Amit Mandal vs Smt. Cynthia Mandal

G. Minhajuddin, J.—This appeal has been filed by the appellant/plaintiff u/s 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 07.04.2010 passed by Family Court, Bilaspur, in Civil Suit No. 24-A/07, whereby the application of the appellant/plaintiff u/s 10 of the Indian Divorce Act, 1969 for dissolution of marriage by a decree of divorce on the ground of desertion and cruelty, has been rejected. The undisputed facts are that marriage between the parties was solemnized on 29.10.2001 as per Christian rites and ceremonies by the Priest of St. Augustine Churh at Tarbahar, Bilaspur, thereafter the respondent/wife had lived with the appellant/husband at her matrimonial home at 27 Kholi, Bilaspur. After some time, the appellant had to go to perform his duties at Bhatgaon area, Surguja, as he was employed and posted at Bhatgaon as Steno in SECL. The respondent/Wife was working as an Accountant in the Sainik Finance Industries Ltd. at Bilaspur. Out of their wedlock, a female child was born on 25.04.2003. Since 20.12.2002, the respondent/wife alongwith the child is residing separately at her mother''s house at Jarhabhata, Bilaspur, However, rest of the facts are disputed.

As per the appellant/plaintiff, the appellant and the respondent were married on 29.10.2001 as per Christian rites and ceremonies at St. Augustine Church, Tarbahar, Bilaspur and after marriage, the respondent had resided with him at her matrimonial home for some time. After some time, the appellant had to leave for Bhatgaon area of Surguja district for discharging his duties as he is employed there as a Steno in SECL. Since from the very inception, on account of difference of opinion, their always used to be tense situation. The respondent without any just and reasonable cause had left the company of the appellant and since 20.12.2002 is residing with her mother at Jarhabhata, Bilaspur. Despite all efforts made by the appellant, she has refused to come back and live with him. Out of their wedlock, a female child was born on 25.04.2003, who is also residing with the respondent. On account of respondent''s adamant attitude, she had deserted the company of the appellant without any just and reasonable cause and has thereby committed cruelty towards the appellant. On these grounds, an application for dissolution of marriage by a decree of divorce was filed u/s 10 of the Indian Divorce Act.

Case of the respondent/defendant is that the was employed as an Accountant in Sainik Finance Industries Ltd. Since 1996 and this fact was known to the appellant and his family members. Immediately after the marriage, the appellant as well as his family members were harassing and torturing her mentally and physically, on petty matters they used to quarrel with her and time and again ask her to leave the house, on account of which she had an abortion. When she conceived for the second time, then also was no change in the attitude of the appellant as well as his family members, on account of which she, during her pregnancy, used to remain tense, whereas the doctor had advised her to remain tension free. On account of these circumstances, on 20.12.2002 the appellant himself had dropped her at her mother''s house and had asked her not to return to her matrimonial home until he asks her. The appellant had also promised that he will take care of her and will provide her everything, which she needs. However, after dropping her at her mother''s house on 20.12.2002, the appellant neither came to her, nor cared for her. She had delivered a premature female child of seven months on 25.04.2003 by undergoing operation and all the expenses of the hospital hand to be borne by her and her mother. The appellant had never tried to resolve the disputes and to take her back. On the contrary, all efforts were made by the respondent and her mother for resolving the dispute between them, but on account of adamant attitude of the appellant nothing materialized. Therefore on account of non compromising attitude of the appellant and the cruelty perpetrated on her by the appellant and his family members, she is living with her child at her mothers residence and does not want to live with the appellant.

Learned Family Court after affording opportunity of hearing and of adducing evidence to the parties, by the impugned judgment rejected the appellant/plaintiff''s application u/s 10 of the India Divorce Act for dissolution of marriage by a decree of divorce.

Heard Learned Counsel for the parties, perused the LCR as also the impugned judgment.

To substantiate the averments made in the application u/s 10 of the Indian Divorce Act, the appellant/plaintiff in addition to himself has examined Smt. Rani Kaur, Amitabh Tiwari and his brother Vikas Mandal, as PW-2, PW-3 and PW-4 respectively. On the other hand, in order to substantiate the averments made in her written statement, the respondent/defendant in addition to herself has examined her mother Smt. D.S. Vaghe, her cousin sister Shabnam Enox and P.V. Shridhar, as DW-2, DW-3 and DW-4 respectively.

It is not in dispute that marriage between the parties was solemnized on 29.10.2001 as per Christian rites and ceremonies at Bilaspur and out of their wedlock, a female child was born on 25.04.2003 and the respondent/wife is living separately alongwith the child at the mother''s residence at Jarhabhata, Bilaspur since 20.12.2002. As per statement of appellant Amit Mandal (PW 1), immediately after the marriage, on account of difference of opinion between the appellant and the respondent, there always used to be tense situation and since he was posted as Steno in SECL at Bhatgaon area of Surguja district, that he had to remain at the headquarters. He has further stated that in his absence, the respondent without any just and reasonable cause had left her matrimonial home and is residing with her mother at Jarhabhata since 20.12.2002.

Smt. Rani Kaur (PW 2), who is neighbour of the appellant, has stated that after marriage, as the appellant is posted at Bhatgaon area of Surguja as Steno in SECL and both the appellant and the respondent are in different jobs, therefore, after shifting of the appellant to Bhatgaon, the respondent had left her matrimonial home and is residing with her mother. This witness (PW 2) has further stated that respondent''s mother and sister had come to her (PW 2) house on 28.12.2002 and had told her that she should ask the appellant to take a separate house for the respondent. The respondent''s mother had told her that in case, the appellant is not ready to this proposal, then she (respondent'' mother) will not be sending her daughter (respondent) to the appellant'' house.

The appellant''s witnesses Smt. Rani Kaur (PW 2), Amitabh Tiwari (PW 3) as well as Vikas Mandal (PW 4) have stated that without any cause, the respondent had left her matrimonial home on 20.12.2002 and since then is residing at her mother''s house and despite all efforts made by them, she had refused to come back and live with the appellant. Although the appellant has stated in his cross-examination that at the time of marriage, it was not within his knowledge whether the respondent was a working lady, but form the statements of appellant''s witnesses Smt. Rani Kaur (PW 2), Amitabh Tiwari (PW 3) and Vikas Mandal (PW 4), who is brother of the appellant, it is clear that the fact of the respondent being a working lady was well within the knowledge of the appellant as well as his family members at the time of marriage and they had no objection to it.

Respondent Smt. Cynthia Mandal (DW 1) has herself stated in her examination-in-chief that at the time of marriage itself, the appellant was posted as Steno in SECL at Bhatgaon area of Surguja District. As such, it is clear that the fact that the appellant and the respondent both are employed in the job, was well within the knowledge of the family members of the appellant and the respondent, and it was also within the knowledge of the respondent as well as her family members that the appellant was and is still posted as Steno in SECL at Bhatgaon, District Surguja.

The respondent/wife (DW 1) has stated that immediately after the marriage she was being physically and mentally tortured and harassed by the appellant as well as his family members, on account of which she had an abortion. When she conceived for the second time, then also the attitude of the appellant as well as his family members remained the same, on account of which the appellant himself had dropped her on 20.12.2002 at her mother''s house with an assurance that he will look after her and will provide her everything, but even after the birth of child on 25.04.2003 and on being informed, neither the appellant nor any of his family members had come to see her and her daughter.

Shabnam Enox (DW 3), who is cousin sister of the respondent, has stated that after the respondent had undergone an abortion, the appellant''s mother had called her and expressing her inability to attend the respondent had asked her (Shabnam Enox, DW 3) to take the respondent alongwith her, on which she had taken the respondent to her residence and at that time, the appellant was not at Bilaspur, but was at his place of posting at Bhatgaon. She (DW 3) has further stated in her examination-in-chief that after that, when on Sunday the appellant had come to Bilaspur, he visited her (Shabnam Enox) residence and had taken the respondent back alongwith him to his house.

However, the respondent/wife (DW 1) has stated that as she was carrying pregnancy and the attitude of the appellant as well as his family members was harsh towards her, therefore, the appellant himself had dropped her at her mother''s house on 20.12.2002. This allegation has been denied by the appellant as well as his witnesses, and the appellant has specifically stated in his cross-examination that while the respondent was carrying pregnancy, he had not asked her to go to her mother''s house, and in fact, in his absence, she had herself left her matrimonial home without any reason on 20.12.2002 and since then is residing with her mother.

Vikas Mandal (PW 4), who is brother of the appellant, has specifically stated that his sister-in-law (respondent) had left her matrimonial home on 20.12.2002 on the ground that she is going to her mother''s house for celebrating Christmas and had gone to her mother''s house and since then despite all efforts had refused to return back and reside with the appellant at her matrimonial home.

Smt. D.S. Vaghe (DW 2), who is mother of the respondent, has specifically stated in para-12 of her statement that as her daughter (respondent) has suffered a lot in her life, therefore, she does not want to sent her back to her matrimonial home. Respondent/wife Smt. Cynthia Mandal (DW 1) and her mother Smt. D.S. Vaghe (DW 2) have stated that immediately after the marriage, the appellant and his family members were torturing and harassing the respondent mentally and physically, on account of which she alongwith her minor daughter is residing in a rented house with her mother at Jarhabhata, Bilaspur.

Indisputably, the marriage between the parties was solemnized on 29.10.2001 and the respondent had resided at her matrimonial home till 19.12.2002 before leaving it on 20.12.2002. As such, the respondent had lived at her matrimonial home for about more than a year. According to the respondent as well as her mother, the respondent immediately after the marriage was being continuously harassed and tortured by the appellant as well as his family members, but neither any report was lodged at any police station nor any complaint was made to any authority in this regard. It is not in dispute that before solemnization of marriage, the appellant has been working as Steno in SECL and is posted at Bhatgaon area of Surguja district and the respondent is working as Accountant in Sainik Finance Industries Ltd. At Rajendra Nagar, Bilaspur. From the statement of Shabnam Enox (DW 3), who is cousin sister of the respondent, it is found that she (DW 3) on being asked by the mother-in-law of the respondent, had taken the respondent to her house, but when the appellant came to Bilaspur on Sunday, he had immediately taken his wife (respondent) to his house.

Respondent/wife Smt. Cynthia Mandal (DW 1) has also alleged that the appellant used to come at her place of working in Sainik Finance Industries Ltd. And used to intimidate her and demand money. However, it is not in dispute that the appellant is not an unemployed person, but is working on the post of Steno in SECL, which is a central government undertaking, and definitely must be drawing a respectable salary.

P.V. Shridhar (DW 4) has stated that the appellant used to come at the working place of the respondent and intimidate her and demand money from her, on account of which Rs. 70,000/- in cash was given by the respondent to the appellant through him (P.V. Shridhar, DW 4). However, the statement of this witness is not worthy of credence because the respondent/wife (DW 1) herself has not stated that she had ever paid Rs. 70,000/- in cash to the appellant through this witness.

On the basis of evidence adduced, it cannot be said to have been established that the respondent was being continuously tortured and harassed mentally and physically by the appellant as well as his family members, on account of which the respondent was compelled to leave her matrimonial home. On the contrary, on the basis of evidence available on record, it is found that respondent as well as her mother was insisting that the appellant should take a separate house for the respondent and on the appellant should take a separate house for the respondent and on the appellant not acceding to their demand, that the respondent''s mother had refused to send her (respondent) back to her matrimonial home. It is also not in dispute that an application u/s 125 of Cr.P.C. was moved by the respondent for grant of maintenance and vide order dated 15.1.2007, the Family Court has granted maintenance only to the minor daughter @ Rs. 2000/- p.m. As such, it is apparent that the Family Court had also found that the respondent is living separately from her husband (appellant) without any just and reasonable cause.

On the basis of aforesaid discussions, it stands proved that the respondent had, on her own accord, left her matrimonial home on 20.12.2002 without any just and reasonable cause and since then is residing with her mother and has thereby deserted the company of the appellant, which amounts to cruelty towards the appellant. Learned Family Court has committed a manifest error of law in rejecting the application of the appellant u/s 10 of the Indian Divorce Act and as such, the same cannot be sustained.

In the result, the appeal is allowed. The impugned judgment and decree dated 7.4.2010 of the Family Court, Bilaspur is hereby set aside. Consequently, the application u/s 10 of the Indian Divorce Act filed by the appellant/plaintiff is allowed and the marriage solemnized between the parties on 29.10.2001 hereby stands dissolved.

No order as to costs. Additional Registrar (Judicial) is directed to draw up a decree accordingly.