Nandani Pandey vs Basant Pandey

Sanjay S. Agrawal, J

This appeal has been preferred by the Non-Applicant- wife under Section 19(1) of the Family Courts Act, 1984 questioning the legality and propriety of the judgment and decree dated 27.10.2016 passed by the Family Court, Bilaspur in Civil Suit No.270-A/2010, whereby, the trial Court while allowing the application filed by the Applicant-husband in part has granted the decree for dissolution of marriage on the ground under Section 13(1)(i) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act of 1955’). The parties to this appeal shall be referred hereinafter as per their description before the Court below.

Briefly stated the facts of the case are that a suit was instituted by the Respondent/applicant/husband claiming decree of dissolution of marriage on the ground of cruelty and adulterous life of his wife as per the provisions prescribed under Section 13(1)(i) and (i-a) of the Act of 1955. It is pleaded by the Applicant that his marriage with the Non-Applicant was solemnized on 06.06.1990 at Sarkanda, Bilaspur, as per Hindu rites and rituals and, a son, namely, Rishiraj was born out of their wedlock, who is residing with his mother. According to the Applicant, the Non-Applicant lived with him for almost a month and half after solemnization of the marriage and thereafter, she went to her parental home and after living there for a month and half, she again came back and started living with him. It is pleaded further that after some time, her brother came and took her with him and during the period when she was living with him, she was treating in cruel manner with him and her in-laws and has lodged a false report against him and his brother, namely, Hemant Pandey at City Kotwali, Korba for the offence punishable under Section 498-A of the Indian Penal Code, 1860(for short the IPC), where after investigation, the charge sheet was submitted before the Court of Judicial Magistrate First Class, Korba. In the said proceeding, the Applicant has faced prosecution for a period of 8-9 years and thereafter, he opted for compounding the said offence. It is pleaded further that after compounding the said offence, he started living with his wife, but even then, she continued to treat him and his family members with cruelty. It is pleaded further that in order to consider the future of his child, he tried his level best for keeping her with him but, during the course of her stay, she used to treat him with cruelty and harass him mentally.

Further contention of the Applicant is that he purchased a house at Deendayal Colony at Mangla and started residing with his wife, but when he used to go to his office from 10.30 am to 5-6 pm while performing his duty as an employee of the Corporation, the Non-Applicant used to have intimate relations with one Rakesh Kumar Verma and had seen both of them on 14.09.2009 in nude and compromising position and thereafter also at the time of Dussera festival and when he objected to it, she used to quarrel and fight with him. It is pleaded further that the alleged illicit relationship of them has also been seen by the neighbours. It is pleaded further that on 05.10.2009, a family arrangement was executed between them, whereby, she agreed to live separately and that on 14.01.2010, she has executed an agreement which was notarized on 15.01.2010, which shows that she is residing with said Rakesh Kumar Verma as husband and wife. It is pleaded further that his wife has lodged the complaint on 15.01.2009 before the Superintendent of Police, Bilaspur requesting therein for providing security and also for the initiation of legal action against the husband as despite living separately as per the said family arrangement with said Rakesh Kumar Verma, he is misbehaving by using filthy words. It is pleaded further that based upon her said complaint, an enquiry was also conducted and according to her statement, recorded therein, it is evident that she is living with someone else, i.e. with said Rakesh Kumar Verma in an adulterous life and is thus, entitled to get a decree for dissolution of marriage on the basis of the aforesaid grounds.

While contesting the aforesaid claim, it is pleaded by the Non-Applicant in her written statement that in order to save herself from the harassment meted out to her by her husband, she had availed the remedy granted under the IPC by lodging an FIR against her husband and his brother. It is contended further that her husband in order to escape the punishment in the said offence has made all efforts to get the alleged offence filed under Section 498-A of the IPC compounded. It is contended further that after succeeding in compounding the alleged offence, he again started harassing her, but considering the future prospectus of her child, she used to tolerate all the torture and harassment. It is contended further that her husband himself is having illicit relations with one Subhadra Sharma, who often used to visit the house, to which she used to object and that is the reason why a divorce petition has been filed while levelling false allegations of her adulterous life. Further contention of her is that her husband wanted to defame her image in the society and that was the reason why a false complaint case was lodged against her and said Rakesh Kumar Verma. It is contended further that when she fed up with the harassment meted out to her by the husband, she had taken refuge at the house of her sister, namely, Suman Tiwari at Deendayal Colony, Bilaspur. The petition as framed, therefore, deserved to be dismissed.

After considering the evidence led by the parties, it was observed by the trial Court that in absence of a specific evidence given by the husband with regard to the alleged cruelty and that in absence of any document pertaining to lodging the criminal case against him under Section 498-A of IPC, it cannot be held that he was maltreated by his wife so as to entitled to get the decree for dissolution of marriage on the ground of cruelty and accordingly, his claim has been refused on this ground. In so far as the ground of adulterous life of the Non-Applicant is concerned, it was held upon consideration of the evidence led by the parties, particularly, the deed of family settlement(Ex.A-1), executed between them on 05.10.2009 and, that by considering the complaint(Ex. A-9/A-12) revealing the fact that she is living along with said Rakesh Kumar Verma as his wife, arrived at a conclusion that she is living in an adulterous life and accordingly, a decree for dissolution of marriage has been granted to the Applicant under Section 13(1)(i) of the Act of 1955 which has been questioned by the Non-Applicant by way of preferring this appeal. No cross-objection has been preferred by the Applicant/husband with regard to the refusal of his claim on the ground of cruelty.

The question, which therefore, arises for determination in this appeal is :

“as to whether under the facts and circumstances of the case, the finding recorded by the court below holding that the Non-Applicant/ wife is living in an adulterous life and thereby entitling the Applicant/husband a decree for dissolution of marriage on the ground under Section 13(1)(i) of the Act of 1955, is sustainable ?”

Learned counsel appearing for the Appellant/wife submits that the learned trial Court without considering the evidence led by the parties in a proper manner has committed a serious illegality in holding that the wife is living in an adulterous life and thereby erred in granting a decree for dissolution of marriage to her husband on the ground under Section 13(1)(i) of the Act of 1955.

On the other hand, learned counsel appearing for the Respondent/husband has supported the judgment under appeal as passed by the trial Court.

We have heard learned counsel for the parties and perused the entire record carefully.

The marriage between the parties was solemnized on 06.06.1990 at Bilaspur under the Hindu rites and rituals and a son, namely, Rishiraj was born out of their wedlock, who is residing with his mother. According to the Applicant/ husband, his wife is living in an adulterous life with one Rakesh Kumar Verma and it was deposed by him (AW-1) at para 19 of his testimony that he has seen them in compromising position twice, firstly on 14.09.2009 and secondly, at the time of Dussera festival and upon seeing them as such, said Rakesh Kumar Verma has ran away from the spot and his wife started quarreling and fighting with him when he objected to it. He was stuck in his cross-examination and has denied specifically when a question was put to him that his wife’s illicit relation was not with the said person.

The aforesaid evidence has been corroborated by one Subhadra Sharma(PW-3) whose house is situated in front of the Applicant- Basant Pandey. According to her, she has seen both i.e. Applicant’s wife Nandani Pandey and said Rakesh Kumar Verma in a compromising position in day hours and has denied the fact that the alleged illicit relations are not there between them when the question was put to her in cross-examination.

It appears further that a complaint, being Complaint Case No. 536/2011 was filed by the Applicant against his wife and said Rakesh Kumar Verma before the learned Judicial Magistrate First Class at Bilaspur with regard to the alleged incident happened on 14.09.2009 and the case was found to be registered against the said Rakesh Kumar Verma alone vide order dated 09.03.2011 (Ex.A-4) with regard to the offence punishable under Section 497 of IPC. It appears further that in the said proceeding, the wife of the Applicant, namely, Nandani Pandey was appeared as a defence witness for said Rakesh Kumar Verma, who was ultimately found to be guilty under the said offence vide judgment (Ex.C-1) dated 12.07.2016 passed by the Judicial Magistrate First Class, Bilaspur in Case No.1188/2014.

Exhibit A-1 is the family arrangement which was executed between the parties on 05.10.2009 and both have agreed to live separately under certain terms and conditions as stipulated therein and an intimation(Ex. A-2) to this effect was furnished by the Applicant before the concerned Station House Officer, Bilaspur on 27.10.2009. Although, the Non-Applicant has denied the execution of this agreement by saying that her signature has been obtained by her husband fraudulently on blank papers, but has, however, failed to produce any cogent and reliable evidence to establish the said fact, so as to hold that her signature was obtained on blank papers, as alleged by her.

Be that as it may, it appears further that on 15.01.2010, a complaint (Ex.A-9/A-12) was lodged by the Applicant’s wife before the Superintendent of Police, Bilaspur, alleging therein that despite living separately from her husband, as per the said family settlement dated 05.10.2009(Ex.A-1), he came on 14.01.2010 at about 11.00 pm at the place known as Kanchan Chhoti Koni, where she is residing with said Rakesh Kumar Verma, and started misbehaving with her while using filthy words and a request was therefore made for initiation of legal action against him. It appears further that acting upon the said complaint (Ex.A-9/A-12), a direction was issued by the said authority for its enquiry and, a Mahila Incharge Smt. Mahalaxmi Kuldeep (AW-4) has hold an enquiry and recorded the statements (Ex.A-11 and Ex.A-10) of both husband and wife which were recorded on 17.10.2010 and 18.02.2010, respectively.

A bare perusal of the statement (Ex.A-10) of wife, it is evident that she is living with said Rakesh Kumar Verma since 30.02.2009 as husband and wife. This fact has been admitted by her (NAW-1) at para 25 of the cross-examination. It is, thus, evident that she is living with someone else, namely, Rakesh Kumar Verma since 30.02.2009 and the said fact has duly been corroborated by the document, known as agreement, marked as Ex.A-14, which was executed between them, i.e. Rakesh Kumar Verma and said Nandani Pandey on 14.01.2010 and which was notarized on 15.01.2010 by the Notary Byas Narayan Pandey, who was examined as AW-5 and has admitted execution with regard to the same.

Considering the aforesaid evidence led by the parties, it is thus, crystal clear that the Non-Applicant – wife is living in an adulterous life with someone else, namely, Rakesh Kumar Verma since 30.02.2009 and therefore, we do not find any infirmity in the findings recorded by the court below holding that she is living adulterous life with him (Rakesh Kumar Verma) while granting a decree for dissolution of marriage on the ground enumerated under Section 13(1)(i) of the Act of 1955.

That apart, as observed herein above, both husband and wife are living separately for over more than 13 years and it thus, appears that the marriage solemnized between them on 06.06.1990 has irretrievably broken down and therefore, it is dead for all purposes and cannot be revived as held by the Supreme Court in the matter of K. Srinivasa Rao v. D.A. Deepa reported in (2013) 5 SCC 226, wherein it has been held at paragraphs 30 and 31, which read as under :

“30. It is also to be noted that the appellant husband and the respondent wife are staying apart from 27-4-1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh (2007 1 SCC 337), if we refuse to sever the tie, it may lead to mental cruelty.

We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree.”

Applying the aforesaid principles to the case in hand, coupled with the facts, as observed herein above, we do not find any infirmity in the judgment under appeal as passed by the trial Court granting a decree for dissolution of marriage on the ground under Section 13(1)(i) of the Act of 1955, so as to call for any interference in this appeal. The appeal being devoid of merits is accordingly dismissed.

No order as to costs.

A decree be drawn accordingly.