Arbind Kumar Singh, son of Sri Indra Kumar Singh, resident of Khas Jairamdih, PO v. Pushpa Devi, wife of Sri Arbind Kumar Singh, daughter of Sri Gopal Prasad Singh
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Appellate Jurisdiction) First Appeal No. 27 of 2020 ------ Arbind Kumar Singh, son of Sri Indra Kumar Singh, resident of Khas Jairamdih, PO- Nawagarh, PS Baghmara, District- Dhanbad, Jharkhand … … Appellant Versus Pushpa Devi, wife of Sri Arbind Kumar Singh, daughter of Sri Gopal Prasad Singh, resident of Bhawanathpur, Township, 16 C/D, Type, PO and PS Bhawanathpur, Dist. Garhwa, Jharkhand. A/P R/O-Flat No. 301, Anand Vihar, Phase-02, Chirachas, PO and PS- Chas, Dist. Bokaro, Jharkhand … … Respondent ------- CORAM: HON’BLE MR. JUSTICE RATNAKER BHENGRA HON’BLE MR. JUSTICE SANJAY PRASAD ------ For the Appellant : Mr. Soumitra Baroi, Advocate For the Respondent : None CAV On 22.04.2024 PRONOUNCED ON 26.9.2024 ------ Arbind Kumar Singh, who is appellant before us, had instituted Original Suit No. 682 of 2016, before the Principal Judge, Family Court, Dhanbad, according to him, his marriage was solemnized with respondent Pushpa Devi on 10.05.2005. 2. By impugned judgment dated 19.11.2019 passed in Original Suit No. 682 of 2016, which was filed under section 13(1) (i-a) of Hindu Marriage Act, 1955, was dismissed by the Principal Judge, Family Court, Dhanbad. 3. At the outset, it is pertinent to note that there was order dated 24.11.2020 of this court to issue notice to the respondent, but, notice remained unserved. When the case was
Legal Reasoning
case. From the evidence of appellant, we find that appellant has made allegation of cruelty and desertion against his respondent-wife Pushpa Devi. The learned counsel for the appellant has contended that respondent in her cross-examination had admitted that she had not filed any case for getting back her son and daughter, in this regard, we find that respondent in her affidavit at paragraph-13 had stated that both her children were forcefully taken and on 20.08.2015, she was forced to leave her matrimonial home. Further, at paragraph-15 and 16 of her affidavit respondent had stated that on 04.10.2016, she filed application in mahila police station, Dhanbad, where, her husband gave bond that -6- he will take her after ten days, but, after ten days she went to mahila police station with her father, but, there her husband or any family members of her matrimonial home did not come. In the evidence of the respondent-wife, it has come that presently respondent is living with her father, who is a retired employee and she is leading her life in helplessness and poverty and she has no money even to bear the expenses for going to court. Hence, seeing the helplessness and pathetic condition of the respondent, contention of the appellant that respondent did not file case to get back her children is not tenable. 14. Further, the contention of the appellant that respondent and respondent’s father R.W.-2 had admitted in their cross-examination that they had filed the case of harassment or under section 498A of IPC, after receiving the notice of divorce case, we find that there have been multiple cases between the parties. Ext.-1 C.P. Case no. 2866/2016 was filed by appellants father PW-2 Indra Kumar Singh. Thereafter, Complaint Case No. 1393/2013 was filed by the appellant’s father PW-2 Indra Kumar Singh against his own son Arbind Kumar Singh (appellant herein), his daughter-in-law Pushpa Devi (respondent herein) and three other accused persons, which was later on registered as Baghmara P. S. case No. 145/2015. Then, Dhanbad P.S Case no. 805/2016 dated 19.12.2016, G.R.No.5038/2016, was filed by the Respondent Pushpa Devi against her appellant husband Arbind Kumar Singh, father-in-law, mother-in-law and sister-in-law(nanad). Further, appellant husband Arbind Kumar Singh had filed Complaint Case No. 2857/2016 against his respondent-wife Pushpa Devi, father-in-law Gopal Prasad Singh, mother-in-law and brother-in-law. Again, it has come in the cross-examination of respondent Pushpa Devi that in the year 2008, her father-in-law and husband had filed information petition in the C.J.M. Court bearing no. 287/2008, of which she has no information. 15. So, from perusal of all these exhibits, which relates to series of cases from both sides, the contention of learned counsel for the appellant that respondent and respondent’s father has admitted that harassment case was filed by the respondent after receiving the notice of divorce case, is not tenable as both the parties have filed several cases against each other. 16. Further, learned counsel for the appellant has laid much stress on Ext.-2, which is Baghmara P. S. case No. 145/2015, to show the cruelty of respondent wife. We find that, Baghmara P. S. case No. 145/2015, was registered on the basis of Complaint Case No. 1393/2013, filed by the appellant’s father PW-2 Indra Kumar Singh. Ongoing through this -7- complaint petition, we find that, father of the appellant or PW-2 Indra Kumar Singh had in this complaint petition, amongst other accused persons, had also made an accused, his own son Arbind Kumar Singh (appellant herein) and his daughter-in-law Pushpa Devi (respondent herein), and later on the basis of this complaint case, F.I.R. being Baghmara P.S. Case No. 145/2015 was registered under sections 341/323/324/325/ 380/447/504/506/34 of IPC against his son Arbind Kumar Singh and daughter-in-law Pushpa Devi. Hence, when appellant is taking recourse to Ext.-2 or Baghmara P.S.case no. 145/2015, to depict cruelty of his respondent wife, then, Ext.-2 is also equally applicable against the appellant also, as appellant was also one of the accused in Baghmara P. S. case no. 145/2015. So, Ext.-2 relied on by the appellant, does not help the appellant to prove cruelty of his respondent wife against the appellant or appellant’s mother and father. 17. Learned counsel for the appellant has also taken this court to the depositions (Ext.- 5/2 and Ext.5/3) of appellant’s son Rudra Pratap Singh, aged about 11 years and Sweta Kumari, aged about 10 years, who were examined as CW-2 and CW-3 respectively in Complaint Case No. 2857/2016, which was filed by the appellant against his respondent wife Pushpa Devi and others. In this regard, we find that these depositions of both the children are not evidence, but, it was taken under Section 202 Cr.P.C., during enquiry stage for the purpose of taking cognizance. 18. Hence, from above discussions facts emerge that respondent is living separately with the appellant, which is not voluntarily, but, under changed circumstance, which is apparent from range of exhibits i.e. Ext.-1 to Ext.-5, which are list of the series of cases between both the parties, filed against each other. Further, in her affidavit also, respondent in paragraph-22, has stated that in the High Court, before the Hon’ble Judge she had said to live with her husband and children. 19. So, appellant husband Arbind Kumar Singh has failed to prove mental cruelty of his respondent-wife Pushpa Devi against him, but, respondent has proved the reasonable excuse of living her separately from respondent. Though, the case in hand is heard ex- parte against the respondent wife, but, plaintiff or the appellant herein, has to prove his own case and he cannot rely upon the weakness of defendant wife or respondent herein. 20. The case of Narendra (supra), relied on by the appellant is not applicable in the facts and circumstances of the case in hand as in case of Narendra (supra), wife had alleged extra-marital relationship against her husband and also threatened her husband to commit suicide apart from other grounds. In the case in hand, facts are totally different and appellant husband has not been able to prove mental cruelty or desertion, as discussed in -8- preceding paragraphs. 21. Before parting , it is also pertinent to note that appellant husband had filed A.B.A. No. 487 of 2017 for grant of anticipatory bail before this court and while granting the bail, this court (Hon'ble Mr. Justice Anant Bijay Singh) had imposed condition that appellant will give Rs. 10,000/- per month, as interim maintenance to the respondent wife, but, in her affidavit respondent wife has stated that for taking bail his husband gave the money for 2-3 months, but, thereafter, for the last several months her husband has not given money. So, appellant has been deliberately violating the order of this High Court also. 22. In view of aforesaid discussions, we do not find any reason to interfere with the impugned judgment dated 19.11.2019 passed in Original Suit No. 682 of 2016, by the Principal Judge, Family Court, Dhanbad. 23. Accordingly, F.A No.27 of 2020 is dismissed. (Sanjay Prasad, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated:26.9.2024 KNR/NAFR-
Arguments
taken up on 13.07.2022, learned counsel for the appellant had submitted that appellant has not been able to ascertain the present and correct address of the respondent and had prayed for service of notice through paper publication. Then, in order dated 03.08.2022, this court had noted that appellant has not been able to obtain the present and correct address of the respondent and hence, court ordered for serving the notice to the respondent through paper publication and thereafter, in order dated 21.09.2022, on proof of paper publication, court -2- ordered that the service on the respondent is treated as valid, but one more opportunity was given to the respondent to put her appearance and lastly when the matter was taken again on 16.042024, respondent had not made her appearance, so, the appeal was heard ex-parte against the respondent. 4. The Principal Judge, Family Court, Dhanbad, framed issue, whether the petitioner/plaintiff (appellant herein) is entitled for decree of divorce under section 13(1) (i-a) of Hindu Marriage Act. 5. Appellant husband has examined three witnesses including himself to prove cruelty, in the learned court below. Appellant Arbind Kumar Singh, had examined himself as PW-1. The other two witnesses examined by the appellant were PW-2 Indra Kumar Singh, who is the father of the appellant and PW-3 Chandra Shekhar Singh, is the maternal uncle(mama) of the appellant. Respondent wife also examined herself as R.W.-1 to resist the claim of divorce. The other witnesses examined by the respondent is R.W.-2 Gopal Prasad Singh, who is father of the respondent. 6. PW-1 Arbind Kumar Singh, the appellant, in his affidavit has stated that his marriage was solemnized with the respondent Pushpa Devi on 10.05.2005, according to Hindu rites and custom. After marriage they were blessed with two children namely Rudra Pratap Singh, age 11 years and Sweta Kumari, age 9 years. Appellant further stated that from very beginning of the marriage, behavior of respondent with the appellant and his family members was rude and unfair. Respondent often used to quarrel with the appellant and appellant’s mother and father. After some days of marriage, respondent pressurized the appellant to leave his mother and father and live separately, but appellant being the only son of parents refused to do so as his father is heart patient and had a heart attack in 2002 and his mother also has several diseases. Respondent is a short tempered lady and used abusive language to appellant and appellant’s father and mother. Appellant further stated that respondent Pushpa Devi created so much pressure that in May, 2013, he had to leave his mother, father and children and had to live with Pushpa Devi. Pushpa Devi, stayed with him for some days and then started putting pressure on him to partition the family property and to register the flat situated at Jadudih and land at Chira Chas in her favour, but appellant’s father was not ready. Appellant further stated that after May 2013, Pushpa Devi, lived with him for one-two week and thereafter, went to her parental home. On 04.10.2016, Pushpa Devi and family members of her parental home came to appellant’s residence at Baghmara and called appellant’s father to Baghmara, who lives at Jadudih, Dhanbad, and at Baghmara, Pushpa Devi and family members of her parental home, -3- pressurized his father to register the flat situated at Jadudih and land at Chira Chas, in favour of Pushpa Devi and when his father refused to do so, then, they assaulted his father and dashed him on the ground. 7. PW-2 Indra Kumar Singh, is the father of the appellant and PW-2 has stated in his affidavit that behaviour of Pushpa Devi, with family members was unfair right from the beginning of her marriage and she used to quarrel. After some days of marriage, Pushpa Devi, put pressure on his son to live separately for which his son was not ready. But, ultimately due to pressure of Pushpa Devi and family members of her parental home, in May 2013, his son and daughter-in-law, left them and their children. PW-2 further stated that Pushpa Devi, put, pressure on his son for partition of property, which was his property. Pushpa Devi and family members of her parental home used to threaten them to implicate them in a false case. Pushpa Devi wanted that his son should put pressure on him to register the flat situated at Jadudih and land at Chira Chas, in her favour. 8. PW-3 Chandra Shekhar Singh, is the maternal uncle(mama) of the appellant who has stated in his affidavit that in May 2013, Arbind Kumar Singh with his wife, came besides his house to live. Pushpa Devi, always used filthy language against Arbind Kumar Singh. Pushpa Devi and family members of her parental home, pressurized Arbind Kumar Singh to partition his father’s property. PW-3 further stated that Pushpa Devi, put, so much pressure on Arbind Kumar Singh that he lived separately, leaving his mother-father and his children. 9. On the other hand, respondent R.W.-1 Pushpa Devi, in her affidavit has stated that she was married to the P.W-1 Arbind Kumar Singh on 10.05.2005 and she has two children, son Rudra Pratap Singh, aged about 12 years and daughter Sweta Kumari, aged about 10 years. Arbind Kumar Singh, has without any reason instituted this false case and presently she is living with her father, who is retired employee, at Bhawanathpur, District- Garhwa. Respondent further stated that her husband Arbind Kumar Singh, father-in-law Indra Kumar Singh, mother-in-law Meena Devi and sister-in-law(nanad) Reena Devi, demanded Rs.4,00,000/- and motor-cycle and for this they assaulted and threatened her to leave the house. In May 2008, her husband, father-in-law, mother-in-law and sister-in- law(nanad), assaulted her as a result of which she sustained injuries. She informed her father about this incident, thereafter he came to her sasural along with other relatives and gave Rs.50,000/- to her husband. In the year 2010, she was deserted from her house, then, with help of her father and relatives, she managed to reside in her matrimonial home. On 20.08.2015, she was assaulted by her husband, father-in-law, mother-in-law and sister-in- -4- law(nanad), both her children were forcefully taken by them and on 20.08.2015, itself she was forced to leave her matrimonial home. Respondent further stated that on 04.10.2016, she filed application in mahila police station, Dhanbad, where, her husband gave bond that he will take her after ten days, but, after ten days when she went to mahila police station with her father, her husband or any family members of her matrimonial home did not come there. Ultimately, she filed G.R Case No. 5038/2016 under sections 498A/341/379/363/34 of IPC against her husband, father-in-law, mother-in-law and sister- in-law(nanad). On 19.12.2016, she went to her matrimonial home alongwith women office-in-charge, but she was not allowed to enter the house, then, she gave application to Superintendent of Police. Respondent further stated that her both minor children have been separated from her and anyhow she is leading her life in helplessness and poverty. In High Court, before the Hon’ble judge, she has said that she wants to live with her husband and children. In High Court, her husband was granted anticipatory bail in A.B.A No. 487/2017, on the condition that her husband will give Rs.10,000/- per month as maintenance, but, after getting bail he gave money for 2-3 months and, thereafter, he did not give money for the last several months. 10. R.W.-2 is Gopal Prasad Singh, who is father of the respondent R.W.-1 Pushpa Devi. R.W.-2 in his affidavit has stated that he is a retired employee and after his retirement he is living in Bhawanathpur, and his daughter Pushpa Devi is also living at Bhawnathpur, with him. After, marriage his daughter lived peacefully in her matrimonial home for some days, but, thereafter, husband Arbind Kumar Singh, father-in-law, mother-in-law and sister-in- law(nanad) demanded Rs. 4,00,000/- and motorcycle and for this they used to beat her daughter and threatened to oust her from home. R.W.-2 further stated that his daughter gave birth to two children, but, in the year 2010, she was ousted from her home. On 04.10.2016, her daughter filed case in mahila thana and later on G.R Case No. 5038/2016 was filed under sections 498 A/341/379/363/34 of IPC, which is continuing in the court. In spite of order of High Court, Rs.10,000/- is not given to his daughter. His daughter wants to live at her matrimonial home but, she is deserted from her matrimonial home and her husband threatens her for second marriage. 11. Appellant had filed following documentary evidence before the learned court below in support of his claim- Ext.-1 certified copy of order sheet of C.P. case no. 2866/2016; Ext.-2 certified copy of F.I.R. of Baghmara P.S. Case no. 145 of 2015; Ext.-3 certified copy of F.I.R. of Dhanbad P.S. Case no. 805 of 2016; Ext.-4 certified copy of charge sheet of G.R. Case no. 5038 of 2016; Ext.-5 certified copy of solemn affirmation -5- (in short, 'S.A.') of Arbind Kumar Singh in C.P. Case no. 2857/2016 and Ext.5/1 to 5/3 on deposition of CW-1,CW-2 and CW-3 in C.P. Case no. 2857/2016. 12. Learned counsel for the appellant submitted that plaintiff or the appellant herein has raised two points for divorce, first is cruelty and second is desertion. So far as cruelty is concerned, respondent wife used to misbehave not only with the appellant, but, also with the appellant’s parents and was forcing the appellant-husband to live separately with her. Learned counsel further submitted that respondent was also pressurizing him to transfer certain property in her name and respondent was also careless towards her children. Learned counsel further submitted that evidence of cruelty is also supported from the fact that father of the appellant, who is P.W.-2, had filed case against the respondent and respondent’s family being Baghmara P. S. case no. 145/2015, which is Ext.-2. Learned counsel for the appellant has further referred to paragraph-11 of the impugned judgment and submitted that the learned court below has only dealt with the aspect of physical cruelty and did not deal with the mental cruelty,but, mental cruelty has same effect and bearing as physical cruelty and Hon’ Apex court has held that mental cruelty is also a ground of divorce. Learned counsel for the appellant further submitted that respondent- wife was forcing appellant-husband to leave his mother and father and live separately which is also a cruelty. Learned counsel read out the evidence of PW-1, PW-2 and PW-3 and submitted that two children namely Rudra Pratap Singh, aged about 11 year and Sweta Kumari, aged about 9 years were born, but, both the children are living with the appellant Arbind Kumar Singh. Learned counsel for the appellant has cited the judgment of Narendra versus K. Meena reported in (2016)9SCC 455, delivered by the Hon’ble Apex Court in support of his case. Findings 13. We have heard learned counsels for both the parties and perused the records of the