Deo Prakash vs Smt. Usha Roy
2023 Latest Caselaw 2803 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     (Civil Appellate Jurisdiction)
                    First Appeal No. 346 of 2017
                              ---------
Deo Prakash, S/o Sri Narad Saran Sant, Present Address- Qr. No- C.D- 417,
Sector-III, PO & PS- Dhurwa, Ranchi, District- Ranchi, Jharkhand.
                                                                ... Appellant
                              Versus
Smt. Usha Roy, W/o Deo Prakash, D/o Sri Nathun Roy, Present Address-Zone
No-1.B, Birsanagar, Town- Jamshedpur, PO & PS- Birsanagar, District- East
Singhbhum.                                                    ... Respondent

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
   HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant     : Mrs. (Dr.) Vandana Singh, Advocate
For the Respondent    : Mr. Parambir Singh Bajaj, Advocate
                              ---------
                                                     JUDGMENT

11th August 2023 Per, Shree Chandrashekhar, J.

The husband has challenged the judgment in Matrimonial Suit No.380 of 2010 by filing this First Appeal under section 19(1) of the Family Courts Act, 1984.

2. Matrimonial Suit No.380 of 2010 was instituted by Usha Roy (hereinafter referred as the respondent) under section 13(1)(i-a) & (i-b) of the Hindu Marriage Act, 1955 for a decree of divorce by dissolution of the marriage solemnized with the appellant on 10 th March 2004. The respondent pleaded that after the marriage which was solemnized at Kargali in the district of Bokaro she started conjugal life with her husband in the matrimonial home and her marriage was duly consummated. According to the respondent, at the time of marriage her father was compelled to give Rs.2 Lacs in cash, gold ornaments worth Rs.55,000/- and cloths worth Rs.10,000/- to the family of the appellant. She has alleged that the expenses for reception of "barat party" was also borne by her parents who paid Rupees One Lac. However, the appellant and his family were not satisfied and they demanded more dowry and in connection therewith started torturing the respondent. She has made allegations of mental and physical cruelty including physical assaults upon her by the appellant at the instigation of his family members and, that, her husband has written vulgar letters to her. Finally, she was forced to leave her matrimonial

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home on 13th March 2004. She has further alleged that seriously concerned with her miseries in the matrimonial home, her mother also approached various authorities, and after some time her father brought her back in the matrimonial home on 4th October 2004, but just few days thereafter, her husband brutally assaulted her and she was thrown out of the matrimonial home on 12th December 2004. In the Court, the respondent has given narration of various incidents regarding her torture upon her including the assaults on 4th July 2005 and 14th July 2005, when her husband and his family members tried to set her on fire but with intervention of the neighbours her life could be saved.

3. The appellant contested the divorce suit by filing a written statement denying the allegations of demand of dowry and harassment and torture of the respondent by him or by his family members. He has also narrated few incidents particularly the incident which took place on 25 th birthday of his wife in which his wife expressed her disliking for him. Disappointed, he came to his workplace at Katni while his wife stayed at Ranchi on the pretext of work. He made a statement in his written statement that his wife stayed in the matrimonial home till the month of 2005 and during this period he was regularly and atleast fortnightly visiting her at Ranchi. He has further asserted that in early 2005 when his wife was suffering from malaria and typhoid he took leave for nursing of his wife. This is the case set up by the appellant that his wife left the matrimonial home as per her plans, took away all her belongings, and transferred all money in the bank at Ranchi in which he had also made substantial contributions. He deposed in the Court that he made several serious attempts to bring his wife back home to live in his company but she lodged a false criminal case vide C/1 Case No.43 of 2009 and started making complaints to various women organizations. She did not agree for any settlement before Jharkhand State Legal Services Authority at Ranchi and, on the other hand, filed a maintenance case vide Miscellaneous Case No.13 of 2009. An objection on maintainability of the divorce suit was also taken on the ground that section 9 petition vide Matrimonial Suit No.41 of 2009 has been decreed for restitution of the conjugal rights and while so, the suit for divorce was not maintainable.

4. During the trial of the divorce suit, the respondent examined

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herself as PW1 and, in her support, her father Nathun Roy has examined himself as PW2 and she has laid in evidence a copy of the charge framed in C/1 Case No.43 of 2009. The appellant who was opposing the divorce suit tendered evidence as DW2. Krishna Bihari Sharma who is the cousin and Narad Sharma who is the father of the appellant alongwith the cousin brother- in-law of the appellant also came in the dock to depose against the respondent particularly on the point of her illicit relationship with her neighbour Saurav Krishna @ Bittu.

5. The following issues were framed by the Family Court Judge on the basis of pleadings of the parties:

"I. Whether the suit is maintainable in its present form? II. Whether the petitioner has got valid cause of action for the suit ? III. Whether the petitioner wife has been suffered cruelty from the hands of the respondent?

IV. Whether the respondent has deserted the petitioner for period of more than two year preceding the date of filing of this case? V. Whether the petitioner wife is entitled for decree of divorce on the ground of cruelty and desertion?

VI. To what other relief or reliefs the petitioner is entitled in the facts and circumstances of this case?"

6. Section 9 of the Hindu Marriage Act provides that when the husband or the wife withdraws from the society of the other without any reasonable excuse the aggrieved party may apply for restitution of conjugal rights. Whereas, section 13 provides the various grounds on which a petition for divorce can be filed in the Court. The decree in Matrimonial Suit No.41 of 2009 is an ex-parte decree and, not to forget, the respondent has made serious allegations of demand of dowry and her torture and harassment in the matrimonial home and, in connection therewith, she has filed a complaint case vide C/1 Case No.43 of 2009. The Family Court Judge has rightly held that the decree in Matrimonial Suit No.41 of 2009 shall not constitute res judicata and, rightly so, on that ground Matrimonial Suit No.41 of 2009 could not have been held not maintainable.

7. On the issue of desertion in respect of which Issue No.IV was framed, the Family Court Judge has held that the respondent could not prove the requisite animus deserendi which would have established her intention to permanently put an end to cohabitation. The Family Court Judge has discussed Issue No.IV in the following manner:

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"20. It is settled law that for proving desertion, the factum of separation and the intention to bring cohabitation permanently to an end, animus deserendi, are required to be proved. In the instant case, as evident from the discussion of the evidences made above, the parties are living separately from 20.10.2005 that is for more than five years prior to filing of this case and now for more than 12 years but it is also evident that the respondent husband has obtained ex- parte decree for restitution of his conjugal right against the petitioner wife and the said decree is still in existence. The document filed on behalf of the respondent husband shows that the reconciliation proceeding before the JHALSA and before the High Court legal services authorities were terminated unsettled because of the none appearance of the petitioner wife. The record further shows that the mediation attempts during pendancy of this case has failed because the wife was not willing to reside with the respondent husband. Thus, the material available on record clearly shows that the animus deserendi on the part of the respondent husband has not been proved. Learned counsel for the petitioner wife has submitted that the respondent husband has obtained ex-parte decree for restitution of conjugal right only to save himself from criminal prosecution and the respondent husband was never willing to keep his wife as the petitioner wife was tortured in her matrimonial home for demand of dowry and even allegation of extra marital affairs against leveled by the petitioner wife and that is why even after getting the ex- parte decree for restitution of conjugal right, the respondent husband did not taken any steps for its execution. The respondent husband in para-36 of his cross-examination has stated that he has filed the execution case for executing the decree for restitution of conjugal right. DW-3 the father of the respondent husband has also stated in para-59 of his examination-in-chief that the respondent husband has filed an execution case but no document or case number of the said execution case has been filed by the respondent husband. Nothing is available on the record to ascertain as to when the said execution case has been filed by the respondent husband. Be that as it may be, from perusal of the materials available on record and also from the evidence of respondent husband DW-2 has stated in paragraph 32 of his examination-in-chief and from the evidence of petitioner wife wherein the petitioner wife has specifically stated that now she is not willing to reside with her husband, this court finds that the intention to bring cohabitation permanently to an end, on the part of the respondent husband has not been proved and hence on the ground of desertion, the petitioner wife is not entitled for divorce. Accordingly, Issue No. IV is decided against the petitioner wife."

8. The expression 'desertion' has been defined in the Hindu Marriage Act, 1955 to mean desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party. 2nd Explanation to section 13(1)(i-b) of the Hindu Marriage Act, 1955 further provides that the expression 'desertion' would include the willful neglect of the petitioner by the other party to the marriage and its grammatical variations and cognate expressions shall be construed accordingly.

9. 2nd Explanation to section 13(1)(i-b) of the Hindu Marriage Act, 1955 is extracted below:

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"Explanation - In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."Clause (ib) to sub-section (1) to section 13 provides that a marriage can be dissolved by a decree of divorce on the ground that the other spouse has deserted the petitioner for a continuous period of not less than 2 years immediately proceeding the presentation of the petitioner.

10. The expression 'desertion' has been explained by the Courts to mean the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. Therefore, besides the fact of separation the petitioner in a "divorce suit" is required to establish that there was an intention on the part of the deserting spouse to bring the cohabitation to a permanent end. What would constitute desertion has been expounded by the Hon'ble Supreme Court in "Bipinchandra Jaisinghbai Shah v. Prabhavati" AIR 1957 SC 176.

11. The Hon'ble Supreme Court in "Bipinchandra Jaisinghbai Shah" has observed as under:

"10. ... If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion; so far as the deserting spouse is concerned, two essential conditions must be there, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus desorendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.... Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time....."

12. The expression 'desertion' as envisaged under clause (i-b) to sub-section (1) of section 13 of the Hindu Marriage Act, 1955 has been

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interpreted again by the Hon'ble Supreme Court in "Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi" (2002) 1 SCC 308, as under:

"7. "Desertion" in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:

1. the factum of separation;

2. the intention to bring cohabitation permanently to an end -- animus deserendi;

3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;

The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include "wilful neglect" of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period."

13. The respondent who tendered evidence as PW1 stated about demand of dowry and her harassment and torture in connection therewith but her testimony is almost silent on the point of desertion by her husband. There is evidence on record, uncontroverted evidence, that a talk of compromise was initiated and parties appeared before the Jharkhand State Legal Services Authority for mediation. The appellant has deposed in the Court that he took efforts to bring his wife back in the matrimonial home and there is no challenge by the respondent to such evidence laid by the appellant.

14. Having examined the materials on record, we are satisfied that the respondent could not produce such evidence as to seek a decree of divorce on the ground of desertion.

15. The Family Court Judge decreed the divorce suit holding that the respondent has established cruelty on the part of the husband as described in

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"Samar Ghosh v. Jaya Ghosh" (2007) 4 SCC 511. The Family Court Judge has made the following considerations on this issue:

"18. Having gone through the above enumerations so outlined by the Supreme Court in Samar Ghosh's case, this court is of the view that Clauses No. (i), (ii) and (xiv) as noticed above would be explicitly applicable in the instant case. In the instant case, the evidences available on record shows that the relation of husband and wife was strained within two days of marriage. The wife has contended that she was tortured and assaulted by the husband at her matrimonial home on the very next night of the marriage. The husband has contended that after two days of marriage the wife created a seen in her matrimonial home in presence of relatives and friends of her in-laws and openly expressed her disliking of her husband. The evidences further shows that the relation of husband and wife never became cordial. The wife has stated that she returned to her matrimonial home thrice and on all occasions, she was assaulted and driven out of her matrimonial home by the respondent and her other in-laws. The husband has stated that the petitioner wife has extra marital and illicit relation with a boy, who resided in the neighborhood of her matrimonial home, and in March 2005, her love letters were recovered from common Almirah and thereafter the father of petitioner wife was called upon. The father of the respondent husband has even stated that the petitioner wife compared her husband with said boy, Saurav Krishna, and she even started moving frequently with said Saurav Krishna and thereby damaged the family reputation. The complete lack of love and trust in the relation of husband and wife is evident. The marriage was solemnized on 10.03.2004 and since 20.10.2005, the parties are living separately. For last 12 years the parties are living separately. They have no issue out of their wedlock. The wife has filed criminal case against the husband and his family. The husband has also filed criminal case against the wife and her parental family. The distrust is so widened between the parties that the respondent husband in his cross-examination has refused to disclose the department and the place where he is working, apprehending that his wife may file false departmental complaint against him as she has done earlier. The respondent husband has given legal notice to the wife and to the father of the wife, mentioning about the illicit relation of the petitioner wife. The respondent husband has sent letters and applications to the different authorities apparently for reconciliation but mentioning about the alleged illicit relation of the wife. Hon'ble Apex Court in K. Srinivas Rao vs D.A. Deepa, reported in (2013) 5 SCC 226 has observed: "Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse's life miserable."

Accordingly, in the light of the evidences available on record as discussed above and after applying the parameters laid down by the Hon'ble Apex Court in Samar Ghosh's case, this court finds that the petitioner wife is entitled for the decree of divorce on the ground of cruelty. Accordingly, Issue No. III is decided in favour of the petitioner wife."

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16. The preamble to the Hindu Marriage Act, 1955 recites that the Act is intended to amend and codify the law relating to marriage among Hindus. The Act provides conditions for a Hindu marriage, restitution of conjugal rights, judicial separation, voidable marriages and divorce. Section 13 of the Act lays down the grounds on which a petition for divorce can be made. However, the expression 'cruelty' is not defined under the Hindu Marriage Act, 1955. Clause (i-a) to sub-section (1) to section 13 simply provides that if the petitioner is able to prove that after the solemnization of the marriage the other party has treated him with cruelty he shall be entitled for a decree of divorce. There is some reflection on this expression in other statute and, as can be gathered from the language employed under section 10(1)(x) of the Divorce Act, 1869, 'cruelty' would mean that if the petitioner has been treated by the other spouse in such manner as to cause a reasonable apprehension in his/her mind that it would be harmful and injurious to live with the respondent, such acts of the other spouse would amount to cruelty so as to make the petitioner entitled for a decree of divorce.

17. Clause (x) to section 10(1) of the Divorce Act, 1869 is extracted as under:

"(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent."

18. The expression 'cruelty' has been expounded in judicial decisions one of the earliest was "N.G. Dastane (Dr) v. S. Dastane" (1975) 2 SCC 326 wherein the Hon'ble Supreme Court has observed as under:

"30.....The inquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English law, that the cruelty must be of such a character as to cause "danger" to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other."

19. Therefore, in the context of cruelty, the judicial pronouncements also refer to such conduct of the spouse on account of which it shall be difficult for the petitioner to live in his/her company. In "Savitri Pandey v. Prem Chandra Pandey" (2002) 2 SCC 73 the Hon'ble Supreme Court has

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observed that the ground of cruelty shall be established if it is demonstrated that the conduct of the other party was injurious to the petitioner.

20. Like all ongoing statutes, the Hindu Marriage Act which deals with relationship of a husband and wife is also not a static statute and over a period of time the expression 'cruelty' has been expanded and numerous conducts of the spouse have been taken into the fold of cruelty so as to entitle the petitioner for a decree of divorce. The instances of cruelty as cataloged in "Samar Ghosh" are no doubt not complete and conclusive. In "K. Srinivas Rao v. D.A. Deepa" (2013) 5 SCC 226 the Hon'ble Supreme Court dealt with the recent trends and causes for dissatisfaction in matrimony and observed that even filing or making false statements against the spouse which may cause harm to him would amount to cruelty.

21. In "K. Srinivas Rao" the Hon'ble Supreme Court has observed as under:

"16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."

22. Lord Tucker has once said that Judges have always carefully refrained from attempting a comprehensive definition of cruelty for the purposes of matrimonial suits and experience has shown the wisdom of this course [refer, "Jamieson and Jamieson" 1952 A.C. 525]. Therefore, an enquiry as to educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system has to be made to examine whether the offending acts would constitute cruelty and such cruelty satisfies the judicial conscience of the Court to grant a decree of divorce. The respondent lodged a complaint case making allegations of demand of dowry and harassment in the matrimonial home. This also has to be kept in mind that the concept of proof beyond doubt is applied in criminal trial and it has no application in civil matters. Therefore, the Court has to weigh evidence of both the parties to find out in whose favour there is a preponderance of probability. In "Samar Ghosh" the Hon'ble

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Supreme Court has very aptly observed that the human mind is extremely complex and human behaviour is equally complicated. The evidence of the respondent on the point of cruelty has been accepted by the trial Judge and we also do not find any ground to interfere with such a finding rendered by the Family Court.

23. There is another aspect of the matter which has been dealt with by the Family Court Judge in paragraph no.16 of the judgment under challenge. During the trial, the appellant set up a case that his wife developed illicit relationship with her neighbour Saurav Krishna @ Bittu and, in support thereof, he produced various photographs, letters and other documents running into 248 pages. The respondent admitted few of the documents to be written by her but has explained that she was forced by her husband to write those letters. The Family Court Judge has noticed that those letters were expressions of one-sided love of the respondent. This is also a matter of record that the appellant did not make such allegation in his written statement nor in the affidavit dated 31st July 2017, and the allegations made by him have not been found substantiated from the materials laid by him during the trial. Now this is a law settled by the Hon'ble Supreme Court that making unfounded allegations of unchastity against the wife shall constitute cruelty and provide a ground for divorce.

24. In "Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate" (2003) 6 SCC 334 the Hon'ble Supreme court has observed as under:

"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting

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to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."

25. At the time, when the judgment in the divorce suit was delivered the parties were living separately for about a decade and now half a decade has also gone into past when this First Appeal is pressed by the appellant for final hearing. In "Rakesh Raman v. Kavita" 2023 SCC OnLine SC 497 the Hon'ble Supreme Court has observed that long separation and absence of cohabitation and complete breakdown of all meaningful bonds and the existing bitterness between the parties shall be a ground for divorce.

26. Having thus considered the aforesaid aspects of the matter, we do not find any ground to interfere with the judgment in Matrimonial Suit No.380 of 2010 and, accordingly, First Appeal No. 346 of 2017 is dismissed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated: 11th August 2023 R.K/A.F.R