IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal (DB) No. 146 of 2015 Vidya Sagar Jha ...… Appellant Versus Mamta Jha ....... Respondent -------- CORAM : THE HON’BLE MR. JUSTICE H. C. MISHRA THE HON'BLE MR.JUSTICE DR.S.N.PATHAK ------ For the Appellant : Mr. Sudhansu Kumar Deo For the Respondent : Mr. Shambhu Nath Tiwari ------ 9/18.04.2017 Heard learned counsel for the appellant and learned counsel for the respondent.
2. The appellant husband is aggrieved by the Judgment and Decree dated 13.8.2015 passed by the learned Principal Judge, Family Court, Deoghar, in Matrimonial Suit No.02 of 2012, whereby the suit filed by the appellant husband for dissolution of marriage between the parties by a decree of divorce on the ground of cruelty by wife, has been dismissed by the Court below.
3. It may be stated that during the pendency of this appeal, the matter was sent for mediation between the parties for amicable settlement of their matrimonial dispute by a trained mediator at JHALSA, Ranchi, but the efforts of mediation between the parties have failed. Hence, we have heard the appeal on its merits.
4. According to the appellant's case, both the parties were married according to the Hindu rites and customs on 29.4.2007 at Deoghar and they started living as husband and wife at Madhupur in the district of Deoghar. The appellant has alleged that the respondent wife left the matrimonial home with her brother on 17.3.2008 and since then, she never returned to her matrimonial house in spite of several attempts taken by the petitioner to bring her back. A son was also born out of their wedlock at the parents' place of the respondent wife. It is also stated that a suit under Section 9 of the Hindu Marriage Act for restitution of the conjugal rights was filed by the appellant husband in the Court of the Principal Judge, Family Court, Deoghar, being Matrimonial Suit No. 62 of 2011, in which the respondent wife had appeared. It is alleged that she had filed a written statement in the said matrimonial suit in which she had stated that she was not ready to resume the matrimonial relationship with the petitioner husband. Thereafter, the matrimonial suit filed under Section 9 of the Hindu Marriage Act was withdrawn and the present suit was filed for dissolution of marriage between the parties for a decree of divorce on the ground of cruelty. -2- 5. Upon notice, the respondent wife appeared in the Court below and filed her written statement, in which the allegations of cruelty etc., were denied. The marriage between the parties was admitted and it is stated that the respondent wife was being subjected to cruelty and torture for demand of rupees two lakhs as dowry, and she was turned out of her matrimonial home while she was two months' pregnant. She gave birth to her son at her parents' place, but her husband did not care even to come and see the child at the time of the delivery. It has been denied that in the written statement filed in the suit relating to Section 9 of the Hindu Marriage Act, she had ever stated that she did not want to resume the matrimonial relationship, rather the case of the respondent wife is that she is always ready to live with her husband and to resume the matrimonial relationship.
6. On the basis of the pleadings of the parties, issues were framed by the Court below, including the issue relating to the alleged cruelty by the wife. In the Court below, five witnesses were examined on behalf of the petitioner husband including the petitioner himself, who examined himself as P.W.-1. He also examined his father and mother and two other witnesses in support of his case. The evidence adduced by the petitioner in the Court below, as discussed in the impugned Judgment, clearly shows that it was only stated that the respondent had left her matrimonial home on 17.3.2008 along with her brother and mother out of her own sweet will and she did not return back in spite of several attempts taken by the petitioner. In his evidence also, the husband had stated that in matrimonial suit No. 62 of 2011, his wife had filed her written statement in which she stated that she does not want to lead a conjugal life with her husband. He has stated that the opposite party was not cordial towards him and denied to have ever demanded rupees two lakhs from the opposite party. This was the only evidence which was adduced by the petitioner husband in the Court below and his case was also supported by the other witnesses examined on behalf of the petitioner, including his parents.
7. On the other hand, the respondent wife had examined four witnesses including herself as O.P.W.-4 and she had examined her brother, her father and a relative. The respondent in her evidence as O.P.W.-4 had corroborated her averments in the written statement and denied the entire allegations as leveled by the petitioner against her. She also stated that she was being subjected to cruelty and torture, mentally and physically, for the demand of dowry of rupees two lakhs in cash and for that, she was driven out of the matrimonial home on 17.3.2008 while she was pregnant of two months. She gave birth to a son on 2.11.2008, but her husband and in-laws -3- did not take any pain to come and to see her and her child. She also stated that in her written statement filed in the suit under Section 9 of the Hindu Marriage Act, she had stated that she was always ready to live with her husband but her husband did not take her to his house, rather the said suit was withdrawn by the husband and the present suit for divorce was filed. The other witnesses examined on behalf of the respondent wife had also supported the case of the respondent.
8. The impugned Judgment also shows that the written statement filed by the respondent wife in the suit under Section 9 of the Hindu Marriage Act was also brought on record in the Court below, which showed that there was nothing therein to show that the respondent had stated that she was not ready to resume the matrimonial relationship, as alleged by the petitioner appellant, rather in the written statement filed by the respondent wife, only those things were written which she had stated in the present case.
9. On the basis of the evidence on record, the Court below found that there was no specific allegation stated by the petitioner as to how the respondent had misbehaved her and treated him with cruelty, rather there was only bald statement, stating that the respondent had treated him with cruelty which was not sufficient to prove the case of cruelty by the respondent wife. The Court below also came to the conclusion that the respondent had been able to prove the fact that she was being subjected to cruelty and torture for the demand of rupees two lakhs in dowry and she was turned out from the matrimonial home while she was pregnant of two months. The Court below accordingly, found that the petitioner had not been able to prove that the respondent wife had treated him with cruelty and had deserted him, so as to entitle him to a decree of divorce, and has dismissed the suit.
10. Learned counsel for the appellant has submitted that the impugned Judgment and Decree passed by the Court below, are absolutely illegal and fit to be set aside. It is submitted that on the basis of the evidence on record, the appellant had been able to prove his case of cruelty by wife and accordingly, it is a fit case in which the suit ought to have been decreed.
11. Learned counsel for the respondent, on the other hand, has submitted that there is no illegality in the impugned Judgment and Decree passed by the Court below as the appellant had neither pleaded any specific act of cruelty against the respondent wife, nor proved the same. It is also submitted that on the other hand the respondent wife had been able to prove the fact that she was being subjected to cruelty and torture for the demand of dowry of rupees two lakhs and she was turned away from the matrimonial -4- home while she was two months' pregnant.
12. Having heard the learned counsels for both sides and upon going through the record, we find that no specific allegation of cruelty against the respondent wife has either been pleaded by the appellant, or proved in the Court below. In his entire plaint, there is no specific allegation of any cruelty, rather it is stated that after marriage , they lived together and out of her sweet will, the respondent wife left the matrimonial home on 17.3.2008. Thereafter, she never returned back. Apart from this, there is no allegation of any cruelty against respondent wife, nor any such cruelty has been proved. On the other hand, the respondent wife has been able to prove the fact that she was being subjected to cruelty and torture for the demand of dowry of rupees two lakhs and she was driven out of the matrimonial home while she was two months' pregnant.
13. The hostile attitude of the appellant husband is also evident from the fact that in his plaint, he had stated that the respondent wife had filed a written statement in the suit relating to Section 9 of the Hindu Marriage Act wherein she had stated that she was not ready to resume the matrimonial relationship. This fact was also stated by the husband in his evidence, but the fact remains that the said written statement which was brought on record by the husband himself, there was no such statement, rather the Court below found that in the said written statement, the respondent wife had only stated about her willingness to live with the appellant husband.
14. In the facts and circumstances of the case, we find that the Court below has rightly dismissed the suit, filed by the appellant, as the appellant failed to prove his case in the Court below.
15. We do not find any illegality in the impugned Judgment and Decree dated 13.8.2015 passed by the learned Principal Judge, Family Court, Deoghar, in Matrimonial Suit No.02 to 2012. There is no merit in this appeal and the same is accordingly, dismissed. (H. C. Mishra, J.) (Dr. S.N. Pathak, J.) DS-BS/