Prashant Kumar Bhagat @ Biltu @ Biltu Kumar vs Kalpana Devi

Jaya Roy, J.—This appeal has been preferred against the judgment dated 10th September 2007 and Decree dated 27.9.2007 passed by

the Court of VIth Additional District Judge, Godda, in Matrimonial Case No. 43 of 2006/19 of 2007 whereby the divorce petition filed by the

wife respondent u/s 13 of the Hindu Marriage Act was allowed. The respondent sought decree for divorce on the ground that there has been no

resumption of cohabitation as between the parties to the marriage for a period of more than one year after the passing of the decree of Judicial

separation in the proceeding to which both were parties. The learned counsel for the appellant submitted that marriage of the appellant with the

respondent was solemnized on 16.4.2001 according to the Hindu religion and custom following all the rituals of a valid marriage at her father''s

house situated at Mahagama under P.S. Mahagama District Godda, Jharkhand.

The fact of the case is that after marriage on 16.4.2001 with the appellant (the husband) the respondent went to her matrimonial home on

17.4.2001 with her husband Prashant Kumar Bhagat (the appellant) in his house situated at village Ambey Maruchok, P.S. Muzahidpur, District

Bhagalpur and stayed there from 17.4.2001 to 20.4.2001 and on the morning of 20.4.2001 she returned to her paternal house. Further case of the

respondent is that the appellant i.e. her husband is a man of bad habit and use to consume wine and he used to come at his residence after

consuming wine and also used to assault and abuse her in filthy language and he also made demand of dowry, which started from Rs. 10,000/- and

went up to Rs. 1,00,000/- and (sic) on several occasions her husband threatened her and tortured her, the result of which she filed a complaint

Case against her husband before C.J.M., Godda and Mahagama P.S. Case No. 109 of 2001 was instituted u/s 498A of I.P.C. and 3 and 4 of

Dowry Prohibition Act and the same is still pending in the court of S.D.J.M. Godda vide T.R. No. 201 of 2006. When she came back to her

paternal home, the appellant used to come there and also used to torture and assault her even in her paternal house and she was compelled to file

another Criminal case against the appellant i.e. G.R. Case No. 799 of 2001/507 of 2004 and the same is still pending in Court of S.D.J.M.

Godda.

That further case of the respondent is that she filed a case u/s 10 of the Hindu Marriage Act to get rid of the torture from her husband which was

numbered as Case No. 20 of 2001 of the Court of the District Judge, Godda which was transferred to the court of 7th Addl. District Judge,

Godda and the same was numbered as Matrimonial Case No. 6 of 2005. Her husband appeared in the said case and filed written statement

controverting the statements made by the respondent. But he did not examined himself in the court to support his case made out in the W.S. nor he

had (sic) examined any witness on his behalf. But some of the witnesses examined by the respondent have been cross-examined by him. The case

was decreed by the learned 7th Addl. District Judge, Godda and a decree of Judicial separation was passed in her favour on 6.9.2005. After

obtaining the said decree of Judicial Separation, there was no resumption of cohabitation in between the parties to the marriage for a period of

more than one year after the said decree dated 6.9.2005.

Thereafter, she filed the present Matrimonial case No. 43 of 2006 in the Court of District and Sessions Judge, Godda on 1.11.06 u/s 13(1A)(I)

of Hindu Marriage Act for divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a

period of more than one year after the said decree for judicial separation in the proceeding to which both were parties she also prayed for decree

of maintenance @ 1500/- per month during pendency of the case. The case was ultimately transferred to the court of VIth Addl. District Judge,

Godda for disposal. Her husband did not appear in the Matrimonial case despite of duly service of notice to him and ultimately the case was fixed

for ex-parte hearing on 23.7.07. To support her claim, she filed her affidavit by way of her examination-in-chief and also exhibited certified copy of

the judgment passed on 6.9.2005 in Met. Case No. 20 of 2001/6 of 2005 by Sri K.K. Jha, 7th Addl. District Judge, Godda which was marked

as Ext. ''A''. The VIth Addl. District Judge, Godda after considering the facts and circumstances of the case and considering the evidence on

record, by his Judgment dated 10.9.2007 decreed the divorce suit and a decree of divorce was passed in her favour.

The appellant has preferred the present appeal against the aforesaid judgment and the decree of divorce dated 10.9.2007. The learned counsel

appearing for the appellant submits that he has filed a petition u/s 9 of Hindu Marriage Act for the restitution of conjugal rights for bringing the

respondent back with full dignity and respect to live as husband-wife and he is still willing to keep the respondent as wife with full dignity and

respect, and has prayed to set aside the decree of divorce dated 10.9.2007.

The learned counsel appearing for respondent submits that there is charge of cruelty against the appellant and they are living separately for the

last eleven years and there is no illegality in the impugned judgment and the appeal is fit to be dismissed.

We have gone through the impugned Judgment passed by the learned court below, we find that learned court below has considered all these

facts and circumstances of the case and evidence on record and passed very well reasoned Judgment.

After hearing both the parties, we are of the considered opinion that it is a case of irretrievable break down of marriage, admittedly both the

parties are living separately for the last eleven years. Furthermore, the appellant though contested the earlier suit i.e. Matrimonial Case No. 6 of

2005 and after hearing the parties said suit was decreed in favour of the respondent he never preferred any appeal before the higher Court. We

find from the records the Criminal cases filed by the wife-respondent against the appellant for his cruelty and torture are still pending. Therefore, in

our opinion at this stage at will be not possible for the parties to live together. Therefore, the best course is to dissolve the marriage by passing a

decree of divorce. In view of the above reasons, we do not find any infirmity and illegality in the impugned judgment passed by the Court below.

Accordingly, the appeal is dismissed. No costs.