Jitendra Kumar Sharma vs Anita Devi

1. Heard learned counsel for the appellant.

2. In spite of service of notice, respondent has not appeared in this case.

3. Appellant is the husband, aggrieved by the dismissal of his Matrimonial Title Suit No. 20 of 2010 by judgment dated 17.09.2015 and decree dated

01.10.2015, passed by the learned Principal Judge, Family Court, Lohardaga (Additional charge), whereunder the suit for dissolution of marriage on

grounds of cruelty and desertion in terms of Section 13(1) (i-a) (i-b) of the Hindu Marriage Act, has been dismissed. 4. The case of the petitioner-

appellant, as pleaded before the learned Family Court, inter alia, asserted as follows:

 Marriage between the parties was solemnized as per Hindu customs and rites on 15.05.2004 at Maa Bhawani Kali Temple at Itkhori, District

Chatra. They lived together at their residence in Lohardaga. Reception was also held on 23.05.2004. Petitioner went along with his wife to her

parent’s place at the time of Bidai on 24.05.2004 and returned on 03.06.2004. However, petitioner found that on pretext of illhealth of his mother-

in-law, the respondent was brought back to her Maika. His in-laws were putting pressure upon him to live as a Gharjamai. There are allegations that

petitioner was confined to a room; however, he managed to escape on 15.06.2004. He was humiliated. A caste panchayati was held on 19.01.2006

where both the parties were directed to live peacefully. However, respondent has again violated the directions of the caste panchayat on 29.06.2006.

She deserted the petitioner on 29.06.2006. The respondent also filed a case under Section 498-A of the Indian Penal Code and under Sections 3/ 4 of

the Dowry Prohibition Act against the petitioner and his parents being G.R. Case No. 167 of 2008. She used to ill-behave and threaten to implicate

them in another case. This compelled the petitioner to file a divorce petition as it had become impossible for him to live a normal conjugal life with

her.Â

 Respondent appeared and filed her written statement. She asserted that the suit was barred by res judicata and not maintainable. Earlier a

Matrimonial Title Suit No. 05 of 2005 filed by the petitioner had been dismissed. She accepted the factum of marriage but, stated that an FIR was

lodged being Mahila P.S. Case No. 08 of 2008 under Section 498-A of the Indian Penal Code and under Sections 3/ 4 of the Dowry Prohibition Act

on 23.04.2008.She had been kicked out from the house of the petitioner and was residing at Dhorhatoli, Lohardaga. She had been physically and

mentally harassed by the petitioner. Assertions made in the plaint against her parents were false. They had never put any pressure upon him to live as

Gharjamai. Petitioner was a litigating person. A girl child was born, who was aged about six years. She further alleged that petitioner had landed

properties at Gaya and his family is earning Rs.25,000/- per month from the rent and from the other products.

 Learned Family Court proceeded to determine whether the suit for dissolution of marriage was fit to be decreed on grounds of desertion and

cruelty. During the trial, petitioner examined himself as PW-1, PW-2 and PW-3, Bshwanath Sharma and Rajendra Sharma, as independent witnesses.

He alleged cruelty, inter alia, on the following grounds that:Â

(i)Â He was locked in a room and pressurized to live as a Gharjamai. However, he managed to sneak away but had not complained anywhere.

(ii)Â She had got him assaulted with the help of police, and

(iii)Â She had lodged a false case for demand of dowry and cruelty in marriage against the petitioner.Â

 The petitioner had been convicted by the learned trial court but, was acquitted in criminal appeal. Learned Family Court, however, upon analysis of

the evidence on record, by a cryptic judgment came to the opinion that the suit for dissolution of marriage was brought in hot haste, out of emotional

outburst and cannot be decreed. It was dismissed on contest with a litigation cost of Rs.10,000/-.Â

5. Learned counsel for the appellant submits that the allegations of cruelty in marriage have been made out, both on the basis of the material

evidence on record and the subsequent development of acquittal of the appellant in the criminal case lodged on false accusations under Section 498-A

of the Indian Penal Code, read with Sections 3/ 4 of the Dowry Prohibition Act, by the appellate court. He submits that the learned Family Court, took

into account that the appellant had sought restitution of conjugal rights through Matrimonial Title Suit No. 05 of 2005, which was dismissed on the basis

of compromise and a daughter was born thereafter, out of wedlock. However it failed to see the bona fide of the applicant-petitioner in the light of the

motivated allegations of cruelty in marriage and demand of dowry by the respondent-wife. False accusation of such a serious nature itself amounts to

mental cruelty.Â

6. He has relied upon the judgment rendered by the Apex Court in the case of “K.Srinivas Rao versus. D.A. Deepaâ€, reported in (2013) 5

Supreme Court Cases 226, para-16 thereof and also in the case of “Narendra versus K.Meenaâ€, reported in (2016) 9 Supreme Court Cases 455,

para-18. Reliance is also placed on the judgment of the Apex Court in the case of “K. Srinivas versus K. Sunitaâ€, reported in (2014) 16 Supreme

Court Cases 34 para 3.

7. He submits that the respondent has not even cared to contest the present appeal, despite service of notice. This indicates her indifference andÂ

intent to extinguish the marital ties permanently. Such conduct of the respondent, over a period of time, has entailed acute mental pain, agony and

suffering upon the petitioner and his family members. As such, her behaviour comes within the broad parameters of mental cruelty. The appellant and

his family members had to face a protracted criminal litigation, on false allegation, which has finally ended up in their acquittal. Judgment of acquittal,

rendered by the learned Sessions Judge, Lohardaga in Criminal Appeal Nos. 45 of 2013 and Criminal Appeal No. 46 of 2013 dated 22.07.2015, has

been brought on record. The learned Sessions Judge has acquitted the appellant and his mother and father also. As such, present appeal deserves to

be allowed and the impugned judgment be set aside. Marriage between the parties be dissolved.

8. We have considered the submissions of the learned counsel for the appellant, gone through the impugned judgment and the relevant material

evidence on record. On the basis of the material pleadings on record and the evidence, discussed above, we find that after the marriage of the parties

on 15.05.2004, a daughter was also born out of the wedlock in 2006. The conduct of the respondent in going back to her parent’s house, time and

again, on any pretext, compelled the petitioner-husband to seek restitution of marriage through Matrimonial Title Suit No. 05 of 2005, which was

compromised. However, the respondent lodged a case under Section 498-A of the Indian Penal Code, read with Sections 3/ 4 of the Dowry

Prohibition Act against him and his parents. Though the learned Trial Court convicted them for the charges but the learned appellate court has

acquitted them by the judgment dated 22.07.2015, as referred to above. The appellant and his family members have undeniably suffered on account of

serious false accusation of cruelty in marriage on demands of dowry levelled by the respondent. The Apex Court in the case of K. Srinivas Rao

(supra), has referred to the precedence, on the subject of cruelty and also cited the illustrations delineated in the case of “Samar Ghosh versus Jaya

Ghosh, reported in (2007) 4 Supreme Court Cases 511. The Apex Court, at para-16, has thereafter proceeded to add few more illustrative instances

of mental cruelty as noted in the case of Samar Ghosh (supra). It was observed that making unfounded indecent defamatory allegations against the

spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business

prospect or the job of the spouse and filing repeated false complaints and cases in the Court against the spouse would, in the facts of a case, amount

to causing a mental cruelty to the other spouse. The Apex Court, in the case of “K. Srinivas versus K. Sunitaâ€, reported in (2014) 16 Supreme

Court Cases 34 at para 3 has held as under:

 “3. Irretrievable breakdown of marriage as a ground for divorce has not found statutory acceptance till date. Under Article 142 of the

Constitution, the Supreme Court has plenary powers “to pass such decree or make such order as is necessary for doing complete justice in any

case or order pending before itâ€. This power, however, has not been bestowed by our Constitution on any other court. It is for these reasons that we

have confined arguments only to the aspect of whether the filing of a false criminal complaint sufficiently proves matrimonial cruelty as would entitle

the injured party to claim dissolution of marriage. It will be relevant to mention that the Law Commission of India in its reports in 1978 as well as in

2009 has recommended the introduction of irretrievable breakdown of marriage as a ground for dissolution of marriage; the Marriage Laws

(Amendment) Bill of 2013 incorporating the ground has even received the assent of the Rajya Sabha. It is, however, highly debatable whether, in the

Indian situation, where there is rampant oppression of women, such a ground would at all be expedient. But that controversy will be considered by the

Lok Sabha.â€​

9. In the light of the principles laid down by the Apex Court, as above and on the weight of the evidence on record, we are of the opinion that such

false accusation levelled by the respondent, which the appellant and his family members had to forebear over a period of seven years till they were

acquitted of the charges by the learned Sessions Judge, Lohardaga vide judgment dated 22.07.2015, do amount to a case of serious mental cruelty.

This conduct of the respondent, taken in the light of the conduct of the appellant earlier in seeking restitution of the marriage through Matrimonial Title

Suit No. 05 of 2005 does lead to the conclusion that the appellant has been able to successfully establish the offence of cruelty in marriage as against

the respondent. The respondent, despite notice, has not contested the case and thus appears to be indifferent and neglectful to the institution of

marriage. In such circumstances, it is also indicative of an irretrievable break down of marriage between the parties. As such, we find substance in

the plea of the appellant. The impugned judgment cannot be sustained in law and on facts. It is accordingly set aside. The marriage between the

parties stands dissolved. Appeal is allowed. Decree accordingly.Â