Nutan Ekka vs Simon Ekka
2023 Latest Caselaw 3693 Jhar

                     First Appeal No. 304 of 2018
                                     ...........
         [Against the judgment and decree dated 28.06.2018 (Decree signed on
         07.07.2018) passed by Shri Brajesh Kumar Gautam, learned Principal
         Judge Family Court, Ranchi in Original Suit No. 91 of 2012]
                                     ...........
          Nutan Ekka                                    ... ... Appellant
                                     Versus
          Simon Ekka                                 ... ... Respondent
                               ...........
                            PRESENT
              HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
                   HON'BLE MR. JUSTICE DEEPAK ROSHAN
                               ...........
         For the Appellant   : Mr. A.K. Sahani, Advocate
         For the Respondent  : Mr. Rohit, Advocate
                               ...........
C.A.V. on 06.07.2023                Pronounced on 04.10.2023
Per Rongon Mukhopadhyay, J.

Heard Mr. A.K. Sahani, learned counsel for the appellant and Mr. Rohit, learned counsel appearing for the respondent.

2. This appeal is directed against the judgment and decree dated 28.06.2018 (Decree signed on 07.07.2018) passed by Shri Brajesh Kumar Gautam, learned Principal Judge Family Court, Ranchi in Original Suit No. 91 of 2012, whereby and whereunder the suit preferred by the petitioner (respondent herein) u/s 10 of the Divorce Act, 1869 has been allowed and a decree of divorce has been granted by dissolving the Christian marriage between the petitioner and the respondent.

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

4. The petitioner (respondent herein) had filed a suit for dissolution of marriage u/s 10 of the Divorce Act, 1869 with the respondent (appellant herein), in which, it has been stated that both the parties professed Christian religion and their marriage was solemnized on 30.12.2002 at Prabhat Tara Catholic Church, Dhurwa Ranchi according to Christian rites and customs. After marriage the respondent joined the petitioner

but the petitioner noticed that the respondent was not discharging her marital obligations. She used to leave her matrimonial house to have company of her choice and this had occurred on several occasions. The petitioner was the Superintendent of Central Excise and Custom Department, Chakradarpur and he used to attend his duty regularly. It has been stated that he received information that the respondent used to have sexual relationship with others during the duty hours of the petitioner. The respondent used to spend nights in the house of others against the will of the petitioner. The petitioner had raised objection against the immoral activities of the respondent at which the respondent left the house of the petitioner on 30.10.2004. The petitioner could come to know that the respondent prefers to stay at Ranchi with her pre- marriage friends with whom she was living in adultery. Since 2004 the respondent had deserted the petitioner and in spite of sincere efforts, she did not join the petitioner. It has been stated that the refusal on the part of the respondent to live with the petitioner and to have physical relationship with the petitioner amounts to a cruelty committed by the respondent. The respondent had also filed a false case against the petitioner being Complaint Case No. 574 of 2005 u/s 498-A/323/34 of the IPC which has been quashed by the Jharkhand High Court. The respondent had also filed a case u/s 125 Cr.P.C. which has been disposed of on 08.06.2007.

5. The respondent on being noticed had appeared and filed a written statement, in which, she has denied the allegations levelled against her in the plaint. She has stated that the petitioner behaved with her rudely from the beginning of the marriage though she discharged her obligations towards her husband dutifully. The petitioner used to consume liquor regularly along with his friends and colleagues due to which difference of opinion crept up between them. The drinking habits of the petitioner forced her to leave her matrimonial house and

she started staying with her parents at Ranchi. On 30.10.2004 the petitioner and his friends assaulted her mercilessly and his friends outraged her modesty but she somehow managed to come down to Ranchi where she lodged a Complaint Case as well as a case of maintenance. She has stated that Complaint Case No. 574 of 2005 is pending while in the case of maintenance u/s 125 Cr.P.C. Rs. 5000/- has been granted to her. The petitioner had earlier also filed a suit bearing Matrimonial Suit No. 221/2007, in which, she had appeared and filed her written statement but ultimately the said suit was dismissed for default.

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

(I) Whether the respondent Nutan Ekka has committed cruelty and threatened 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 ?

(II) Whether the respondent had deserted the petitioner for more than two years immediately preceding the presentation of the petition ?

(III) Whether the petitioner is entitled for the relief as prayed for by him ?

7. The prosecution has examined four witnesses in support of its case.

8. P.W.1 (Stenislas Lakra) has stated that he knows the petitioner since long. The marriage of the petitioner and the respondent was solemnized on 30.12.2002 as per Christian rites and customs at Prabhat Tara Catholic Church, Dhurwa Ranchi. He has stated that after marriage the respondent did not fulfil her marital obligations and duty. The respondent used to leave her matrimonial house without informing the petitioner which hurt the sentiments of the petitioner. When the petitioner used to go to his office strangers would come to his house which led

to a strained relationship between them. On 30.10.2004 the respondent left her matrimonial house and since then both are staying separate. An attempt was made on behalf of Prabhat Tara Catholic Church to restore their conjugal life but the respondent flatly refused to stay with the petitioner.

In cross-examination, he has deposed that on 30.10.2004 the respondent had fled away from her matrimonial house at Jamshedpur on her own free will. The matter was informed to Bistupur P.S. by the petitioner. He does not know as to who used to visit the respondent in the absence of the petitioner. The petitioner had disclosed to him about the strained relationship. He has stated that a Panchayati was once held between the parties at Prabhat Tara Church in which he was also present.

9. P.W.2 (Sanjay Kumar) has stated that he knows both the sides from before. He has stated about the marriage solemnized between the parties on 30.12.2002. The respondent used to regularly inflict mental torture upon the petitioner. The respondent used to leave the house of the petitioner frequently without any information. When the petitioner used to go to his office the respondent used to invite unknown persons to the house and this resulted in a strained relationship between both of them. He has stated that the respondent used to assault the mother and nephew of the petitioner and they were compelled to leave Jamshedpur and stay at their village. The respondent also compelled the petitioner not to buy medicines for his mother who was suffering from T.B. and heart disease. It has been stated that the respondent had left the house of the petitioner on 30.10.2014 and since then both the parties are staying separate.

In cross-examination, he has deposed that he knows the petitioner for about 14-15 years. The incident which had occurred in the house of the petitioner was disclosed to him by the petitioner and his family members. He used to sometimes

visit the house of the petitioner. He does not know how many times the respondent had left the house of the petitioner.

10. P.W.3 (Simon Ekka) is the petitioner himself. He has stated that his marriage was solemnized with the respondent at Prabhat Tara Catholic Church, Dhurwa on 30.12.2002. From the time of the marriage the behavior of the respondent was not cordial as if to indicate that she was not happy with the marriage. In the first night of the marriage itself due to the nonchalant attitude of the respondent physical relationship could not be established. He has stated that the respondent did not do the household chores and did not also help his mother in such work. She sometimes used to assault his mother for which he was compelled to leave Jamshedpur. The respondent also forbade him from bearing the cost of medicines of his mother. He has stated that there was no perceptible change in the behavior of the respondent even after his mother left the house and he was in fact humiliated in front of his guests. The respondent used to be on call with several males and on objection she used to assault him. When he left for his place of work, she used to call strangers to his house and have feasts. The respondent had one day fled from his house for which an information was given to Simdega P.S. but she returned back on 30.10.2004 and at night she took all her jewelries and left the house. This information was given to Bistupur P.S. He has proved the information given to Simdega P.S. and Bistupur P.S. which have been marked as Exhibit- 1/a, 1/b (with objection). He had come to know that the respondent had gone to his parents' place and this information was given to Bistupur P.S. which has been marked as Exhibit- 1 with objection. The respondent had filed a criminal case and a case of maintenance against him and the criminal case was quashed by the High Court while in maintenance case he was directed to pay Rs. 5000/- P.M. which he is paying. Attempts were made to arrive at a settlement but the respondent had flatly refused to

stay with him. The respondent also did not attend the last rites of the mother of the petitioner.

In cross-examination, the respondent has failed to elicit anything of substance to disbelieve the statement given in examination-in-chief

11. P.W.4 (Anjali Lakra) has stated that the petitioner is the friend of her husband. She has further stated that the marriage of the petitioner and the respondent was solemnized on 30.12.2002 and after marriage she was introduced to the respondent. The respondent after the marriage did not cohabit with the petitioner and did not fulfill her marital obligations. The respondents always used to mentally torture the petitioner. The respondent had forcibly got the ownership of a car which was in the name of the first wife of the petitioner who is now deceased transferred in her name which made the petitioner mentally distressed. The respondent used to leave her matrimonial house without any information which also pained the petitioner. The petitioner was humiliated in front of his guests. It has been deposed that the respondent used to assault the mother and nephew of the petitioner and they were compelled to leave the house for their village. The petitioner was humiliated as he used to bear the medical expenses of his ailing mother. He has stated that the respondent disappeared from Simdega on 24.10.2004 and resurfaced at Jamshedpur on 30.10.2004 and in the night had surreptitiously left the house along with her jewelries. An attempt at a reconciliation was made at Prabhat Tara Church, Dhurwa in February, 2005 but the respondent refused to go back to the house of her husband.

In cross-examination, she has deposed that the respondent had instituted a false case of rape against her husband and five other persons though the wives of the said persons were present when the occurrence is said to have taken place.

12. It has been submitted by Mr. A.K. Sahani, learned counsel appearing for the respondent (appellant herein) that the petitioner has miserably failed to prove the allegation of cruelty and desertion. It has been submitted that the allegations in the plaint have been controverted in the written statement of the respondent. Her denial in the written statement cannot be brushed aside merely because the respondent did not adduce any oral or documentary evidence. Mr. Sahani has submitted that the case of the petitioner has to stand on its own legs and in absence of the same the non-examination of the respondent's witnesses would have no bearing in facilitating the case of the petitioner.

13. Mr. Rohit, learned counsel appearing for the petitioner (respondent herein) has submitted that the respondent had appeared in the cross-examination of the witnesses but has refrained from adducing evidence herself which fact means that the allegations leveled by the petitioner remained unrebutted. It has been submitted that even in the cross-examination of the petitioner's witnesses nothing of substance could be extracted to disbelieve their testimony.

14. We have heard the learned counsel for the respective parties and have also perused the lower court records.

15. Issue Nos. I and II pertains to cruelty and desertion. The plaint reveals about various instances from which it appears that the respondent had created an atmosphere at her matrimonial house which would not be conducive for a cordial relationship. The evidence of the witnesses of the petitioner including the petitioner is a pointer to the cruelty committed by the respondent. The same reveals a bohemian life style being led by the respondent leaving the house as and when she desires and inviting strangers in the absence of the petitioner. Even the old and ailing mother of the petitioner was not spared as she was assaulted and the petitioner was put under mental stress for meeting the medical expenses of her mother. The respondent

had availed the opportunity of cross-examining the witnesses of the petitioner but over and above all the witnesses of the petitioner have stood the test of cross-examination. P.W.3. is the petitioner who has sprayed his examination-in-chief with instances of mental cruelty, torture, harassment, and desertion but none of the allegations have been demolished in the cross- examination. Apart from cruelty, the desertion by the respondent from 30.10.2004 of the petitioner continued till the date of institution of the suit and beyond which also remains unrebutted. In fact, the quashment of the criminal case instituted by the respondent further enhances the allegation of cruelty made against the respondent by the petitioner.

16. The respondent was given an ample opportunity to adduce evidence but she chose neither to examine herself or any of her other witnesses. The statement of denial in the written statement would not act as a saving grace for the respondent in absence of adducing oral evidence. The petitioner has been able to establish his assertion of cruelty and desertion beyond any reasonable doubt and, therefore, the learned court below was correct in answering Issue Nos. I and II in favour of the petitioner and consequently dissolve the marriage between them. We affirm the findings of the learned Principal Judge Family Court, Ranchi passed in Original Suit No. 91 of 2012 and consequently dismiss this appeal.

(Rongon Mukhopadhyay, J.)

(Deepak Roshan, J.)

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

Alok/NAFR