Jharkhand High Court
Sushil Kumar Ray vs Terresa Murmu Daughter Of Charies Murmu ... on 30 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.131 of 2023
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Sushil Kumar Ray, son of Sri Ishak Rai @ Dilip Ray aged about 58
years Resident of Mohalla-Karkari (Sindur), P.S.-Korrah, P.O. &
District-Hazaribag, Jharkhand-825301.
.... .... Petitioner/Husband/Appellant
Versus
Terresa Murmu daughter of Charies Murmu wife of Sushil Kumar
Rai, Resident of C/o William Bara, at South Gandhi Maidan, Matwari,
P.O. and P.S. Korrah, District-Hazaribag, Jharkhand-825301, present
address Supervisor, Child Development Project (Bal Vikash
Pariyojna), P.O.-Simariya, P.S.-Simariya, District-Chatra, Jharkhand.
.... .... Respondent/Wife/Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. A.K. Rashidi, Advocate
Md. Azam, Advocate
Ms. Aulia Begum Advocate
For the Respondent : Mr. Ajay Kr. Singh, Advocate
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13/Dated: 30.06.2025
1. Learned counsel for the appellant has submitted that he is not
pressing the instant interlocutory application since the document
which has been sought for by way of additional evidence in view
of the application filed under Order 41 Rule 27 of the CPC has
been exhibited and considered by the learned Family Judge and
in that view of the matter, the instant application is not being
pressed.
2. Accordingly, interlocutory application being I.A. No.12826 of 2024
is dismissed as not pressed.
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Prayer
3. The instant appeal preferred under Section 19(1) of the Family
Courts Act, 1984 is directed against the judgment and decree
dated 10.05.2023 (decree signed on 26.05.2023) passed in
Original Suit No.170 of 2022 by the learned Principal Judge,
Family Court, Hazaribag, whereby and whereunder, the
dissolution of marriage on the ground, as available under Section
10(viii) & (ix) of the Indian Divorce Act, 1869 (hereinafter referred
to as "the Act, 1869") has been refused to be granted in favour of
the husband, appellant herein.
Factual Matrix
4. The brief facts of the case, as per the pleading made in the
memo of appeal, as also, based upon the pleading made in the
plaint, read as under: -
It is the case that the parties are legally married,
i.e., husband, (appellant herein) and the wife
(respondent herein). Their marriage was solemnized
on 17.01.1990 at Dula Bitha Kaitholic Mission Church,
Giridih, as per Christian rites and customs. After
marriage, they led conjugal life at Mohalla-Sindur,
Karkari, P.S.-Sadar, District-Hazaribagh. Out of their
wedlock, two sons, namely, Amit Kumar and Sumit
Nayan were born. The appellant husband is a teacher
in St. Robert Middle School, Hazaribagh, while the
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respondent wife is State Govt. employee in Social
Welfare Department, Hazaribagh. Earlier, appellant
husband has filed a suit for restitution of conjugal
rights vide original suit being O.S. No.68 of 2018
which was decreed ex-parte vide judgment dated
21.11.2019. Presently, both the parties are living at
Hazaribagh and both the sons are living with
respondent-wife. Since, 06.06.2016, respondent-wife
has been living separately.
It is the further case that the respondent did not
discharge her duty since beginning. She is having
habit of living with freedom and she never took care of
her husband and children. The respondent wife never
paid any respect and performed her duty towards her
in-laws. The respondent wife went to Patna, Siliguir
and Kathmandu without his consent.
On 06.06.2016, on the water dispute with
neighbour, the respondent wife came to assault and
abuse him and lastly left her matrimonial house and
started living separately with children. He is paying
educational expenses of younger son. One day, she
came to his office and assaulted in front of other staff.
Finally, he has prayed for divorce on the ground of
desertion and the respondent wife did not respond to
decree of restitution of conjugal life for more than two
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years.
5. It appears from the material available on record that the sole
ground has been taken for dissolution of marriage under Section
10(viii) & (ix) of the Act, 1869.
6. The ground has been taken that prior to filing of the suit, an
application was filed under Section 32 of the Indian Divorce Act,
1869 for restitution of conjugal right. The said judgment was
decreed in favour of the appellant, husband. The respondent-wife
has not turned up to live together in compliance to the judgment
passed under Section 32 of the Indian Divorce Act, 1869.
Therefore, the application has been filed for dissolution of
marriage on the ground of applicability of reason available under
Section 10(viii) & (ix) of the Act, 1869.
Arguments of the learned counsel for the appellant-husband
7. Mr. A.K. Rashidi, Learned counsel for the appellant has submitted
that the learned Family Judge has not taken into consideration
the factual aspect of the matter that the respondent wife was well
aware with respect to the pending suit of restitution of conjugal
right being Original Suit No.68 of 2018, as such, there was no
requirement to communicate anything apprising the respondent
wife regarding the decree passed in the aforesaid original suit
being O.S. No.68 of 2018 filed for restitution of conjugal right.
8. The argument therefore has been advanced that the learned
Family Judge has committed gross error in refusing to grant
divorce even though, the ground as available under Section
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10(viii) & (ix) of the Act, 1869 is well available, hence, the present
appeal.
Arguments of the learned counsel for the respondent-wife
9. Per contra, Mr. Ajay Kr. Singh, learned counsel appearing for the
respondent-wife has submitted that there is no error in the finding
recorded by the learned Family Judge, reason being that, the
original suit being O.S. No.68 of 2018 filed under Section 32 of
the Act, 1869 for restitution of conjugal right is not a decree
passed on contest, rather, it is an ex-parte decree, hence, the
respondent wife was not aware of passing of the said decree and
as such, it was the bounden duty of the appellant husband to
communicate the decree passed under Section 32 of the Indian
Divorce Act, 1869 so that the opportunity may have come with the
respondent wife to live together along with the husband in
compliance to the judgment passed by the learned Family Judge
for restitution of conjugal right. Therefore, the requirement as per
the availability made under Section 10(viii) of the Act, 1869
cannot be said to be fulfilled in absence of any knowledge about
the decree passed in the original suit being O.S. No.68 of 2018.
10. The learned Family Judge has taken into consideration the
aforesaid aspect of the matter and after coming to the conclusion
has found that nothing has been brought on record by way of
evidence that the decree passed for restitution of conjugal right
has ever been communicated to the respondent wife so as to
count the period of two years from the date of communication in a
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case of ex-parte decree.
11. Learned counsel for the respondent-wife, based upon the
aforesaid grounds has submitted that the decree passed by the
learned Family Judge therefore needs no interference.
Analysis
12. We have heard the learned counsel for the parties and gone
across the finding recorded by the learned Family Judge in the
impugned judgment.
13. This Court, after having considered the argument advanced on
behalf of the parties and material available on record, is required
to consider the following issues;
(i) Whether the requirement as available under
Section 10(viii) of the Act, 1869 counting the
period of two years from the date of passing of
the judgment, would be the date to count the
period of two years in a case where the decree
has been passed on contest?
(ii) What would be the date to count the period of two
years in a case where the decree has been
passed ex-parte?
14. Both the issues since are interlinked and as such, the same are
being taken up together for its consideration.
15. But prior to consider the aforesaid issues, the admitted fact is to
be referred herein, i.e., the application was filed under Section
10(viii) & (ix) of the Act, 1869 for the purpose of dissolution of
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marriage.
16. Section 10(viii) of the Act, 1869 provides a condition that if after
passing of the decree of restitution of conjugal right, if the party
against whom the decree has been passed for restitution of
conjugal right is not consummated the marriage for the period of
two years, then, the same will be the ground for dissolution of
marriage, for ready reference, Section 10(viii) of the Act, 1869 is
being quoted as under:-
"10(viii) has failed to comply with a decree for
restitution of conjugal rights for a period of two
years or upwards after the passing of the
decree against the respondent; or"
17. It is the fact of the case that prior to filing of the dissolution of
marriage, an application under Section 32 of the Act, 1869 was
filed for restitution of conjugal rights.
18. It is the case of the appellant husband that the decree for
restitution of conjugal rights was passed in favour of the appellant
husband but the respondent wife has not turned up to live
together in compliance to the judgment passed in the said
restitution of conjugal rights proceeding, hence, an application
has been filed under Section 10(viii) of the Act, 1869 making the
same as a ground for dissolution of marriage.
19. The learned Family Judge has proceeded to answer the said
issue for which consideration has been made of the different
witnesses. The following witnesses have deposed, which are
being referred as under: -
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20. All P.Ws have deposed in examination-in-chief in support of the
case of the petitioner-husband (appellant herein).
P.W.1, namely, Sushil Kumar Ray, (the
husband himself) has deposed in this cross-
examination that panchayati took place over fact that
respondent wife was not taking care of her in-laws.
Parties and children lived at Zulu Park during 1992 to
2016. Respondent wife left him in the year, 2016.
Thereafter, he went to her with other persons for
reconciliation but the same was failed. He has also
attempted for panchayati but nothing has happened.
He has tried to bring evidence that respondent wife
came to his office and humiliated him. Parties are
under disputed since 2009 and living separately since
2016. She sent notice in 2009 for resumption of
conjugal life. Respondent wife did not lodge any case.
He refused resumption of conjugal life.
P.W.2, namely, Shajid Ali (a fellow teacher)
has deposed in his cross-examination that he was
present in the marriage of both the parties. Sons of
the parties are pursuing studies. Both sons have been
living with respondent wife. On 06.06.2016 there was
disputed regarding motor pipe of water with
neighbourhood. Thereafter, the respondent wife left
company of petitioner husband. The petitioner
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husband got a decree in suit for restitution of conjugal
rights. He was present in the panchayati. It was
agreed in the panchayati that respondent-wife was
willing to resume conjugal life with children. But she
refused blaming chastity of the petitioner husband.
She always pressurizing the petitioner husband to live
separately from parents. Both the parties were
blaming each other regarding chastity. No Panchayati
took place from 2016 to August-2022.
P.W.3, namely, Jai Prakash Das, (relative of
petitioner husband) has deposed that he was not
present in the marriage. Both sons of the parties have
been pursuing studies. They are living with mother
since year 2016. He never visited the house of
respondent-wife. Petitioner-husband informed him
about the fact that respondent-wife went away to Zulu
Park. No occurrence of assault took place in his
presence by respondent-wife. Brother of this witness
narrated the fact regarding motor pump dispute in the
year 2016. He is also hearsay witness. At the instance
of respondent-wife, panchayati took place at Sindur
Panchayat. This witness was present there. It contains
his signature. Respondent-wife refused to resume
conjugal life. Petitioner-husband informed that he
attempted for Bidai. Petitioner husband lives
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separately from his parents.
21. All R.W.s have deposed in support of the case of the respondent
wife (respondent herein).
R.W.1, namely, Terresa Murmu (respondent
wife herself) has deposed at the time filing of suit for
Restitution of Conjugal Rights, she was posted at
Chatra. For same, she could not appear there. In her
cross-examination, she deposed that at present she is
lady supervisor in ICDS and presently posted at Chatra
- Simariya, since year 2018.
Prior to that, she was posted at Hazaribagh. She
severally attempted for resumption of conjugal life.
Since year 2016, she severally tried to live with her
husband-petitioner, but he abused and ousted. She has
got no documentary proof. No case was lodged but she
submitted an application with Sindur panchayat-Mark X
document for identification. Sons are aged about 22
years and 16 years respectively. She always lived with
her in-laws. Petitioner-husband constructed own house
near house of his parents. Panchayati took place at her
instance at Sindur panchayat. She was pressurized to
make over her entire salary amount. She used to pay
school fees of children. Petitioner-husband used to go
to deposit the same.
R.W.2, namely, Amit Kumar, (son) has deposed
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that no case was lodged for ouster of mother nor
panchayati took place. Parties used to visit the house
of grandparents, lastly about 4-5 months back. Mother
was taking care of grant parents. She has been living
separately from grandparents since 2008. Mother is
posted Chatra, on the post of Supervisor in ICDS, since
year 2018.
R.W.3, namely, Sumit Narayan (son) has
deposed that he completed Inter study from Girjali
School, Telaiya Dam, Kodarma. At that time, he was
living in Hostel. Father used to visit him in Hostel. He
does not know who paid fees.
22. The learned Family Judge, after taking into consideration the plea
of the appellant husband as also the plea taken by the
respondent wife by filing written statement and the question put in
the cross-examination as also in the examination-in-chief, has
come out with the finding by declining to dissolve the marriage on
the ground that the condition stipulated under Section 10(viii) of
the Act, 1869 has not been shown to be fulfilled since, the
judgment passed in restitution of conjugal rights since was an ex-
parte decree and hence, the same ought to have been
communicated to the respondent wife for the purpose of counting
the period of two years.
23. The legality and propriety of the judgment is to be assessed by
this Court on the basis of finding so recorded by the learned
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Family Judge.
24. There is no dispute, after going through the provision as
contained under Section 10(viii) & (ix) that if a decree in the
restitution of conjugal rights has been passed on contest and if
after passing of the decree, the party in whose favour the decree
for restitution of conjugal rights has been passed and other side
has not turned up in compliance to the judgment so passed in the
proceeding filed for restitution of conjugal rights then the same
will be a ground to be taken for the purpose of dissolution of
marriage presuming the said ground to be a ground of desertion
and that will be said to be willful on the part of the party who is to
comply the said judgment.
25. But the provision as contained under Section 10(viii) although
provides that two years will be counted from the date of passing
of judgment/decree.
26. There is no reference that what would be the situation if the
decree has been passed ex-parte. There is no dispute if the
parties are knowing, herein the respondent wife, then two years is
certainly to be counted from the date of judgment/decree so as to
substantiate the ground as available under Section 10(viii) of the
Act, 1869.
27. But, if a case has been instituted for restitution of conjugal rights
and the decree has been passed ex-parte and if in such
circumstances, two years will be counted from the date of decree,
then, it will amount to miscarriage of justice and not only that, the
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application under Section 10(viii) will lead to dissolution of
marriage by filing an application for restitution of conjugal rights
under Section 32 of the Indian Divorce Act or Section 9 of the
Hindu Marriage Act which is pari-materia to Section 32 of the
Indian Divorce Act. If the husband or the party who is
approaching the Court for restitution of conjugal rights, will mis-
utilize the said approach by getting a decree ex-parte for the
purpose of counting two years from the date of decree, then,
what will happen to the other side if having no knowledge of
pending proceeding or the decree.
28. If such situation will be accepted as the argument advanced on
behalf of the appellant herein then the same will not only a great
hardship to the wife herein, rather, it will amount to miscarriage of
justice and without getting an opportunity to defend, the marriage
of the respondent wife will be dissolved on the frivolous ground of
applicability of the condition stipulated under Section 10(viii) of
the Act, 1869.
29. The law is well settled that if an ex-parte decree has been passed
so far as the original suit is concerned, then the appropriate
application is to be filed for setting aside the ex-parte decree the
day when it came to the notice of the party against whom the ex-
parte decree has been passed.
30. The issue of limitation will be counted from the date of knowledge
of passing of ex-parte decree and not from the date of passing of
the judgment/decree.
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31. Here in the present case, it is the admitted case of the appellant
husband that after passing of the decree in the restitution of
conjugal rights, no communication of the said decree has ever
been made to the respondent wife
32. This Court has posed a pin-pointed question time and again,
although, nothing has been brought on record, Mr. Rashidi, in all
fairness has submitted that no evidence is available on record
and no endeavour has ever been taken to communicate the ex-
parte decree to the respondent wife for the purpose of counting
the period of two years to make out a ground of Section 10(viii) of
the Act, 1869.
33. The learned Family Judge has taken into consideration the
aforesaid aspect of the matter. Although, no reason has been
assigned as to why, what would be the reasoning behind not
communicating the decree to the other side in a case of ex-parte
decree.
34. This Court, therefore, has thought it proper to also assign the
reason that what would be its effect, i.e., non-communication of
the decree. The effect obviously would be that in the case of ex-
parte decree, the period of two years will be counted from the
date of passing of the decree but the suffering which will be
caused to the respondent wife due to non-communication, will be
irreparable, which cannot be repaired for all time to come.
35. This Court also thought it proper in view of the fact that there is
no reference of a situation in a case of applicability of Section
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10(viii) that what would be the position in a case of ex-parte
decree.
36. This Court, therefore, is of the view that although such eventuality
has not been referred under Section 10(viii) of the Act, 1869 but
for the purpose of fairness and have an opportunity to the
respondent wife or the husband in compliance to the decree
passed for restitution of conjugal rights, in a case of ex-parte
decree, it is the bounden duty of either of the parties as the case
may be, to communicate it after passing of the judgment/decree
for the purpose of compliance of the provision of Section 10(viii)
of the Act, 1869 that is for counting the period of two years and in
such circumstances, two years will be counted from the date of
communication of the ex-parte decree in favour of the defendant
of the said case.
37. This Court, on the basis of discussion made hereinabove and
adverting to the judgment passed by the learned Family Judge as
referred at paragraph-13(b), wherein, it has been referred that
nothing has been brought both in pleading and in evidence of
petitioner-husband that the respondent-wife was informed about
ex-parte decree passed in above suit for restitution of conjugal
rights and was asked to resume conjugal life.
38. The said having an admitted position in the present case, hence,
this Court is of the view that the judgment passed by the learned
Family Judge, needs no interference.
39. Accordingly, the instant appeal fails and is, dismissed.
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40. In consequent to dismissal of this appeal, pending interlocutory
application(s), if any, stands disposed of.
41. Let this order be communicated to all the Family Judges/Addl.
Family Judges forthwith by the Registry of this Court.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
Rohit/-A.F.R.
