Raju Vishwakarma vs Smt. Seema Devi

This appeal has been preferred against the judgment and decree dated 29.9.2016 and 3.10.2016 respectively passed by the Additional Principal

Judge, Additional Family Court, Dhanbad in Title Matrimonial Suit no. 99 of 2012 whereby and whereunder the learned court below has been pleased

to dismiss the suit brought by the appellant against the respondent u/s 13(ia) (ib) of the Hindu Marriage Act, 1955.

The case of the appellant is that the marriage of the appellant was solemnized with the respondent on 9.7.2003 as per Hindu rites and customs and

they were living together as husband and wife at Patherdih and one child Raj Roshan was begotten. It was alleged that since more than two year

respondent did not perform any matrimonial relation and she has not been giving food etc. to the appellant for more than three years and she is also

not obeying any instruction given by the appellant. It was also alleged that respondent with the help of her company used to beat the appellant, she

used filthy language against the appellant, she shut the appellant inside the room from outside and due to misbehavior respondent is not able to lead a

normal life with the appellant and it amounts to cruelty. According to petition of the appellant, cause of action for the present suit arose on 15.11.2003.

The respondent appeared and contested the suit by filing a written statement admitting the factum of marriage with the petitioner. It was pleaded

that there is no cause of action for the present suit as against the answering respondent. It has been pleaded that after the marriage, appellant and his

family members regularly started torturing the respondent for demand of Rs. 2 lacs for the purpose of joining of appellant in railway service in place of

his father and whenever same is denied by respondent the appellant and his family members used to assault her. It is further stated that respondent

became pregnant in the year 2010 and due to the regular assault, she suffered abortion. It was also alleged that on 5.5.2010 appellant brutally

assaulted the respondent and after snatching all the ornaments, he ousted her with her newly born baby. So respondent with the help of a neighbor

went to her parent. Thereafter the matter was reported to S.P., Dhanbad on 6.2.2011 and with the intervention of Mahila Police, Dhanbad, petitioner

took respondent with him after giving an undertaking that he would keep his wife with full dignity but again petitioner and his family members started

assaulting and using filthy language against respondent for demand of Rs. 2 lacs therefore, respondent filed C.P. Case no. 2716 of 2012 u/s 498A and

other sections of IPC against appellant and his family members at Lakhhisarai which resulted into Lakhisarai P.s. case no. 359 of 2012. The further

case of respondent is that she wants to live with the appellant along with her son because she wants to live a happy conjugal life with her husband but

petitioner is not ready to live with the respondent. On such ground, prayer was made for dismissal of the suit.

On the basis of pleadings of the parties, following issues were framed for adjudication of the suit:

(i) Whether the suit is maintainable in it’s present form?

(ii) Whether the plaintiff has any valid cause of action for the suit ?

(iii) Whether the marriage between the plaintiff and the defendant is fit to be dissolved on the grounds of cruelty?

(iv) Whether the marriage between the plaintiff and the defendant is fit to be dissolved on the grounds of desertion ?

(v) Whether the plaintiff is entitled to any other relief ?

In support of his case, appellant had produced and examined altogether eight witnesses they were PW-1 Raju Vishwakarma (petitioner himself),

PW-2 Kanchan Devi, PW-3 Sanjay Vishwakarma, PW-4 Pankaj Vishwakarma, Pw-5 Khusbu Devi, Pw-6 Vijay Vishwakarma, PW-7 Kabita Das

and Pw-8 Sabitri Devi. In support of his case appellant also exhibited certain documentary evidence. Plaint of present case was marked as Exhibit.1.

Rejoinder petition dated 24.2.2014 filed by appellant was marked as Ext.2, Referral order for mediation of this case was marked as Ext.3, photocopy

of CC of order dated 22.8.2013 passed in C.P. case no. 725 of 2012 was marked as Ext.4, photocopy of CC of FIR of Lakhhisarai P.S. case no. 359

of 2012 was marked as Ext.5, publication of summon of respondent in newspaper in the present case was marked as Ext.6. copy of order dated

21.1.2016 passed in Crl. Misc. No. 3266 of 20113 was marked as Ext. 7. Copy of petition dated 11.2.2012 by Seema Devi to Dhanbad Mahila Police

Station was marked as Ext.8, photocopy of undertaking dated 11.2.2012 filed by Seema Devi before officer in charge , Mahila Police Station ,

Dhanbad was marked as Ext.9, CC of order dated 22.8.2013 passed in C.P. case no. 725 of 2012 was marked as Ext.10, CC of bail order dated

20.3.2014 passed in Cr. Misc. no. 2330 of 2014 dated 20.3.2014 was marked as Ext.11 and photocopy of order dated 21.1.2016 passed in Crl. Misc.

case no. 3266 of 2013 was marked as Ext.12.

Respondent on the other hand, had also produced and examined four witnesses namely DW.1 Smt. Seema Devi, DW-2 Deepak Kumar, DW-3

Gopal Vishwakarma and DW-4 Munna Vishwakarma. Respondent also exhibited certain documents. Written statement of the present case filed by

respondent was marked as Ext.A, Photocopy of Bond executed by appellant Raju Viswakarma marked Ext.B. Photocopy of compromise dated

8.12.2011 executed between appellant and respondent are marked as Exhibit C and D respectively. Photocopy of application submitted before

Viswakarma society was marked as Ext. E. Copy of petition dated 11.2.2012 by Seema Devi to Dhanbad Mahila Police Station was marked as Ext/F,

photocopy of notice dated 8.2.2012 issued by ASI , PS Sudamdih was marked as Ext/G , photocopy of proceeding of Panchayati dated 8.10.2010 was

marked as Ext. H, photocopy of proceeding of Panchayatnama dated 26.9.2010 was marked as Ext.I and photocopy of complaint case no. 2716 filed

by respondent was marked as Ext.J.

 ARGUMENTS ON BEHALF OF APPELLANT:-

Learned counsel for the appellant has argued essentially on the point of cruelty and has submitted that the appellant had filed a divorce case being

Title Matrimonial Suit no. 99 of 2012.He had field this because of cruelty handed out to him in various manner. However, he has stressed on some

aspects that are particularly important. Learned counsel says that soon after he filed the case for seeking divorce, his wife, the respondent filed two

complaint cases against him and roped around a dozen other persons in both the cases.

The respondent had filed C.P. case no. 725 of 2012, dated 11.4.2012 in Dhanbad under the Domestic Violence Act, 2003 against ten members of the

petitioners family /relatives including him, his mother, brother , brother’s wife, sister and sister’s husband even though they were living

separately just to harass them. The respondent soon after filed another complaint case this time in Lakhisarai C.P. Case no. 2710 of 2016 on

17.9.2012, on similar fact, just to harass him and that he will have to fight the cases on two fronts. In this second complaint case, she had increased

the number of opposite parties to 16 persons, many of them again being the same family members or relatives and or few new persons, including the

appellant. Counsel for the appellant argued that since the allegations and facts in both the cases are the same, there is sheer harassment amounting to

cruelty on the part of the respondent. Appellant’s counsel also argued that in between both these complaint cases she has not been to the

appellant’s house or to the homes of his other family members or relatives, so she cannot in anyway lodge the second case with any new facts.

Regarding the filing of these cases just to harass him, counsel submitted that the Hon’ble Apex Court has observed that filing of cases by the wife

against the husband, just to harass him tantamounts to cruelty.

 Appellant’s counsel has then said that another instance of cruelty and which is simply shameful on behalf of the wife and has brought much

pain, disrepute and anxiety to the persons directly insinuated and also to the family and relatives is certain false allegations of sexual misconduct.

Counsel submits that in one of her petitions dated 11.2.2012, which the respondent submitted to the Mahila Police Station, Dhanbad, respondent

alleged that her gotnis’s mother-“dhanda karne wali hai†and she thereby alleged that her husband, the appellant has illicit relation with her.

Counsel, further adds, that this was after an instance, when his wife had locked him out of the house and this lady having pity on him had given him

some food and then this insinuation regarding illicit sexual relations with a close relative was made. Counsel, has cited the observations made by the

Apex Court with regard to suspecting illicit second relations, in Nemai Kumar Ghosh Vs. Sista Ghos, AIR 1986 Cal 150. Counsel, then says such kind

of behavior amounts to cruelty.

 Counsel for the appellant also argued that the respondent did not even come at the time of the death of the father of her husband. Counsel

submitted that this also has been held as cruelty by the Courts.

Apart from the aforementioned instances of cruelty counsel has submitted that the respondent wife, was not maintaining matrimonial relationship; he

was often abused by her, had him beaten by persons known to her and also shut him outside the house, all of which amounts to cruelty against him,

making his life totally miserable and therefore his prayer for divorce on the grounds of cruelty should be allowed.

 ARGUMENTS ON BEHALF OF RESPONDENT:

Counsel for the respondent on the other hand has countered by alleging cruelty against the appellant. He submitted that the appellant and his family

members used to regularly demand an amount of Rs. 2 lacs and the respondent was much harassed for this. The money was demanded to procure a

railway job for the appellant, however, this demand was not met by them. Learned counsel has further argued that the respondent had become

pregnant in the year 2010, but due to assaults she suffered abortion. Moreover, on 5.5.2010, the appellant had snatched the ornaments of the

respondent. Finally the respondent with her child was ousted from the home by the appellant. On 11.2.2012, the respondent was compelled to lodge a

complaint with the officer in charge, Mahila Thana, Dhanbad where she described much of the harassment she was undergoing. This has been

marked as Ext.8. Respondent had also argued that on 26.3.2012, her husband appellant had also signed a bond at the Mahila Thana, marked as Ext.B,

where he agreed to get his child admitted into a good school, that he would make arrangement of ration for his family and that he would try to improve

his relationship with his family. Counsel has then argued that under such circumstances, he has signed the bond, thereby proving that he was

responsible for all those lapses, hence, resulting in cruelty against his wife, the respondent. He cannot be allowed to take advantage of his own

misdeeds.

 FINDINGS:Â

Having heard both counsels and having gone through the records of the case and evidence, it seems there has occasioned much wear and tear in

the marriage, which appear to be the outcome of the behaviour of both the parties. We have seen the evidence adduced on behalf of the respondent

wife herself, her father Gopal Vishwakarma, and her brother Munna Vishwakarma and Deepak Kumar. Their evidence in affidavited form all bear

the same resemblance to each other paragraph wise and all bear similar content. This may not in itself be improper if the facts are further backed up,

otherwise they appear to be simply parroted. The references to assaults are also repeated but no medical report for injury is on record. Further even

no single injury has been specified giving doubts to whether any assault had actually taken place. Regarding the abortion also, it is repeated by all the

witnesses on her behalf, but it has not been even mentioned in which month of 2010, the abortion was done, nor has the medical centre or hospital

where the respondent was finally compelled to undergo such abortion been mentioned.

 Even the references to the theft of jewellery or ornaments are repeated but there is no specific reference to what was stolen item wise, hence,

against leading to doubts on these charges.

 Therefore, her main allegation of assault by the husband and his family , regarding abortion and about the theft of ornaments all do not seem to be

substantiated. On the other hand, the respondent has lodged two cases against the appellant including many of his other family members, brothers,

sisters, their husbands and wives. One complaint case i.e. C.P. case no. 715 of 2012 was registered at Dhanbad, while other i.e. C.P. No. 2710 of

2012 was registered at Lakhisarai. The second case of Lakhisarai definitely seem mischievous at the least, because it is lodged with similar or same

set of facts and circumstances. Moreover, it has come in the evidences adduced on behalf of the appellants that the brothers / sisters of the appellant

were living separately hence charges levelled against them do not appear true. Therefore, what is there to prevent one from viewing the charges

levelled against the husband as also untrue. Moreover, it has been argued that in between the first and second case the respondent had not gone to her

matrimonial home, then this raises question of whether any fresh or new cruelty took place. The first complaint case is filed against a total of 10

persons including the petitioner. Apparently the others, brothers and sisters or relatives who live elsewhere are dragged into this . In the second

complaint case, filed against 16 persons, on same set of circumstances, the allegation will definitely edge it towards cruelty. The Apex Court in the

case of K.Srinivas Vr. K Sunita reported in (2014) 16 SCC 34 at para 7 held that:-

“7. In these circumstances, we find that the appeal is well founded and deserves to be allowed. We unequivocally find that the respondent wife had

filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty.â€​

In the case on hand, apart from the first complaint case where apparently excess members have been made opposite parties, the second case on

same or similar circumstances filed against even more persons, 16 in number. Further after the first complaint case the respondent had not been to her

matrimonial home, so there is no valid or good grounds of allegation, hence on the basis of K . Srinivas (supra) a case of cruelty is definitely made out

against the respondent.

 The other significant allegation made by the respondent against her husband was that his younger brother’s mother-in-law used to do

“dhandaâ€. This is said in a pejorative sense and with the insinuation that her husband and his younger brother’s mother-in-law were in an illicit

relationship. This allegation was made by the wife against her husband in her complaint to the Mahila Thana, Dhanbad. The allegation has been also

pointed out in the evidence of PW-3 Sanjay Vishwakarma and P.W. 4 Pankaj Vishwakarma and other witnesses. There is nothing to substantiate this

allegation, rather if the husband was locked out one night, and the family of his brother, including his mother in law gave him shelter for the night, then

it would have been the right and correct thing to do. We note that in K. Srinivas Rao Vs. D.A.Deepa reported in (2013) 5 SCC 226 page 16, the Apex

Court has observed at para 16 that:

“16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory

allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or new 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 mental cruelty to the other spouse.â€​

 Therefore, it is noted that the wife had alleged serious sexual misconduct against her husband, and as per the observation of the Apex Court , these

allegations would also amount to cruelty.

 So, there are at least two examples of cruelty committed by the wife, one is the filing of false or repeated case against the husband, in addition to

many of his family members or relatives and secondly the sexual insinuation made against him. The two aforesaid grounds of cruelty indicated by the

appellant husband are substantial . However, he had also alleged, that the wife had not come to attend certain ceremony at the time of the death of

her fatherin-law and that she was also not maintaining matrimonial relationship, was abusive towards him and had also beaten him by persons known

to her.

Thus for all the aforesaid reason and findings the appellant has good reason for being allowed his prayer/appeal for annulment of marriage or

divorce under section 13 (1a) of the Hindu Marriage Act.

 We note that this Title Matrimonial Suit is of the year 2012, and at the time of the institution of the suit itself, according to the husband for at least

three years the marital relation had already become dysfunctional. In any marriage, it is not that blame lies on only on one person, normally, both

parties contribute to aggravating the situation. However, such serious allegations have been levelled against the husband appellant and false and

repeated case filed against him and his family, thus under the circumstances and the reasons recorded above, marriage between the parties deserves

to be dissolved. It is accordingly dissolved.

Accordingly, the appeal is allowed. Decree accordingly.