Dinesh Kumar Vishwakarma vs Gayatri Acharya
2023 Latest Caselaw 3687 Jhar

                      First Appeal No. 67 of 2022
                                     ...........
         [Against the judgment dated 14.06.2022 and decree dated 23.06.2022
         passed by Md. Taufiqul Hassan, learned Principal Judge, Family
         Court, Dhanbad in Original Suit No. 884/2021]
                               ...........
         Dinesh Kumar Vishwakarma               ... ... Appellant
                               Versus
         Gayatri Acharya                     ... ... Respondent
                               ...........
                            PRESENT
              HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
                   HON'BLE MR. JUSTICE DEEPAK ROSHAN
                               ...........
         For the Appellant   : Mr. Pratiush Lala, Advocate
         For the Respondent  : Mr. Sanjay Prasad, Advocate
                               ...........
C.A.V. on 20.09.2023                 Pronounced on 04.10.2023
Per. Rongon Mukhopadhyay, J.

Heard Mr. Pratiush Lala, learned counsel for the appellant and Mr. Sanjay Prasad, learned counsel appearing for the respondent

2. This appeal is directed against the judgment dated 14.06.2022 and decree dated 23.06.2022 passed by Md. Taufiqul Hassan, learned Principal Judge, Family Court, Dhanbad in Original Suit No. 884/2021, whereby and whereunder the suit preferred by the appellant for Restitution of Conjugal Rights u/s 22 of the Special Marriage Act, 1954 has been dismissed.

3. For the sake of convenience both the parties are referred to in this judgment as per their status in the learned court below.

4. The petitioner (appellant herein) had filed a suit for Restitution of Conjugal Rights u/s 22 of the Special Marriage Act, 1954, wherein it has been stated that the petitioner and the respondent (respondent herein) had got their marriage registered before the Marriage Registrar of Asansol (W.B) on 03.06.1995 u/s 13 of the Special Marriage Act, 1954. After marriage both lived as husband and wife firstly at Kumardhubi, Nirsa, Dhanbad and thereafter at Bastacola, Dhanbad. It has been stated that thereafter the petitioner had got a job after which

both stayed together at Bangalore, Hyderabad, Japan and lastly at Jabalpur. It has further been stated that during his stay at Japan the petitioner developed Crohn's disease and as per the advice of the Doctor they had to return to India. After the petitioner returned from Japan, he joined IITDM, Jabalpur as an Assistant Professor in the year 2009. The petitioner and the respondent were living happily together as husband and wife but in May, 2011, the mother of the respondent requested the petitioner to sent his wife to her parents' house as her father was ill and consequent thereto the petitioner sent the respondent to Dhanbad on 24.05.2011. During her stay at Dhanbad the petitioner was in continuous touch with the respondent but on one pretext or the other in spite of visiting several times the respondent refused to return back to her matrimonial house. It has been stated that in the year 2015 the respondent had filed a suit for divorce against the petitioner being Title (Divorce) Suit No. 531/2015, which was contested by the petitioner and ultimately the suit was dismissed on 08.06.2018. It has been stated that the petitioner had overcome the bitterness which had engulfed him during the pendency of the divorce suit and he is ready to lead a happy conjugal life with the respondent. The petitioner had sent letters on several occasions to the respondent but there has been no response from the side of the respondent.

5. On being noticed the respondent had appeared and filed a written statement in which the allegation leveled against her by the petitioner has been denied. It has been stated that after returning from Japan there was a perceptible change in the behavior of the petitioner towards her. The petitioner left no stone unturned to insult, abuse and humiliate the respondent. It has been stated that after the year 2011 the respondent was not in touch with the petitioner and the petitioner had not made any efforts to maintain her. She was mentally and physically tortured by the petitioner who also resorted to unnatural sexual behavior.

6.                Based on        the pleadings        of the parties the
following issues were framed:
                  (I)     Whether the respondent has sufficient cause
                  to live separately from the petitioner ?
                  (II)    Whether the petitioner is entitled to a decree

of Restitution of Conjugal Rights under Section 22 of the Special Marriage Act ?

7. The petitioner has examined two witnesses in support of his case.

8. P.W.1 (Dinesh Kumar Vishwakarma) is the petitioner himself who has stated about his marriage solemnized with the respondent on 02.05.1995 at Kalyansehwari Temple, Maithon and the marriage was registered on 03.06.1995 under the Special Marriage Act, 1954 before the Marriage Officer, Asansol (W.B). A suit was filed earlier u/s 9 of the Hindu Marriage Act, 1955 being O.S. No. 846/2018 which was withdrawn vide order dated 04.08.2021. He has stated that after marriage both stayed at different places and lastly at Jabalpur. While being posted at Japan he was afflicted with Crohn's disease for which he had to return to India where he joined at IITDM, Jabalpur. It has been stated that the respondent is well aware of the disease the petitioner is suffering from as she was present at the time of diagnosis of the disease. Both lived as a happy couple wherever he was posted and on 24.05.2011 his wife came to Dhanbad as her father was not keeping well. Although he was in continuous touch with his wife and had also visited her on several occasions but she did not return back to his house. He has stated that his wife would telephonically ask for money pretending to return back to Jabalpur after completion of her M.Phil from ISM, Dhanbad. He had accordingly transferred money to her Bank Account on several occasions in anticipation of a return. His wife had filed a suit for divorce which was dismissed on contest. He has stated about his love and affection towards his wife for which he had communicated to his wife with letters but they have been

returned back with an endorsement by the Postal Peon, "refused". During the Pandemic he had enquired several times about the conditions of his wife but there was no response from her side. He has also denied having tortured and harassed is wife ever.

In cross-examination, he has deposed that he was the tutor of the respondent and there was a love marriage between them. Before marriage he was running a coaching institute and he had secured a job four years after marriage. After marriage, he started living with his wife at Kumardhubi and later on at his ancestral home at Bastacola. During his stay at Japan, he was diagnosed with Crohn's disease. He has deposed that out of his wedlock with the respondent a child was born who however died after 3-4 days of birth. His wife is residing separately from him since the year 2011. He had never asked his wife to furnish the details of the expenses incurred by her.

9. P.W.2 (Ramashish Vishwakarma) is acquainted with both the sides who has stated about the marriage solemnized between the petitioner and the respondent. He was a witness to the suit instituted by the petitioner for Restitution of Conjugal Rights which however was subsequently withdrawn. He had also given his evidence in the suit for divorce instituted by the respondent against the petitioner and this suit was dismissed by the court. The present suit has been instituted by the petitioner as he wants to keep the respondent with him with full dignity and honor. The petitioner had on several occasions want to bring back the respondent and he had also accompanied the petitioner but the respondent refused to return back citing completion of her M.Phil course.

In cross-examination, he has deposed that he had not attended the marriage. He has personal knowledge that the petitioner had kept the respondent with full dignity and honor.

10. The respondent has examined as many as two witnesses including herself.

11. R.W.1 (Gayatri Acharya) is the respondent herself who has admitted about her marriage solemnized with the petitioner. Since 2011, the behavior of the petitioner towards her had become cruel and he used to insult her in front of her friends and relatives. On several occasions the petitioner had also assaulted her and he used to quarrel with her on trivial issues. She has stated that the petitioner had subjected her to mental and physical torture.

In cross-examination, she has deposed that she has not instituted any case of torture against the petitioner. It is true that she had filed a suit alleging cruelty against the petitioner which was dismissed. It is a fact that after the death of her child she went into a depression. It is also true that on her request the petitioner used to transfer money to her account; the amount would be Rs. 50,000/-, Rs. 20,000/- and Rs. 15,000/-. She has deposed that she is not ready to stay with the petitioner even if he keeps her with care and dignity. She has further deposed that the petitioner is suffering from Crohn's disease, Hyperthalesimia and Diabetes. She was earlier into the teaching profession but at present she does not work.

12. R.W.2 (Menuka Acharya) is the mother of the respondent who has stated about the marriage which was solemnized in the year 1995. The respondent had wanted a child but the petitioner refused and this led to frequent quarrels between husband and wife. The petitioner used to regularly assault and abuse the respondent and frequently used to humiliate her in front of his friends and relatives.

In cross-examination, she has deposed that in October, 2003 the respondent had given birth to a child which died within 2-3 days and which resulted in the respondent going into a depression. She had never made any complaint regarding the assault committed by the petitioner upon the respondent. She has stated that her daughter does not want to reside with her husband.

13. Apart from the oral evidence the petitioner has brought on record several documents which have been marked as Exhibits.

14. Mr. Pratiush Lala, learned counsel appearing for the petitioner (appellant herein) has submitted that the petitioner has made good grounds in the suit for Restitution of Conjugal Rights but the same has not been appreciated by the learned court below. It has been submitted that the respondent without any reasonable cause had left the house of the petitioner. The evidence of the petitioner gives a true reflection of the desire of the petitioner to keep the respondent with him with full dignity and honor. It has further been submitted that the respondent is aware about the various ailments of the petitioner but instead of being at his side the respondent without any plausible reasons had left him at such a juncture.

15. Mr. Sanjay Prasad, learned counsel appearing for the respondent has submitted that the respondent was subjected to abuses, assault and humiliation which were justifiable reasons for not staying with the petitioner. He has also referred to the suit instituted by the respondent for divorce on the ground of mental cruelty to enhance his submission regarding the respondent being subjected to torture by the petitioner.

16. We have heard the learned counsel for the respective parties and have also perused the Lower Court Records.

17. The present suit has been preceded by a suit instituted by the respondent praying for a decree for dissolution of marriage with the petitioner on the grounds of cruelty and desertion. The said suit being O.S. No. 531/2015 was dismissed on contest vide judgment dated 08.06.2018. The same was never challenged by the respondent in appeal and, therefore, the judgment dated 08.06.2018 passed in O.S. No. 531/2015 had attained finality. It is an admitted fact that the petitioner has solemnized marriage with the respondent on 02.05.1995 at

Kalyaneshwari Temple, Maithon. As per the evidence of the petitioner (P.W.1) he was running a coaching institute and the respondent was a student therein and a relation had developed between them which culminated in their marriage. It is also an admitted fact that the petitioner is suffering from Crohn's disease which was diagnosed in Japan apart from Hyperthalesimia and Diabetes. It also appears that since the year 2011 the petitioner and the respondent are residing separately. The togetherness in their relationship had continued from 1995 till 2011 and as per the petitioner they had resided at various places and lastly at Jabalpur form where the respondent had gone back to her parents' house. This fact has also not been disputed by the respondent. The allegations made by the respondent upon the petitioner regarding assault, abuse and humiliation appears to have lost steam by virtue of such allegations remaining unproved in the suit instituted by her for dissolution of marriage. The antipathy of the respondent towards the petitioner seems to be unfounded as her evidence also does not speak of any specific instance which could create a hurdle for restoring conjugal relationship.

18. Section 22 of the Special Marriage Act, 1954 deals with Restitution of Conjugal Rights and the same reads as follows:

"22. Restitution of conjugal rights.--When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. [Explanation.--Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]

19. The explanation to Section 22 transfers the burden of rebutting reasonable excuse upon the respondent. This is primarily on account of her failure to prove desertion and cruelty in the suit for divorce instituted by her. The respondent in her evidence has failed to dispel such burden and it is absolutely clear from the materials available on record that she

had left the house of the petitioner on her own accord without there being any reasonable cause.

20. The evidence of the respondent in fact amplifies the desire of the petitioner to keep the respondent with him with full dignity and honor as in her cross-examination she has stated about the transfer of money to her account by the petitioner during her stay at her matrimonial house. The various letters exhibited by the petitioner is also suggestive of the genuine intent of the petitioner to resume conjugal life with the respondent.

21. The learned court below appears to have predominantly considered the evidence of the respondent (R.W.1) and seems to have been oblivious to the fate of the suit for divorce instituted by the respondent wherein mental cruelty and desertion could not be proved. It has also lost sight of the conduct of the petitioner which flows from his evidence and to a certain extent supported by the respondent herself.

22. Thus, in view of the discussions made hereinabove, we come to the conclusion that the impugned judgment dated 14.06.2022 and decree dated 23.06.2022 passed in Original Suit No. 884/2021 by Md. Taufiqul Hassan, learned Principal Judge, Family Court, Dhanbad is not sustainable in the eye of law and the same is, therefore, set aside and the suit preferred by the petitioner u/s 22 of the Special Marriage Act, 1954 is allowed.

23. This appeal as a consequence to the above is also allowed.

(Rongon Mukhopadhyay, J.)

(Deepak Roshan, J.)

High Court of Jharkhand at Ranchi Dated, the 4th day of October, 2023.

Alok/NAFR