Jharkhand High Court

Sheshnath Sharma vs Sunidhi Sharma on 5 May, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Rajesh Kumar

                                                     2025:JHHC:13490-DB




     IN THE HIGH COURT OF JHARKHAND AT RANCHI
             First Appeal No.12 of 2023
                                       ------
Sheshnath Sharma, aged about 34 years S/o-Late Krishna Nand
Sharma, R/o-Sector-ii/D, Street-05, Qrs No.1-278, P.O.+P.S.-B.S.
City, Dist-Bokaro, State-Jharkhand..... ....          Appellant
                           Versus
1. Sunidhi Sharma, W/o-Sheshnath Sharma, D/o Surendra Sharma,
     R/o-Sector-II/B, Qrs No.3-127, P.O+P.S-B.S City, Dist-Bokaro,
     Jharkhand.
2. Rahul Singh, S/o-Vikram Singh, R/o-B.S.L, L.H, Street-09, P.O.
     Siwandih, P.S-Marafari, Dist-Bokaro, Jharkhand.
                   ....         ....            Defendants/Respondents

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
        HON'BLE MR. JUSTICE RAJESH KUMAR
                   ------
        For the Appellant               : Mr. Anil Kumar Singh, Advocate
        For Resp. No.1                  : Mr. Awanish Shekhar, Advocate
        For Resp. No.2                  : Mr. Ajit Kumar, Advocate
                                       ------
C.A.V. on 25.04.2025                          Pronounced on 05/05/2025


Per Sujit Narayan Prasad, J.

Prayer

1. The instant appeal preferred under Section 19(2) of the Family

Court Act, 1984 is directed against the Order/Judgment dated

26.09.2022 and decree dated 30.09.2022 passed in Original Suit

No. 519 of 2022 by the learned Principal Judge, Family Court,

Bokaro filed under Section 13(1)(i) of the Hindu Marriage Act, for

dissolution of marriage on the ground of adultery.

Factual Matrix

2. The brief facts of the case, as per the pleading made in the plaint

as has been incorporated in the impugned judgment, needs to be

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enumerated, which read as under: -

3. It is the case of the appellant in brief is that his marriage with the

respondent No.1 was solemnized on 28.11.2016 as per Hindu

rites and custom at Bokaro. After marriage, wife/respondent No.1

came to her matrimonial home on 29.11.2016 and after few days,

she started talking on mobile phone with some other person and

use objectionable words regarding sex. The appellant and his

father inquired, the then respondent No.1 started humiliating

them and when appellant was out of station for his employment

the respondent No.1 always used to talk with one Rahul Singh

(respondent No.2).

4. Further, when the appellant went to Raipur and the respondent

No.1 used to talk with respondent No.2 and others in midnight.

When the appellant checked mobile phone of the respondent

No.1, he found objectionable messages and on inquiry, she

confessed her guilt in writing. She always used to send

objectionable messages to the respondent No.2. She has

disclosed that under pressure of her parents, she has solemnized

marriage with him and she also asked for divorce. It is not

possible for him to live with the respondent No.1. Cause of action

arose on 02.08.2018 and also on several dates since the date of

marriage. Prayer has been made to pass a decree for dissolution

of marriage in favour of the petitioner. Accordingly, the suit for

divorce was filed.

5. In the aforesaid backdrop the appellant /petitioner had preferred

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an Original Suit being Original Suit No. 522 of 2019 for

dissolution of his marriage arraying one Rahul Singh as

respondent No.2.

6. Accordingly, the notice was issued and on notice, the wife

/respondent No.1 appeared but the respondent No.2 did not

appear. The respondent No.1 in her written statement has put

forward her case that whole case of the petitioner is false and

concocted. It has been stated that she has filed C.P. Case No.

834 of 2018 under Sections 498A, 323, 406 IPC read with

Section 3/4 Dowry Prohibition Act. Thereafter, the petitioner has

filed this case on false grounds just to save his skin from criminal

case filed against him.

7. It has further been stated that after her marriage, she was

subjected to cruelty and torture on 29.04.2017 when she was in

her matrimonial home. She never talked with other persons and

never indulged in objectionable talk with others. Neither she

misbehaved with her in-laws nor ever talked with other persons.

On the contrary, she was subjected to cruelty and torture for

demand of dowry. She never sent any messages to respondent

No.2 from her mobile phone and the WhatsApp chat alleged to be

conversation in between her and respondent No.2 rather false

and concocted documents are prepared by the brother of the

petitioner/appellant under conspiracy.

8. It has further been stated that she had no relationship with Rahul

Singh. She has never accepted her guilt, nor have signed any

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document. Her parents have never abused the petitioner and his

parents. In fact, the petition has never accepted her as wife and

never took her to his workplace. She was asked for Rs.

5,00,000/-, One Car and Act as dowry and due to non-fulfillment,

she was subjected to cruelty and torture.

9. Further, on the basis of false documents of WhatsApp chatting,

the petitioner has filed this case to get rid of her. Cognizance was

taken u/S. 498A IPC read with Section 3/4 Dowry Prohibition Act

on 06.04.2019 against the petitioner/appellant and his family

members therefore this case was filed on the basis of false

allegations. She was ousted from her matrimonial home or

03.05.2017. There was Panchayati called by her father but the

petitioner was not ready to keep her. Again, Panchayati was held

in Mahila P.S. Bokaro on 29.06.2018, then the petitioner took her

to his house and gave a P/R Bond on the same day in the Police

Station, but she was again. subjected to cruelty and torture.

10. Thereafter, her father has given a written information to

Superintendent of Police, Bokaro on 01.08.2018 for release of

her daughter. After that, she/respondent no.1 was rescued from

her matrimonial home and sent back to her parents' home on

04.08.2018, mother and sister of the petitioner came to his wife

parents' home and demanded dowry. Earlier, she has filed

Original Maintenance Case No. 254 of 2018 under Section 125

Cr.P.C. The petitioner has never stated about his wife

(respondent no.1) illicit relationship with Rahul Singh in his show-

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cause. She even does not know Rahul Kumar. On the contrary,

said Rahul Kumar is friend of the petitioner.

11. Learned Family Judge, after institution of the said case, taking in

to consideration of the pleading of the parties particularly plaint

and written statement denying the entire allegation of all the

issues of adultery, has formulated the issues and has decided the

lis by refusing to grant divorce to the petitioner/appellant.

12. The aforesaid order by which divorce has not been granted is

under challenge by filing the instant appeal.

Argument advanced on behalf of the appellant

13. Learned counsel for the appellant has taken the following

grounds in assailing the impugned judgment:-

(i) The ground of dissolution of marriage as per the plaint is

adultery but no issue pertaining to the ground of adultery

has been formulated, rather, the court has gone to the

issue of cruelty and desertion and specified also the fact

that the issue has been framed which has been dealt

without answering the issue of adultery, the ground seeking

dissolution of marriage.

14. Learned counsel for the appellant, based upon the aforesaid

ground, has submitted that the impugned judgment therefore

needs to be interfered with.

Argument advanced on behalf of the respondent no.1

15. Learned counsel for the respondent-wife has taken the following

grounds in defending the impugned judgment:-

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(i) It has been argued that even accepting that no issue of

adultery has been formulated but the issue of adultery has

been discussed and answered holding therein that the fact

is not there to establish the issue of adultery. Since, the

issue of adultery has been dealt with on the basis of

evidence led on behalf of the parties and as such, even no

specific issue regarding adultery has been formulated, then

also, no prejudice will be said to be caused to the parties.

(ii) In the matter of adjudication, prejudice is to be seen and if

the parties are conscious with the ground/factual aspect

and to that effect, evidence has been led, then it is not

available to such party to raise the ground merely because

the issue has not been formulated then the entire decree

will be quashed and set aside.

(iii) So far as the issue of cruelty and desertion are concerned,

although, the learned Family Judge has formulated specific

issue, on this ground but even then, the impugned

judgment cannot be said to suffer from an error, since, the

issue of adultery has well been dealt with by the learned

Family Judge.

16. Learned counsel appearing for the respondent-wife, based upon

the aforesaid grounds, has submitted that the impugned

judgment therefore needs no interference.

17. The respondent no.2, who is the person to whom, allegation of

illicit relationship with respondent no.1 wife was alleged has been

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represented by Mr. Ajit Kumar, learned counsel and he had

denied the factum of alleged illicit relationship with the

respondent No.1.

Analysis

18. We have heard the learned counsel for the parties and gone

through the finding recorded by the learned Family Judge in the

impugned judgment.

19. This Court, before considering the rival submissions made on

behalf of the parties, needs to refer herein the position of law in a

case where the issue has not been framed but the evidence has

been led and the same has been considered by answering the

same without framing such issues.

20. The question therefore requires to be taken into consideration

regarding the issue of prejudice.

21. There is no dispute that if no issue has been formulated and even

no evidence has been led on the particular issue, based upon

which, suit has been filed then certainly due to non-consideration

of the said ground finding recorded contrary to the plaint without

framing issue, will be improper and the decision if taken, then

such decision, will also be illegal.

22. The "prejudice" means that no decision is allowed to be taken

behind the back of the parties and without any knowledge about

the issue of lis.

23. Non-framing of an issue can amounts to prejudice to the

petitioner if it hinders their ability to present their case and

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adduce evidence on a crucial point. However, the mere omission

to frame an issue is not necessarily fatal, especially if the parties

were aware of the issue and had the opportunity to present

evidence on it.

24. The framing of issue has been dealt with in order 14 rule 1 of the

Civil Procedure Code. For ready reference the same is being

quoted as under:

1. Framing of issues.-- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and 1[after examination under Rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.

25. It is evident from perusal of the aforesaid provision that issues arise

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when a material proposition of fact or law is affirmed by the one party

and denied by the other.

26. It is further evident from the aforesaid provision that at the first hearing

of the suit the Court shall, after reading the plaint and the written

statements, if any, and ascertain upon what material propositions of

fact or of law the parties are at variance, and shall thereupon proceed

to frame and record the issues on which the right decision of the case

appears to depend.

27. Further, it is well settled proposition of law that when once the party

goes to trial after knowing their case well, the non-framing of the issue

and even the absence on pleadings does not prejudice their case and

non-framing of the issue becomes immaterial.

28. In the case of Nagubal v. B. Sharma Rao AIR 1956 Supreme Court

593 & Nadunari Kameswaramma v. Sampati Subba Rao, AIR 1963

Supreme Court 884, the Hon'ble Apex Court has held that when once

the parties go to trial knowing fully well about the case then non-

framing of the issue is immaterial and that once the parties go to trial

after knowing their case well. The absence of an issue or even of a

pleading does not prejudice their case.

29. Thus, it is evident that wherein the parties proceed to trial fully knowing

the rival case and lead all the evidence not only in support of their

contentions but in refutation thereof by the other side. In such an

eventuality, absence of an issue would not be fatal and it would not be

permissible for a party to submit that there has been a mistrial and the

proceedings stood vitiated.

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30. The Hon'ble Apex Court reiterated the same view in the case of

Bhuwan Singh v. Oriental Insurance Co. Ltd., (2009) 5 SCC 136

wherein it has been held that by non-framing of the specific issue

prejudiced cannot be caused if party was aware of the pleadings and

evidence adduced in that behalf. For ready reference the relevant

paragraph of the aforesaid order is being quoted as under:

"19. A finding of fact has been arrived at that the appellant had been driving the vehicle. He in view of the pleadings raised by the Insurance Company cannot be said to have been prejudiced by non-framing of the specific issue as to whether he was driving the vehicle or not. He was aware of the pleadings of the parties. He adduced evidence in that behalf."

31. It is evident from the aforesaid judgment that if the parties are

knowing about the fact and if the issue has not been framed, then

no prejudice will be said to be caused and merely because, the

issue has not been framed, the proceeding will not vitiate or the

order passed in the said proceeding will also not be said to be

illegal.

32. Adverting to the factual aspect of the present case, the argument

which has been advanced on behalf of the appellant that the

ground for divorce is adultery and therefore, the application was

filed under Section 13(1)(i) of the Hindu Marriage Act.

33. We have gone through the pleading wherein also; it is evident

that the ground of adultery has been taken.

34. Written statement has been filed on behalf of the respondent wife

which is also available on record.

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35. It is evident from the written statement wherein specific denial

has been made of the allegation of adultery which has been

taken as a ground for divorce.

36. The parties have adduced evidence wherein also the ground of

adultery has specifically been raised by the husband, appellant.

37. The respondent-wife has totally disputed the said ground by

taking the specific averment which has been recorded in her

written statement.

38. The learned trial court, however, has formulated the following

issues, i.e.,

(i) Issue of maintainability;

      (ii)    Issue of cruelty;

      (iii)   Issue of desertion.

39. It is evident from the judgment passed by the learned Family

Judge (impugned herein) that the the issue of adultery has not

been formulated but in the paragraph no. -12 and 13 of the

impugned order, issue of adultery has been dealt with in detail, as

would be evident from the reference of the said paragraph as

available in the impugned judgment, for ready reference the

same is being referred as under:-

"12. Before going into documentary evidence on record, it is worth to mention here that this case has been filed by the petitioner u/S 13 (1) (1) of Hindu Marriage Act, 1955. At the very onset, it is necessary to mention here that there is no such Section in Hindu Marriage Aci, 1955. However, it appears that the petitioner wanted to file this case uws 13 (1) (i) of Hindu Marriage Act, 1955, which reads as;

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Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(1) has, after the solemnization of the marriage, had voluntarily sexual intercourse with any person other than his or her.

13. There is no case of the petitioner that the respondent was having any voluntary sexual intercourse with another person other than her spouse (petitioner). Exhibit-1 is the bond given on 29.06.2018 by Sunidhi Sharma. It is worth to mention here that in her examination-in-chief, she was not asked to admit or deny her signature on this document, by the petitioner, in her cross-examination. As per admission of the petitioner in his cross-examination, at the time of notarization of the document, respondent No.1 was in her matrimonial home and not in Civil Court, Bokaro. There are five witnesses who have signed on this document, but none have been examined by the petitioner. As per admission of the petitioner, this non judicial stamp paper was purchased by him. On perusal of exhibit-1, I find that it was purchased on 29.06.2018 at 12:25 pm. It is the case of the petitioner that the same was prepared in Mahila P.S., Bokaro but no petition has been filed by the petitioner to call any Officer of the Mahila P.S., Bokaro, to prove this fac or to prove this document. Mark-X is xerox copy of wahtsapp chat in 23 sheets, alleged to be in between Rahul Singh (respondent No.2) and Sunidhi Sharma (respondent No.1). Mark-X/1 is Bond paper given by respondent No.1 on 02.08.2018 that she is going to her parents home with her father. The material exhibit-1 is Pen Drive of 08 GB. There is no case of the petitioner that the respondent No. I was informed that his voice on phone calls are being recorded and her whatsapp messages shall be produced as evidence in Court. The petitioner has stated that whatsapp chat was procured by his brother. Premnath (PW-3) has stated that he had procured whatsapp

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chatting of respondent No.1 when he has connected phone of respondent No.1 with his computer, but he has not stated that consent of respondent No.1 was taken before taking screen shot and print out of her alleged chatting with one Rahul Singh. It is worth to mention here that as per Section-14 of the Family Courts Act, 1984, Family Court may receive as evidence any report, statement, document, information or matter that may, in its opinion assist it to deal effectually with a dispute whether or not the same would be otherwise relevant admissible under the Indian Evidence Act. At the same time, it cannot be Ignored that acceptance of Pen Drive in question (material Exhibit-1) shall amount to a clear breach of fundamental rights of the respondent No.1/Wife, Le. her right to privacy as has been upheld by various judicial pronouncements. Reliance may be placed upon the case of Peoples Unive Civil Liberties Vs. Union of India (1997) 1 SCC 301. Furthermore, cannot be said or ascertained as to the circumstances in which the conversation were held or the manner in which the response elicited by person who has recorded the conversation, because it is evident that those conversation would necessarily have been recorded surreptumously by one of the parties. For this part of my finding, reliance may be placed upon the case of Deepinder Singh Man Vs. Ranjit Kaur reported in 2015 (5) RCR Civil 601. To permit a spouse to record conversation with unsuspecting person and to produce the same in the court of law to make a basis of deciding a petition w/S. 13 of the Act, would indeed not feasible. Reliance may be placed upon the case of Deepinder Singh Man (supra) and also on the case of Vishal Kaushik Vs. Family Court and Another reported in 2015 (9) RCR Civil 831. It is not proved by the petitioner that the whatsapp chatting alleged to be between Sunidhi Sharma (respondent No.1) and Rahul Singh (respondent No.2) ar procured from her mobile phone within her knowledge rather it is the case that PW-3 has procured

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the same after connected it with h computer. Moreover, this matter was sealed before Mahila P.S., Bokam and thereafter there is no allegations that she was having any talk wit Rahul Singh. So, only on the ground that the respondent No. I was having whatsapp charting with Rahul Singh, the case filed by the petitioner 13 1 (1) of Hindu Marriage Act, 1955 cannot be decreed. For this part my finding reliance may be placed upon the case of Neha Vs. Viili Garg decided on 12.11.2021 in CR. No. 1616 of 2020 (O&M) Hon'ble Punjab & Haryana High Court at Chandigarh."

40. It is, thus, evident that the ground of adultery has well been

considered by the learned Family Judge based upon the pleading

of both the parties and the evidence led on behalf of both the

parties on the ground of adultery.

41. This Court, therefore, is of the view that it is not the case where

the ground of adultery has not been dealt with, rather, it has

exhaustively been dealt with even the evidence led to that effect

to substantiate the ground of adultery by producing WhatsApp

message has been taken into consideration.

42. This Court, therefore, has found that the issue of adultery

although has not been formulated but the said ground has well

been considered on the basis of evidence led on behalf of the

parties, hence, it is not available for the appellant to take the

ground that the issue of adultery has not been considered and

deviating from the pleading, the ground of cruelty and desertion

has been considered.

43. It is the fact that the learned Family Judge has considered the

ground of cruelty and desertion also, although, the divorce

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petition has not been filed on the ground of cruelty and desertion

but even accepting the same to be contrary to the record, then

also, the impugned judgment cannot be said to suffer from an

error, reason being that, the main ground, i.e., the ground of

adultery has well been considered.

44. As such, it is not a case where any prejudice has been caused to

the appellant merely because the issue of adultery has not been

formulated.

45. The question of consideration of issue of adultery is also required

to be considered.

46. The learned Family Judge has discarded the WhatsApp message

based upon that the ground of adultery has been tried to be

substantiated, the same according to the considered view of this

Court, cannot be said to suffer from an error, for the reason that,

the WhatsApp message cannot be said to be an authentic piece

of evidence and even, the Pen-drive showing the photographs in

absence of compliance of Section 65B of the Evidence Act.

47. It needs to refer herein that Section 14 of the Family Courts Act

provides the applicability of the Evidence Act also.

48. The law has been laid down that so far as the electronic means

are concerned, the same is admissible in evidence but subject to

compliance of the provision of Section 65 of the Evidence Act as

per the judgment rendered by the Hon'ble Apex Court in the case

of Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473,

the relevant paragraph of the said judgment is being referred as

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under:-

"15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."

49. Although, the learned trial Court has not taken into consideration

the applicability of Section 65 of the Evidence Act but since we

are sitting in appeal and the said evidence of WhatsApp and Pen-

drive have been discarded, as such, this Court has considered

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the said issue of discarding the evidence to prove the adultery, as

available as per the appellant in the WhatsApp and Pen-drive,

which has correctly been rejected by holding that WhatsApp

message cannot be said to substantiate the ground of adultery.

Moreover, the said WhatsApp message cannot be said to be

have the evidentiary value in absence of compliance of the

provision of Section 65B of the Evidence Act.