Maharana Dinkar vs Sabita Devi
2022 Latest Caselaw 4133 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Appellate Jurisdiction)
                  First Appeal No. 87 of 2018

[Against the judgment dated 12th February 2018 and the decree dated
21st February 2018 passed by the learned Additional Principal Judge,
Additional Family Court, Ranchi in Original Suit No. 461 of 2017.]
                             --------
Maharana Dinkar, s/o Ganga Ram Mahto, r/o village-Rahe, PO &
PS-Rahe Sonahatu, District-Ranchi.              ... Appellant

                                Versus
Sabita Devi, w/o Maharana Dinkar, d/o Mohan Mahto, r/o N. H.
33, Dhurwa More, Bundu, PO & PS-Bundu, District-Ranchi.
                                               ... Respondent

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA


For the Appellant          : Mr. Vishal Kumar Tiwary, Advocate
For the Respondent         : Mr. Anil Kumar Sinha, Advocate
                              --------
                           ORDER

th 12 October 2022

Per, Shree Chandrashekhar, J.

Maharana Dinkar whose marriage was solemnized with Sabita Devi on 28th April 1996 has challenged the judgment dated 12th February 2018 passed in Original Suit No. 461 of 2017 by which the aforesaid suit (hereinafter referred to as the divorce suit) has been decreed in favor of his wife by dissolving their marriage.

2. In the divorce suit which was filed under sections 13(1) (i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955, Sabita Devi (hereinafter referred to as the respondent) pleaded that the family members of her husband were not happy with the gifts given at the time of the marriage and they would pressurize her to engage herself in any job. She further pleaded that on 10 th May 2012 she was ousted from her matrimonial home and since then she has been residing in a rented house at Bundu, Ranchi.

3. In the divorce suit which was filed on 11 th July 2017, requisition for notice was filed on 29 th July 2017 and, awaiting service report, the hearing in the suit was adjourned on 1 st

September 2017. From proceedings in the divorce suit it appears that without a report on service of summons upon the appellant a liberty was given to the respondent to take steps for substituted service through paper publication, which was promptly availed of by the respondent. Thereafter, the suit was set for exparte hearing by an order dated 15th January 2018 and the respondent examined three witnesses and then the matter was heard and fixed for judgment by an order dated 7th February 2018.

4. Mr. Vishal Kumar Tiwary, the learned counsel for the appellant submits that the procedure adopted by the Family Court was illegal inasmuch as a direction for substituted service was issued by the Court without recording its satisfaction that there is reason to believe that the husband was keeping out of the way for the purpose of avoiding service or, that, for any other reason the summons would not have been served in the ordinary way, the order dated 1st November 2017 directing the respondent to take out paper publication was issued by the Court.

5. The relevant portions of Rule 20 to Order V of the Code of Civil Procedure are extracted below:

"20. Substituted service.- (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

(1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

(2) Effect of substituted service.- Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed. - Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require."

6. We have the benefit of perusing the original records of the divorce suit which have been attached with the present First Appeal. The learned counsel for the appellant is right in indicating that even as on 1st November 2017 there was no report on service

of summons upon the present appellant and while so the order dated 1st November 2017 directing the respondent to adopt the substituted mode of service by taking out paper publication was illegal. The subsequent proceedings in the divorce suit coming out from such order would therefore affect the final judgment dated 12th February 2018. In the result, once it is found that the foundation of the judgment dated 12 th February 2018 is illegal the judgment must be set aside. This is a well known maxim in law "sublato fundamento cadit opus" which means when foundation is removed the superstructure falls.

7. In "Coal India Ltd. v. Ananta Saha" (2011) 5 SCC 142 the Hon'ble Supreme Court has held as under:

"32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls."

8. There is another reason to interfere with the judgment dated 12th February 2018. This is not the law that whatever the plaintiff/petitioner and his witnesses, if any, say in the Court must be accepted by the Court and the suit must necessarily be decreed. In cases where the other party did not appear or failed to cross- examine a witness or was debarred from cross-examining the witness of the plaintiff/petitioner, the Court is still required to scrutinize the evidence so as to find out whether the necessary facts constituting the ground for divorce have been stated by the witnesses or not.

9. The Family Court in its judgment dated 12th February 2018 has taken note of the evidence of the respondent and her witnesses, thus, "5. P.W.1 Sabita Devi petitioner herself has fully supported her case and has stated in her evidence that her marriage was solemnized with the OP on dated 28.04.1996 as per Hindu rites and rituals, and after marriage she started to live in her matrimonial home and out of their wedlock two children were born and both the children are presently living with her. She further stated that at the time of marriage her parents given sufficient articles but the OP was not satisfied with the said articles. She stated that after birth of children the OP started torturing her for demanded of dowry and lastly ousted her on dt. 10.05.2012 from her matrimonial home. She further stated that at presently she is living in a rented house at Bundu. That several efforts were made

by the family members for reconciliation but all goes in vain. That she is living separately since 10.05.2012.

6. P.W.2 Mohan Lal Mahto has fully supported the case of petitioner and has state in his evidence that he knows both the parties whose marriage was solemnized on dated 28.04.1996 at Bundu as per Hindu rites and rituals and out of their wedlock two children were born. That the family members of the petitioner has given household articles and cash as stridhan as per condition of OP. That the OP started using filthy words, assaulted her and also tortured her for demand of dowry and on several occasions the OP used to send the petitioner in her parental home. That since 10.05.2012 the petitioner is living separately from OP. That the family members tried several times for reconciliation but no result.

7. P.W.3 Harbinder Singh son of petitioner and OP has fully supported the case of petitioner and has stated in his evidence that the instant suit has been filed by his mother against his father for divorce. That his father always quarreled with his mother and abuse and assaulted her. That due to said torture neither his mother wants to live with his father nor they want to live with him."

10. In "Maya Devi v. Lalta Prasad" (2015) 5 SCC 588 the Hon'ble Supreme Court has cautioned the trial Court in dealing with exparte proceedings as under:

"41. The absence of the defendant does not absolve the trial court from fully satisfying itself of the factual and legal veracity of the plaintiff's claim; nay, this feature of the litigation casts a greater responsibility and onerous obligation on the trial court as well as the executing court to be fully satisfied that the claim has been proved and substantiated to the hilt by the plaintiff. Reference to Shantilal Gulabchand Mutha v. Telco Ltd., will be sufficient. The failure to file a written statement, thereby bringing Order 8 Rule 10 CPC into operation, or the factum of the defendant having been set ex parte, does not invite a punishment in the form of an automatic decree. Both under Order 8 Rule 10 CPC and on the invocation of Order 9 CPC, the court is nevertheless duty-bound to diligently ensure that the plaint stands proved and the prayers therein are worthy of being granted."

11. The evidences laid by the respondent in the divorce suit disclose that the respondent and her witnesses have made general statements about her harassment and torture and there is no specific instance of demand of dowry, or about the demands in dowry. We further find that there is no specific instance of the alleged assault or even the alleged abuses heaped upon the respondent by her husband or his family members.

12. In "A. Jayachandra v. Aneel Kaur" (2005) 2 SCC 22 the Hon'ble Supreme Court has indicated what may amount to "cruelty", as under:

"10. The expression "cruelty" has not been defined in the Act.

Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health,

bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

11. The expression "cruelty" has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. (See Shobha Rani v. Madhukar Reddi.)

12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act.

Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party."

13. Having examined the evidences laid by the respondent in the light of the aforesaid judgment in "A. Jayachandra", we are of the opinion that the respondent's evidence is not sufficient to constitute "cruelty" and, therefore, the judgment dated 12 th February 2018 passed in Original Suit No. 461 of 2017 is required to be set aside. Consequently, the decree prepared in the divorce suit also must go.

14. Mr. Anil Kumar Sinha, the learned counsel for the respondent has stated that since the respondent has solemnized marriage with the younger brother of the appellant, the judgment and decree in the divorce suit may not be interfered by this Court so as to maintain the family harmony.

15. We are unable to accept the aforesaid submission made on behalf of the respondent. It is the primary function of the Courts to administer justice by applying the law of the land. We are unable to search for any law on the basis of which we may refrain from interfering with the judgment in the divorce suit which is a fruit of the illegal order passed by the Family Court on 12 th February 2018.

16. In "South Asia Industries (P) Ltd. v. S. Sarup Singh" AIR 1966 SC 346 the Hon'ble Supreme Court has observed as under:

"17. ... The duty of courts is merely to administer the law as they find it. The only way for remedying the defect is for the legislature to step in and amend the law."

17. Accordingly, the judgment dated 12th February 2018 and decree dated 21st February 2018 passed in Original Suit No. 461 of 2017 are set aside.

18. First Appeal No. 87 of 2018 is allowed.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated : 12th October 2022 Amit/ N.A.F.R