Jharkhand High Court
Pradeep Rana vs Urmila Devi on 6 February, 2024
Author: R. Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.255 of 2018
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Pradeep Rana ----- Appellant
Versus
1. Urmila Devi
2. Hasmat Ali ----- Respondents
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Sahil, Advocate
For the Respondent No.1 : Mr. Ankit Apurva, Advocate
For the Respondent No.2 : Mr. Sajid Yunus, Advocate
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CAV on 28.08.2023 Pronounced on 06/02/2024
JUDGMENT
Per R. Mukhopadhyay, J.
1. Heard Mr. Sahil, learned counsel appearing for the
appellant, Mr. Ankit Apurva, learned counsel appearing for
the respondent no.1 and Mr. Sajid Yunus, learned counsel
appearing for the respondent no.2.
2. This appeal is directed against the judgment and decree
dated 24.04.2018 (decree signed on 04.05.2018) passed by
Shri Sunil Kumar Singh, learned Principal Judge, Family
Court, Koderma in O.S. No. 08 of 2016, whereby and
whereunder the Suit preferred by the appellant for
dissolution of marriage with the respondent has been
dismissed.
3. For the sake of convenience, both the parties are referred
to in this judgment as per their status before the learned
court below.
4. A Suit was preferred by the petitioner (appellant herein)
under Section 13(1)(i) of the Hindu Marriage Act, 1955
against the respondent no.1 (respondent no. 1 herein also)
in which inter-alia it has been stated that the marriage
between the petitioner and the respondent was solemnized
in the year 2003 at village Jharkhi, District Giridih as per
Hindu rites and customs. After marriage, the petitioner and
the respondent lived together as husband and wife at village
Markacho, District Koderma. Out of the said wedlock, 2
children were born. It has been stated that for the last one
year, the respondent no. 1 had shown her dis-inclination in
cohabitation, which the petitioner thought was perhaps on
account of household works and fatigue. The petitioner had
heard rumors in the village that the respondent no.1 was
entangled with some other person which was initially
disbelieved by him, but he started watching the conduct of
the respondent no. 1. On 06.04.2015 the petitioner had
gone to Giridih for some work and returned late at 9:30 pm
and when he reached near his house, he found someone
coming out from his house. Due to darkness, the stranger
could not be identified by the petitioner and when his wife
feigned ignorance, the petitioner became suspicious. On
07.09.2015 the petitioner had gone to Ranchi for some
urgent work and though he was to return on 9.9.2015, but
due to the work for which he had gone, was completed a
day earlier, he returned back to his house on 08.09.2015 at
8.00 pm. He found the door of his house open and when he
knocked at the door of his room, it was opened by the
respondent no.1 after a few minutes which created a doubt
in the mind of the petitioner and when he started searching
the room, he found a person having concealed himself
under his bed. The said person was identified as his
neighbour Hasmat Ali (respondent no.2) and both the
respondents confessed and disclosed that they were having
an illicit affair for the last 2 years. The respondent no.2 had
inadvertently left his mobile from which the petitioner could
gather that there was a regular conversation between the
respondent no.1 and the respondent no.2. On the next day,
i.e. 9.9.2015 the matter was placed before the village elders
where the respondent no.1 had confessed about her illicit
relationship with the respondent no.2 and she also
expressed her willingness to dissolve the marriage as per
customs. The respondent no.1 had given her consent for
divorce in presence of her father-in-law, Mukhiya of
Markacho Panchayat and others after which she handed
over her children to her husband and left her matrimonial
house never to return back.
5. Initially, the Suit proceeded ex-parte as the respondent no.1
did not appear in spite of paper publication, but
subsequently she appeared and on an application preferred
by the petitioner, the respondent no.2 was impleaded as a
party.
6. In the show-course filed by the respondent no.1, she has
denied having illicit relationship with the respondent no.2.
In fact, it was the petitioner who was having an illicit
relationship with his sister-in-law Chanchala Devi, which
was objected to by the respondent no.1. It has been stated
that the respondent no.1 was subjected to torture for
bringing insufficient dowry and after snatching her
ornaments she was ousted from her matrimonial house for
which she had filed a Complaint Case no. 562 of 2016
which was sent to the Police leading to registration of Birni
P.S. Case No. 66 of 2016 under Sections 498A, 341, 323,
379, 504, 506 / 34, IPC. The petitioner was also taken into
custody where he remained for several days. The
respondent no. 1 has expressed her desire to stay with the
petitioner, but the petitioner is not ready to keep her.
7. The respondent no. 2 had appeared and filed his written
statement in which he has denied of having any illicit
relationship with the respondent no. 1. The respondent no.
2 has been implicated on account of an existing land
dispute with the petitioner.
8. Based on the pleadings of the parties, the following issues
were framed for identification:-
1. Whether the Suit as framed is maintainable in its
present form ?
2. Whether the petitioner has a valid cause of action for the
present suit?
3. Whether the respondent no. 1 had voluntary sexual
intercourse with respondent no. 2 Hasmat Ali after the
solemnization of marriage ?
4. Whether the respondent wife had treated the petitioner
with cruelty after the solemnization of marriage ?
5. Whether the petitioner is entitled for decree of divorce ?
6. To what relief or reliefs the petitioner is entitled for ?
7. The petitioner has examined as many as five witnesses on
his behalf including himself.
8. PW 1 Gulam Mustfa is acquainted with both the sides. He
has stated about the marriage between the petitioner and
the respondent no. 1 and the birth of 2 children out of the
said wedlock. He has stated that the respondent no. 1, in
absence of the petitioner, used to frequent the house of
respondent no. 2 and the respondent no. 2 also used to
come to the house of the respondent no. 1. This relationship
between the respondent no. 1 and respondent no. 2 was
going on for the last 2 years and the villagers knew about
this affair. On 8.4.2015 the petitioner had disclosed to him
that 2 days back he had returned from Giridih at 9:30 pm
and he had seen a person come out from his house. When
the petitioner went inside, he had seen the respondent no. 1
and the respondent no. 2 in a compromising position at
which he raised an alarm and he and the other villagers
had gone and had seen the respondent no. 1 and the
respondent no. 2 together. On 9.9.2015 a Panchayati was
held in which the respondent no. 1 and her family members
were called and in the Panchayati the respondent no. 1 had
expressed her desire in not staying with the petitioner in
writing.
9. On Court questions he has deposed that his house is
situated at a distance of 40-50 meters from the house of the
petitioner.
10. PW 2 Badri Narayan Singh in his sworn statement has
reiterated what has been stated by PW 1.
In cross-examination on behalf of respondent No. 1,
he has deposed that the petitioner has three brothers and
all are married having children and they all reside
separately having a common courtyard. The cousin brother
of the petitioner and his family also stay in the same
premises. He had never seen the respondent no. 1 and 2 in
a compromising position. He has deposed that neither he
nor any villager had approved the illicit relationship
between the respondent no. 1 and the respondent no. 2.
In cross-examination on behalf of respondent no. 2,
he had stated that the distance between the house of the
petitioner and the respondent no. 2 is 50 ft.
11. PW 3 Bhikhari Rana has stated about the marriage between
the petitioner and the respondent no. 1 and 2 children born
out of the said wedlock. He has also stated about the illicit
relationship between the respondent no. 1 and the
respondent no. 2 and both were caught in a compromising
position on 8.9.2015. A Panchayati was held on 9.9.2015 in
which the respondent no. 1 and her father Baldeo Sharma
were present and in the Panchayati the respondent no. 1
had left the petitioner by giving it in writing.
In cross-examination on behalf of respondent no. 1 he
has deposed that he is the cousin brother of the petitioner.
He and the petitioner live in a separate house. He and the
others had not approved the illicit relationship between the
respondent no. 1 and respondent no. 2.
In cross-examination on behalf of respondent no. 2 he
has deposed that he had not seen the respondent no. 1 and
the respondent no. 2 in a compromising position.
12. P.W.4 Ramchandra Ravidas has identified the decision of
the Panchayat which was taken down in writing by him and
also signed by him as well as the petitioner, the respondent
no. 1 and others.
In cross-examination on behalf of respondent No. 1,
he has deposed that in the Panchayati he was present in
the capacity of a Panch. He had seen the decision of the
Panchayat taken down in writing, in which he had also
signed. The documents were produced before him, which he
denied was the document, which was prepared in the
Panchayat.
In cross-examination on behalf of respondent no. 2,
he has proved the document produced before him, which
has been marked as Exhibit 1.
13. PW 5 Pradeep Rana is the petitioner who has stated about
solemnization of his marriage with the respondent no. 1 as
per Hindu rites and customs in the year 2003. Out of the
said wedlock, 2 children were born. From about 1 year prior
to the institution of the Suit, cohabitation between them
had stopped as the respondent no. 1 was not interested in
the same. He had heard rumors in the village of somebody
coming to his house during his absence and spending time
as well. He did not believe in the rumours as he had full
faith on his wife with whom he was married for 13 years.
On 6.4.2015, he had gone for some work at Giridih and
when he returned back at 9:30 pm, he found someone
leaving his house, but he could not recognize the said
person. On being asked the respondent no. 1 feigned
ignorance which caused a suspicion in his mind. On
7.9.2015 he had gone to Ranchi for some work and he was
to return on 9.9.2015 but since his work got completed, he
returned on 8.9.2015 at 8.00 pm when he found the door of
the house open and after knocking at the door of his room,
the same was opened after a considerable delay by his wife
and on search he found the respondent no. 2 concealing
himself below the bed. On being questioned, both
respondent no. 1 and respondent no. 2 admitted about
having such illicit relationship since the last 2 years. On
9.9.2015 in presence of the Mukhiya of the village and the
others he had highlighted his problem and in presence of
the village elders the respondent no. 1 had admitted her
infidelity and expressed her desire not to stay with him
which was taken down in writing and witnesses had signed
on the same. It is not possible for him to stay with the
respondent no. 1. He has denied the allegations made by
respondent no. 1 about his having an illicit affair with his
sister-in-law Chanchala Devi.
14. In cross-examination on behalf of respondent No. 1, he has
deposed that his house is situated in the middle of the
village. In his house his parents and his brothers along with
their families stay. The respondent no. 1 had filed a dowry
related case against him for which he was taken into
custody. He is not inclined to keep the respondent no. 1
with him.
In cross-examination on behalf of the respondent no.
2, he has deposed that the father of respondent no. 2 had
purchased a plot of land in front of his house and due to
which the respondent no. 2 has been made a party in the
Suit.
15. The respondent no. 1 has examined 2 witnesses on her
behalf including herself.
16. DW 1 Urmila Devi is the respondent no. 1 herself, who has
stated about the marriage solemnized between her and the
petitioner and the birth of 2 children out of the said
wedlock. After marriage for a few years, she lived peacefully,
but thereafter she was subjected to torture for non
fulfillment of the demand of dowry. Her father had come
and tried to settle the issue, but her in-laws were adamant
and lastly by snatching her jewelry, she was ousted from
her matrimonial house. She had instituted a criminal case
being Birni P.S. Case No. 66/2016 in which the petitioner
had remained in custody for a considerable length of time.
She has denied the allegation of infidelity leveled against
her. She has denied to have known the respondent no. 2.
She stays in a joint family comprising of her parents-in-law,
brothers-in-law with their families and it is incorrect on the
part of the petitioner to allege against the respondent no. 2
of regularly coming to her house and both were caught in a
compromising position on 8.9.2015. She has stated that the
real fact is that the petitioner was having an illicit
relationship with her sister-in-law Chanchla Devi which
was objected by her, due to which she was repeatedly
tortured. She wants to stay with the petitioner but the
petitioner does not want to keep her. The document
submitted by the petitioner is forged and fabricated and she
and her father were coerced to sign on the same. No
panchayati was held and the document has been prepared
for the purposes of the Suit.
17. In cross-examination she has accepted her signature on
Exhibit-1, but immediately thereafter had denied her
signature on receiving an indication from her mother. Her
matrimonial house consists of 12 rooms where her parents-
in-law, brothers-in-law and their families stay. She has
deposed that once Panchayati was held regarding the illicit
relationship, the petitioner was having with his sister-in-law
Chanchala Devi.
18. DW 2 Baldeo Rana is the father of the respondent no. 1 who
has stated about his daughter being kept well for a few
years after marriage and subsequent thereto, she was
subjected to torture on account of demand of dowry. He has
basically reiterated what has been stated by DW 1 in her
sworn statement.
In cross examination he has deposed that he does not
have any documentary proof regarding his signature
obtained by force in a forged document.
19. The respondent no. 2 has examined 2 witnesses on his
behalf.
20. DW 1 Kayum Shekh is acquainted with both the sides. He
has stated that for the last four years the respondent no. 2
is working in Chennai. The father of the respondent no. 2
had purchased a land adjacent to the house of the
petitioner for which he was regularly threatened by the
petitioner and his family members and this was the reason
for making the respondent no. 2 a party in the Suit. The
respondent no. 2 never used to go to the house of the
petitioner and the allegation against the respondent no. 2 of
having an illicit affair with the respondent no. 1 is
absolutely baseless and frivolous.
In cross examination, he has deposed that he is not
related to the respondent. No. 2. He has knowledge that a
Panchayati was called on 9.9.2015 regarding some disputes
between the petitioner and the respondent no. 1.
21. DW 2 Kayum Shekh is the father of the respondent no. 2,
who in his sworn statement, has reiterated what has been
stated by Dw 1.
In cross-examination he has deposed that 40
members reside in the house of the petitioner. He does not
know about any panchayati held on account of the illicit
affair between his son and the respondent. No. 1.
22. Mr. Sahil, learned counsel appearing for the petitioner/
appellant has submitted that the adultery as alleged by the
petitioner against the respondent no. 1 has been proved by
virtue of the oral evidence adduced by the petitioner and his
witnesses and exhibit 1 which pertains to the admission of
the allegation against the respondent no. 1. It has been
submitted that the Panchayat which was held in respect to
the adulterous relationship between the respondent no. 1
and respondent no. 2 has also been admitted by Dw 1
Kayum Shekh.
23. Mr. Ankit Apurva, learned council appearing for the
respondent no. 1 has submitted that only in order to get rid
of the respondent no. 1, the petitioner has manufactured
the Panchayat document to substantiate the allegations of
infidelity leveled against the respondent no. 1. In fact, it was
the respondent no. 1 who was treated with cruelty which
resulted in institution of Birni PS Case No. 66 of 2016.
Learned counsel has pointed out that the allegation of the
respondent no. 1 being seen in a compromising position
with the respondent no. 2, on the face of it appears to be
dubious in view of a large number of family members of the
petitioner staying in the same premises. In fact, none of the
persons residing in the same premises as that of the
petitioner have been examined, which has quietened the
allegations leveled against the respondent no. 1.
24. Mr. Sajid Yunus, learned counsel appearing for the
respondent no. 2 has adopted the argument advanced by
the learned counsel appearing for the respondent no. 1.
25. We have heard the learned counsel for the respective parties
and have also perused the lower court records.
26. The main plank seeking dissolution of marriage is adultery
for which the petitioner has highlighted an encounter with
the respondent no. 2 on 8.9.2015 in the night when on
coming back from Ranchi by preponing his visit, he had
found the respondent no. 1 and the respondent no. 2 in his
room, the respondent no. 2 hiding below the cot. The mobile
of the respondent no. 2 was left at the place accidentally
and on verification regular conversations between the
respondent no. 1 and respondent no. 2 could be detected.
The next day a Panchayati was held culminating in an
undertaking and on admission given by the respondent no.
1 noted down in a stamp paper and which has been relied
upon by the petitioner as a determining factor in respect of
the allegations of adultery. The respondent no. 1 and 2 have
denied such allegations.
27. It is not the case of the petitioner that he stays in a separate
premise along with his wife and children. As per his own
admission, PW 5 (petitioner) in his cross-examination has
stated about his parents as well as three brothers along
with their families residing in the same premises. It would
thus appear that the petitioner lives in a joint family and
there are a number of persons residing in the said
premises. This fact gains prominence when we consider the
allegation of respondent no.1 and respondent no.2 being
seen in a compromising position in the room of the
petitioner. Even on being caught red handed, no hue and
cry was raised by the petitioner and he let go the
respondent no.2 as if nothing had happened. The presence
of other family members of the petitioner have not been
whispered either in the plaint or by the petitioner in his
evidence as P.W.5. He in his evidence has also stated about
knocking on the door which was opened by the respondent
no.1 after quite some time. This also did not seem to raise
any curiosity in the minds of the other inmates of the
house. There is also no mention about the children nor they
have been examined. None of the inmates of the premises
have been examined by the petitioner. The other feature
which would generate doubt over the incident of 8.9.2015 is
of the petitioner getting possession of the mobile of the
respondent no.2 who had left it accidently in the house of
the petitioner when the respondent no.2 was confronted by
the petitioner. This mobile which according to the petitioner
featured regular conversations between the respondent no.1
and respondent no.2 was never exhibited before the learned
court below. So far as the Ext. 1 is concerned, the scribe of
the said document and the witness have been examined by
the petitioner but they are not the eye-witnesses to the
incident of 8.9.2015. A perusal of Ext.1 would reveal about
the purported illicit affair of the respondent no.1 which she
said to have admitted but surprisingly the name of the
respondent no.2 does not feature in the said document and
mention has been made of a Muslim boy only. P.W.3 being
one of the witnesses to Ext.1 has categorically stated about
the illicit relationship between the respondent no.1 and
respondent no.2 but he and the others had never opposed
such relationship. In fact P.W.3 claims himself to be the
cousin brother of the petitioner and his evidence would
imply that he had kept such relationship under wraps and
not even confined about it to the petitioner which itself
appears to create a doubt over his testimony. The house of
the petitioner was surrounded by several houses and it was
in the middle of the village but such relationship going on
for months evading the ear of the petitioner does not appear
to be believable. On the other hand, apart from denial of the
allegations levelled by the petitioner, the respondent no.1
had expressed her desire to stay with the petitioner. She
had also filed a criminal case against the petitioner
regarding demand of dowry and torture committed upon her
for non-fulfillment of the said demand. Petitioner has failed
to suggest any instance which could be connoted to mean
cruelty, rather it is the respondent no.1 who seems to have
been subjected to cruelty.
28. The petitioner has, therefore, miserably failed to prove Issue
No.3 and 4 and the learned court below rightly answered
the said issues against the petitioner and in favour of the
respondents.
29. We, therefore, on the basis of the discussions made herein
above, refrain from interfering with the judgment and
decree dated 24.04.2018 (decree signed on 04.05.2018)
passed by Shri Sunil Kumar Singh, learned Principal Judge,
Family Court, Koderma in O.S. No.08 of 2016 and
consequently this appeal stands dismissed.
30. Pending Interlocutory application, if any, stands closed.
(Rongon Mukhopadhyay, J.)
(Deepak Roshan, J.)
Shamim/-
