2. The brief facts of the case, as narrated in the plaint,
It is further case of the respondent that on
13.08.2019 just few days before "TEEJ", a pious festival for
married Hindu woman, the appellant left the respondent's
father's house in Dhanbad to stay with her parents in
Deoghar and did not perform "TEEJ" causing mental
trauma, pain and agony to respondent and his family
members.
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It has been further stated that the appellant is also
well qualified and is a graduate lady and she has also
teaching experience in schools and private teaching apart
from some other work experience.
It is the further case of the respondent that after
marriage the relationship between appellant and respondent
started witnessing marital trouble which deteriorated with
passage of time due to appellant's unpredictable nature,
erratic and abusive behaviour, short temper and high
ambition & expectation out of life.
It has been stated that the appellant, within 2-3
days after marriage, made her intention very clear while the
relatives of respondent's family were still around by
declaring that till the time arrangements are made and
formalities are completed for her travel to Bangkok, during
the interim period the appellant will live only with her
parents at Deoghar.
It has further been stated that the appellant had
gone to her parent's house in Deoghar in May 2019, she had
messaged respondent-husband on WhatsApp that her
mother-in-law had said some objectionable things to
appellant which if she shares with her mother, her mother
would not allow her to return to Sasural in Dhanbad.
The respondent told to appellant that saying such
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false things against caring mother-in-law is not right and
she is free to tell everything to her mother and then decide
whether she wants to come to Sasural or not.
It is the further case of the respondent that the
appellant started misbehaving with him and his parents. On
14.09.2019 the respondent's mother asked the appellant to
drink milk, the appellant denied to drink milk on the reason
that milk increases cough. On this respondent's mother
remarked that whosoever has advised the appellant, he
must be a "Dehati Doctor". Hearing this, the appellant lost
her temper and started using harsh and uncivilized words
against respondent's mother which generally is not expected
from a daughter-in-law in traditional family.
It is further stated that the appellant-wife refused to
go to Thailand on 26.09.2019 despite having a confirmed
ticked causing deep mental anguish to the respondent.
It is further stated that after few days stay in her
sasural, behaviour of the appellant towards the respondent
and his parents became all the ruder and harsher which is
incommensurate' with the etiquette that is expected from a
wife and daughter in law in traditional family in India.
On 03.02.2020 when the appellant was residing in
Deoghar with her parents, she again started sending several
Whatsapp messages to the respondent saying that she has
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suffered a lot. The respondent objected to such message on
the pretext that such baseless allegations would not be good
to anyone. The appellant kept harassing the respondent by
sending irrelevant messages during the day knowing well
that the petitioner is working in office.
It is the case of the respondent that on
25/26.04.2020 the father of the appellant/wife called father
of respondent/husband. He threatened the respondent and
his family of dire consequences and the appellant's father
supported by appellant and her mother also gave various
threats to respondent/husband's father.
Upon this, the mother of the respondent has
instituted a Complaint Case No.821/20 in Civil Court,
Dhanbad.
It is further stated that the marital relationship
between petitioner and respondent has deteriorated beyond
repair.
It is further stated that the marriage between
appellant and respondent has broken down irretrievably and
there is almost remote possibility of reconciliation between
the Parties. The respondent and his family members were
subjected to immense mental agony harassment, cruelty
and tortured on account of the willful actions and neglect of
the appellant, towards the matrimonial bond. The
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appellant's conduct further reflects that from the very
outset, she had no intention to live peacefully or cordial
despite respondent's earnest efforts made within his ability
to appease the appellant and have a cordial matrimonial life.
The respondent/husband had filed for divorce
against his wife/appellant herein and prayed to dissolve the
marriage between appellant and respondent.
3. The wife(appellant) has appeared and filed written
statement denying the element of cruelty and stating the
following facts therein: -
The wife stated that the present case filed by the
respondent/husband is not at all maintainable either in fact
or in the eye of law.
It has been stated in the written statement that the
mother of the respondent/husband is a mischievous lady
and she is the master mind for creating everything of
mischief and she has adopted all cunning procedures to
separate the appellant/wife and the respondent/husband.
She has been subjected to cruelty for demand of dowry and
when the appellant expressed her incapability to fulfill the
illegal demand of the respondent, filed the present suit.
It is further stated that the mother of the respondent
has previously destroyed the life of girl namely Roma
Srivastava and now she has hatched up the same
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conspiracy against the appellant.
It has been denied that in order to satisfy her
demand the appellant threatened to commit suicide or
inflicted herself with injuries on various occasions. She has
never attempted to commit suicide. The appellant has never
threatened the respondent/husband, his brother and
parents to implicate them in false criminal case to ruin their
lives.
It is further stated that she was strictly directed not
to return on the occasion to TEEJ as the mother and father
were the joint couple in the house and it was odd for the
appellant to remain there.
It is further stated that the mother of the respondent
was not at all happy at the return of the appellant at her
matrimonial home and she abused and humiliated the
respondent and her parents and this caused great mental
shock to the appellant as a result she fainted but even then,
there was no change in the harshness, rigidity, attitude of
the parents of the respondent.
It is further stated that the mother of respondent is
the king pin lady of each and every kind of disputes and
differences between the appellant and the respondent. She
is strong and stout physically and mentally and there is no
health issue for her. The parents of the respondent have got
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no love affection or anxiety for the appellant. The appellant
is a fit and fine lady without any physical ailments or any
issue but the chocking situation and the atmosphere created
in her matrimonial home by the parents of the respondent
definitely resulted in the fainting of the respondent.
It has been stated in the written statement that the
father of the respondent is no doubt a gentle and
respectable person but he is a puppet in the hands of his
wife.
The respondent had divorced his first wife. The
appellant and her parents had anticipated that there may be
a similar occurrence with the appellant. When this matter
was raised before the respondent and his parents, they had
promised to get the marriage registered and they had only
completed the formalities of registration of the marriage but
when it was to be registered the respondent and his parents
did not appear before the marriage Registrar at Dhanbad
and now they are trying to shift the responsibilities upon the
appellant in a most cunning manner.
It has been stated that the respondent, in
connivance with his parents, has repeatedly committed the
fact of physical and mental torture upon the appellant. The
mother of the respondent is a litigant type lady and the
mother of the respondent has filed the C.P. Case with
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malafide intention with false and fabricated allegations only
to cause harassment and suffering to the appellant and her
family members.
It has been stated that the appellant has been
deserted from her matrimonial home by
respondent/husband without any valid or cogent reasons
only with a malafide intention. The appellant is always ready
to lead conjugal life with the respondent.
4. After hearing the parties, the learned Family Judge
has framed the following issues: -
(i) Whether the suit is maintainable in its present
form ?
(ii) Whether the petitioner has got valid cause of
action for the suit.
(iii) Whether the marriage of the petitioner and
respondent is fit to be dissolved on the ground of
cruelty u/s 13(1) (i-a) of H. M. Act?
(iv) Whether petitioner is entitled for the relief as
Claimed for?
5. The learned Family Judge, after framing the issues,
has allowed the parties to adduce evidence. Accordingly,
evidences were recorded which are being referred herein.
6. In order to prove and substantiate his case, the
respondent-husband has produced and examined altogether
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three witnesses: -
(i) PW-1 Kshitij Ranjan (respondent herein)
(ii) PW-2 Aloka Ranjan
(iii) PW-3 Jyoti Ranjan Prasad
7. PW-1 Kshitij Ranjan is respondent-petitioner
himself who has stated in his examination-in- chief that he
was married with Smt. Moushami Kumari (appellant herein)
on 24.04.2019 in Deoghar without any dowry as per Hindu
rites and customs, in the presence of both parties and other
persons of society.
The expenses of marriage such as fooding Lodging,
transportation jewellery and cloths expenses, staying were
borne by his parents. The appellant herein (wife) has falsely
stated in her written statement that at the time of Marriage
rupees ten lakh cash and a car was demanded by his
mother. The appellant-wife has stated in her written
statement that marriage was solemnized without dowry
which has been mentioned in the marriage card of the
marriage. But it is false to say that the aforesaid fact
"without dowry" has been mentioned in pressure put by him
upon her family members.
He has further stated in examination-in-chief that
after two months of being failed mediation and after three
months of filing of written statement a C.P. Case No.990/20
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u/s 498A, 307 and 379 IPC was instituted by the appellant-
wife in Deoghar Civil court.
He has further stated that a criminal case is
pending against the brother of appellant namely Kishlay Raj
in which he has gone to jail also. There is criminal history of
Kishlay Raj and he is involved in several other Criminal
cases including the cybercrime. The aforesaid fact was not
disclosed knowingly by the appellant and her family
members prior to marriage.
There has been marital relationship between both
parties but out of the wedlock the couple was blessed with
no child. Just after the marriage some rift arose between
both parties manifold day by day. The reason behind same
is that appellant misbehaved with her in laws and she got
annoyed on very trivial grounds. The appellant has falsely
stated in her written statement that main reason behind the
rift between both Parties is his mother.
He has stated that two-three days after marriage she
threatened and also taunted him for solemnizing of third
marriage and stated that she will leave him. Hearing the
same he got 'mentally shocked. When appellant/wife went to
her maika in May 2019 she has sent some objectionable
whatsapp messages in respect of his mother. The appellant
has falsely stated in her written statement that she was
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misbehaved by his mother. She used to quarrel with his
parents on very trivial grounds, which caused him mentally
agony. The appellant-wife often insulted and abused to him
and taunted by making false allegations in day-to-day life.
She also threatened that if he(respondent) does not fulfill
her demands she will commit suicide and will implicate him
in false case.
On July 2019, the appellant threatened by speaking
loudly that she will leave his house if she was told to
consume onion and garlic. Whereas before marriage she was
ready to consume garlic and onion. He has further stated
that he never forced to appellant to consume garlic onion or
non-vegetarian food. On the contrary she was free to take
her meal as per her choice. On 13.08.2019 some days prior
to Teej festival she knowingly went away to her Malika
whereas his mother had requested her to return back in
sasural and celebrate the first Teej. But she neither returned
to sasural nor celebrated Teej.
He has further stated that on 07/08.09.2021 the
appellant-wife came to her sasural with her parents and
brother Kislay Raj and after being proceeded by her family
members from his house she created drama of
unconsciousness. When she was medically checked up all
reports came normal. On 21.09.2021 her parents came and,
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in their presence, she was asked as to whether she wants to
reside either in Dhanbad or her maika then she refused to
reside in Dhanbad and expressed her desire to live in her
maika at Deoghar.
He has further stated that her ticket was booked for
Bangkok but she had flatly refused to go to Bangkok and
the ticket was wasted.
He has further stated that she had demanded Rs.
five lakh by saying that his father has taken debt and if the
same was not paid her father's house will be sold. She also
has demanded Rs. 20,000/- for the mobile set of her brother
Apurba Raj. She has further demanded Rs.50,000/- in
August 2019 for cousin sister and Rs. 25,000/- for the job of
her brother Kishlay Raj.
He has further stated that he again booked the
ticket for the appellant for Bangkok along with his mother
on 22.12.2019 with hope that in changed atmosphere
everything will be all right. Thereafter respondent came to
Bangkok but her behavior did not change. Even in Bangkok
she was regularly putting pressure upon him to reside
separately with his parents and pursuant thereto she tried
to commit suicide on 27.12.2019 but anyhow she was
rescued by him. Ultimately the appellant-wife returned back
to India on 04.01.2020.
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She has filed false case bearing C.P. Case
No.990/20 against him whereas in "Whatsapp" call she told
several times that she was rescued by him. She has made
several false allegations against him and his parents.
He has further stated that the appellant/wife
knowingly and with her free will has deserted him and his
family members and residing in her parent's house in
Deoghar. She has falsely stated that she was driven out
from her matrimonial home.
In cross-examination, he has stated that the
negotiation of marriage between both parties was done on
telephone. In January, 2020 the mother of appellant-
Moushmi had made telephone call to his mother seeing his
marriage advertisement. In advertisement it was written that
he is divorcee person and will perform marriage without any
dowry. In course of negotiation the family members of
Moushmi had to come to Dhanbad. After negotiation he
came to know that appellant is an educated lady and she is
capable for her self-employment. Only eight to nine persons
had participated from his side in the marriage. All the
expenses of marriage were borne by his parents. The family
members of Moushmi Kumari had written in the marriage
card as without dowry with their free will.
Prior to this marriage, he had performed his first
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marriage but now divorce has been taken place with his first
wife. The decree of divorce was granted of first marriage in
June 2018 and he solemnized the second marriage on
24.04.2019. It is true that firstly his mother had filed a C.P.
case against Moushmi Kumari and her family members and
thereafter he had filed the divorce case and thereafter
Moushmi Kumari has filed the C.P. case against him u/s
498A, 307, 379 IPC. She also has filed maintenance case
against him. His second wife Moushmi Kumari resided with
him for 40-50 days. At the time of first Teej he was not
present in India and appellant was present in Deoghar.
Being husband, he fulfilled all demands of Moushmi and
ignored her rude behavior. He properly cared of her fooding
and lodging and took care that she eats only vegetarian food.
After marriage he along with his wife and her brother and
parents has visited in a Mall in Delhi. He never visited and
roamed alongwith his wife alone. His second meeting with
his wife was held on 11/12.07.2019 and prior to
05/06.05.2019 they resided together for about 10 days.
After returning from Bangkok his wife resided with his
parents. He again came to Dhanbad in December 2019 and
by that time his wife was living in his house along with his
parents. On 22.12.2019 he went to Bangkok along with his
wife and brother where she resided together 10-15 days.
Thereafter, he did not meet with his wife as because she
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went away to her maike on 24.01.2020. He is not interested
to restore his marital life with his wife as because she has
filed false case against him.
8. PW-2 Aloka Ranjan is mother of the respondent
herein who has supported the evidence of PW-1 in
examination-in-chief.
In cross she has stated that earlier her son had filed
a divorce case against first wife in which she has recorded
her evidence. This divorce case was filed by her son on
18.08.2020. She has filed a C.P. case no-831/20 in March
2020 against Moushmi Kumari, her mother Geeta Devi and
her father Manikant Roy. She had given advertisement for
the marriage of her son. The marriage of both parties was
performed with consent of both parties and their respective
family members.
The appellant herein had tried to commit suicide
also. From the very second day of the marriage the appellant
started threatening her son by saying that she will leave him
and thereafter, he may be perform his third marriage. The
appellant herein continuously put pressure upon her
husband to live separately and also demanded money with
him. They tried to take the appellant to Bangkok two times,
but first time she refused to go there and next time she went
to Bangkok where on 27.12.2019 she tried to commit
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Suicide which was rescued by her son.
The marriage of her son was solemnized two times
but no any child was born by the both marriages and after
blood test the report of Moushmi Kumari was found to be
normal. This marriage was performed by cheating to
respondent-petitioner. The criminal incident of appellant's
father was not disclosed at the time of marriage. Her
daughter-in-law had demanded money. She has knowledge
that her son has provided money to her daughter-in-law but
she cannot say when and what amount was given. Since her
daughter in law has filed Criminal case against her son, she
does not want to keep her. It is not true that the rift arose
between husband and wife due to her.
She has further stated that it is false to say that
after being beaten they driven out the appellant-wife prior to
Teej. It is false to say that only with purpose to grab money
she solemnized this marriage. It is false to say that only to
get money her son wants to solemnize third marriage and so
has filed this divorce case. It is false to say that appellant
was ready to go to Bangkok but neither she nor her
husband allowed her to go to her husband. Her daughter-
in-law and son resided together as husband and wife till 30th
July 2019. It is false to say that appellant-wife had never
deserted her husband and she still wants to live with her
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husband.
9. PW-3 Jyoti Ranjan Prasad is the father of the
respondent herein who has supported the evidence of PW-1
(respondent-husband) in examination-in- chief.
In cross he has stated that the marriage of his son
was solemnized through a marriage bureau and they had
given advertisement in Newspaper. In the advertisement it
has been mentioned that his son was divorcee and marriage
will be performed without dowry. After being satisfied he
visited to the house of appellant-wife. He had given costly
suitcase and purse etc. by purchasing the same to his
daughter-in-law. After marriage his daughter-in law resided
peacefully for about 4 to 5 months and in the meantime,
they provided Rs. 10-15 thousand and again Rs. 40,000/-
was given.
He has further stated that he cannot say as to why
the first marriage of his son could not be successful. Due to
wrong behavior of his first daughter-in-law the said
marriage was broken. The appellant-wife has falsely made
allegations on the character of his son. Appellant performed
this marriage with respondent herein by fetching conspiracy
only purpose to grab money.
He has further stated that it is false to say that they
had compelled the respondent to consume onion, garlic
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knowing the fact that she is vegetarian. It is false to say that
Moushmi Kumar was beaten by them and she was not
allowed to go to Bangkok. It is true has that the case of
dowry has been filed by the appellant in which he and his
wife are on bail. It is not true that appellant herein never
demanded money with respondent-husband. It is false to
say that on dt. 27.12.2019 in the night his wife and son had
tried to kill the appellant/wife.
10. The appellant-wife has produced and examined
altogether three witnesses:-
(i) DW-1 Moushmi Kumari (appellant herein)
(ii) DW-2 Manikant Roy
(iii) DW-3 Geeta Devi
11. DW-1 Moushmi Kumari is appellant (wife) herself
who has Stated in her examination-in-chief that she was
married with respondent-petitioner Kshthij Ranjan on
24.04.2019 with Hindu Rites and Customs. At the time of
marriage Rs. Ten lakh was demanded by her in-laws from
her parents. Her mother-in-law demanded a car also. When
her family members expressed their inability to fulfill the
illegal demand of her in-laws, they started torturing her
physically and mentally.
12. She was treated as maid in her sasural. Her mother-
in-law always made effort to deteriorate the relationship of
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husband and wife. Due to the torturing by her in laws once
she got unconscious and she got nerves and thereafter they
prepared video recording also to utilize the same for undue
benefit. The intention of her in-laws was not clear prior to
marriage. They also edited the "whatsapp" messages. On
27.12.2019 her husband and mother-in-law tried to kill her
by putting cloths rope around her neck in Bangkok. On
being raised alarm due to fear of gathering nearby people
she got free. They have recorded video clip also of the
incident by narrating the different story. She was forcibly
sent to her maika. On being requested several times by her
parents, her in-laws flatly refused to keep her as because
her parents could not fulfill their illegal demands. Her
parents and brother Spent huge amount in marriage. Due to
pressure of respondent-petitioner and his parents it has
been written in Marriage card as "without dowry" (Dehej
Rahit). At the time of her marriage respondent-petitioner
was posted in Bangkok. Her mother-in-law Aloka Ranjan is
shrewd lady and she is master mind of all activities. It is her
second Marriage with the respondent/husband as he had
given divorce to his first wife.
It is true that she resided with the respondent as
husband and wife in different places but it is also true that
her mother-in-law Aloka Ranjan accompanied with both of
them at different places. She always made effort and created
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hurdle in their conjugal life. It is not true that she was
incompetent to conceive. The respondent and his parents
made several allegations against his first wife namely Roma
Srivastawa and they had also made similar allegations
against the appellant and filed divorce case against her. She
has never threatened the respondent and his family
members to ruin their life. She is pure vegetarian lady and
the same was informed to the petitioner and his family
members. But after marriage her mother-in-law forced her
to consume non- vegetarian food. On being denied by her
she was not provided food and water.
It is false to say that she had promised to take non
vegetarian food after marriage. At the time of Teej she was
asked by her mother-in-law that her husband is in abroad
so there is no need for her to reside in her sasural. She was
misbehaved and compelled to go to her maika. It is true that
her father-in-law is a gentle man and a respected person but
he is yes man of his wife. She has further denied all
allegation made by the petitioner (respondent herein) in his
plaint.
In cross-examination, she has stated that why the
respondent had filed this divorce case, she cannot say the
reason behind the same. She has not stated to her friend
and other persons that respondent is divorcee person. She
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came to know about respondent and his family members
through the add published in Newspaper. She has
knowledge that prior to marriage respondent and his family
members consumed onion garlic and non-vegetarian food
and her in-laws assured, they are ready to eat food as
cooked by her. After marriage she cooked vegetarian food by
mixing onion and garlic as per the direction of her mother-
in-law. She is separated with respondent and his family
members from 24.01.2020. At the time of her marriage no
any criminal case was pending against her brother Kishlay
Raj.
She had talked with respondent/husband last time on
16.04.2020 in the morning on 6.00 AM to 10.00AM on
telephone. She visited to Bangkok with respondent-husband
and her mother-in-law on 22.12.2019 only once. The said
ticket was booked by her husband. In Bangkok she cooked
her food sometimes where she was kept starved whole day.
She traveled by air first time while going to Bangkok. She
never asked her husband to perform third Marriage. When
she had gone to Bangkok on 27.12.2019, she was in touch
with her family members in India through "whatsapp". The
incident as mentioned in para-8 was informed by her to her
parents. The said matter was not informed to Bangkok
police or Indian Embassy. After returning from Bangkok she
came to Government residential house along with her
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mother-in-law and father-in-law in Daltonganj and resided
there for two months.
She agreed for marriage as because she was asked for
marriage without dowry. She and her family members met
with Roma Srivawastwa once or twice after the marriage.
She did not make any complaint regarding allegation made
in para-59 as because she wanted to maintain her conjugal
life.
13. DW-2 Manikant Roy is father of the appellant
herein who has supported the evidence of DW-1 in
examination-in-chief.
In cross-examination, he has stated that this suit
was filed by Kshitij Ranjan against her daughter for decree
of divorce. In the criminal case against his son Kishlay Raj
but in the said case his son was acquitted by Deoghar
Court. It is not true that his family is needed money and so
his son has committed serious crime of snatching the chain.
It is not true that Kshitij Ranjan is having good salary and
so by fetching conspiracy, he performed the marriage of his
daughter with petitioner (respondent herein). He has not
made complaint at any platform against the respondent-
husband and his family members. Presently his daughter
resides with him. She is not doing job at any place. He has
borrowed money of Rs. five lakhs from Nawal Singh. The
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said amount has been paid to Nawal Singh in different
period. For borrowing the aforesaid money, he has not
mortgaged any document. Since he has no sufficient income
and so he does not file income -tax return. He has
mortgaged his house to Nawal Singh for 4-5 months. His
daughter has no any boyfriend. It is not true that appellant
was tortured by the respondent in various ways and on the
said ground respondent is entitled for divorce.
14. DW-3 Geeta Devi is mother of the appellant herein
who has supported the evidence of DW-1 in examination-in-
chief.
In cross-examination, she has stated that this case
was filed by Kshitij Ranjan against Moushmi Kumari for
divorce. He has made allegation against his wife that
appellant tortured the respondent. Presently Moushmi
Kumari is residing in her maika. Her daughter cooks food in
house for entire family. Her daughter uses the android
mobile given by Kshitij Ranjan to her. Her daughter has filed
a case against her in- laws u/s 498A IPC. She is housewife
and resides in the house.
15. The learned Family Judge, based upon the evidence
adduced on behalf of the parties, has found the element of
cruelty to be proved by taking into consideration the
telephonic conversation in between the appellant-wife and
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respondent-husband wherein in course of talking, the
attempt to commit suicide has been accepted to be admitted
by the appellant-wife and the same has been taken as a
ground to substantiate the element of cruelty which led the
learned family court to pass the decree of divorce by passing
the impugned judgment.
Submission made on behalf of the appellant-wife
16. Mr. Mahesh Tewari, learned counsel appearing for the
appellant-wife, has taken the following grounds in assailing
the impugned judgment: -
(i) The learned Family Judge has not appreciated the
exact meaning of cruelty as has been interpreted by
Hon'ble Apex Court in the decisions wherein it has
been established that wear and tear type of quarrel will
not come under the fold of cruelty.
(ii) It has been contended that the element of cruelty has
been found to be substantiated by the learned Family
Judge on the basis of a telephonic chat which has been
produced by the respondent-husband and that has
been accepted by the learned Family Judge and not
only that the conversation of the appellant wife has
been accepted to be acceptance by the appellant wife of
committing suicide.
(iii) The ground has been taken that learned Family Judge,
while doing so, has not taken any endeavour to
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substantiate from getting an expert opinion regarding
veracity of the telephonic conversation which has been
said to be produced by way of Compact Disc (CD).
(iv) The contention has been raised that the learned Family
Judge ought to have sent the said CD to the FSL along
with sample of the voice of appellant wife to have the
satisfaction regarding corroboration of the voice said to
be of the appellant-wife but in absence thereof, the
conversation has been accepted to be of the appellant-
wife and that has been taken as a ground to
substantiate the element of cruelty based upon that
the decree of divorce has been passed.
(v) It has been contended by referring to page 48 of the
impugned judgment at para 13 wherein the deposition
of the petitioner-husband (respondent herein) has been
incorporated wherein the reference of WhatsApp
message has been made but no document has been
produced regarding the WhatsApp chat, rather,
contrary to the testimony, the CD and the scripted
conversation in between the appellant-wife and the
respondent-husband has been taken into
consideration, hence the learned Family Judge has
gone into wrong premise in order to have the
satisfaction to substantiate the element of cruelty by
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deviating itself contrary to the testimony of the
respondent-husband.
(vi) It has been contended that the present marriage is the
second marriage of the respondent-husband. He has
solemnized first marriage and in the like manner, he
has got divorce by filing application under Section
13(1)(i-a) of the Hindu Marriage Act. The same ground
has been taken to prove the element of cruelty that the
first wife has admitted to commit suicide. The same
being an ex parte decree, the learned Family Judge in
the said case being Original Suit No.194 of 2016, has
dissolved the marriage on the ground of cruelty.
Submission, therefore, has been made by referring to
the fact of the present case that same modus operandi
has been adopted for getting divorce by trying to prove
the element of cruelty on the ground of attempt to
commit suicide based upon the telephonic
conversation.
(vii) It has been submitted that in the first divorce suit also,
the similar approach was adopted by the respondent-
husband, i.e., to prove the element of cruelty the
telephonic conversation has been taken recourse to.
(viii) The learned counsel has further submitted that the
present marriage with the appellant-wife has been
solemnized in a concealed way as has been admitted
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himself by the respondent-husband that the second
marriage was solemnized in Deoghar while the first
marriage was solemnized in Jamshedpur. The
respondent-husband is the resident of the district of
Dhanbad.
(ix) It has also been stated that in the present marriage
ceremony, only two friends and parents total eight
persons had participated. This conduct of the present
respondent-husband reflects that what type of status
he is having in the society.
17. The learned counsel, based upon the aforesaid
grounds, has submitted that it is, therefore, a case where
the learned Family Judge has dissolved the marriage
without any cogent evidence and, as such, the impugned
judgment is fit to be quashed and set aside.
Submission made on behalf of respondent-husband
18. Mr. Indrajit Sinha, learned counsel appearing for the
respondent-husband, has taken the following grounds while
defending the impugned judgment: -
(i) It has been contended that what has been stated by
Mr. Tewari, learned counsel for the appellant regarding
the issue of dissolution of first marriage or the
participants in the marriage, few in number, are
admitted one but the divorce since has been granted
only on one ground, i.e., first attempt to commit
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suicide which has been taken into consideration as
having element of cruelty.
(ii) It has been submitted that one attempt to commit
suicide is sufficient to prove the element of cruelty.
(iii) The learned Family Judge has gone into the aforesaid
aspect of the matter and considering the Ext.X/7
(whatsapp chat between the appellant and respondent),
Material Ext.-I (CD audio/video clip) and Material Ext.-
II (Record audio/video in CD).
(iv) The telephonic conversation of the respondent-
husband with the appellant-wife wherein the fact about
attempt to commit suicide has been admitted which
has been taken as a substance to prove the element of
cruelty. Hence, the judgment of dissolution of marriage
as impugned herein cannot be said to suffer from an
error, since, one attempt to commit suicide is sufficient
to prove the element of cruelty.
19. Learned counsel for the respondent-husband on the
aforesaid grounds has submitted that the impugned
judgment requires no interference by this Court.
Analysis
20. We have heard the learned counsel for the parties and
gone through the pleading made as available in the plaint
and the written statement.
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21. We have also gone through the evidence as recorded of
the witnesses adduced on behalf of the appellant-wife and
the respondent-husband as also the exhibits as available in
the trial court record.
22. This Court, on consideration of the argument advanced
on behalf of the parties and based upon the pleading made in
the written statement, is of the view that following issues are
to be considered :-
(i) Whether on the basis of telephonic conversation as
scripted by the respondent-husband containing the
normal conversation in between the wife and husband
wherein the fact of attempt to commit suicide, in normal
course of conversation, if said to be accepted by the
respondent-wife, can it be said to be substantive
evidence to prove the element of cruelty.
(ii) Whether accepting transcript form of the audio
conversation of the appellant-wife and respondent-
husband based upon the CD which has been taken into
consideration by the learned Family Judge can be said
to be correct approach wherein there is no reference of
CD containing the audio conversation, rather, reference
of WhatsApp chat has been made in the evidence as
recorded by the respondent-husband.
23. Both the issues since are interlinked and, as such,
both are being taken into consideration together but before
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considering the aforesaid issues, once again the admitted fact
is to be reiterated herein, i.e., the present marriage is the
second marriage of the respondent-husband which was
solemnized on 24.04.2019 with the appellant-wife, who is
resident of the district of Deoghar. While the respondent-
husband is the resident of district of Dhanbad. The marriage
was solemnized on the basis of advertisement issued by the
respondent-husband.
24. The respondent-husband was working in the Bank and
posted in Bangkok during the time when the second marriage
was solemnized in the district of Deoghar. As on date also,
the respondent-husband is working in Bank Manager posted
in Bangkok.
25. It is admitted fact as has been admitted by the
respondent-husband in his evidence that in the marriage
ceremony, only eight persons including two friends had
participated.
26. The first marriage of the respondent-husband was
solemnized with a girl in Jamshedpur in the district of East
Singhbhum since the said girl belongs to Chhattisgarh.
27. The petition being Original Suit No. 194 of 2016 was
filed by the respondent-husband for dissolution of marriage
with the said girl under Section 27(1)(d) of the Special
Marriage Act 1954 by taking various ground of cruelty
including the citing one instance of jumping of the said girl
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(first wife of the respondent husband) on 23.11.2015 from
the first floor of Bedok MRT station at Singapore. It has been
pleaded in the said plaint that the husband (respondent
herein) somehow manage to stop the first wife from jumping
and killing herself. For ready reference the relevant
paragraph of the said pleading available on record is being
quoted as under:
16. That the situation took an ugly turn when on
23.11.2015 the respondent even tried to hurt herself
by jumping from the first floor of Bedok MRT Station
at Singapore, over the fact that the petitioner was
not agreeing with the Respondent's unjustified
demand of sending the parents of petitioner back to
India before the return date. The petitioner somehow
managed to stop the respondent from jumping and
killing herself but it shattered the petitioner and his
parents completely.
24. That, on 9th December 2015, the mother of the
respondent informed the petitioner by messaging on
Whatsapp mobile at around 4 PM (Singapore time)
that the respondent has locked herself in a room
and she is trying to hang herself and the petitioner
should do something by persuading her failing
which petitioner shall be responsible for such
consequences. Panicking after receiving the message
the petitioner made several calls to the respondent
but the responded did not respond to frantic call of
the petitioner. The petitioner was scheduled to
attend a global conference at 4:30 P.M. (Singapore
time). The incident caused acute mental stress and
trauma to the petitioner which greatly hampered his
performance at the work place. However at around
11PM (Singapore time), the respondent Informed by
messaging that she is fine. It was yet one of several
other acts of the respondent perpetrating acts of
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cruelty on the petitioner on a continuing basis. The
petitioner is apprehensive that his troubled married
life may seriously jeopardise his career prospects as
well, the negative consequence of which has ready
started haunting the petitioner causing severe
mental, emotional and psychological stress.
28. Thus, from the aforesaid it is evident that the cruelty
has been tried to be substantiated in the said also on the
ground of attempt of suicide by the first wife, for ready
reference, the evidence to the said effect is being referred
herein above which pertains to the first matrimonial suit in
between the respondent-husband and his first wife, which
was passed ex-parte in favour of the husband (respondent
herein).
29. This Court has thought it proper to refer the extract of
the said judgment (Original Suit No. 194 of 2016) which
reads as under:-
3.That on behalf of the petitioner altogether three
witnesses namely Kahinj Ranjan, the petitioner
himself as PWI, Aloka Ranjan as PW-2 and Dr. you
Ranjan Prested as PW-3 have been examined in
support of his case.
4. The petitioner has also produced some
documentary evidence ... ... ... ...
5. PWI Kshitij Ranjan, the petitioner himself has been
fully supported his pleadings of the plaint.
6. PW-2 Aloka Ranjan and PW-3 Dr. Jyoti Ranjan
Prasad have stated the same and similar stereotype
version of the petitioner in his deposition.
7. On perusal of the record, it is clear from the record
that the respondent of this case has not appeared in
spite of taking all recourse of the appearance of the
petitioner, therefore, due to non-rebuttal of pleading
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as well as oral and documentary evidence of the
petitioner are intact in favour of the petitioner against
the respondent.
8. On perusal of the record, it appears that the
second relief taken by the petitioner for cancellation
of marriage certificate between the parties bearing
Certificate No.32/2015 dated 18.02.2015 which was
granted jointly between the parties in the Marriage
Officer-cum-Marriage Registrar, Dhanbad is hereby
cancelled.
9. On the basis of discussion, made-above, and
evidence, I have come to clear conclusion that
petitioner has been able to prove his case against the
respondent even to the extent of preponderance of
probabilities. Accordingly, I find and hold that he is
entitled to a decree as claimed for it is, therefore,
Order
10.That the suit be and the same is decreed against
the respondent ex-parte without cost. The marriage
solemnized on 01.12.2014 between the petitioner
Kshitij Ranjan and the respondent Roma Srivastava is
hereby dissolved and the petitioner will never made
any claim against the respondent in future. Let a
decree be prepared accordingly. The dissolution of
marriage will take effect from the date of decree.
30. Herein, the respondent-husband filed an application
under Section 13(1), (i-a) of the Hindu Marriage Act, 1955 for
dissolution of marriage and in order to prove the element of
cruelty, the ground of attempt to commit suicide said to be
single instance was taken.
31. The appellant has tried to prove the instance of attempt
to commit suicide on the basis of telephonic conversation as
recorded in the Compact Disc (CD) which was transcript and
produced before the concerned court, marked as Ext.X/7.
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32. The law is well settled that the divorce can be granted
on the ground of cruelty as per the provision provided under
Section 13(1), (i-a) of the Hindu Marriage Act, 1955.
33. The cruelty has not been defined under the Act, 1955,
however, the cruelty has been interpreted by the Hon'ble
Apex Court in several decisions, some of which, having
bearing on the issue, are being referred herein.
34. The word 'cruelty' has been defined by Hon'ble Apex
Court in the judgment rendered in Dr. N.G. Dastane Vs.
Mrs. S. Dastane [(1975) 2 SCC 326], wherein it has been
held that the Court is to enquire as to whether the charge as
cruelty, is of such a character, as to cause in the mind of the
petitioner, a reasonable apprehension that, it will be harmful
or injurious for him to live with the respondent.
35. The cruelty has also been defined in the case of
Shobha Rani Vs. Madhukar Reddi [(1988) 1 SCC 105],
wherein the wife alleged that the husband and his parents
demanded dowry. The Hon'ble Apex Court emphasized that
"cruelty" can have no fixed definition.
36. According to the Hon'ble Apex Court, "cruelty" is the
"conduct in relation to or in respect of matrimonial conduct
in respect of matrimonial duties and obligations". It is the
conduct which adversely affects the spouse. Such cruelty
can be either "mental" or "physical", intentional or
unintentional. For example, unintentionally waking your
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spouse up in the middle of the night may be mental cruelty;
intention is not an essential element of cruelty but it may be
present. Physical cruelty is less ambiguous and more "a
question of fact and degree."
37. The Hon'ble Apex Court has further observed therein
that while dealing with such complaints of cruelty that it is
important for the Court to not search for a standard in life,
since cruelty in one case may not be cruelty in another case.
What must be considered include the kind of life the parties
are used to, "their economic and social conditions", and the
"culture and human values to which they attach
importance."
38. The nature of allegations need not only be illegal
conduct such as asking for dowry. Making allegations
against the spouse in the written statement filed before the
court in judicial proceedings may also be held to constitute
cruelty.
39. In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337,
the wife alleged in her written statement that her husband
was suffering from "mental problems and paranoid
disorder". The wife's lawyer also levelled allegations of
"lunacy" and "insanity" against the husband and his family
while he was conducting cross-examination. The Hon'ble
Apex Court held these allegations against the husband to
constitute "cruelty".
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40. In Vijay Kumar Ramchandra Bhate v. Neela Vijay
Kumar Bhate, (2003)6 SCC 334 the Hon'ble Apex Court
has observed by taking into consideration the allegations
levelled by the husband in his written statement that his
wife was "unchaste" and had indecent familiarity with a
person outside wedlock and that his wife was having an
extramarital affair. These allegations, given the context of an
educated Indian woman, were held to constitute "cruelty"
itself.
41. In the case of Savitri Pandey v. Prem Chandra
Pandey reported in (2002) 2 SCC 73, the Hon'ble Apex
Court has held as under:
"6. Treating the petitioner with cruelty is a ground for
divorce under S.13(1)(i-a) of the Act. Cruelty has not been
defined under the Act but in relation to matrimonial
matters it is contemplated as a conduct of such type which
endangers the living of the petitioner with the respondent
Cruelty consists of acts which are dangerous to life, limb
or health. Cruelty for the purpose of the Act means where
one spouse has so treated the other and manifested such
feelings towards her or him as to have inflicted bodily
injury, or to have caused reasonable apprehension of
bodily injury, suffering or to have injured health. Cruelty
may be physical or mental. Mental cruelty is the conduct
of other spouse which causes mental suffering or fear to
the matrimonial life of the other. "Cruelty", therefore,
postulates a treatment of the petitioner with such cruelty
as to cause a reasonable apprehension in his or her mind
that it would be harmful or injurious for the petitioner to
live with the other party. Cruelty, however, has to be
distinguished from the ordinary wear and tear of family
life. It cannot be decided on the basis of the sensitivity of
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the petitioner and has to be adjudged on the basis of the
course of conduct which would, in general, be dangerous
for a spouse to live with the other. ... ... ..."
42. The Hon'ble Apex Court in Joydeep Majumdar v.
Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has been
pleased to observe that while judging whether the conduct is
cruel or not, what has to be seen is whether that conduct,
which is sustained over a period of time, renders the life of
the spouse so miserable as to make it unreasonable to make
one live with the other. The conduct may take the form of
abusive or humiliating treatment, causing mental pain and
anguish, torturing the spouse, etc. The conduct complained
of must be "grave" and "weighty" and trivial irritations and
normal wear and tear of marriage would not constitute
mental cruelty as a ground for divorce.
43. The Hon'ble Apex Court in the case of Vidhya
Viswanathan v. Kartik Balakrishnan, (2014) 15 SCC 21
has specifically held that cruelty is to be determined on
whole facts of the case and the matrimonial relations
between the spouses and the word 'cruelty' has not been
defined and it has been used in relation to human conduct
or human behaviour. It is the conduct in relation to or in
respect of matrimonial duties and obligations. It is a course
of conduct and one which is adversely affecting the other.
44. It is evident from the aforesaid judgments that wear and
tear dispute in between the husband and wife on quarrel has
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been held to be not cruelty, rather, serious nature of quarrel,
if meted out either by the husband towards the wife or by the
wife towards the husband can be a ground of cruelty and in
such circumstances, cruelty will be said to be proved for the
purpose of dissolution of marriage.
45. Thus, Section 13 of the Act, 1955 specifies the grounds
on which a decree of divorce may be obtained by either party
to the marriage. Section 13(1)(i-a) of the Act, 1955 uses the
words "treated the petitioner with cruelty". Cruelty has been
used in relation to human conduct or human behaviour. It is
the conduct in relation to or in respect of matrimonial duties
and obligations. It is a course of conduct of one which is
adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical the
court will have no problem to determine it. It is a question of
fact and degree. If it is mental the problem presents difficulty.
First, the enquiry must begin as to the nature of the cruel
treatment. Second, the impact of such treatment on the mind
of the spouse. Whether it caused reasonable apprehension
that it would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by taking
into account the nature of the conduct and its effect on the
complaining spouse. There may, however, be cases where the
conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or the injurious effect on
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the other spouse need not be enquired into or considered. In
such cases, the cruelty will be established if the conduct
itself is proved or admitted.
46. Further, this Court is conscious with the settled
position of law that threat or attempt to commit suicide,
come under the purview of cruelty as has been held by
Hon'ble Apex Court in the case of Narendra v. K. Meena,
(2016) 9 SCC 455 wherein it has been held which reads as
under:
11. We feel that there was no fault on the part of the
appellant nor was there any reason for the respondent
wife to make an attempt to commit suicide. No husband
would ever be comfortable with or tolerate such an act by
his wife and if the wife succeeds in committing suicide,
then one can imagine how a poor husband would get
entangled into the clutches of law, which would virtually
ruin his sanity, peace of mind, career and probably his
entire life. The mere idea with regard to facing legal
consequences would put a husband under tremendous
stress. The thought itself is distressing. Such a mental
cruelty could not have been taken lightly by the High
Court. In our opinion, only this one event was sufficient
for the appellant husband to get a decree of divorce on
the ground of cruelty. It is needless to add that such
threats or acts constitute cruelty. Our aforesaid view is
fortified by a decision of this Court in Pankaj
Mahajan v. Dimple [Pankaj Mahajan v. Dimple, (2011) 12
SCC 1 : (2012) 1 SCC (Civ) 685 : (2012) 1 SCC (Cri) 345]
wherein it has been held that giving repeated threats to
commit suicide amounts to cruelty.
47. Further, in the case of Harbhajan Singh
Monga v. Amarjeet Kaur [AIR 1986 MP 41] it has been held
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that attempt to commit suicide by one spouse has been
found to amount to cruelty to other.
48. This Court, based upon the aforesaid legal proposition,
is now proceeding to examine whether in the facts and
circumstances, can it be said that the respondent-husband
has been able to prove the element of cruelty said to be based
upon attempt to commit suicide, i.e. single attempt, while in
Bangkok, the place of posting of the respondent-husband.
49. The sole ground has been taken to substantiate the
element of cruelty, i.e., the first attempt to commit suicide,
and that has been tried to be establish/substantiated on the
basis of a telephonic conversation which has been recorded
in the Compact Disc by the respondent-husband which has
been transcript and produced before the court along with the
Compact Disc.
50. It is evident from record that the said evidence of
telephonic conversation, as available in the CD, Material
Ext.-I & II, and transcript document, Ext./7, is the sole
evidence to substantiate the element of cruelty and based
upon that the learned Family Judge has found the
availability of element of cruelty and hence, the decree of
divorce has been passed. It needs to refer herein that the said
telephonic transcript is only evidence available on record in
order to substantiate the claim of the respondent husband.
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51. The submission, therefore, has been made by the
learned counsel for the respondent that the aforesaid
evidence is only required to be considered by this Court in
order to come to the conclusion as to whether the
respondent-husband has been able to prove the element of
cruelty or not.
52. Contrary to the same, Mr. Mahesh Tewari, learned
counsel appearing for the appellant-wife, has submitted
before this Court that there is no dispute regarding the
transcript of the conversation of the audio recording in the
CD which is the sole evidence having been marked as
Ext.X/7, but, for the purpose of scrutinizing the judgment
passed by the learned Family Judge, the other part of the
evidence of the witnesses are required to be considered for
the purpose of assessing the conduct of the respondent-
husband.
53. As such, this Court once again, at the risk of repetition,
reiterating the evidence of PW-1, respondent-husband and
other relevant witnesses.
54. PW-1 Kshitij Ranjan is respondent-husband himself
who has stated in his examination-in- chief that he was
married with Smt. Moushami Kumari on 24.04.2019 in
Deoghar without any dowry as per Hindu rites and customs,
in the presence of both parties and other persons of society.
The expenses of marriage such as fooding Lodging,
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transportation jewellery and cloths expenses, staying were
borne by his parents. The appellant herein (wife) has falsely
stated in her written statement that at the time of Marriage
rupees ten lakh cash and a car was demanded by his
mother. The appellant-wife has stated in her written
statement that marriage was solemnized without dowry
which has been mentioned in the marriage card of the
marriage. But it is false to say that the aforesaid fact
"without dowry" has been mentioned in pressure put by him
upon her family members.
He has further stated in examination-in-chief that
after two months of being failed mediation and after three
months of filing of written statement a C.P. Case No.990/20
u/s 498A, 307 and 379 IPC was instituted by the appellant-
wife in Deoghar Civil court.
He has further stated that a criminal case is
pending against the brother of appellant namely Kishlay Raj
in which he has gone to Jail also. There is criminal history
of Kishlay Raj. He is involved in several other Criminal cases
including the cybercrime. The aforesaid fact was not
disclosed knowingly by the appellant and her family
members prior to marriage.
There has been marital relationship between both
parties but out of the wedlock the couple was blessed with
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no child. Just after the marriage some rift arose between
both parties increased day by day. The reason behind same
is that appellant misbehaved with her in laws and she got
annoyed on very trivial grounds. The appellant has falsely
stated in her written statement that main reason behind the
rift between both Parties is his mother. He has stated that
two-three days after marriage she threatened and also
taunted him for solemnizing of third marriage and stated
that she will leave him. Hearing the same he got 'mentally
shocked. When appellant went to her maika in May 2019
she has sent some objectionable whatsapp messages in
respect of his mother. The appellant has falsely stated in her
written statement that she was misbehaved by his mother.
She used to quarrel with his parents on very trivial grounds,
which caused him mentally shocked. The appellant-wife
often insulted and abused to respondent-husband and
taunted by making false allegations in day to day life. She
also threatened that if he does not fulfill her demands she
will commit suicide and will implicate him in false case.
On July 2019, the appellant threatened by speaking
loudly that she will leave his house if she was told to
consume onion and garlic. Whereas before marriage she was
ready to consume garlic and onion. He has further stated
that he never forced to appellant to consume garlic onion or
non-vegetarian food. On the contrary she was free to take
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her meal as per her choice. On 13.08.2019 some days prior
to Teej festival she knowingly went away to her Malika
whereas his mother had requested her to return back in
sasural and celebrate the first Teej. But she neither returned
to sasural nor celebrated Teej.
He has further stated that on 07/08.09.2021 the
appellant-wife came to her sasural with her parents and
brother Kislay Raj and after being proceeded by her family
members from his house she created drama of
unconsciousness. When she was medically checked up all
reports came normal. On 21.09.2021 her parents came and,
in their presence, she was asked as to whether she wants to
reside either in Dhanbad or her maika then she refused to
reside in Dhanbad and expressed her desire to live in her
maika at Deoghar.
He has further stated that her ticket was booked for
Bangkok but she flatly refused to go to Bangkok and the
ticket was wasted.
He has further stated that she had demanded Rs.
five lakh by saying that his father has taken debt and if the
same was not paid her father's house will be sold. She also
has demanded Rs. 20,000/- for the mobile set of her brother
Apurba Raj. She has further demanded Rs.50,000/- in
August 2019 for cousin sister and Rs. 25,000/- for the job of
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her brother Kishlay Raj.
He has further stated that he again booked the
ticket for the appellant for Bangkok along with his mother
on 22.12.2019 with hope that in changed atmosphere
everything will be all right. Thereafter respondent came to
Bangkok but her behavior did not change. Even in Bangkok
she was regularly putting pressure upon him to reside
separately with his parents and pursuant thereto she tried
to commit suicide on 27.12.2019 but anyhow she was
rescued by him. Ultimately the appellant-wife returned back
to India on 04.01.2020.
She has filed false case bearing C.P. Case
No.990/20 against him whereas in whatsapp call she told
several times that she was rescued by him. She has made
several false allegations against him and his parents. She
falsely raised doubt on her character several times.
He has further stated that the respondent knowingly
and with her free will has deserted him and his family
members and residing in her parent's house in Deoghar.
She has falsely stated that she was driven out from her
matrimonial home.
In cross-examination, he has stated that the
negotiation of marriage between both parties was done on
telephone. In January, 2020 the mother of appellant-
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Moushmi had made telephone call to his mother seeing his
marriage advertisement. In advertisement it was written that
he is divorcee person and will perform marriage without any
dowry. In course of negotiation the family members of
Moushmi had to come to Dhanbad. After negotiation he
came to know that appellant is an educated lady and she is
capable for her self-employment. His no relative had
participated the marriage. Only eight to nine persons had
participated from his side in the marriage. All the expenses
of marriage were borne by his parents. The family members
of Moushmi Kumari had written in the marriage card as
without dowry with their free will.
Prior to this marriage, he had performed his first
marriage but now divorce has been taken place with his first
wife. The decree of divorce was granted of first marriage in
June 2018 and he solemnized the second marriage on
24.04.2019. It is true that firstly his mother had filed a C.P.
case against Moushmi Kumari and her family members and
thereafter he had filed the divorce case and thereafter
Moushmi Kumari has filed the C.P. case against him u/s
498A, 307, 379 IPC. She also has filed maintenance case
against him. His second wife Moushmi Kumari resided with
him for 40-50 days. At the time of first Teej he was not
present in India and respondent was present in Deoghar.
Being husband, he fulfilled all demands of Moushmi and
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ignored her rude behavior. He properly cared of her fooding
and lodging and took care that she eats only vegetarian food.
After marriage he along with his wife and her brother and
parents has visited in a Mall in Delhi. He never visited and
roamed alongwith his wife alone. His second meeting with
his wife was held on 11/12.07.2019 and prior to
05/06.05.2019 they resided together for about 10 days.
After returning from Bangkok his wife resided with his
parents. He again came to Dhanbad in December 2019 and
by that time his wife was living in his house along with his
parents. On 22.12.2019 he went to Bangkok along with his
wife and brother where she resided together 10-15 days.
Thereafter, he did not meet with his wife as because she
went away to her maike on 24.01.2020. He is not interested
to restore his marital life with his wife as because she has
filed false case against him.
55. PW-2 Aloka Ranjan is mother of the respondent
herein who has supported the evidence of PW-1 in
examination-in-chief.
In cross she has stated that earlier her son had filed
a divorce case against first wife in which she has recorded
her evidence. This divorce case was filed by her son on
18.08.2020. She has filed a C.P. case no-831/20 in March
2020 against Moushmi Kumari, her mother Geeta Devi and
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her father Manikant Roy. She had given advertisement for
the marriage of her son. The marriage of both parties was
performed with consent of both parties and their respective
family members.
The appellant herein had tried to commit suicide
also. From the very second day of the marriage the appellant
started threatening her son by saying that she will leave him
and thereafter, he may be perform his third marriage. The
appellant herein continuously put pressure upon her
husband to live separately and also demanded money with
him. They tried to take the respondent to Bangkok two
times, but first time she refused to go there and next time
she went to Bangkok where on 27.12.2019 she tried to
commit Suicide which was rescued by her son.
The marriage of her son was solemnized two times
but no any child was born by the both marriages. After
blood test the report of Moushmi Kumari was found to be
normal. This marriage was performed by cheating to
respondent-petitioner. The criminal incident of appellant's
father was not disclosed at the time of marriage. Her
daughter-in-law had demanded money. She has knowledge
that her son has provided money to her daughter in law but
she cannot say when and what amount was given. Since her
daughter in law has filed Criminal case against her son, she
2025:JHHC:19671-DB
does not want to keep her. It is not true that the rift arose
between husband and wife due to her.
She has further stated that it is false to say that
after being beaten they driven out the appellant-wife prior to
Teej. It is false to say that only with purpose to grab money
she solemnized this marriage. It is false to say that only to
get money her son wants to solemnize third marriage and so
he has filed this divorce case. It is false to say that
respondent was ready to go to Bangkok but neither she nor
her husband allowed her to go to her husband. Her
daughter- in-law and son resided together as husband and
wife till 30th July 2019. It is false to say that appellant-wife
had never deserted her husband and she still wants to live
with her husband.
56. PW-3 Jyoti Ranjan Prasad is the father of the
respondent herein who has supported the evidence of PW-1
(respondent-husband) in examination-in- chief.
In cross he has stated that the marriage of his son
was solemnized through a marriage bureau and they had
given advertisement in Newspaper. In the advertisement it
has been mentioned that his son was divorcee and marriage
will be performed without dowry. After being satisfied he
visited to the house of appellant-wife. He had given costly
suitcase and purse etc. by purchasing the same to his
2025:JHHC:19671-DB
daughter-in-law. After marriage his daughter-in law resided
peacefully for about 4 to 5 months and in the meantime,
they provided Rs. 10-15 thousand and again Rs. 40,000/-
was given.
He has further stated that he cannot say as to why
the first marriage of his son could not be successful. Due to
wrong behavior of his first daughter-in-law the said
marriage was broken. The appellant-wife has falsely made
allegations on the character of his son. Appellant performed
this marriage with respondent herein by fetching conspiracy
only purpose to grab money.
He has further stated that it is false to say that they
had compelled the appellant to consume onion, garlic
knowing the fact that she is vegetarian. It is false to say that
Moushmi Kumar was beaten by them and she was not
allowed to go to Bangkok. It is true has that the case of
dowry has been filed by the appellant in which he and his
wife are on bail. It is not true that appellant herein never
demanded money with respondent-husband. It is false to
say that on dt. 27.12.2019 in the night his wife and son had
tried to kill the appellant.
57. The appellant herein (defendant in original suit) has
been examined as DW-1. In her deposition she has stated
that she was married with respondent-petitioner Kshitij
Ranjan on 24.04.2019 with Hindu Rites and Customs. At the
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time of marriage Rs. Ten lakh was demanded by her in-laws
from her parents. Her mother-in-law demanded a car also.
When her family members expressed their inability to fulfill
the illegal demand of her in-laws, they started torturing her
physically and mentally. She was treated as maid in her
sasural. Her mother-in-law always made effort to deteriorate
the relationship of husband and wife. Due to the torturing by
her in laws once she got unconscious and she got nerves and
thereafter they prepared video recording also to utilize the
same for undue benefit. The intention of her in-laws was not
clear prior to marriage. They also edited the whatsapp
messages. On 27.12.2019 her husband and mother-in-law
tried to kill her by putting cloths rope around her neck in
Bangkok. On being raised alarm due to fear of gathering
nearby people she got free. They have recorded video clip also
of the incident by narrating the different story. She was
forcibly sent to her maika. On being requested several times
by her parents, her in-laws flatly refused to keep her as
because her parents could not fulfill their illegal demands.
Her parents and brother Spent huge amount in marriage.
Due to pressure of respondent-petitioner and his parents it
has been written in Marriage card as "without dowry" (Dehej
Rahit). At the time of her marriage respondent-petitioner was
posted in Bangkok. Her mother-in-law Aloka Ranjan is
shrewd lady and she is master mind of all activities. It is her
2025:JHHC:19671-DB
second Marriage with the respondent and he had given
divorce to his first wife.
It is true that she resided with the respondent as
husband and wife in different places but it is also true that
her mother-in-law Aloka Ranjan accompanied with both of
them at every places. She always made effort and created
hurdle in their conjugal life. It is not true that she was
incompetent to conceive. The respondent and his parents
made several allegations against his first wife namely Roma
Srivastawa and filed divorce case against her. She has never
threatened the respondent and his family members to ruin
their life. She was pure vegetarian lady and the same was
informed to the petitioner and his family members. But after
marriage her mother-in-law forced her to consume non-
vegetarian food. On being denied by her she was not
provided food and water.
It is false to say that she had promised to take non
vegetarian food after marriage. At the time of Teej she was
asked by her mother-in-law that her husband is in abroad
so there is no need for her to reside in her sasural. She was
misbehaved and compelled to go to her maika. It is true that
her father-in-law is a gentle man and a respected person but
he is yes man of his wife. She has further denied all
allegation made by the petitioner in his plaint.
2025:JHHC:19671-DB
In cross-examination, she has stated that why the
respondent had filed this divorce case, she cannot say the
reason behind the same. She has not stated to her friend and
other persons that respondent is divorcee person. She came
to know about respondent and his family members through
the add published in Newspaper. She has knowledge that
prior to marriage respondent and his family members
consumed onion garlic and non-vegetarian food and her in-
laws assured, they are ready to eat food as cooked by her.
After marriage she cooked vegetarian food by mixing onion
and garlic as per the direction of her mother-in-law. She is
separated with respondent and his family members from
24.01.2020. At the time of her marriage no any criminal case
was pending against her brother Kishlay Raj. She had talked
with respondent last time on 16.04.2020 in the morning on
6.00 AM to 10.00AM on telephone. She visited to Bangkok
with respondent-husband and her mother-in-law on
22.12.2019 only once. The said ticket was booked by her
husband. In Bangkok she cooked her food sometimes where
she was kept starved whole day. She traveled by air first time
while going to Bangkok. She never asked her husband to
perform third Marriage. When she had gone to Bangkok on
27.12.2019, she was in touch with her family members in
India through whatsapp. The incident as mentioned in para-
8 was informed by her to her parents. The said matter was
2025:JHHC:19671-DB
not informed to Bangkok police or Indian Embassy. After
returning from Bangkok, she came to Government residential
house along with her mother-in-law and father-in-law in
Daltonganj and resided there for two months. She agreed for
marriage as because she was asked for marriage without
dowry. She and her family members met with Roma
Srivastava once or twice after the marriage. She did not make
any complaint regarding allegation made in para-59 as
because she wanted to maintain her conjugal life.
58. It is evident from the evidence of the respondent-
husband that he himself has admitted that the present
marriage is the second marriage. The first marriage has been
dissolved on the ground of cruelty, in ex-parte judgment.
59. Thus, from the aforesaid factual aspect it is not in
dispute that the petition for dissolution of marriage for
granting a decree of divorce under Section 13 (1) (i-a) of the
Act 1955 came to be filed by the respondent husband before
the learned Family Court. The fact remains that it was the
respondent husband who approached the court for a decree
of divorce on the grounds of "cruelty" of the appellant/wife as
she had tried to commit suicide, hence, this Court has to
access whether the respondent/husband has made out a
case for divorce on these grounds.
60. It is also admitted fact, as would be evident from the
evidence that the ground of cruelty has been proved in suit
2025:JHHC:19671-DB
no.194 of 2016 by taking the instance of attempt to commit
suicide by the first wife, for ready reference the relevant part
of the pleading, as has been incorporated in the evidence, are
being referred hereinabove in the preceding paragraph.
61. The purpose of referring this evidence is to show the
conduct of the respondent-husband, since, herein also, the
same ground has been taken to get the decree of divorce and
in order to prove the element of cruelty, the instance of
attempt to commit suicide has been alleged against the
appellant-wife.
62. The said instance is based upon the telephonic/audio
conversation said to be available in the Compact Disc having
been converted into the transcript, which has been marked
as Ext./7.
63. Serious objection has been raised by Mr. Tewari,
learned counsel appearing for the appellant-wife that the said
CD has not been displayed in the court and, therefore, the
same has not been seen/listened by the learned Family
Judge and further, the said CD has not been sent to FSL to
assess its correctness.
64. The submission has also been made that the sole piece
of evidence to prove the element of cruelty is the transcript of
the so-called conversation in between the appellant-wife and
the respondent-husband.
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65. Before appreciating the said contention of the learned
counsel for the appellant it needs to refer herein that this
Court is conscious with the settled position of law that in
suits between a couple the right to privacy is not a relevant
consideration, since it is not the rationale under which
spousal communications were deemed privileged under
Section 122 of the Indian Evidence Act, therefore the
evidence procured by using the technology and modern
electronic devices is admissible as the evidence in the
matrimonial suit.
66. However, herein we are not mooting upon the
admissibility of the said evidence i.e. transcript of the
conversation rather this Court is concerned with the
authenticity of said evidence reason being that it is equally
settled position of law the Courts are to be circumspect in
relying upon such evidence without satisfying itself as to the
authenticity and reliability of such evidence recorded on the
electronic devices.
67. This Court, before considering the contention of the
learned counsel for the appellant, needs to refer herein the
transcript conversation between the parties:
KSHITIU- क्या आया था?
MOUSHAMI- नह ीं दिख रहा...... हमको नह ीं दिख रहा है वह चेहरा
KSHITIJ - अभ बोल 25 दिन में आया था
MOUSHAMI- 25 दिन में आया था, कुछ दिन ब च में
KSHITIJ- उसके बाि क्या क्या हुआ? वह सब भूल जात हो? उससे
टें शन नह ीं होगा ?
MOUSHAMI- कुछ नह ीं भूलते हैं . हमको सब याि है
2025:JHHC:19671-DB
KSHITIJ- वह सब च ज से कोई टें शन नह ीं होगा? फाींस लगाने का
सामने कोदशश कर रह हो दकतना मुश्किल से रोके हैं , समझ में नह ीं
आया था ? ..उसके बाि daily रात में कुछ ना कुछ कुछ ना कुछ
हमेशा....... उससे टें शन नह ीं होगा? बोल रह हो आप हींसते क्योीं नह ीं
है? बात क्योीं नह ीं करते हैं ?
MOUSHAMI <3:45>-हा. ये बात तो सच है . आज हम दजींिा हैं तो
आप ह क वजह से हैं
KSHITIJ- बहुत अच्छा च ज था सुसाइड करने का कोदशश करना
करने का कोदशश क्या? वह तो कर रह थ रोकने में दकतना मुश्किल
हुआ मेरा पूरा पैंट फट गया
MOUSHAMI हाहाहा
KSHITU- हस आ रहा है . बहुत अच्छा
MOUSHAMI और मेरा पेट दिख रहा था सो ?
KSHITU- ये हस का बात है ? मजाक तुम को कैसे लगता है इसमें?
बोलत हो आप हमसे अच्छे से बात नह ीं करते हैं
MOUSHAMI- अच्छा होता ना चले जाते, आप का टें शन ...... बहुत
बुरा लगा था आपको उसदिन?
KSHITIJ- क्या?
MOUSHAMI- बोले उस दिन आपको बहुत बुरा लगा था?
KSHITIJ- दकस दिन?
MOUSHAMI- उस दिन 27 दिसींबर
KSHITIJ - दजस दिन सुसाइड कर रह थ
MOUSHAMI- हााँ
KSHITIJ- तो क्या हम ख़ुश मनाते उस दिन में क्या करता कोई
आिम ? बुरा लगता अच्छा लगता , अच्छा लगता क्या? बुरा नह ीं लगता,
तो अच्छा लगता? यह िो च ज हो सकता, आिम को या तो अच्छा
लगेगा या बुरा लगेगा।.............. ऐसे situation में अच्छा दकसको लग
सकता है ?
MOUSHAMI- दकस को नह ीं
KSHITIJ - हााँ
MOUSHAMI- िु श्मन को भ नह ीं दकस को भ नह ीं
KSHITIJ- तो बुरा ह लगेगा, तो यह कोई सवाल में सवाल है ?
MOUSHAMI- ठ क है सो जाइए
KSHITIJ- हाीं कल तुमको जो मन दकया सब दलख ि थ , क्या क्या
नह ीं दलख थ ?
MOUSHAMI - क्या दलखे थे बतलाइए तो ?
KSHITIU- सब च ज़ दलख थ और दडल ट करने से क्या होता है ? हम
नह ीं पढे हैं क्या ?
MOUSHAMI-हमको पता है आप पढे हैं
KSHITIU- तो बहुत अच्छा च ज सब दलख थ
MOUSHAMI-हमको पता है आप पढे हैं
KSHITU- पूरा फ्राइडे को दलख थ बैठ कर के वह same च ज सब
दलख रह थ ....... झूठ बोल रहे हैं , यह कर रहे हैं ..... दलख दिए दक
घर बात कर रहे हैं तो भ झूठ बोल रहे है , जो समझना है समझत रहो
MOUSHAMI- लडाकू पदतिे व झगडाहा
KSHITIU- हम कोई लडाकू नह ीं हैं
MOUSHAMI-झगडाहा है न, खडूस हैं न ?
KSHITII- खडूस खडूस कुछ नह ,ीं अभ तुम िे ख कहाीं हो झगडालू
और खडूस जो हम तुमको झगडालू और खिू स लग रहे हैं
MOUSHAMI-क्या बोले
2025:JHHC:19671-DB
KSHITIJ- अपने आप को आईना में िे ख लो पता चल जाएगा झगडालू
खडूस क्या होता है
MOUSHAMI-हम िे खें आईना में ?
KSHITU- अपने आपको िे ख लो आईना में सब पता चल जाएगा
झगडालू और खडूस क्या होता है
MOUSHAMI-झगडालू नह ीं हैं , हम खिू स नह ीं है
KSHITIU- रहने िो
MOUSHAMI ना हम झगडालू हैं , ना हम खडूस हैं
KSHITU- िु सरा ह आिम बताएगा न ?
MOUSHAMI <1:19> हााँ एक च ज है थोडा सा नाक पे गुस्सा आ
जाता है
KSHITIJ- थोडा सा?
MOUSHAMI- हाीं थोडा सा
KSHITIJ- अरे तुमरा थोडा तो मतलब बहुत होता
MOUSHAMI- थोडा सा
KSHITIJ- बहुत आएगा तो पता नह ीं का तूफान ह आ जाएगा पूरा
िु दनया में
MOUSHAMI <1:37> -हाीं लेदकन वह 27 दिसींबर को हुआ था वह
थोडा सा नह ीं था
KSHITIJ- पता नह ीं तुमरा थोडा और बहुत
MOUSHAMI- वहः थोडा सा नह ीं था खुि में काबू नह ीं थे हम उस
दिन
KSHITIU <1:47>- बहुत अच्छा खुि में काबू नह ीं थे फाींस लगा रहे
थे. चाक़ू खोज रहे थे, भोींक रहे थे िौड रहे थे, दचल्ला रहे थे कोई मतलब
नह ,ीं सब बोल रहे थे ये सब.......ऊल जलूल च ज सब
MOUSHAMI- अच्छा हो रहा है ना जान आज हमसे इस तरह से बोल
रहे हैं , कम से कम उस दिन चले जाते इस िु दनया से तो कम से कम
इतना तो आपको झेलना नह ीं पडता ना
KSHITU- हाीं
MOUSHAMI- झेलना नह ीं पडता ना <2:15> तो क्योीं बचाए हमको
आप
KSHITIU- हाीं ठ क है
MOUSHAMI-एकिम पकडकर, एकिम,
KSHITU- ठ क है
MOUSHAMI <2:23> रुदकए, रुदकए........ एकिम पकडकर,
एकिम िबोच के दक उस दिन हम
KSHITU- हमको मोक दिया गया बहुत अच्छा, खून दनकल गया था
मेरा
MOUSHAMI- हमको पता है जान हम आपको नह ीं भोींके ये
वह तो च ज पेन के बिले कैच होता चाक होता तो दफर तो हो गया
होता
MOUSHAMI <2:52 हम आपको नह शोक थे हम खुि को भोक
रहे थे - हाीं हाीं उस समय पता चलता है दकसको भोींक रहे हैं बस भॉक
िे ना है ........ दकस को भूक
जाएगा
MOUSHAMI - नह ीं
KSHITIJ- बच्चा होता उसके सामने ये सब करोग तो हो जाएगा दफर
तमाशा
MOUSHAMI- क्या बोले ?
KSHITIJ <3:06>- कोई छोटा बच्चा होगा उसके सामने यह सब
होगा तो हो जाएगा तमाशा
2025:JHHC:19671-DB
आप हमको MOUSHAMI <3:13> -हम आपको नह ीं भोींक रहे थे,
वो तो आप आगे आ गए बधा रहे थे तो वह लग गया उस समय तो हम
को ऐसा लग रहा था सच्च बोल रहे हैं दक कैसे करके हम अपने
आपको खत्म कर ले ऐसा लग रहा था उस दिन कभ मन कर रहा था
उस दिन बालकोन से कUST आप हमको रूम से दनकालने नाह ीं दिए
अपना जान िे िे इस दिन इशा जो उस दिन
KSHITIJ- हॉ
MOUSHAMI <03:59>- सुबह हुआ तब हम शाींत हुए रात भर
यातना हेलो
KSHITU- ठ क है हम रखते हैं
MOUSHAMI- हाीं रुदकए ना और आप भ उस तरह एकिम पकड
के हमको एक जगह, मतलब वॉश रूम तक जाने नह ीं दिये
KSHITU- हाीं
MOUSHAMI- खोने का डर था?
KSHITU- क्या खोने का डर था भाई यह सब कोई करे गा उसके बाि
तुमको तो ये सब मजाक ह लगता है
MOUSHAMI-मजाक नह ीं कर रहे थे जान हम सच में मजाक नह ीं
कर रहे थे लेदकन <4:41> शाप अगर इस दिन आप अचार को इस
दिन नह ीं पाते ना सर में बोलते हैं तो आज हम आपले धात नाह ीं कर रहे
होते आज भ उसका असर आज तक हम को पड रहा है ... उस दिन
का असर....... उस हाल में जो सब दचल्ला दलए, बोल दिए शर र को
इधर-उधर कर दिए प ररयड के पहले रे स्ट करने का होता है ...... हेलो
KSHITU- हाीं ठ क है अब हम रखते हैं ...... हम जाएीं गे घर भ बात
करें गे दफर थोडा सोएीं गे
(Conversation on 3rd Feb 2020 where Moushami
accepts that she was also threatened to commit
suicide on 21st Jan 2020. Moushami always asks
whether this marriage should be continued or not and
Kshitij has never raised this point even once.)
Moushaml घर में नह ीं बताते हैं , तो आपके घर से मेरे guardian
को फोन कैसे आता है ?
Kshitij - क्या? आज तो हम बताएाँ हैं .. हम तो बोल रहे हैं हम बताए
हैं... क्योींदक तुम परसोीं बताय थ
Moushami परसोीं भ फोन आया था
Kshitij - परसोीं क्या? हााँ तो परसोीं जब तुम्हारे पापा हमको बोलेंगे तो
हम नह ीं बताएीं गे घर में दक यह सब हुआ था आज बात
Moushami <0:18>- हााँ उसके बाि उस दिन रात में 21 तार ख
(21 जनवर 2020) को जो बात था हम
बोले आपको हम मर जाएीं गे, हम है कर लेंगे, उस दिन रात में पदत पत्न
में बात हुआ last message है . हमको अपना चेहरा दिखा ि दजए,
जब मम्म पापा पास गए तो आपक मम्म ये बात क्योीं उठाई?"
Kshitij - हााँ , और एक बात सुनो. हााँ तो इतना बडा बडा बात तुम ऐसे
बोल िोग और उस पर िू सरे पर क्या फकक पड रहा उससे नह ीं मतलब
है? तुम्हार मम्म खुि बोल है 31 अगस्त से तुम्हारा हर बात पर ध्यान
िे रह हैं तो ये सब छोटा मोटा बात है ? यह सब छोटा मोटा बात है दक
तुम बोलोग दक हम अींदतम बार बात कर रहे हैं आपसे? यह सब बहुत
छोटा मोटा बात है ?
Moushami- मन नह ीं लग रहा था, घुटन हो रहा था
Kshitij- घुटन हो रहा था? यह सब बात तो है ..... यह सब छोटा मोटा
बात है ऐसे ह बोल दिया जाता । लोगोीं को
Moushaml <1:00>- माि रश्कखएगा, अब वो सब था ना हम कर दलए
कर दलए अब वो सब हम कुछ करने वाले हैं नह ीं
2025:JHHC:19671-DB
Kshitij- िे खो ऐसा तुम बहुत बार बहुत कुछ बोल चुक हो िे खेंगे वो
समय ह हमको दिखाएगा क्या िे खना है
Moushami और ये बोदलए, दक क्या बोलते हैं , ढीं ग से मेरे.. हमलोग
अच्छा से रहना चाहते हैं दक नह ?ीं
Kshitij - ये तुम ह answer िो इसका हम नह ीं िे ने वाले हैं ... बार
बार तुम ह बोल हो.. तुम हर बार यह point.. हम कभ ये point ना
raise दकए हैं, कभ कुछ नह ीं बोले हैं हर बार तुम ह raise क हो तो
तुम ह decide करो यह सब"
68. It appears from the said transcript that it is a talk going
on in between the wife and husband. The talk appears to be
very normal and the reply is being given by the appellant-wife
on the query being made by the respondent-husband.
69. We all know that the relationship of wife and husband
depends upon trust and having the said trust, the appellant-
wife has responded to the query made by the respondent-
husband and one of the queries is regarding the attempt to
commit suicide.
70. The learned Family Judge has taken into consideration
the part of the said evidence without taking into
consideration the entirety of the said recorded conversation.
If one line of the said conversation will be picked up then
certainly the adverse opinion is very easy to derive as has
been derived by learned Family Judge by coming to the
conclusion that the fact about attempt to commit suicide has
been admitted by the appellant wife. But, if the entire
recording of the conversation will be taken into consideration,
then certainly it appears to be a normal conversation in
between the wife and husband, herein the appellant and the
respondent.
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71. The law is well settled that if any evidence is being
taken into account, then the evidence is to be taken into
consideration in entirety for the purpose of coming to the
rightful conclusion to have an opinion in the mind regarding
the element found to be proved on the basis of consideration
of the said evidence in entirety and picking one line or two
lines of the said evidence cannot be said to be just approach
by the Court.
72. Exactly the same thing has been done herein by the
learned Family Judge, that too, without taking into
consideration that the appellant wife was away from the
residence of the respondent-husband and over telephone, by
virtue of audio conversation the respondent-husband has
started talking with his wife and having trust upon him, she
has started giving answers and very peculiarly and with
ulterior mind, the respondent-husband has started recording
the said conversation. The recording of said conversation can
only be construed to be the mala fide approach of the
respondent-husband only to create evidence in order to
substantiate the element of cruelty.
73. Further, it is evident from the deposition of the
respondent-husband which is based upon the plaint wherein
the reference of WhatsApp message has been given, as is
evident from the pleading made in the plaint which is being
referred herein: -
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33. That during that day (20 Jan 2020) the brother of
respondent- Kishloy Raj also threatened petitioner with
dire consequence. On mentioning the intimidating
behavior of Kishloy Raj to respondent, respondent
openly remarked that her brother Kishloy can do any
wrongful act against the petitioner. Kishloy Raj also
sarcastically remarked to petitioner that "Aapke ghar
mein jents log sahi nahi hai isliye ladies log bahak rahi
hain, Idhar aapki maa udhar aapki biwi." Usage of
such filthy and derogatory language by respondent's
younger brother who is around 25 years of age against
his sister (respondent)'s mother in law who is
approaching the age of senior citizen is unacceptable
behavior which caused acute mental agony to
petitioner.
Photocopy of hard copy of the whatsapp
messages is annexed and marked as Annexure
VII
74. But, very surprisingly and contrary to the procedure, in
the evidence there is no reference of any WhatsApp chat,
rather, the evidence has been produced in the shape of the
telephonic conversation. But, this aspect of the matter has
also not been taken into consideration, which according to
the considered view of this Court, is contrary to the settled
position of law that if any pleading is made in the plaint, then
the same is to be proved in the evidence and there cannot be
any deviation in the evidence from the pleading, as has been
done by the respondent-husband.
75. The respondent-husband, in place of substantiating the
said statement of WhatsApp chat through the WhatsApp
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details procured from its source for the purpose of proving
the pleading made in the plaint, has produced the audio
conversation and its transcription before the court and
peculiarly the same has been accepted by the learned Family
Judge deviating from the procedure of law that it is bounden
duty of the plaintiff or the defendant to substantiate the
pleading either made in the plaint or written statement by the
evidence.
76. Further, it needs to refer herein that the Compact Disc,
although said to be exhibited but we, after going through the
entire judgment, has not found any reference as to whether
the learned Family Judge has even taken any endeavour to
listen to the conversation in order of corroboration from the
transcript, rather, whatever has been written by the
respondent-husband, the same has been accepted even
though the content of he said transcript has seriously been
disputed by the appellant-wife, as would be evident the
deposition of appellant-wife, examined as DW-1.
77. Admittedly, the Evidence Act is not applicable in strict
sense in the matrimonial adjudication but it does not mean
that the principle of fairness and transparency is to be given
go bye.
78. Particularly, in the present case, where the basis of
dissolution of marriage has been considered by the learned
Family Judge to be the conversation recorded in the Compact
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Disc. The basis of divorce, therefore, is conversation in
between the wife and husband. But without verifying their
voices in order to come to the conclusion, that the voice
actually is of wife or not.
79. Even in divorce proceeding, requirement is of
presentation of credible evidence to support the grounds of
divorce. If voice recording is presented as evidence, that
needs to be authenticated and verified by the Forensic
Science Laboratory or other appropriate means to confirm
their genuineness before being considered by the court.
80. The importance of corroboration is having bearing since
there is possibility of manipulation of the voice by
manipulating from its digital source itself.
81. It further needs to refer herein that the transcript or the
Compact Disc is although not admissible in the facts of the
case since contrary to the plaint but even if the learned
Family Judge has taken into consideration these evidences
for the purpose of coming to the conclusion, then it was his
bounden duty to have the corroboration by sending the
transcript and the Compact Disc to the Forensic Science
Laboratory in order to have a report as to whether the voice
which has been said to be of appellant-wife is actually of the
appellant-wife or not, particularly in the case where the
content of the said conversation has seriously been disputed.
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82. The cruelty can be a ground for divorce but while
proving the element of cruelty, since the same is going to
make an irreparable loss to one of the parties, herein the
appellant-wife, then the court is to be more careful and
stricter in proving the element of cruelty from the cogent
evidence only and not on the basis of conjectures and
surmises.
83. The learned court has also not taken into consideration,
even though the same is part of the evidence, the past
conduct of the respondent-husband who has got decree of
divorce from first wife also on the ground of cruelty based
upon the attempt to commit suicide by adopting the same
modus operandi.
84. This Court, on basis of discussion made hereinabove,
has found following infirmities in the impugned judgment :-
(i) The learned family court has not taken into
consideration, the past conduct of the respondent-husband
who has got decree of divorce from first wife also on the
ground of cruelty based upon the attempt to commit
suicide by adopting the same modus operandi.
(ii) The purpose of referring the past conduct of the
respondent-husband that herein also, the same ground has
been taken to get the decree of divorce and in order to
prove the element of cruelty, the instance of attempt to
commit suicide has been alleged against the appellant-wife.
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(iii) The sole piece of evidence to prove the element of
cruelty is the transcript of the so called conversation in
between the appellant-wife and the respondent-husband
but the talk appears to be very normal and the reply is
being given by the appellant-wife on the query being made
by the respondent-husband. The learned family court has
failed in sensing that the said conversation has been staged
by the respondent husband in order to fetch the evidence
against the appellant wife.
(iv) The learned family judge has ignored the fact that the
recording of said conversation can only be construed to be
the mala fide approach of the respondent-husband in order
to create evidence to substantiate the element of cruelty.
(v) Further the learned family court has taken the said
conversation into piecemeal and has not taken the said
conversation in entirety and if the entire recording of the
conversation will be taken into consideration, then
certainly the said conversation appears to be a normal
conversation in between the wife and husband based upon
the mutual trust.
(vi) The learned family court has ignored the settled
position of law that if any evidence is being taken into
account, then the evidence is to be taken into consideration
in entirety for the purpose of coming to the rightful
conclusion.
2025:JHHC:19671-DB
(vii) the Compact Disc, although said to be exhibited
but we, after going through the entire judgment, has not
found any reference as to whether the learned Family
Judge has even taken any endeavour to listen to the
conversation in order of corroboration from the transcript,
rather, whatever has been written by the respondent-
husband, the same has been accepted even though the
content of he said transcript has seriously been disputed
by the appellant-wife, as would be evident the deposition of
appellant-wife, examined as DW-1.
(viii) It was bounden duty of the family court to have
the corroboration by sending the transcript and the
Compact Disc to the Forensic Science Laboratory in order
to have a report as to whether the voice which has been
said to be of appellant-wife is actually of the appellant-wife
or not.
(ix) Learned family judge the cruelty can be a ground for
divorce but while proving the element of cruelty, since the
same is going to make an irreparable loss to one of the
parties, herein the appellant-wife, then the court is to be
more careful and stricter in proving the element of cruelty
from the cogent evidence only and not on the basis of
conjectures and surmises.
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85. Further, it would be apt to refer herein that a duty is
cast on the Court to scrutinize the evidence placed on record
to find out the truth and the Court cannot be a silent
spectator and it should itself endeavour to find out the truth
even by putting questions to the witnesses and eliciting
answers from them.
86. We find that the evidence adduced on behalf of the
respondent-husband was not of such a nature as to place
implicit reliance upon it. It appears to us that the whole thing
has been stage-managed by the respondent-husband to suit
his convenience in the case. The acts of cruelty in form of
tried to commit suicide attributed to the appellant-wife, being
not proved Satisfactorily, and other acts were not of such a
nature as to constitute a ground for divorce to the
respondent-husband.
87. On a careful scrutiny of the entire evidence on record
we are of the view that there was absolutory no cruelty on the
part of the appellant so as to be of such a nature to compel
the respondent to seek for divorce. We find that various
allegations made against the appellant-wife have not been
satisfactorily proved and the conduct of the respondent in the
circumstances of the case does not appear to be above board.
88. It requires to refer herein that the Hon'ble Apex Court in
the case of Shobha Rani v. Madhukar Reddi, (supra) has
observed that a set of facts stigmatised as cruelty in one case
2025:JHHC:19671-DB
may not be so in another case. The cruelty alleged may
largely depend upon the type of life the parties are
accustomed to or their economic and social conditions. It
may also depend upon their culture and human values to
which they attach importance. Further It has been held that
it would be also better if we less depend upon precedents as
each case may be different.
89. Viewed in this context we find that the decree for
divorce granted by the learned Family Judge cannot be
sustained in law and it needs to be set aside. We have
carefully perused the decision relied upon by the learned
counsel for the respondent. There can be no dispute with
regard to the principle enunciated therein i.e. threat or
attempt to commit suicide amounts to cruelty to partner
husband or wife, but the difficulty is about its application to
the facts and circumstances of the case. We find that the said
decisions have absolutely no application to the facts and
circumstances of this case.
90. In the result, therefore, this First Appeal filed by the
appellant-wife is allowed. The impugned judgment and decree
for divorce made by the learned Family Court is hereby set
aside. Consequently, the petition filed by the respondent-
husband before the learned Family Court for divorce stands
dismissed.
91. Accordingly, the instant appeal needs to be allowed.
2025:JHHC:19671-DB
92. The judgment and decree dated 16.12.2023 and
23.12.2023 respectively passed by the learned Principal
Judge, Additional Family Court No. II, Dhanbad in Original
Suit No. 407 of 2020 are hereby quashed and set aside.
93. Pending interlocutory application, if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
I agree.
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Birendra / A.F.R.
