Sanjeev Kumar Mishra vs Smt. Chanda Mishra

Heard learned counsels for the parties.

Appellant-husband’s Matrimonial Title Suit No. 68 of 2004 seeking dissolution of marriage on the ground of cruelty and desertion under Section

13 1 (i-a)(i-b) of the Hindu Marriage Act with the respondent-wife, was dismissed by the learned Principal Judge, Family Court, East Singhbhum, at

Jamshedpur vide impugned judgment dated 31st May,2016.

Petitioner-appellant asserted through his plaint that pursuant to their marriage solemnized on 10.12.1997 at Adityapur Jamshedpur, they lived

together at Rupnarayanpur where the marriage was consummated. Respondent however, appeared to be a lady of bad temperament, in the habit of

hurling regular abuse in filthy language upon the petitioner. Her behavior did not reflect any love or affection for him or his parents. Two female

children now aged 5 years and 3 years were born out of the wedlock. She used to leave the matrimonial home without permission and was unable

to fulfil her matrimonial obligations. Despite all efforts, she did not agree to mend her ways. On 10.12.2000 she left permanently for her paternal house

at Jamshedpur. All efforts to bring her back, failed. Therefore, the petitioner had no other option than to seek dissolution of marriage. Respondent

got the matrimonial suit, initially instituted at Asansol, transferred to the court of learned Family Court, East Singhbhum, Jamshedpur by the order of

the Apex Court. Â

Respondent-wife contested the Suit by filing written statement. Factum of marriage and birth of two daughters out of the wedlock was admitted

however, rest of the allegations were denied. She made reference to the Complaint Case no. 110 of 03 instituted against the husband and his family

members on grounds of cruelty in marriage U/s 498 A IPC. Settlement efforts failed. She alleged cruelty on the part of the petitioner who had

thrown her out because she could not bear a son. She alleged that the entire expenditure of marriage and various gifts were borne by her parents

and taken to her matrimonial home at Burdwan. These belongings have been taken away by the petitioner and his family members. First daughter

Sheetal was born on 16.12.1998 and second one Sezal was born on 17.5.2001 at T.M.H., Jamshedpur. She was tortured for demand of Rs. 40,000/-

and two wheeler Hero Honda Motor Cycle. Even at the time of Chhati ceremony of the daughter, the petitioner and her in-lawss did not come and

when gifts were sent to them they were thrown in presence of the brother of the respondent. After birth of the daughter she had been made to

wait for four hours on return to her matrimonial home. She was permitted to enter the house only on intervention of the relatives. However, she

was refused proper food or clothing. Petitioner threatened her if she complained about the torture that he would paste her naked photographs at public

places. She also alleged abusive language by the father-in -law. She also took a separate residence on rent at Jamshedpur as the petitioner had

expressed that he would not come to her in-laws house to bring her back after birth of the second daughter. Still he refused to accompany her. She

further alleged that her valuables were taken including Stridhan worth Rs. 2,50,000/-. Since January, 2003 she has been residing at Jamshedpur.

Petitioner has completely neglected to take her back along with the children.Â

Five issues were framed by the learned Family Court on the basis of the pleadings of the parties.Â

(I) Whether the petition as framed and filed is maintainable?

(II) Whether after solemnization of the marriage the respondent treated the petitioner with cruelty?

(III) Whether respondent has deserted the petitioner for a continuous period of two years immediately preceding the presentation of the petition?

(IV) Whether the respondent took the articles mentioned in her written statement to the house of the petitioner at the time of her marriage and

whether the same are still with the petitioner?

(V) To what relief or reliefs the petitioner is entitled to?

Petitioner examined himself as witness no.1 through an affidavit. He was also cross-examined thereafter. He reiterated the pleadings setforth in

the plaint in support of the allegations of cruelty. He asserted that the respondent was not able to fulfil her matrimonial obligation and used to leave

matrimonial home without any cause or reason very frequently. Efforts to mend her ways did not succeed. Finally on 10.12.2000 she deserted him.

The Advocate notice exhibited by him however mentioned the date of desertion as June, 2002 and not 10.12.2000. Photocopy of the postal receipt

was also prayed to be exhibited. He also referred to the Complaint Case no. 110 of 2003 lodged by her under Sections 498A, 406/506 of the Indian

Penal Code wherein he has been convicted by the learned Judicial Magistrate, 1st Class, Jamshedpur vide judgment dated

16.1.2014. Advocates’ notice, postal receipt and judgment passed in Complaint Case no. 110 of 2003 were marked as Ext. 1,2 and 3. In his

cross-examination, he stated that he is unable to answer the question in English but he is aware of the contents of the affidavit typed in English. He

could not say the date of birth of his daughters and had not seen the younger daughter till date. He claimed to bear the entire expenses of the

daughters and wife whenever demanded. He had borne the expenses of the birth of two daughters which took place at Jamshedpur. He expressed

his desire to take his wife back but the same had come to an end after institution of the instant case. He was ready to keep his wife during the course

of mediation but had not instituted any suit for restitution of conjugal rights. He blamed the respondent that she had never expressed her desire to live

with her husband. He denied the suggestion that the respondent had been deserted for the sole reason that no son was born out of the wedlock. Other

allegations relating to refusal of gift of Chatti ceremony of his daughter, abusive words used by his father for the respondent and his in-laws were

denied. He also denied having acquaintance with any lady named Rubi. He also denied that it was he who mentioned that he was in love with Rubi.

No other witnesses was examined by the petitioner.Â

Respondent examined three witnesses namely:Â Â Â Â Â

 (I) Prem Lata Devi, her mother.    Â

 (II) Avdhesh Kumar Jha, her brother and     Â

 (III) herself.Â

   Her mother denied the allegations of cruelty on her part. She supported the assertion of the respondent relating to demand of dowry and

cruelty meted out to her. She also stated about letters written by her daughter about the cruelty meted out to her at the matrimonial home. She also

referred to the threats by the petitioner of posting her naked photographs at public places and the letter written by the father of the petitioner using

derogatory and defamatory language against the respondent. Her daughter was abused and insulted as she was from a poor family and could not

give birth to a son. In her cross examination she mentioned about her daughter being taken to her matrimonial home but returned after ten daysÂ

and since then she had not been taken back. All these had happened in August 2002. Respondent’s brother supported her case in his

examination in chief. He also mentioned about the relationship of the petitioner with a girl named Ruby and made prayer to exhibit the letter written by

him. He was also a witness in the criminal case. According to him, his sister lived in her matrimonial home till 2002 when she was finally ousted.

Thereafter since 2003-2004 for  8-10 years, she had been residing at Kadma.Â

    Respondent, in her examination-in-chief, asserted her case made out in the written statement. She denied cruelty or desertion on her part.

She alleged that in January 2003 she was not allowed to enter her matrimonial home and kept waiting at the gate for hours together. She spoke

about the illicit relationship of her husband. According to her, petitioner was annoyed with non fulfilment of demand of dowry and also on account of

his illicit relationship with a lady named, Ruby. He was also annoyed as she had not been able to give birth to a male child. She deposed about the

conviction of the petitioner in Complaint Case No. 110 of 2003. In her cross examination, she asserted that she came to her matrimonial home in

August 2002 but, even prior to that she used to come to her parental home along with her husband. She was with her husband at Kadma in August

2000Â and her first daughter was born in the year 1998. The second one was born in 2001. She further asserted that after birth of her second child

she was with her husband at Asansosl , Rupnarayanpur for about one year to one forth year. She could not give any proof of tenancy agreement

of residence at kadma. According to her, the case under section 498A IPC was filed prior to the divorce case but the same appear to be factually

wrong by the learned family court. Certified copy of the order sheet and judgment were exhibited as Ext.-A and B. Letter written by the petitioner

was exhibited in the criminal case, certified copy of which has been filed and marked as Exhibit-C. Letter written by the father of the petitioner was

marked as Exhibit-D and D/1.Â

Learned family court proceeded to analyze the evidence on record in the light of the rival pleadings of the parties, both on the point of cruelty and

desertion. It was of the opinion that none of the family members of the petitioner came to support his case about misbehaviour or cruelty on the part of

the husband. Exhibit-C and D series showed that the father- in law of the respondent i.e. father of the applicant had used very derogatory words for

the respondent and similar words were used by the applicant also for her family members. Petitioner was aware that she used to go to her parental

home for medical treatment. Such activities of going to her parents’ home could not be termed as cruelty under section 13(1)(i-a) of the Hindu

Marriage Act. As such, the allegations of cruelty were not proved. On the other hand, the petitioner was convicted on allegations of cruelty in

marriage in Complaint Case No. 110 of 2003 lodged by the respondentwife. Despite that she was willing to go back to the matrimonial home also in

view of the two daughters born out of the wedlock. Allegations of cruelty were not proved to enable him to seek divorce. On the question of desertion,

learned family court came to the finding that evidence on the point of desertion for two years prior to the institution of the suit was not cogent. The

advocate’s notice, Exhibit -1, referred to the date of desertion as June, 2002 while the date mentioned in the plaint was December, 2000. This

anomaly was not rectified through any clarificatory letter after issuance of Ext-1 and before institution of the suit. The second daughter was born in

the year 2001. Therefore desertion for a period of more than two years before filing of the matrimonial suit on 2.1.2003 was not worth

acceptance. This issue was also answered against the husband. Other issues also stood decided against the petitioner and the case was held to be not

maintainable.Â

Learned counsel for the appellant in the light of the background, material pleadings and evidence on record submits that the learned family court has

committed error of fact and law in arriving at its conclusions. He has made the following submissions :-

(i) Despite the fact that the respondent alleged illicit relationship of her husband with one lady Ruby she was unable to prove it. However theÂ

learned family court erroneously held that the respondent was not responsible for cruelty in marriage.

(ii) The conduct of the appellant in filing appeals against the judgment of acquittal passed by the learned judicial magistrate 1st class, in respect of

the family members of the appellant itself shows that she is not inclined to revive the broken relationship.

(iii) The learned family court also committed an error in holding against the petitioner on the point of desertion.

    The complaint case was lodged on 30th January, 2003 after filing of the Matrimonial Title Suit. As such, the same was a counter blast

on the part of the respondent. The learned family court should have held this action of the respondent in favour of the petitioner rather than against

him. In such circumstances when the spouses have been living separately for almost 18 years by now, there is no point in maintaining the legal tie

when all emotional bonds have dried up. The impugned judgment, therefore, deserves to be set aside.

Learned counsel for the respondent wife in response to the categorical assertions made by the appellants' counsel has referred to the Ext.-C

which is a letter written by the petitioner to the respondent-wife. Petitioner in the said letter himself mentioned about his relationship with a lady named

Ruby. That is how the respondent got knowledge of his illicit relationship and made statements about it in her examination. The allegation that the

illicit relationship was not proved by the respondent, therefore, is wholly unfounded. According to the learned counsel for the respondent, the wife

has always tried to go back to her matrimonial home. Even in her statements made on oath she mentioned that she had gone to her matrimonial

home after the birth of second daughter and that she was ousted in August, 2002. The petitioner had failed to establish the allegations of cruelty on

any counts. The learned family court had rightly held that mere tit bits of day to day family life would not constitute cruelty of such a nature which

would render the living with the respondent unsafe. Respondent was still inclined to go back to her matrimonial home keeping into account the two

girl child born out of the wedlock whom she has to maintain. The appellant has also not paid the maintenance amount awarded for considerable time

since June, 2017 till April 2018, except May,2018 when a sum of Rs. 4000 has been paid. As such there are no grounds made out on the part of the

appellant to annul the well considered findings of the learned family court. The appeal, therefore deserves to be dismissed.

11.. We have considered the submissions of learned counsel for the parties at length; gone through the impugned judgment and also material

pleadings and evidences on record, relied upon by the rival parties. On the basis of the pleadings on record and the only oral testimony of the

petitioner-husband, it is difficult to accept the case of the appellant that the respondent had been responsible for cruelty in marriage. Apart from minor

incidences which the petitioner seems to highlight and the fact that the respondent used to go to her parental home from time to time including at the

time of birth of her daughters, there are no extra ordinary circumstances which taken together could lead to inference of mental or physical cruelty on

her part. The allegations of illicit relationship appear to be made out, not on the  respondent's own imagination but on the basis of exhibited

document Ext.-C, written by the petitioner himself to her. In such circumstances respondent could hardly be accused of leveling a false allegation of

illicit relationship against her husband. On the contrary, the husband has been found guilty of cruelty in marriage as he been convicted for the

offence under section 498A of the Indian Penal Code by the court of learned Judicial Magistrate, 1st class, Jamshedpur vide judgment dated

16.1.2014. The filing of acquittal appeal, if any, by the respondent against rest of the family members, being a resort of the legal remedy available to

her on being aggrieved, could not be taken against her. As such, the finding of the learned court on the ground of cruelty cannot be said to be

suffering from errors in fact or in law which deserves interference in appeal.

12. On the basis of pleadings and material evidence on record on the point of desertion, we hardly find any scope to disturb the findings

of the learned family court. The appellant through his legal notice himself asserted the date of desertion from June, 2002, contrary to the averments

made in the plaint and his oral testimony where it was stated that the respondent had deserted him in December, 2000 itself. The birth of the second

daughter in May, 2001 also goes to discredit the testimony of the appellant of continued desertion on the part of the wife with an intention to

permanently forsake the matrimonial relationship for a period of two years prior to the institution of the suit on 2.1.2003.

    In the case of Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Apex Court has reiterated the

principles  relating to desertion in marriage. It is profitable to quote the relevant paragraph nos. 8 and 9 of the report:-

“8. “Desertionâ€, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one

spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of

marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial

obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking

into consideration the concept of marriage which in law legalizes the sexual relationship between man and woman in the society for the perpetuation

of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself,

it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the

views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary

passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held: (AIR p.p.

183-84,para 10)

 “For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (I)the factum of

separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the

deserted spouse is concerned: (I) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial

home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.

Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law

those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the

Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the

omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of

inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case

be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by

conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential

question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation

and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced

without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating

spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has

prescribed a three years’ period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements

must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted

spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after

the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably

refuses the offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the

deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well

settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable

doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is

accounted for to the satisfaction of the court.â€​

Following the decision in Bipinchandra case this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena by holding that

in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and

without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the

factum of separation, and (2) the intention to bring cohabitation permanently to an end ( animus deserendi). Similarly two elements are essential so far

as the deserted spouse is concerned:( 1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the

matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which

may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by

those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.â€​

In the light of the material evidence and pleadings on record and the proposition of law laid down by the Apex Court, it emerges that there was

no deliberate act on the part of the respondent with an intention to bring the marriage permanently to an end so as to constitute the act of desertion.

On the other hand, the conviction of the appellant on charges of cruelty in marriage in Complaint Case No. 110 of 2003 could have given a reasonable

cause to the wife to leave the matrimonial home. However, despite the charges of cruelty in marriage having proved in the criminal trial, respondent

has shown her willingness to continue the marital relationship, perhaps, keeping into mind the fate and future of her two daughters, who are now 20

years and about 17 years. The appellant in such circumstances, cannot be allowed to take advantage of his own wrong. Appellant, therefore is not

entitled to the relief of dissolution of marriage as has been rightly held by the learned family court.

On conspectus of the entire facts and circumstances discussed above, we do not find any reason to interfere in the findings of the learned

family court. Accordingly, the instant appeal stands dismissed.