Sobha Minz vs Ajay Lakra
2023 Latest Caselaw 3690 Jhar

                    First Appeal No. 07 of 2020
                                     ...........
         [Against the judgment dated 27.08.2019 and decree dated 04.09.2019
         passed by Shri Sandeep Srivastava, learned Principal Judge, Family
         Court, Gumla in Original Suit No. 28 of 2016]
                                     ...........
          Sobha Minz                                   ... ... Appellant
                                     Versus
          Ajay Lakra                                 ... ... Respondent
                               ...........
                            PRESENT
              HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
                   HON'BLE MR. JUSTICE DEEPAK ROSHAN
                               ...........
         For the Appellant   : Mr. Kaushik Sarkhel, Advocate
         For the Respondent  : None
                               ...........
C.A.V. on 24.08.2023                 Pronounced on 04.10.2023
Per Rongon Mukhopadhyay, J.

Heard Mr. Kaushik Sarkhel, learned counsel appearing for the appellant. None appears on behalf of the respondent.

2. This appeal is directed against the judgment dated 27.08.2019 and decree dated 04.09.2019 passed by Shri Sandeep Srivastava, learned Principal Judge, Family Court, Gumla in Original Suit No. 28 of 2016, whereby and whereunder the suit preferred by the petitioner (respondent herein) for dissolution of marriage u/s 10 of the Indian Divorce Act, 1869 has been allowed and the marriage between the appellant and the respondent has been dissolved.

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 (respondent herein) had filed a suit against the respondent (appellant herein) u/s 10 of the Indian Divorce Act, 1869 wherein it has been stated that the marriage between the petitioner and the respondent was solemnized on 06.05.2014 at Aamgaon Church as per Christian religion and customs. The petitioner is an employee in the Railways and he was posted at Rourkela while the respondent is an employee in a Bank and posted at Bihar Sharif. The marital dispute started on

17.05.2015 as the respondent did not want to lead a conjugal life with the petitioner. It has been stated that the respondent had an illicit relationship with Samir Tigga. On 24.02.2015 a child was born out of the wedlock of the petitioner and the respondent. It has been stated that in spite of a meeting held in the village the dispute could not be settled and the petitioner decided to live separately from his wife.

5. The respondent no. 1 on being noticed had appeared and filed a written statement in which it has been stated that from the initial days of the marriage the relationship with her husband was not cordial due to the demand of dowry made by the petitioner having not been fulfilled. The petitioner is not inclined to keep the respondent no. 1 and her child because of an illicit relationship he is having with another lady with whom he wants to solemnize marriage. It has been stated that on numerous occasions the matter was brought to the knowledge of the village Panch of Silam and Aamgaon for settlement but the same did not yield any result as the petitioner on one pretext or the other denied to keep her and her child.

6. Based on the pleadings of the parties the following issues were framed for adjudication:

(I) Whether the suit is maintainable in its present form ?

(II) Whether the petitioner has got valid cause of action for this suit ?

(III) Whether the O.P. has illegal relations with co-respondent and co-respondent has committed adultery with the wife of petitioner is true ? (IV) Whether the respondent does not want to lead the conjugal life with the petitioner is true ? (V) Whether the petitioner is entitled for a decree of divorce under Section 10 of the Indian Divorce Act, 1869 ?

(VI) Whether the petitioner is entitled for reliefs as prayed for ?

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

8. P.W.1 (Ajay Lakra) is the petitioner himself who has stated about his marriage having been solemnized with Sobha Minz on 06.05.2014 at Aamgaon Church. He has posted in the Railways as a Loco Pilot Driver while his wife works in Punjab National Bank. After the marriage from 17.05.2015 disputes started between both the sides and the respondent no. 1 did not want to lead a conjugal life with him as the respondent no. 1 was having an illicit relationship with respondent no. 2. He has stated that Panchayatis were held at village Silam and village Aamgaon for attempting at a settlement but the dispute could not be resolved as the respondent no. 1 had appeared in the Panchayati and had flatly refused to stay with the petitioner. He has stated that in the meantime the respondent no. 1 had given birth to a child on 24.02.2015 and he wants to have a DNA test as the child is not his. He has further stated that after marriage he and the respondent no. 1 had stayed for ten days and thereafter there has been no marital relationship between them.

In cross-examination, he has deposed that the cause of dispute was a photograph he had found at the house of the respondent no. 1 in Bihar Sharif where he stayed for two days. A document was prepared in the Panchayati but the same has not been produced in court. It has been stated that both of them are staying separate from June, 2014 and he used to meet his wife only when the Panchayati was held. It is correct to say that in the Panchayati a decision was taken to the effect that the child in his first five years of life will stay with the mother and after five years the child will be handed over to him. It is not correct to say that the respondent no. 1 does not have any illicit relationship with the respondent no. 2. He has denied having any relationship with another women and he wants to solemnize marriage with her.

9. P.W.2 (Anand Bara) is the cousin brother of the petitioner who has stated about the marriage solemnized between the petitioner and the respondent. They stayed together

for 10-15 days and they suffered marital discord from 17.05.2015 onwards. The respondent used to commit mental cruelty upon the petitioner for which Panchayati was convened wherein the respondent flatly refused to stay with the petitioner. When all efforts at resumption of conjugal relationship failed, the petitioner was compelled to institute a suit for divorce.

In cross-examination, he has deposed that after 4-5 days of marriage the petitioner had gone to Bihar Sharif where both had a tiff which was disclosed to him by the petitioner. A document was prepared in the Panchayat which was deposited by him and the petitioner to their counsel. He has denied that after 4-5 days of marriage the petitioner had started assaulting the respondent and that the petitioner wanted to solemnize a second marriage.

10. P.W.3 (Bhaula Oraon) had presided over the Panchayati which was held in village Silam for resolving the dispute between the petitioner and the respondent. The respondent had disclosed before him and the other members of the Panchayati that she will not stay with the petitioner. He has produced the document prepared in the Panchayat and which also bears the seal of the Panchayat which has been marked as Exhibit-1. He has proved the signatures of the petitioner and the respondent which have been marked as Exhibit-2 and 2/1 respectively.

In cross-examination, he has deposed that the meeting of the Panchayat was held on 31.05.2015 and since he was the village Pradhan he was asked to preside over the meeting. In the meeting both the sides had placed their cases but the same was not taken down in writing. The fact that the respondent no. 1 does not want to stay with the petitioner does not find place in Exhibit-1. The respondent no. 1 in the meeting had stated about the assault committed upon her by the petitioner. The respondent no. 1 had also not stated about the desire of the petitioner to solemnize a second marriage.

11. The respondent no. 1 in support of her case has examined five witnesses.

12. O.P.W.1 (Sudhira Minz) is the elder sister of the respondent no. 1 who has stated that after a few days of marriage the petitioner had started abusing and assaulting the respondent no. 1. On 20.05.2014 the petitioner and his family members had gone to the parental house of the respondent no. 1 in village Aamgaon and started demanding divorce and left the respondent no. 1 at her house. The respondent no. 1 had come to Gumla on 21.05.2014 for treatment due to the assault committed upon her by the petitioner where the petitioner met the respondent no. 1 and on the assurance of not committing assault in future had taken her back to Silam. She was informed by the respondent no. 1 over mobile regarding abuse and assault committed upon her on 11.06.2014 and 05.07.2014. The respondent no. 1 being fed up with the torture committed upon her by the petitioner started staying at her parental house. She has stated that on 31.05.2015 a Panchayati was held wherein the respondent no. 1 had stated about the torture committed by the petitioner but the Panches did not take such insinuations seriously and no decision could be arrived at. On 17.05.2015 she and the respondent no. 1 along with the child went to the house of the petitioner where the petitioner had snatched the child and had given it to another woman and she and the respondent no. 1 were locked in a room where they were subjected to abuse and assault. It has been stated that they were forced to write that the respondent no. 1 shall remain present on 31.05.2015 along with the Panches of her village at Silam. On 31.05.2015, the respondent no. 1 along with her parents were present in the Panchayat and they were forced to sign on the Panchayati papers. The petitioner wants to solemnize marriage with another woman due to which he had instituted a suit for divorce.

In cross-examination, she has deposed that an incident of assault had taken place on 17.05.2015 but no FIR

was lodged. She does not know as to whether the respondent no. 1 had an illicit relationship with Samir Tigga and that is the reason why the respondent no. 1 does not want to stay with the petitioner.

13. O.P.W.2 (Vinay Minz) is the cousin brother of the respondent no. 1 who has admitted about the marriage between the petitioner and the respondent no. 1 and the birth of a child. After the respondent no. 1 had joined in service the petitioner without any prior information had come to Aamgaon along with the Panches of Silam and was pressuring them to take a decision in his favour. On 31.05.2015 a Panchayati was held and the decision of the Panchayati regarding the custody of the child was not acceptable to the respondent no. 1 but in spite of the same she was forced to sign the said paper. On 08.06.2015 under the influence of the petitioner the Panches of Aamgaon had intimated the respondent no. 1 through a letter to remain present on 09.06.2015 at Gumla Court for registration of the marriage. On 20.09.2016 a joint letter of the Panches of Silam and Aamgaon was addressed to the respondent no. 1 to make herself present on 03.10.2016 at Gumla Court and if she does not appear she will be fined Rs. 50,000/- and she and her family members will become outcast in the society. He has stated that the allegations leveled against the respondent no. 1 are false and baseless.

In cross-examination, he has deposed that in the meeting convened by the Panches the respondent no. 1 had refused to stay with the petitioner. He has denied that the respondent no. 1 has an illicit relationship with another person.

14. O.P.W.3 (Bahlardan Kujur) is a co-villager of respondent no. 1 who has admitted about the marriage solemnized on 06.05.2014 in which he had also participated. After marriage the respondent no. 1 went to her matrimonial house at Silam and after two weeks she was returned back to her parents' house at Aamgaon. The petitioner used to commit physical and mental torture upon the respondent no. 1. He has

stated about the letter dated 20.09.2016 jointly prepared by the Panches of Silam and Aamgaon in which he was directed to remain present in Gumla Court on 03.10.2016 and the said letter depicted the consequences he will face if he does not appear in the said date. He had seen the letter and had also read its content.

In cross-examination, he has deposed that he was compelled to sign the document dated 31.05.2015 but he had never complained anywhere about such forcible act. He has denied any illicit relationship of the respondent no. 1 with Samir Tigga.

15. O.P.W.4 (Walter Kerketta) is the co-villager of the respondent no. 1 who has stated about the marriage between the petitioner and the respondent no. 1. He has also stated that after two weeks of marriage the petitioner had left the respondent no. 1 at her parents' house. He has stated about physical and mental torture inflicted upon the respondent no. 1 by the petitioner.

In cross-examination, he has deposed that within two months of marriage the relationship between the petitioner and the respondent no. 1 turned sour. The respondent no. 1 does not want to live with the petitioner. He has stated that he has never heard about Samir Tigga.

16. O.P.W.5 (Sobha Minz) is the respondent no. 1 herself who has stated about her marriage solemnized with the petitioner on 06.05.2014 and the birth of a child on 24.02.2015. She has produced the birth certificate of the child which has been marked as Exhibit-A. She has proved a list of articles received in the marriage which has been marked as 'X'. After marriage she went to her matrimonial house where the petitioner asked her not to work in the Bank and stay together and abiding his request, she remained absent from duty from 19.05.2014 to 15.09.2014 for which she was issued a show cause notice which has been proved and marked as Exhibit-B. She has stated that after one week of the marriage she was

subjected to mental and physical torture and on 20.05.2014 she was sent back to her parents' house and the petitioner had also asked for a divorce. Due to the assault committed by the petitioner she suffered pain in her chest for which she had undergone an X-Ray and X-Ray report has been marked as Exhibit-C. On 21.05.2014 an agreement was prepared concerning the petitioner and the respondent no. 1, a carbon copy of which was given to her father and which has been marked as X. She has proved the letter addressed to the Bishop of NWGEL Church, Ranchi which has been marked as X/1. She has also proved the carbon copies of the said letter sent to the Block Secretary, Silam and her mother-in-law which has been marked as X/2 and X/3. She has also proved the letter dated 08.06.2015 addressed to her by Prabhat Bara directing her to appear before Gumla Court on 09.06.2015 which has been marked as Exhibit-D. She has also proved the document fixing the date of 31.05.2015 for deciding the marital discord before the Panchayat as Exhibit-E. The letter addressed by her to the Sarpanch of Aamgaon village to attend the meeting to be held on 31.05.2015 has been marked as X/5 for identification. After the petitioner had left her at her parents' house she continued to reside there and in the meantime the petitioner informed him over phone that there is no necessity for her to come back. While going to Ranchi, she had met the petitioner who had assured her that she will not be assaulted. At this, she went to Silam and for a few days she stayed peacefully. On 11.06.2014 the petitioner had once again resorted to his earlier habits and started abusing and assaulting her and this was repeated on 05.07.2014. Due to such torture, she left for her parental house at Aamgaon. It has been stated that on 17.05.2015 she had gone to the house of the petitioner along with her elder sister Sudhira Minz for baptism of the child but the petitioner snatched the child and handed it over to another woman and thereafter she and her sister were locked inside a room where they were abused and assaulted and she was also forced to sign on a paper that she will attend a

Panchayat to be held on 31.05.2015. On 31.05.2015, she along with her family members had attended the meeting at Silam and she was compelled to sign on a piece of paper. The petitioner wants to solemnize marriage elsewhere and wants to deprive her and her child from making payment of maintenance. She has produced the notice issued to her father by N. Toppo of village Aamgaon dated 20.09.2016 by which he was directed to appear on 03.10.2016 in Gumla Civil Court failing which he would have to pay a fine of Rs. 50,000/- and the same has been marked as Exhibit-F.

In cross-examination, she has deposed that she does not have any relationship with the petitioner since the year 2014. She had not made any complaint either to the Police Station or to the Panchayat on the issue of being forced to sign the document of such meeting held at Silam on 31.05.2015. She has admitted that on 17.05.2015 she had written a letter that she will not object if the petitioner moves the court for dissolution of marriage. She has denied that she knows Samir Tigga. She has also denied to having an illicit relationship with Samir Tigga and because of it she does not want to stay with the petitioner.

17. It has been submitted by Mr. Kaushik Sarkhel, learned counsel appearing for the respondent (appellant herein) that the learned court below has contradicted its own order by granting a decree of divorce in favour of the petitioner. It has been submitted that mental cruelty desertion and adultery have not been proved by the petitioner which is also acknowledged by the learned court below but on the ground of irretrievable break down of marriage the same has been dissolved which signifies that the learned trial court has travelled beyond its jurisdiction.

18. The petitioner has instituted a suit on the ground of cruelty, desertion and adultery. Though cruelty and desertion have not been framed as specific issues but the pleadings of the parties do reveal that the foundation of the case of the petitioner are also based on these two factors.

19. So far as issue of "adultery" is concerned, in the plaint, it has been mentioned that the respondent no. 1 was having an illicit relationship with the respondent no. 2 (Samir Tigga). He has also cast a shadow of doubt as to whether he is the biological father of the child or not in his evidence as P.W.1 but such assertion is absent in his pleadings. Moreover, though a number of times Panchayati was held but such issue was never the subject matter of dissolution of marriage. The decision of the Panchayati dated 31.05.2015 appears to contradict such stand as the petitioner had accepted the decision that the child on attaining five years of age will be in his custody. Except for vague assertion the petitioner has failed to substantiate that the respondent no. 1 was having an illicit affair with the respondent no. 2.

20. The petitioner has asserted "mental cruelty" committed upon him by the respondent no. 1 but not a single instance has been brought to light in support of such claim. What the petitioner has reiterated time and again is the willingness on the part of the respondent no. 1 to resume conjugal life with the petitioner. On the other hand, the evidence of the witnesses of the respondent no. 1 as well as the respondent no. 2 are more specific, assertive and within the realm of belief to the extent that it was the petitioner who had committed mental and physical cruelty upon respondent no. 1. Making of vague allegations against the respondent no. 1 of leading a promiscuous life without there being any clinching evidence in support of the same further enhances such cruelty committed upon the respondent no. 1. Moreover, even if it is assumed that the petitioner on visiting Bihar Sharif had come to know about the existence of another person in the life of the respondent no. 1 by virtue of a photograph, he had found, but the subsequent staying together though for a few days would amount to condoning such relationship as envisaged in Section 14 of the Indian Divorce Act, 1869.

21. The other issue which governs the suit is desertion. In the case of "Debananda Tamuli versus Smti Kakumoni Kataky" reported in (2022) SCC Online 187, desertion has been construed to mean as follows:

"7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in Lachman Utamchand Kirpalani which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.

22. Desertion is therefore, an abandonment of a spouse by the other without any reasonable cause. The marriage between the petitioner and the respondent no. 1 was solemnized on 06.05.2014 and the marital discord started rearing its head from 17.05.2015 onwards. It must be borne in mind that the petitioner is an employee of Indian Railways while the respondent no. 1 is employed in Punjab National Bank. The seed of discontent in the mind of the petitioner appears to have been sown for the reason that the respondent no. 1 is a working woman. He has also made certain insinuations against the respondent no. 1 on getting hold of a photograph when he had stayed for a few days at Bihar Sharif, the place of posting of the respondent no. 1 which however has been vehemently objected to by the respondent no. 1 in her evidence as O.P.W.5. Though the petitioner had asserted about the respondent no. 1 deserting him without a reasonable cause but the same seems not only to have been neutralized but in fact overwhelmed by the evidence of the witnesses of the respondent no. 1. Sporadic instances of physical violence with specified dates have been highlighted by

the witnesses of the respondent no. 1 which was not conducive for a tranquil marital life and which compelled the respondent no. 1 to leave her matrimonial house. The learned court below has come to a conclusion that desertion, cruelty and adultery have not been proved by the petitioner and rightly so and, therefore, such findings require no interference.

23. However, while answering issue no. IV and V the learned court below had travelled into unchartered territory which is beyond his jurisdictional domain. Before venturing into such findings, the observations of the learned court below are quoted hereunder:

31. In view thereof, it appears to this Court that there appears no possibility to reconnect the chain of marital life between the parties. Moreover, when the parties are continuously living separately it may fairly be surmised that the matrimonial bond is beyond repairs. The marriage has become a fiction, which does not serve the sanctity of marriage and evidently the marriage between petitioner Ajay Lakra and respondent Shobha Minz appears to have been wrecked beyond hopes of salvage. This Court certainly has to recognize this fact and cannot turn a blind eye to such a situation.

34. From perusal of record it is abundantly clear that it is virtually impossible for both the parties to resume co-habitation and stay together as a married couple and it is manifestly asserted that assertion of petitioner made in divorce petition stands corroborated from the evidence of witnesses produced on his behalf and therefore it emerges that O.P. has completely forsaken the petitioner and has also expressed her desire to stay and live separately from petitioner. She has willfully refused to discharge her matrimonial, legal and social obligation towards her husband. Ever since there has been no co-habitation between the parties explicitly the matrimonial ties between the parties are in state of moribund. It would be quite painful and torturous for the couple to cohabit together.

24. As we have discussed above the learned court below has come to a conclusion that cruelty, desertion and adultery have not been proved by the petitioner and the same is reflected in the following manner:

27. Finally, testing the instant position on the ground of cruelty, desertion and adultery it clearly transpires from the record that petitioner has alleged cruelty and desertion and severing of relationship with O.P. without any concrete, cogent and definable cause.

It has only been reflected that the petitioner's marriage had hit the rock due to an in different attitude towards the petitioner by the respondent and no viable efforts have been made by the O.P./wife to make their marriage work.

25. The aforesaid finding is contradicted by the subsequent finding which is quoted hereunder:

33. In the light of discussions made here-in- above, I am of the clear view that divorce petition preferred by petitioner Ajay Lakra deserves to succeed on the twin grounds of cruelty and desertion as amply reflected under Section 10 of the Indian Divorce Act, 1869.

26. Therefore, the learned court below has arrived at a conclusion that cruelty and desertion have been proved by the petitioner which finding itself is contradictory but what we gather from the conclusion arrived at is that the marital ties have broken down beyond repair and there is no chance of salvaging such relationship. This finding is totally erroneous as there is no provision in the Indian Divorce Act, 1869 by which a divorce of decree can be granted on account of irretrievable break down of marriage. Even assuming the respondent no. 1 is not inclined to resume her conjugal relationship with the petitioner the same would lead to a suit for dissolution of marriage by mutual consent in terms of Section 10 A of the Indian Divorce Act, 1869 but when the suit for dissolution of marriage is being contested by the respondent no. 1 fleeting reference of reluctance on the part of the respondent no. 1 to resume conjugal life would not obliterate the factum of she being

compelled to stay at her parental house on account of the torture meted out to her by the petitioner.

27. Thus, in the backdrop of the aforesaid discussions we come to the conclusion that the findings recorded in the judgment dated 27.08.2019 and decree dated 04.09.2019 passed by Shri Sandeep Srivastava, learned Principal Judge, Family Court, Gumla in Original Suit No. 28 of 2016 are perverse and not on correct appreciation of the legal provisions and consequently the same is hereby set aside.

28. This appeal is allowed.

(Rongon Mukhopadhyay, J.)

(Deepak Roshan, J.)

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

Alok/NAFR