Jitendra Kumar vs Ankita Sharma @ Thakur
2021 Latest Caselaw 1624 Jhar

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             First Appeal No. 216 of 2017
         Jitendra Kumar                                           ..... ...    Appellant
                                           Versus
         Ankita Sharma @ Thakur                                   ..... ...      Respondent
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CORAM : HON'BLE MR. JUSTICE APARESH KUMAR SINGH : HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through:- Video Conferencing.

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         For the Appellant          : Mr. Shailesh Kumar Singh, Advocate.
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14/ 06.04.2021        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. 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 non- compliance 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. 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. 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.

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.

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. 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. 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.

( Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.) Amitesh/Ranjeet/-