 of the impugned judgment, the learned Family Court has mentioned that for the sake of convenience, the petitioner in F.C.(C) No. 107/2013 and respondent in F.C.(C) No. 311/2013 is called as "petitioner" (i.e. respondent in these two appeals). Moreover, it is mentioned that the respondent in F.C.(C) No. 107/2013 and petitioner of F.C.(C) No. 311/2013 is called as respondent. This is mentioned because it appears that while framing issues, parties have erroneously been interchanged.

15) The learned Family Court had framed the following issues for trial in F.C.(C) No. 311/2013, viz.:

a. Issue no. 1: Whether the respondent (i.e. appellant herein) without reasonable excuse, withdrawn himself (sic. should have been herself) from the society of the petitioner (i.e. respondent herein)?

b. Issue no.2: Whether the petitioner (sic. should have been Page No.# 10/15

respondent (i.e. appellant) is entitled to get the decree for restitution of conjugal rights?

16) The learned Family Court had framed the following issues in F.C.(C) No. 107/2013, viz., a. Issue no. 1: Whether the respondent treated the petitioner with cruelty?

b. Issue no. 2: Whether the petitioner is entitled to decree of divorce as prayed for?

17) From the nature of submissions made by the learned counsel for both sides, the only point of determination which arises in these two appeals is whether the impugned judgment and decree are sustainable on facts and in law.

18) At the outset, the dispute as to whether the appellant was projected to be a graduate before her marriage to the respondent is not so much material because if the respondent never intended to marry a non- graduate, he could have verified the documents relating to educational qualification. Having not verified the educational qualification, the inevitable conclusion of the Court is that the respondent had married the appellant with his eyes wide open in so far as her educational qualification is concerned.

19) Nonetheless, it has come out in course of trial that the appellant had filed a criminal complaint case against the respondent before the Court of Chief Judicial Magistrate, Madhubani under Sections 323, 304, 379, 498-A, 34 IPC, which was registered as Complaint Case No. 1088/2011 (Ext.1). It is the pleaded case of the respondent that the complaint case was filed on Page No.# 11/15

10.08.2011, with cause of action allegedly taken place on 25.03.2011. The case of the appellant is that on 15.06.2011, the parents of the respondent had left her in Madhubani Railway Station. Therefore, it appears that not only it was alleged in the complaint that the respondent and his parents had assaulted her, but also made attempt to murder her, and that the respondent had committed theft and demanded dowry. On a pointed query of the Court, the learned counsel for the appellant had submitted that the said Complaint Case No. 1088/2011 was kept filed for some time and now the said proceeding has been revived.

20) In the proceeding of F.C. (C) Case No. 311/2013, it has been pleaded by the respondent that on 08.04.2013, the appellant had lodged an FIR with the All Women Police Station, alleging that the respondent and his parents were demanding dowry and harassing her for dowry and that several times, the respondent, his parents and his sister tried to kill her, but she luckily escaped. The said FIR was registered as All Women PS Case No. 77/2013 under Section 498-A IPC (Ext.4). It has been alleged that on 09.04.2013, the police had taken the parents and his sister into custody. It is the case of the respondent that charge-sheet has been submitted against them in the said All Women PS Case No. 77/2013.

21) The learned Family Court had relied on the evidence of DW- 3 (witness of the appellant). In his cross examination, the DW-3 had stated that the respondent did not demand dowry from the appellant. Accordingly, the learned Family Court arrived at a conclusion that the appellant could not prove that the appellant was tortured for dowry. In light of the said finding this Court is unable to record its disagreement with the finding returned by the learned Page No.# 12/15

Family Court that filing of cases making serious allegation of demand of dowry and allegations that the respondent had committed criminal activities against the appellant amounted to mental cruelty upon the respondent.

22) It has been admitted by the learned counsel for the appellant on the pointed query of the Court that the prosecution of the respondent in (i) All Women PS Case No. 77/2013, and (ii) Complaint Case No. 1088/2011 had not been withdrawn. Therefore, it appears that the appellant is continuing with the criminal prosecution of the respondent and his family members i.e. parents and sister.

23) Under such circumstances, the Court is unable to hold that the marriage between the appellant and the respondent has not irretrievably broken down beyond repair. The learned counsel for the appellant has not been able to demonstrate that criminal prosecution of the respondent by the appellant would not amount to cruelty by the appellant against the respondent. It is not in dispute that the parties are living separately for about 12 (twelve) years now since 15.06.2011, when the appellant, according to her was driven out of the matrimonial home.

24) From the impugned judgment, it appears that the case was fixed before the learned Family Court for conciliation on 11.07.2013, 12.08.2013, 13.09.2013, 04.11.2013 and 13.12.2013. The appellant could not demonstrate that in any of these dates any positive indication has been recorded by the learned Counsellor that there was a possibility of the family being reunited. Therefore, under the facts and circumstances of this case, there is no material on record from which it can be conferred that there is even a remote possibility of saving the marriage by setting aside the impugned Page No.# 13/15

judgment and directing for restoration of conjugal rights in light of the fact that the appellant is admittedly pursuing the two criminal cases filed against the respondent and members of his family.

25) Therefore, the Court is inclined to hold that the appellant, by prosecuting the respondent in two criminal cases, morefully referred herein before, has treated the respondent with cruelty, as envisaged under the provision of Clause (ia) of Sub-Section (1) of Section 13 of the Hindu Marriage Act, 1955. Accordingly, the Court does not find any ground urged in the memo of appeal by the appellant which would demonstrate that the finding of the learned Family Court was bad in law and on facts. Thus, the decision of the learned Family Court on issue no. 1 in F.C.(C) 107/2013 as to whether the appellant had treated the respondent herein with cruelty is correctly decided by the learned Family Court, and the finding on the said issue stands affirmed.

26) The appellant could not show that the learned Family Court had misread any evidence on record and/or had misconstrued the evidence led by the parties.

27) Therefore, the Court is constrained to hold that the issue no. 2 in F.C.(C) 107/2013 has also been correctly decided by holding that the respondent herein is entitled to the decree of divorce.

28) Once the perpetration of cruelty by the appellant upon the respondent is proved, no case is made out by the appellant either to set aside the decree of divorce granted by the learned Family Court in F.C.(C) No. 107/2013 or to set aside the decree of dismissal of the proceeding of F.C.(C) No. 311/2013 filed by the appellant for restitution of her conjugal rights. Therefore, Page No.# 14/15

issue no.2 in F.C.(C) 311/2013 is held to be correctly decided by holding that the appellant herein is not entitled to get the decree for restitution of conjugal rights.

29) In view of the finding on the other issues, the decision on issue no. 1 in F.C.(C) 311/2013 as to whether the appellant without reasonable excuse had withdrawn herself from the society of the respondent has been rendered otiose and need not be answered. Irrespective of which of the two parties had deserted the other is not required to be answered because when the finding of fact is to the effect that the appellant had treated the respondent with cruelty, the decree in F.C.(C) 107/2013 is not found depended on the answer to issue no. 1 framed therein.

30) Accordingly, the point of determination framed in this case is answered in the affirmative by holding that the impugned judgment and decree is sustainable on facts and in law and thus, both the appeal is liable to be dismissed.

31) Therefore, when on facts, the appellant has not been able to make out a case for restitution of conjugal rights, no point would be served in burdening this order with discussion on the cases cited by the learned counsel for the respondent.

32) Thus, both the appeal fails and the same are dismissed by affirming (i) the decree of divorce passed in F.C.(C) No. 107/2013 in favour of the respondent- husband, and (ii) decree of dismissal of F.C.(C) No. 311/2013, thereby rejecting the prayer of the appellant- wife for restitution of conjugal rights.

Page No.# 15/15

33) The parties are left to bear their own cost in these two appeals.

                      JUDGE                            JUDGE



Comparing Assistant