Ajay Kumar Nishad vs Mrs. Sarojini Lata Kumari

1. Heard learned counsel for the appellant-husband and respondent-wife.Â

Appellant-husband is aggrieved by the dismissal of his Title Matrimonial Suit No. 240 of 2012 by the judgment dated 20.01.2015 and decree dated

29.01.2015, passed by the court of learned Principal Judge, Family Court, Bokaro, whereunder his prayer for dissolution of his marriage with the

respondent on grounds of cruelty and desertion in marriage in terms of Section 13(1) (i-a) and (ib) of the Hindu Marriage Act, 1955 has been

dismissed.Â

 Petitioner’s/ appellant’s case:

The marriage between the parties was solemnized on 29.11.2002 as per Hindu rites and they were blessed with one female child, Riya on

25.08.2003. Petitioner has alleged that from the very beginning of the marriage, behavior of the respondent was peculiar and she was careless in

discharging her matrimonial obligation . She was reluctant to cohabit and did not care for financial status and capabilities of the petitioner. She

belonged to higher society than the petitioner. She developed illicit relationship with one Bijay Shankar Pandey, son of Hare  Ram Pandey,

resident of Sector-IV/G, Bokaro and used to meet him regularly. On being objected, she became violent. She was seen in objectionable condition

also with that person. She is employed as a Panchayat Teacher in Munger, Bihar and had married with one Thakur one year ago at Hemzapur of

Munger District. She was suffering from chronic psychiatric disease, which was suppressed from the family members of the petitioner at the time

of marriage. She had created a nasty scene on instigation of her parents and said Bijay Shankar Pandey. She used to leave alone her matrimonial

home frequently and even with her family members and with said Bijay Shankar Pandey. She also instituted a case under Sections 498-A, 323/34 of

the Indian Penal Code and Section 4 of the Dowry Prohibition Act vide C.P. Case No. 26/05, in which, the petitioner and his family members have

been convicted. She also filed a Maintenance Case vide M.P. Case No. 13/05. As a result of conviction of the petitioner, he has been dismissed from

Bokaro Steel Limited, which amounted to torture. Petitioner had filed TMS No. 08/05 for restitution of conjugal rights. However, respondent has never

been willing to restore the matrimonial relationship with the petitioner. Because of her behavior, petitioner’s mother has also suffered from

various ailments. On these allegations, petitioner raised a cause of action for dissolution of marriage.

    Case of the respondent-wife:

As per the averments made in the written report, suit was not maintainable as no cause of action had arisen. It was also barred by principle of

waiver, estoppel and acquiescence. She alleged that dowry to the tune of Rs.2,76,546/- in cash and a cheque for purchase of a Motorcycle were given

at the time of marriage on the pressure of the father of the petitioner. They had also given utensils, cloths and ornaments worth Rs.4,39,296/- to the

petitioner and his parents. They, however, started torturing her with a demand of a colour TV, washing machine, gold chain and Rs.1,00,000/- for

construction of their house. Petitioner used to put pressure on her for determination of sex of her child in womb. On refusal, she was kicked on her

stomach and private part for which her father got her treated. They also stopped her providing food and confined and treated her like an animal. On

09.01.2005, he along with his two sisters and his mother assaulted her and tried to kill her by pouring kerosene oil. An intervention was made and

petitioner executed a declaration admitting all his misdeeds with undertaking not to inflict further demand in counseling undertaken on 24.01.2004 at

B.S. City, Bokaro. However, he did not improve his ways. This left the respondent with no other option but to institute a case of cruelty in marriage

under Section 498-A and other allied Sections being C.P. Case No. 26/2005. Upon trial, petitioner and his family members have been convicted

with sentence of three years rigorous imprisonment under Section 498-A and further six months imprisonment both under Section 323 of the Indian

Penal Code and Section 4 of the Dowry Prohibition Act. Criminal Appeal No. 74/2010 preferred by them has also been dismissed by the learned

Sessions Judge, Bokaro. A Criminal Revision filed by them is pending before this Court. She also filed a maintenance case being M.P. Case No.

13/2005, in which, petitioner has been directed to pay Rs.2,500/- per month to her and her minor daughter. Prior to filing of the present suit, TMS

No. 08/2005 was also filed for restitution of conjugal rights, which was disposed of on 06.06.2012. Entire allegations contained in plaint are framed by

the petitioner with fertile brain as no cause of action exists. The entire stories are false,concocted and baseless. However, respondent was always

having hope for restoration of her matrimonial relationship with the petitioner, for which, she had made all efforts, but the petitioner and his family

members failed to reform their behavior. In fact, it is alleged that respondent has been deserted by the petitioner for non-fulfillment of demand of

dowry. She has also sustained multiple injuries on her person by the acts of the petitioner and his family members. She had serious apprehension

of her life at their hands. She prayed for dismissal of the suit.

Learned Family Court, on the basis of pleadings of  the rival parties, framed the following issues:

“(i) Whether the suit is maintainable in its present form and has valid cause of action?

(ii) Whether the respondent has illicit relationship with Bijay Shankar Pandey and the respondent always used to left the house of the petitioner to

meet with him and ultimately on 09.01.2005 she left her matrimonial home voluntarily forever?

(iii) Whether the respondent is mentally ill? (iv) Whether the respondent after her marriage behaved in cruel manner with the petitioner and members

of his family?

(v) Whether due to non-fulfillment of demand of additional dowry by the petitioner and members of his family they used to subjected the respondent

with mental and physical cruelty and ultimately the respondent and her daughter compelled to leave her matrimonial home?

(vi) Whether the petitioner during pregnancy of the respondent assaulted her on her private part with legs and due to which she sustained serious

injury and father of the respondent got her treated medically?

(vii) Whether the petitioner is entitled for the relief as prayed for?

Four witnesses have been examined on behalf of the petitioner. As documentary evidence, the petitioner has adduced (i) certified copy of

deposition of Jay Kumar Nishad in Cr. Mis. Case No. 19/13 (Exhibit-1); (ii) certified copy of deposition of Sarojini Lata Kumari in Cr. Mis. Case No.

19/13 (Exhibit-2); and Separation Order No. 30772 of Bokaro Steel Plant (Exhibit-3).

Respondent adduced two witnesses; RW-1 her fatherArjun Prasad Singh and RW-2 Sarojini Lata Kumari, respondent herself. She adduced

certified copy of judgment passed in C.P. Case No. 26/05 by the learned SDJM, Bokaro dated 01.09.2010 (Exhibit-A). She also adduced certified

copy of judgment passed in Cr. Appeal No. 74/10 and Cr. Appeal No. 75/10 by the learned Sessions Judge, Bokaro dated 12.12.2011 (Exhibit-A/1);

certified copy of judgment passed in M.P. Case No. 13/05 dated 05.06.2012 by the learned Family Court, Bokaro (Exhibit-A/2); certified copy of

judgment passed in TMS No. 08/05 dated 06.06.2012 by learned Family Court, Bokaro (Exhibit-A/3); certified copy of order sheet dated 14.06.2012

passed in TMS No. 08/05 by the learned Family Court, Bokaro (Exhibit-B); and certified copy of undertaking given by the petitioner and the

respondent (Exhibit-C).Â

The learned Family Court proceeded to decide issue Nos.(ii) to (vi) together as they appeared to be corelated to each other. Learned Family Court

decided these issues against the petitioner and in favour of respondent. Petitioner, in his deposition, accepted the factum of marriage and birth of girl

child on 25.08.2003. He supported his case as made out in the plaint on the allegations of cruelty, indifference on the part of the respondent in

performing her conjugal life and her persistent relationship with one Bijay Shankar Pandey with whom she used to converse on mobile phone

regularly. He further deposed about her being married with one Mr. Thakur at Srikund, District Munger. He has deposed about his suspension from

service due to cases filed by the respondent against him. He has further deposed that efforts have been made to bring her back to matrimonial home,

which she had refused. According to him, she had been living separately since 09.01.2005.

 In his cross-examination, he admitted about his conviction by the court of learned SDJM, Bokaro in C.P. Case No. 26/05 and the dismissal of the

appeal against his conviction by the learned Sessions Judge, Bokaro. He has also admitted in para-15 that the case for restitution of conjugal rights

filed by him was also dismissed. He has also stated in para- 18 & 19 of his cross-examination that he will produce the documents regarding

solemnization of second marriage of his wife, but, could not say the date of alleged marriage.

PWs- 1, 3 & 4 also supported the case of the petitioner as made out in the plaint. They also admitted about the conviction of the petitioner and his

family members in C.P. Case No. 26/05 by the court of learned SDJM, Bokaro.

Respondent examined herself as RW-2 and supported her case as made out in the written statement. According to her, she was tortured for

demand of additional dowry. She was also assaulted and confined to a room, on refusal for sex determination of her foetus in womb. She was

admitted at Bokaro General Hospital. She returned to her matrimonial home to lead her conjugal life and on 25.08.2003 she gave birth to a female

child at Bokaro General Hospital. She alleged that on her return to matrimonial home during Chhat festival 2003, she was neglected as the petitioner

was not happy with the female child. She further deposed that on 21.01.2004 her husband, sister-in-law and brother-in-law confined her in a room and

brutally assaulted her, as a result, she sustained injuries. She got treated by Dr. Sharada Prasad Sinha for the injuries. She further stated about

Panchayati held on 24.01.2004 where petitioner confessed his guilt in writing and undertook to keep her with full honour and dignity. However, the

torture continued after few months again. According to her, on 09.01.2005, petitioner, his mother and sisters assaulted her and tried to take her life.

She has also deposed that thereafter she filed C.P. Case No. 26/2005 against the petitioner and others and that she had been awarded maintenance @

Rs.2,500/- from June, 2012. She also spoke about the suit for restitution of conjugal rights by her husband in 2005, which was dismissed in the month

of June, 2012. She denied the allegation that she used to deny physical relationship with the petitioner and failed to perform other marital duties. She

also denied to have conversation and meeting with one Bijay Shankar Pandey. She also denied to have entered into marriage with one Mr. Thakur,

resident of Hemzapur, District Munger. She has further stated that petitioner and others tried to take her life by pouring kerosene oil over her body.

 In her cross-examination, she denied knowledge about any Bijay Shankar Pandey.

 RW-1, her father, also supported the case of the respondent.Â

Learned Family Court, based on the analysis of evidence on record, found the allegations of cruelty and extra-marital relationship alleged by the

petitioner against her as unsubstantiated. On the other hand, learned Family Court found that petitioner and members of his family were convicted in a

case under Section 498-A of the Indian Penal Code, as was his own admission. Petitioner had failed to produce any evidence to substantiate the

allegation of illicit relationship with Bijay Shankar Pandey and that she was married with one Thakur earlier. These false allegations on the part of the

petitioner itself amounted to mental torture and cruelty. Learned Family Court also found that the allegations of chronic psychiatric disease was

leveled only with an intention to seek divorce, though he could not prove it. In such facts and circumstances, allegations of torture and cruelty in

marriage or desertion were found to be not established. Issue Nos. (i) and (ii) were also answered accordingly against the petitioner. The suit was

dismissed on contest.

Learned counsel for the appellant submits that the respondent-wife has deliberately left the matrimonial home and is living separately for 13

years.There is no chance of rapprochement. Efforts for their reunion, during pendency of the appeal, through mediation has also failed because of the

intransigent attitude of the respondentwife. The marriage had reached to the stage of irretrievable break down as no emotional ties exist between the

parties. The appellant’s conviction in a case under Section 498 A of the Indian Penal Code and its confirmation in appeal also leaves no room of

patch up between the parties.

Learned counsel for the appellant has relied upon the following judgments in support of her submissions.

(i) Durga Prasanna Tripathy Vs. Arundhati Tripathy, reported in (2005) 7 S.C.C. 353 Para 28 and 29;

(ii) Rishikesh Sharma Vs. Saroj Sharma, reported in (2007) 2 S.C.C. 263 Para 4 and 5; and Â

(iii) Samar Ghosh vs. Jaya Ghosh, reported in  (2007)4 S.C.C. 511 Para 94,95,101 (XIV)

Learned counsel for the appellant therefore has prayed that the impugned judgment be set-aside and the matrimonial suit be decreed by allowing

dissolution of marriage between the parties.Â

Learned senior counsel for the respondent-wife has however opposed the prayer vehemently. According to the respondent, the appellant cannot

be allowed to take advantage of his own wrongs. Appellant has been found guilty of cruelty in marriage on his conviction in the C.P. Case No.

26/05 under Sections 498A of the Indian Penal Code r/w Section 323 thereof and Section 4 of the Dowry Prohibition Act. He has also lost in appeal

though revision petition is pending before this court. The respondent had reasonable cause to leave the matrimonial home on account of such cruelty

being perpetrated by the appellant husband. As such the ingredients of desertion are also not fulfilled. Respondent does not have any intention to

forsake the matrimonial relationship permanently. She has been compelled to stay away on account of the cruel behaviour of the appellant and his

family members. All allegations of cruelty against the respondent have failed as no cogent proof thereof were adduced during trial. As such, the

respondent is still interested in reviving the matrimonial relationship. In such circumstances, the appellant should not be allowed to take advantage of

his own conduct. The findings of the learned family court are proper and well considered which need no interference.Â

We have considered the submissions of learned counsel for the parties at length, gone through the impugned judgment and relevant material

evidence on record. We have also gone through the judgments cited by the learned counsel for the appellant.Â

It is evident from the discussions above, that contrary to what is alleged by the petitioner-appellant regarding cruelty in marriage on the part of the

respondent-wife, it is the petitioner who has been found guilty of cruelty in marriage and convicted under Section 498 A of the Indian Penal Code by

the learned court of SDJM, Bokaro which has also been affirmed in appeal. Apart from that petitioner has also been convicted for causing hurt under

Section 323 of the Indian Penal Code and for demand of dowry under Section 4 of the Dowry Prohibition Act. On the other hand, allegations relating

to cruelty, illicit relationship with one Bijay Shankar Pandey or her second marriage with one Mr. Thakur of Munger remained unsubstantiated in

the absence of any corroborative evidence apart from the oral testimony of the petitioner’s witnesses. Thus the case set up by the appellant

before the family court failed. It was the appellant- husband who was found guilty of cruelty in marriage which gave reasonable cause to the

respondent to stay away from the matrimonial home.Â

Reliance is placed on the decision, rendered by the Hon’ble Apex Court in the case of Savitri Pandey Vs. Prem Chandra Pandey, reported in

(2002) 2 SCC 73, relating to all the ingredients of desertion. Para 8 and 9 thereof are being quoted hereunder:

“8. “Desertionâ€, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse

by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage.

Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e.

not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration

the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting

lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous

course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various

authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for

example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held: (AIR pp. 183-84, para

10)

“For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of

separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the

deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial

home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.

Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law

those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the

Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the

omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of

inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case

be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by

conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential

question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation

and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced

without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating

spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has

prescribed a three years’ period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements

must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted

spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after

the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably

refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the

deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well

settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable

doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is

accounted for to the satisfaction of the court.â€​

Following the decision in Bipinchandra case this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena by holding that

in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and

without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the

factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far

as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the

matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which

may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by

those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.â€Â       Though the

respondent may have been living separately but she has denied her intention to bring the matrimonial relationship permanently to an end. The existence

of animus deserendi is therefore lacking to constitute the offence of desertion. On the contrary, appellant had given her reasonable cause to stay

away. In view of Section 23 of Hindu Marriage Act, the appellant cannot be allowed to take advantage of his own wrong. Both ingredients of cruelty

and desertion remain unsubstantiated. Therefore, the findings of the learned family court do not suffer from any lack of appreciation of  the material

evidence on record or perversity calling for interference in appeal.Â

Irretrievable break down of marriage is not a recognized ground under the Hindu Marriage Act for dissolution of marriage though it carries lot of

weight taken together with other factors like incidences of cruelty or other grounds available under Section 13 of the Act of 1955. Therefore, if the

appellant has failed on both the grounds alleged against the respondent, marriage between the parties cannot be dissolved on the sole argument that

parties have been living separately for 13 years and their marriage has irretrievably broken down. As such, the appellant cannot draw much mileage

from the case of Durga Prasanna Tripathy Vs. Arundhati Tripathy (supra). It would amount to giving premium to a spouse who have himself been

held guilty of cruelty in marriage. The appellant therefore also cannot seek aid in the case of Rishikesh Sharma (supra). In the case of  Samar

Ghosh (supra) the Hon’ble Apex Court at para 101 has given instances of human behaviour which may be relevant in dealing with the cases

of mental cruelty though they are not exhaustive but only illustrative. Though learned counsel for the appellant has relied upon Illustration No. (xiv)

which refers to long period of continuous separation between the spouses which may fairly lead to conclusion that the matrimonial bond is beyond

repair, but in the facts of the present case, we are of the considered opinion that one such illustration cannot lead to conclusive opinion on the issue at

hand. We, therefore, are not inclined to accept the submissions of the learned counsel for the appellant and allow the prayer for dissolution of marriage

when the appellant has himself been found guilty of cruelty in marriage. As such, we do not find any merit in this appeal. It is accordingly dismissed.

Let the decree be prepared accordingly.                   Â

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