Rajendra Das vs Devki Devi `

Ratnaker Bhengra, J

Rajendra Das, who is appellant before us, had instituted Original Suit No. 171 of 2018, before the Principal Judge, Family Court, Ranchi, according to him, his marriage was solemnized with respondent no.1 Devki Devi on 05.03.2001, though respondent no.1 Devki Devi has stated that her marriage was solemnized with the appellant Rajendra Das 20.04.1997.

By impugned judgment dated 16.04.2022, Original Suit No. 171 of 2018, which was filed under section 13(1) (i) and (i-b) of Hindu Marriage Act,1955, was dismissed by the Principal Judge, Family Court, Ranchi.

The appellant has stated that his marriage was solemnized with the respondent no.1 Devki Devi on 05.03.2001 according to Hindu rites and customs at Pahari Mandir, Ranchi. Thereafter, son Rohit Kumar and daughter Khushboo Kumari, was born from his marriage with respondent no.1 Devki Devi. But, from the year 2007, his wife Devki Devi started living at village Chino, P.S. Dumri, District-Giridih and entered into illicit physical relationship with Respondent no. 2 Baldeo Das and from their relation a son namely Pintu Kumar was born. Appellant has further alleged that whenever the appellant went to the village Chino, the respondent no.1 Devki Devi, kept away herself from him and was living in the house of respondent no. 2 Baldeo Das. A panchayat was held in the year 2010, in which the respondent no.1 had accepted that she wants to live with the respondent no.2 Baldeo Das and does not want to keep relation with the appellant and after the panchayat both the respondents threatened the appellant of dire consequences if appellant comes to the village. The appellant took all efforts to bring back his wife to have conjugal life with her, but, all became futile exercise and since 10.01.2016, they are living separately and as such Respondent no.1 Devki Devi has deserted the appellant for more than two years.

Respondents did not file their written statement, thus, the learned court below, framed no issue, but, the Principal Judge, Family Court, Ranchi, framed two questions, whether respondent (wife) had illicit relation with respondent no.2 Baldeo Das and she has deserted the petitioner-husband since 2016 and whether the petitioner-husband is entitled to get a decree of divorce/any other relief or reliefs whatsoever.

Appellant has examined three witnesses including the appellant himself to prove desertion and adultery and respondent wife also examined herself to resist the claim of divorce.

PW-1 Rajendra Das, the appellant, in his affidavit has stated that his marriage was solemnized with the respondent Devki Devi on 05.03.2001, according to Hindu rites and rituals at Phari Mandir, Ranchi and son Rohit Kumar was born. But, after birth of son Rohit Kumar, in 2007 his wife Devki Devi, went to live at appellant’s paternal home at village Chino, P.S. Dumri, District-Giridih and in his absence, Devki Devi, established physical relation with his cousin brother respondent no.2 Baldeo Das and as a result of such illicit relation Devki Devi gave birth to a child named Pintu Kumar in 2008. Appellant further stated in his affidavit that Devki Devi came back to Ranchi in the year 2009 and stayed with him and she became pregnant and gave birth to a daughter namely Khushboo Kumari in 2010. Appellant further alleged that Devki Devi, left him and started living with Baldeo Das as a result of which panchayat was held and in panchayat Devki Devi, refused to live with him and said to live with Baldeo Das and also accepted that Pintu Kumar, was born as a result of illicit relationship with Baldeo Das. Appellant further stated that from 10.01.2016, Devki Devi, has left his parental home and started living with Baldeo Das in Baldeo’s house and from 10.01.2016 till date he had no matrimonial relation with his wife.

The other two witnesses examined by the appellant are PW-2 Shyam Tirkey and PW-3 Nagendra Mali and both have stated in their affidavit that they are neighbour of the appellant. But, both PW-2 and PW-3 have stated in their cross-examination that they do not know the contents of their affidavits.

On the other hand, respondent No.1 Devki Devi, in her affidavit has stated that she was married to the PW-1 Rajendra Das on 20.04.1997as per Hindu rites and customs. After, marriage, they started living as husband and wife and her husband Rajendra Das, took her to Ranchi. At Ranchi, they started living in a rental house at New Madhukam, P.S.-Sukhdeonagar and her husband started work of mason. Respondent no.1 further stated that she gave birth to her first son Rohit Kumar on 19.02.2002 and then son Pintu Kumar and daughter Khushboo Kumari were born. Presently, she is living in village in house of her husband Rajendra Das, with her mother-in-law. Respondent no.1 also stated that her husband is not giving money for maintaining her and her children and she denied allegation of adulterous life imputed on her.

Learned counsel for the appellant has submitted that respondent no.1 Devki Devi was living in adultery with appellant’s cousin brother or the respondent no.2 Baldeo Das and second child Pintu Kumar was born out of illicit relationship of respondent no.1 and respondent no.2. Learned counsel for the appellant further submitted that respondent no.1 did not counter the allegation of adultery, before the learned court below, instead she claimed maintenance. Respondent no.1 has neither given reason why, she does not to want live with the appellant at Ranchi nor did she indicate any intention to resume conjugal life. Learned court below did not appreciate the provisions under section 13(1) (i) and (i-b) of the Hindu Marriage Act, 1955.Appellant has given sufficient evidence before the learned court below for proving desertion and adultery against respondent no.1 Devki Devi, but, the learned court below neither framed the issue nor appreciated the facts of the case in proper and legal manner and hence, impugned judgment passed by the learned court below shall be set aside. Learned counsel for the appellant further relied on the judgment delivered by the Hon’ble Apex court in case of Debananda Tamuli versus Kakumoni Kataky reported in (2022) 5 SCC 459.

On the other hand, learned counsel for the respondent no.1 submitted that wife respondent no.1 Devki Devi, wants to live with her appellant husband. She is unable to support her three children, who are living with her and appellant is not giving money for their maintenance.

The Principal Judge, Family Court, Ranchi, has held as under-

“07. Both the issues are taken together as they are inter-connected.

PW.-1 the petitioner-husband himself namely Rajendra Das has fully supported his case as of his pleading taking plea therein that he got married with the respondent no.1 Devki Devi on 05.03.2001 and spent peaceful life for about two years. A son took birth namely Rohit Kumar but right from the year 2007 the respondent no.1 Devki Devi started living in illicit relation with his cousin brother respondent no.2 Baldeo Das and out of their illicit relation one Pintu Kumar took birth. Further after efflux of time the respondent no.1 Devki Devi again came back to the petitioner's place at Ranchi and started living with him which resulted birth of a daughter namely Khushboo Kumari in the year 2010 at Village Chino- Giridih itself. After few days of birth of the daughter the petitioner went to his village then he found that his wife deos not want to live with him and told to him that she wants to live with the respondent no.2 Baldeo Das. She also disclosed that Pintu is not the son of the petitioner rather he is the son of the respondent no.2 Baldeo Das. The respondent no.1 left the house of the petitioner and started living at the house of the respondent no.2 Baldeo Das and for that a Panchayati was also held but no positive result came out and thus since 10.10.2016 the petitioner- husband Rajendra Das and the respondent no.1 Devki Devi are living separately.

This witness has been cross-examined at length. Apart from the petitioner- husband Rajendra Das two other witnesses namely Shyam Tirkey and Nagendra Mali are examined. Their statement-in-chief is mechanically recorded as of the petitioner's case, however, they have admitted during Court question that they are not aware with regard to facts as mentioned in their examination-in-chief. Thus, their evidence are not so credible.

As far as the evidence of the petitioner- husband is concerned he himself has admitted in his cross-examination that he is not maintaining his mother as well as he has filed two cases against the respondent-wife. In para-31 of his cross-examination he has admitted that after Panchayat the respondent- wife was sent to his house but he himself fled away which falsifies his claim of desertion against the respondent- wife which finds force from the evidence of the respondent-wife as recorded in para-9 of her cross- examination that she is still living in the house of the petitioner-husband Rajendra Das along with her mother-in-law and children. Apart from this she has also stated in para-25 of her cross- examination that she has not been maintained by the petitioner-husband Rajendra Das who never comes to the village. Thus the plea of desertion as taken by the petitioner- husband is completely failed.

Further this Court has to see as to whether the respondent no.1 Devki Devi is leading an adulterous life with the respondent no.2 Baldeo Das nor not?

In terms of this question this Court is of firm opinion that plea of adulterous life is to be proved by clinching and high degree of evidence. Merely saying by the petitioner- husband and the witnesses examined on his behalf that the respondent-wife Devki Devi is living in adulterous life with the respondent no.2 Baldeo Das cannot suffice the plea of adultery. Thus the petitioner-husband Rajendra Das could not be able to prove this plea of adultery against the respondent no. 1 Devki Devi. Apart from this there are so many contradiction in this case as the petitioner- husband Rajendra Das stated in his evidence as well as in the pleading that his marriage took place with Devki Devi on 05.03.2001 at Pahari Mandir, Ranchi whereas the respondent no.1 Devki Devi has stated in her examination-in-chief in para-2 that she got married with petitioner Rejendra Das on 20.04.1997 and she has further stated in para 3 that the marriage was performed at her parental house at village Koradih, PS Bagodar, District Giridih. However, the petitioner- husband Rajendra Das has stated in his statement-in-chief that out of marital relation with respondent no.1 Devki Devi only one son namely Rohit Kumar and a daughter namely Khushuboo Kumari took birth and one Pintu Kumar took birth out of adulterous life of respondent no 1 Devki Devi and respondent no.2 Baldeo Das but in para-19 of his cross-examination he has admitted that Rohit, Pintu and Khushboo are his children. Thus, this Court comes to the conclusion that the entire evidence of the petitioner-husband Rajendra Das and the witnesses examined on his behalf are full of contradiction.

Therefore, cumulative effect of the discussion herein above this Court of the opinion that the petitioner- husband Rajendra Das has miserably failed to establish the plea of adultery and desertion against the respondent-wife Devki Devi, thus he is not entitled for any relief as sought for.

Resultantly, this suit is hereby dismissed on contest.”

Findings

We have heard learned counsels for both the parties and perused the records of the case. From the evidence of appellant, we find that appellant has made allegation of desertion and adultery against his wife respondent no.1 Devki Devi. Appellant has alleged that his wife established illicit relationship with respondent no.2 Baldeo Das and has deserted him. So, far as allegation of desertion is concerned, we find at paragraph-21 and 22 of appellant’s cross-examination, appellant has deposed that he is neither maintaining his mother nor his wife. Further, in paragraph-31 of his cross-examination, appellant has deposed that after panchayat his wife was sent to his house, but, appellant himself fled away from his house. So, the claim of appellant’s desertion by his respondent wife, is disproved by own admission of the appellant at paragraph-31 of his cross-examination. The claim of appellant’s desertion by his wife respondent no.1 is also falsified from the cross-examination of wife respondent no.1, wherein at paragraph-24, she has deposed that presently she lives with her mother-in-law, in her matrimonial house.

Coming to allegation that respondent no.1 wife is living adulterous life with the respondent no. 2, we find that in his affidavit, appellant has stated that one son Rohit Kumar and a daughter Khushboo Kumari, was born from his marriage with respondent no.1 Devki Devi and a child namely Pintu Kumar was born out of illicit physical relationship of his wife respondent no.1 with respondent no. 2 Baldeo Das. But, in his cross-examination, at paragraph-19, appellant himself has admitted that Rohit, Pintu and Khushboo are his children. Thus, allegation of appellant that child namely Pintu Kumar was born out of illicit physical relationship of his wife respondent no.1with respondent no. 2 Baldeo Das, is falsified and on this count appellant has failed to prove that his wife respondent no.1was living adulterous life with respondent no. 2 Baldeo Das.

The case Debananda Tamuli(supra) relied on by the appellant is not applicable in the facts and circumstances of the case as in the aforesaid case factum of separation was proved, but, in the case in hand, factum of separation has not been proved, as in the cross-examination of wife or respondent no.1, at paragraph-24, she has deposed that presently she lives with her mother-in-law, in her matrimonial house.

In view of aforesaid discussions, we do not find any reason to interfere with the impugned judgment dated 16.04.2022 passed in Original Suit No. 171 of 2018, by the Principal Judge, Family Court, Ranchi.

Accordingly, F.A. No. 141 of 2022 is dismissed.