Uttam Kumar Mitra vs Moumita Mitra
2023 Latest Caselaw 2412 Jhar

                                     1

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      F.A. No.209 of 2019

        Uttam Kumar Mitra                           ..... Appellant
                               Versus
        Moumita Mitra                               .....Respondent
                               ---------

CORAM: Hon'ble Mr. Justice Rongon Mukhopadhyay Hon'ble Mr. Justice Deepak Roshan

---------

For the Appellant : Mr. J.N.Upadhyay, Adv. For the Respondent : Mr. Rohit Agarwal, Adv.

---------

08/21.07.2023 The instant appeal has been preferred against

the judgment and decree dated 10.04.2019 & 29.04.2019,

respectively, passed by the learned Principal Judge, Family

Court, East Singhbhum at Jamshedpur in Original Suit No.

419/2015 filed under Section 13(1) (i-a)(i-b) of the Hindu

marriage Act, 1955 for dissolution of their marriage;

whereby the suit filed by the petitioner-appellant was

dismissed.

2. Mr. J.N.Upadhyay, learned counsel for the appellant

submits that the learned trial court has failed to take into

consideration the evidence adduced on behalf of the

appellant in the instant case and came to wrong finding

that the appellant has failed to prove his case. He further

submits that the respondent has deserted the appellant on

her own will for a continuous period before presentation of

the petition and the same has been proved from the

evidence and on that score alone, the decree of divorce

should have been granted and by not doing so, learned

court has committed grave illegality. He further submits

that there is complete breakdown of marriage between the

parties and there is no chance of any patch up between

them. He lastly submits that respondent subjected the

appellant to cruelty by her act of commission and omission

as mentioned in the petition.

Relying upon the aforesaid submissions he submits

that the judgment and decree dated 10.04.2019 &

29.04.2019, respectively, deserves to be set aside.

3. Mr. Rohit Agarwal, learned counsel for the

respondent submits that the petitioner/appellant has filed

the instant suit for divorce, in order to escape from his

liability of maintaining the respondent and her minor child.

He further submits that the respondent-wife has denied

that the marriage was solemnized under simple ceremony;

but has stated that her father had spent about Rs.

4,00,000/- in the said marriage. Further, she was being

tortured in her matrimonial home by the

petitioner/appellant, as well as by her in-laws for demand

of Rs.1,00,000/-, as well as, a car and when such demand

could not be fulfilled, she was driven out from her

matrimonial home on 30.11.2010.

After being driven out from her matrimonial home on

30.11.2010, the petitioner/appellant and her children came

to the parental home of the respondent on 05.12.2010. The

appellant reiterated their demand of money and a car.

Being compelled, the father of the respondent gave

Rs.30,000/- only to the petitioner/appellant for buying a

motorcycle for himself, but the petitioner/appellant instead

of buying the same in his name, bought the same

dishonestly in the name of his brother, Utpal Kumar Mitra.

He further submits that as she was being tortured for

demand of money and a car, she was compelled to file a

complaint case vide C/1 Case No. 3811 of 2010, under

section 498A of the IPC, as well as, section ¾ of D.P.Act

against the petitioner/appellant and his family members

and the said case is still pending.

He lastly submits that no error has been committed

by the learned family court as such, the instant appeal

deserves to be dismissed.

4. The learned family court after hearing the parties made following issues:

(i)     Is the suit as framed maintainable?
(ii)    Whether the applicant has valid cause of action?

(iii) Whether the respondent has committed acts of cruelty on the applicant sufficient for the purpose of divorce?

(iv) Whether the respondent has deserted the applicant for a period of two years or more immediately preceding the filing of the application?

(v) Whether the applicant is entitled to a decree of divorce?

(vi) To what other relief or reliefs the applicant is entitled

to?

5. Having heard learned counsel for the parties and

after going through the documents/depositions available on

LCR, it appears that the appellant has mentioned several

allegations regarding the behavior of the respondent, to

show infliction of cruelty upon him by the respondent, but

the same seems to be vague and the extent of the

seriousness of the alleged cruelty, has not been lucidly

proved by the appellant through his witnesses, which may

be termed as sufficient for dissolution of marriage between

the parties.

6. P.W.1 is the petitioner/appellant himself and upon

his cross examination, he has stated that his wife had filed

a case under section 498A of the I.P.C. against him and his

family members, alleging that they had demanded one car

and Rs.1,00,000/- from her. Further, in the said case his

bail was rejected and thereafter, by undertaking to take

back his wife, he has entered into a compromise with his

wife and on that ground, he was granted provisional bail by

this Court, but as he could not take back his wife, the said

provisional bail was canceled.

It is further evident that though he had filed one case

for keeping his wife, but the same was withdrawn, as he

had to go to jail twice in connection with a case under

section 498A of the I.P.C. He has stated that he had to go to

jail for assaulting his wife and for causing her miscarriage

and he has admitted that he has not stated before any

court that he wants to take back his wife and child.

Further, he has also stated that he will not give

maintenance to his child.

P.W.2 has admitted upon his cross-examination that

none of the incidents have occurred in his presence. P.W. 3

has also stated similar to this witness and has stated in his

cross examination that he had not seen any incident by his

own eyes and the appellant had told him about the

incidents. P.W.4, who is the brother of the appellant, has

stated upon his cross examination that, he does not know,

as to whether or not, after the compromise, respondent had

gone to the house of his brother or to their house. He has

further admitted that, he does not know, as to whether or

not, his brother wants to keep his wife.

On the other hand, R.W.1 who is the respondent

herself has stated upon her cross examination that in the

case of dowry demand filed by her, her husband had gone

to jail and there was compromise between them, but her

husband did not take her back, therefore, she had not gone

with him. She has further stated that, she does not want to

reside with the family members of her husband, inasmuch

as, since 20.01.2009 itself she was being tortured for

demand of dowry. Though, on 11.03.2010, there was

settlement between the parties in the Mediation Center, in

which, her husband had undertaken that, he will keep his

wife and child properly; consequently, she had gone with

her husband on 11.03.2010 and resided with him for 1-2

weeks, but thereafter, she was again ousted from her

matrimonial home.

7. From the above discussion and the evidence on the

record, we are of the view that the petitioner/appellant has

not been able to prove infliction of cruelty upon him

appropriate for the purpose of dissolution of marriage

between the parties. On the contrary, respondent has

alleged infliction of cruelty upon her by the

petitioner/appellant and his family members, for which she

has filed criminal case, which is pending and despite the

fact that the petitioner herein got provisional bail on the

basis of settlement that he will take back his wife, but later

on, he did not take her back resulting in cancellation of his

provisional bail. This shows the conduct of the

petitioner/appellant.

8. So far as issue of desertion is concerned; admittedly,

the appellant had been in jail in the said case and he was

released on provisional bail on the basis of undertaking

given by him but due to non-fulfillment of his commitment,

his provisional bail was canceled. Under these

circumstances, we are of the view that, respondent herein

has got sufficient reason not to reside with the

petitioner/appellant. As such, this issue was also decided

against the petitioner/appellant and in favour of the

respondent.

9. Having regard to the discussions made herein above,

it appears that the learned trial court has not committed

any error in rejecting the application of the

petitioner/appellant filed under section 13(1) (i-a)(i-b) of the

Hindu marriage Act, 1955 and it has rightly held that the

cruelty has been made against the opposite party-wife and

no cruelty has been subjected upon the petitioner.

We are of the considered view that no error has been

committed by the learned family court; as such the instant

appeal stands dismissed without any interference.

(Rongon Mukhopadhyay, J.)

(Deepak Roshan, J.)

Amardeep/