Jharkhand High Court
Salon Lomga vs Hanna Lomga on 15 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 247 of 2018
Salon Lomga --- --- Appellant
Versus
Hanna Lomga --- --- Respondent
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mr. Justice Deepak Roshan
---
For the Appellant : Mr. Yogendra Prasad, Advocate
Mr. Nitin Nitesh Bhengra, Advocate
For the Respondent : Mrs. Shilpi Sandil Gadodia, Advocate
---
24/15.03.2023: Heard learned counsel for the appellant Mr. Yogendra Prasad and
learned counsel Mrs. Shilpi Sandil Gadodia representing the respondent as a
legal aid counsel.
2. By the impugned judgment dated 30.08.2016 and decree dated
09.09.2016 passed by learned Principal Judge, Family Court, West
Singhbhum, Chaibasa in Original Suit No.14/2015 the Suit for dissolution of
marriage under Section 10(ix) and (x) of the Divorce Act 1869 has been
dismissed ex-parte since the respondent even after valid service of notice and
through paper publication also did not appear to contest the Suit. The
pleadings as made out in the plaint have therefore remained unrebutted.
Appellant had adduced two witnesses: himself as P.W.2 and one Ishwar
Lomga P.W.1 in support of his case. As per the pleadings of the Suit preferred
by the petitioner/appellant herein, parties entered into marital relationship on
7th February 2012 at G.E.L. Church, Kadma (Khunti) and lived together for
four days at the paternal place of the appellant at village Budungkel, P.O.
Gudri, P.S. Sonuwa, District West Singhbhum as husband and wife. Thereafter
without any rhyme or reason she left the place and has never returned despite
efforts made by the plaintiff and their family members. There are no offspring
born out of the wedlock. Appellant is employed in Indian Railways as a Clerk
and is presently posted at Gujarat.
3. During pendency of this appeal also, even after valid service
of notice through paper publication, the respondent did not appear.
Thereafter, on inquiries made through the Secretary, DLSA, Khunti
her application for legal aid was allowed and she has appeared in the
present appeal. Learned counsel Mrs. Shilpi Sandil Gadodia
the legal aid counsel nominated by the High Court Legal Services Committee
is representing the respondent. Mediation exercise was undertaken during
pendency of this appeal vide order dated 17th September 2020. However,
mediation exercise failed as per the report of learned Mediator, JHALSA
bearing no.1463 dated 21st October 2020. The appeal was admitted for
hearing and lower court records were called for. During course of the hearing
also, mediation exercise was held pursuant to the order dated 10 th November
2022 passed by the Coordinate Bench of this Court. However, mediation
exercise has again failed as per the report of learned Mediator, JHALSA
bearing letter no.269A dated 19.01.2023.
4. On the part of the appellant it has been argued that the marriage
is dead in all respects and no emotional ties were either created or have
survived after 11 years of the marriage since the respondent has been living
separately for the last 11 years except 4 days just after the marriage. She has
neither contested the Suit nor come forward with any reasonable excuse to
remain away from conjugal life. She has not preferred any claim for
maintenance or filed any criminal case which may justify her continued
absence amounting to both physical desertion and intention not to cohabit
with the appellant. It is only a legal tie which still remains between the
parties, otherwise there are no love or affection left between them. Appellant's
life has been ruined because of such intransigent attitude of the respondent.
Since the marriage remains intact in law, he is precluded from incurring
remarriage. Learned Family Court has however failed to appreciate the case
of the petitioner/appellant which remained unrebutted, despite due support
from both the witnesses including the appellant examined during the
matrimonial case in which the appellant and the other witness P.W. 1 both
were also cross-examined by court. If such a marriage is allowed to survive
without the other party being at all interested in reviving conjugal
relationship, it would amount to continuation of the mental cruelty being
inflicted upon the appellant for rest of his life also. Appellant is ready to pay
any reasonable amount of alimony, if the prayer for dissolution of marriage is
allowed in his favour.
5. Learned counsel for the respondent has contested the plea. She
however submits that the only reason for the respondent not to appear and
contest the matrimonial suit was lack of awareness and enough resources to
defend the suit for dissolution of marriage instituted by her husband.
However, on being asked she has conveyed her intention to continue with the
marriage and live with the appellant. It is submitted that efforts for amicable
settlement of the matrimonial dispute through mediation have failed twice
because the appellant is not interested in keeping her. The grounds of
desertion or mental cruelty made out by the appellant, are not made out by
any cogent piece of evidence. The appellant has never properly taken care of
the respondent who lives in penury and has no regular sources of income to
maintain. She had to abandon nursing course because of lack of finance and
presently is engaged on temporary basis from time to time as an Aaya to the
nursing assistant. She is spending her life in misery and penury. Therefore, the
marriage may not be dissolved. However, learned counsel for the respondent
has not disputed the contention of the appellant that neither has any criminal
case being instituted alleging any instances of torture during marriage or any
other instance of cruelty on the part of the appellant which could give a
reasonable excuse for the respondent to stay away from the matrimonial
home, more so, when the appellant is gainfully employed in railway service. It
is also not disputed that no other case including any maintenance case has
been instituted by the respondent.
6. We have considered the submissions of learned counsel for the
parties and gone through the pleadings on record and the evidence adduced by
the appellant. We have also perused the impugned judgment.
7. Section 10(ix) & (x) of the Divorce Act, 1869 reads as under :-
"10. Grounds for dissolution of marriage.--
...................
(ix) has deserted the petitioner for at least two years
immediately preceding the presentation of the petition; or
(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."
8. It is apparent from the face of the materials on the lower court
records that the contention of the appellant that the respondent left the
matrimonial home just after 4 days of their marriage on 7 th February 2012 as
per the Christian rites remains unrebutted or undisputed by the respondent as
she never chose to appear to contest the Suit despite valid service of notice
and even through paper publication. It is also evident that no criminal case
showing acts of torture or cruelty were filed by the respondent to make out a
semblance of any reasonable excuse to remain away from the conjugal rights
for the last 11 years. The appellant has instituted the suit after 3 years of
marriage in the year 2015 when his attempts to bring her back did not yield
fruitful results. The plaintiff witnesses including the appellant both have
supported the case put up through the plaint before the learned Family Court
on grounds of desertion and mental cruelty. Apparently respondent has not
contested the Suit and at this stage also not been able to show any reasonable
grounds for continued absence for the last 11 years since her marriage in
February 2012. For the aggrieved spouse to satisfy the ingredients of
desertion both physical desertion and the intention to remain away without
any reasonable cause is to be fulfilled. The respondent has been living away
from the appellant for the last 11 years after having stayed for only 4 days
after their marriage. The respondent has not been able to rebut the charge of
desertion by any material evidence or pleadings during the pendency of the
Suit as she did not choose to appear. There is complete absence of any
reasonable cause in staying away from the matrimonial home. Therefore, it
appeals to us that the charges of willful desertion are duly satisfied in the facts
of the present case.
9. It is also true that continued desertion for long periods such as 11
years in the present case without any reasonable cause to revive and remain in
conjugal relationship itself would amount to mental cruelty. The Apex Court
has in the case of Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511 Para-101
referred to several instances as illustrative of mental cruelty in which
continued absence and refusal to revive conjugal life by one of the spouses
without any reasonable cause also amounts to mental cruelty. In the facts of
the present case it therefore appears to us that both the ingredients of desertion
and mental cruelty are duly satisfied. As a matter of fact, if the parties have
remained in separation for 11 years, an inference can be drawn that the
marriage has irretrievably broken down. Though irretrievable break down of
the marriage is not a recognized ground of divorce, but it can be a weighty
circumstance for consideration when the specific grounds available under the
statutes such as desertion and mental cruelty in the instant case are duly
established by the aggrieved spouse. [See K. Srinivas Rao Vs. D.A. Deepa
reported in (2013) 5 SCC 226 para-30 to 35].
10. Learned Family Court, Chaibasa however seems to have been
oblivious of the legal position both as regards the ingredients of desertion and
also of mental cruelty which in the facts of the case as pleaded and supported
by the plaintiff witnesses were duly proved. As such, the findings rendered by
the learned Family Court suffer from infirmities and cannot be sustained in
the eyes of law or on facts. The appellant has been able to make out a case for
dissolution of marriage on both grounds of mental cruelty and desertion as
defined under Section 10(ix) & (x) of the Divorce Act, 1869. However, this
Court is satisfied that the appellant is in such circumstances required to pay a
permanent alimony in favour of the respondent quantified at Rs.6.25 Lakhs.
The amount shall be paid in three instalments of Rs.2 Lakhs, 2 Lakhs and 2.25
Lakhs each either by digital mode through bank account of the respondent
having no. 491510110800802 of Bank of India Khunti Branch or through the
learned Family Court, Chaibasa.
1st installment of Rs.2 Lakhs be deposited by 17th April, 2023;
2nd installment of Rs.2 Lakhs be deposited by 1st June 2023 and
the last installment of Rs.2.25 lakhs be deposited on or before 31st
August 2023 in either of the modes indicated herein above.
In case the installments are deposited before the learned Family Court,
Chaibasa, the respondent shall make an application for release thereof. The
learned Family Court, Chaibasa on being satisfied of her identity, shall release
the said amount in her favour without any delay.
11. Accordingly, this appeal is allowed in the aforesaid terms.
Decree accordingly. Impugned judgment dated 30.08.2016 and decree dated
09.09.2016 are set aside. The Secretary, High Court Legal Services
Committee is directed to pay the admissible legal remuneration to the learned
counsel Mrs. Shilpi Sandil Gadodia representing the respondent.
(Aparesh Kumar Singh, J.)
(Deepak Roshan, J.)
Shamim/
