Rakesh Sinha Kiran Kumari ……… v. ……….. P R E S E N T
Case Details
First Appeal No. 13 of 2021 ……….. [Against the judgment dated 06.01.2021 and decree dated 15.01.2021 passed by Sri Niraj Kumar Srivastav, learned Principal Judge, Family Court, Jamshedpur in Original Suit No. 254 of 2017] Rakesh Sinha Kiran Kumari ……….. Versus ……….. P R E S E N T ... … Appellant ... … Respondent HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE DEEPAK ROSHAN ……….. For the Appellant For the Respondent : Mr. Dilip Kr. Karmakar, Advocate : Mr. K.S. Nanda, Advocate Per Rongon Mukhopadhyay, J. ……….. Heard Mr. Dilip Kr. Karmakar, learned counsel for the appellant and Mr. K.S. Nanda, learned counsel appearing for the respondent. 2. This appeal is directed against the judgment dated 06.01.2021 and decree dated 15.01.2021 passed by Sri Niraj Kumar Srivastav, learned Principal Judge, Family Court, Jamshedpur in Original Suit No. 254 of 2017, whereby and whereunder the suit preferred by the respondent u/s 13(1) (ia) (ib) of the Hindu Marriage Act, 1955 has been allowed and the marriage between the plaintiff and the defendant has been dissolved by a decree of divorce. 3. For the sake of convenience both the parties are referred to in this judgment as per their party position in the learned court below. 4. The plaintiff (respondent herein) had filed a suit against the defendant (appellant herein) u/s 13(1) (ia) (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage in which
Legal Reasoning
inter alia it has been averred that the marriage of the plaintiff was solemnized with the defendant on 09.02.2010 as per Hindu rites and customs. Immediately after the marriage the defendant demonstrated his cruel behavior towards the plaintiff by passing comments regarding the dowry articles brought by the plaintiff. -2- 5. On flimsy grounds the plaintiff was subjected to abuses and assault. In the meantime, the plaintiff gave birth to a girl on 12.01.2011 which enhanced the rude behavior she was undergoing as the defendant had desired a son. It has been stated that on October, 2011 the defendant went to South Africa where he had a job and from there also the defendant continued to harass the plaintiff. The plaintiff is employed in Tata Motors and the defendant used to doubt her character which caused her a great deal of embarrassment in the company. Even from South Africa the defendant kept a tab on the movement of the plaintiff through his friends. The defendant visited India after 2-3 years and stayed for 2-3 months but he did not behave properly and never maintained the relationship of husband and wife. It has been stated that in the year 2014, the defendant returned back to South Africa but for one year he did not make contact at which the plaintiff started residing at her parental house. The conduct of the defendant indicates that he does not want to cohabit with the plaintiff and he had willfully deserted the plaintiff for more than two years. 6. On being noticed the defendant appeared and filed his written statement wherein he has denied the allegations of cruelty and desertion made out by the plaintiff. He has admitted to the marriage solemnized on 09.02.2010. It has been stated that he takes more care of his daughter than the plaintiff. It is true that he had gone to the Democratic Republic of Congo in the month of October, 2011 for his job but neither he has harassed or sent vulgar messages to the plaintiff nor he had activated his contacts to keep an eye on the plaintiff. It has been stated that on account of his job he had spent six years abroad and he had also given his ATM Card to the plaintiff so that she
Legal Reasoning
does not face any monetary problems. It is false to claim that the plaintiff had left her matrimonial house in the year 2015 but she has remained at her matrimonial house till 02.05.2017. It has -3- been stated that the plaintiff goes for duty from his house and his daughter also goes to her school from his house. 7. Based on the pleadings of the parties the following issues were framed: I. II. Whether the applicant has valid cause of Is the suit as framed maintainable? action? III. Whether the respondent has meted out cruelty upon the applicant, sufficient for the purpose of divorce, u/s 13(1)(ia) of the Hindu Marriage Act? IV. Whether the respondent had deserted the petitioner for more than two years continuously preceding the institution of this case? V. Whether the applicant is entitled for dissolution of marriage by a decree of divorce? VI. To what are relief or reliefs, the applicant is entitled? 8. The plaintiff has examined four witnesses in support of her case. 9. P.W.1 (Kiran Kumari) is the plaintiff herself who has stated that her marriage with the defendant was solemnized on 09.02.2010 at her father’s house. After marriage, the defendant started showing his cruel behavior and made remarks about the dowry articles brought from her house. On 24.06.2012 the defendant had abused her in the marriage function of her younger sister and also assaulted her and doubted her character. After the birth of a daughter on 12.01.2011 she was more vigorously tortured by the defendant for not giving birth to a son. On October, 2011 the defendant went to South Africa for doing a job and from there also he had tortured her over phone. She has stated that she was also subjected to embarrassment as her superior and friends at Tata Motors Limited were called up by the defendant who asked them about her character. Abusive and vulgar messages were sent to her causing her immense mental cruelty. The defendant used to visit India once in every 2- 3 years and stayed for 2-3 months and during his stay he never behaved properly nor maintained conjugal relationship of husband and wife. After the defendant went to South Africa in -4- 2014, he hardly kept contact with her as a consequence of which she had come back to her parents’ house where she is residing for the last more than two years. She has stated that before filing of the suit the defendant had come to her parents’ house and had abused and threatened her and her old mother as well as her daughter and cousin of physically harming them. The defendant had also made communication with her company indicating that she is mentally ill and had also tarnished her image and reputation at her work place. She was also compelled to institute a criminal case against the defendant being Bagbera P.S. Case No. 40 of 2018 u/s 341, 323, 448, 498A, 379 and 504 of the IPC. In cross-examination, she has deposed that she had joined Tata Motors in the year 2001 as an apprentice. Her husband was unemployed at the time of marriage. Her husband used to call up the Manager of Tata Motors and her immediate superior and inquire from them about her character. The defendant had also asked her friends Rina Kumari and Pinki Gupta over phone about her character. She has deposed that the defendant had gone to South Africa in 2011 and in 2014 he had returned back to India. In his absence she used to reside at her matrimonial house along with her in-laws. She has denied that she takes medicines and that she has neurological issues. On 15.08.2017, the defendant had come to meet his daughter and it is incorrect to say that the defendant was not allowed to meet his daughter. 10. P.W.2 (Anil Kumar Singh) is the cousin brother of the plaintiff who has stated about the marriage, the birth of a daughter and has also highlighted various instances when the plaintiff was subjected to torture which is primarily a reiteration of what has been stated by the plaintiff in her examination-in- chief. In cross-examination, he has deposed that he had visited the matrimonial house of the plaintiff in the year 2017 -5- but he could meet the plaintiff as during that period she was residing at her parental house. The plaintiff was tortured by the defendant and demand of dowry was also made in the year 2011 before the defendant went to South Africa. 11. P.W.3 (Rina Kumari) is a colleague of the plaintiff in Tata Motors. She has also stated on similar terms as stated by P.W.1 and P.W.2 regarding the various modes of torture committed upon the plaintiff by the defendant. She was also called by the defendant who had inquired about the male friends of the plaintiff and the nature of her relationship with them and in spite of a specific denial the defendant used vulgar remarks against the plaintiff. The defendant had written a letter to the superior of the plaintiff informing him that the plaintiff is a patient of mental illness. It has been stated that the defendant was making all efforts to malign the plaintiff. In cross-examination, she has deposed that in course of duty she regularly meets the plaintiff. She had seen the messages the defendant had sent to the plaintiff in the mobile of the plaintiff from South Africa but she cannot submit any proof of the same. She has stated that she had not witnessed any of the incidents as depicted by her in her examination-in-chief. 12. P.W.4 (Anand Kumar Mishra) works in Tata Motors and the plaintiff is his staff. It has been stated that Radheshyam Pandey, Assistant Manager used to disclose to him that the defendant used to ask about the location of the plaintiff. Whenever the defendant returned from abroad, he used to visit the house of Radheshyam Pandey. In the year 2013, S. Das Gupta Supervisor at Tata Motors had informed him that the defendant used to call him also. In November, 2017 the defendant had called up Anil Kumar and wanted to meet him to inquire about the plaintiff. It has been stated that the defendant had written a letter to Plant Head of Tata Motors on 26.08.2017 in which it has been mentioned that the plaintiff is a woman of abnormal behavior. The said letter was shown to him and he had -6- perused the same. In September, 2017 the Plant Head had given him a message for medical checkup of plaintiff and he had also asked about her behavior and her work efficiency. As per the message of the Plant Head he had taken the plaintiff to Tata Motors Hospital for check up and after a thorough check up was done the Doctor had opined that she is fine and does not have any problem. He has stated that the letter written by the defendant alleging abnormal behavior was a cause of concern of the Safety Department as well and the defendant had tried to hold the Management of Tata Motors responsible if any accident occurred to the plaintiff. In cross-examination, he has deposed that in September, 2017 the plaintiff was taken for medical checkup and he had seen the medical report. The medical checkup is done every year of the employees. Whatever has been stated by him is as per the disclosure of Radheshyam Pandey, S. Das Gupta and Anil Kumar. 13. The defendant has examined as many as four witnesses in support of his case including himself. 14. D.W.1 (Rakesh Sinha) is the defendant who has stated that his marriage was solemnized with the plaintiff on 09.02.2010 as per Hindu rites and customs. Out of the said wedlock a daughter was born on 12.01.2011 and he and his family members were elated and they took all care of the newly born child. He has stated that he had never tortured his wife rather he had too much of love and affection for his wife and daughter. He had filed a suit for restitution of conjugal rights vide Matrimonial Suit No. 651 of 2017 which is still pending. A case of guardianship for custody of his child has also been filed by him vide Guardianship Case No. 83 of 2018 which is also pending. He has stated that in October, 2011 he was posted in the Democratic Republic of Congo and he had spent six years abroad due to his job. During the period he was abroad he had given his ATM to his wife so that she does not have any -7- monetary problems. He has denied of having committed torture upon his wife from aboard by sending vulgar messages. On 06.04.2017 he had arrived at Jamshedpur and thereafter never went back to Africa. After his return he had resided with his wife and daughter in his house till 02.05.2017. He has stated that the plaintiff was having some neurological problems and misbehaved on trivial issues but he had not taken it seriously. She was also taken to doctors for her treatment. He had visited Bagbera to bring back his wife but she had refused to come. In cross-examination, he has deposed that he went abroad after about one year from the marriage. He had remained for six years in Congo and Rwanda. There are five cases in total between him and the plaintiff. He had informed the company in which his wife works that she is suffering from mental illness and arrangement should be made for her treatment. He has denied that he had called up the superior of the plaintiff to inquire as to whether the plaintiff has any male friends or not. He had not attended the marriage of his sister-in- law solemnized on 24.06.2012 since after two days his younger brother was getting married. He has stated that he is depositing the school fees of his daughter for the last two years. He has knowledge that Pintu Pandey is a tenant in the house of the plaintiff and is still continuing as a tenant. In Guardianship Case No. 83 of 2018, he had mentioned that Pintu Pandey is a bachelor who stays in the room of the plaintiff which was disclosed to him by his daughter. 15. D.W.2 (Indrajeet Singh) is acquainted with both the parties. By profession he is an Auto rickshaw driver and used to drop the plaintiff from her house to near Blue Bell School, Dimna Road which is the stoppage of Tata Motors staff bus. He has also taken as passenger the parents of the defendant. In cross-examination, he has deposed that after returning to India the defendant was never seen by him to have -8- dropped the plaintiff to her workplace or to the bus stand. He had continuously dropped the plaintiff to her stoppage in the presence of the defendant. 16. D.W.3 (Girish Chandra Prasad Sinha) is the father of the defendant who has stated that on 02.05.2017 the plaintiff along with her daughter Agrata had left her matrimonial house and went to her parents’ house. Even when the defendant had tried to bring her back, she had refused to return. When his son had gone for work to Africa, he had given his ATM Card to the plaintiff in order to ensure that she does not undergo any financial constraints. During his time spent in her matrimonial house the plaintiff had never complained against the defendant to either him or to his wife. The plaintiff had some neurological issues and she was taken to Doctor Sanatan Rath at Cuttack for treatment. He as well as his son and the family members want the plaintiff to return back and they are ready and willing to take full care of her. In cross-examination, he has deposed that he has three sons and all of them stayed with him along with his married daughter who has filed a case of maintenance against her husband. He has no knowledge about the defendant writing letters to the authorities of Tata Motors during his stay in Africa. 17. D.W.4 (Hema Sinha) is the sister of the defendant who has stated that on 02.05.2017 the plaintiff had taken away all her articles and had left her matrimonial house along with her daughter for her parental house at Bagbera. When the defendant went to bring her back, she had refused to come. When the defendant came to know from the newspaper that the plaintiff had instituted a case of divorce against him, he also filed a suit u/s 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights which is pending. During her stay at her matrimonial house the plaintiff had never made any complaint to her against the defendant. After 02.05.2017, the plaintiff never made any attempts to make them meet her daughter. The -9- defendant had tried to meet his daughter at Bagbera but he was misbehaved with. The plaintiff suffers from some neurological problems and she was treated by Doctor Sanatan Rath at Cuttack. In cross-examination, she has deposed that the plaintiff has filed a dowry related case in which she has not been made an accused. It is a fact that the employees of Tata Motors are subjected to medical examination every year and the defendant is mentally fine which is the reason she is continuing in Tata Motors. 18. It has been submitted by Mr. Dilip Kr. Karmakar, learned counsel appearing for the defendant/appellant that the issue of desertion was answered against the plaintiff and so far as the mental cruelty is concerned, the learned court below has travelled beyond the pleadings to answer the said issue in favour of the plaintiff. It has also been submitted that the fact of ATM of the defendant being handed over to the plaintiff during his stay in Africa has been admitted by the plaintiff in her evidence in Matrimonial Suit No. 651 of 2017 instituted by the defendant u/s 9 of the Hindu Marriage Act, 1955 and she has also stated about using the ATM. It is also true as per the evidence that an amount of Rs. 2 Lakhs was transferred to her account from the account of the defendant on 05.03.2014. According to Mr. Karmakar, these facts indicate that the plaintiff was treated with full dignity and honor by the defendant and whatever disputes both had are the normal wear and tear which is prevalent in a matrimonial relationship. It has been submitted that the mental cruelty alleged has to be of such a degree which makes impossible for the spouses to stay together. 19. Mr. K.S. Nanda, learned counsel appearing for the respondent has submitted that doubting the character of the plaintiff and making query regarding the same amounts to mental cruelty and the learned court below has rightly -10- considered such evidence in its proper perspective while dissolving the marriage between the plaintiff and the defendant. 20. We have heard the learned counsel for the respective parties and have also perused the Lower Court Records. 21. Issue no. III is related to cruelty while Issue no. IV is related to desertion. So far as Issue no. IV is concerned, the same has not been proved by the plaintiff and hence the said issue has been decided against the plaintiff. 22. We are therefore, now confronted with Issue no. III as according to the learned trial court the plaintiff has been able to prove the factum of cruelty upon her by the defendant. It is the case of the plaintiff that after marriage she was subjected to torture by the defendant and after the birth of a daughter the torture upon her intensified. As per the plaintiff the defendant had a doubt over her character which would be apparent from the fact that he had inquired about the male friends of the plaintiff from her colleagues and had also tried to defame her by writing a letter to her immediate superior informing him that she is suffering from mental illness. It is also the case of the plaintiff that whilst posted in Africa the defendant used to harass the plaintiff. 23. The case of the defendant is denial of such allegation. The defendant has tried to adorn such denial and his love and affection for his wife by highlighting the fact that while staying abroad he had handed over his ATM Card to his wife so that she does not face any financial troubles. Both sides have led oral and documentary evidence in support of their respective cases. What transpires from such evidence is the allegation leveled by the defendant that the plaintiff suffers from mental disorder and a doubt created over her character. The evidence of P.W.3 and P.W.4 assumes considerable significance as they were the employees of Tata Motors and it is here that the defendant had allegedly tried to defame the plaintiff. In her examination-in- -11- chief P.W.3 has stated about the defendant calling her up and inquiring about the male friends of the plaintiff. The evidence of P.W.4 is more descriptive and vivid and though he has not produced the letter written by the defendant to the superior of the plaintiff but he has claimed to have perused the same and the allegation of mental illness of the plaintiff was found to be false on her medical examination. Though certain parts of his evidence seem to be hearsay but the defendant has failed to elicit any contradiction regarding the perusal of the letter and the subsequent medical examination of the plaintiff. In fact, the evidence of the plaintiff seems to have received a shot in the arm as the defendant himself as D.W.1 has admitted in his cross- examination that he had informed the company about the mental illness of the plaintiff. D.W.3 and D.W.4 being the father and sister respectively of the defendant have also stated about the neurological problem of the plaintiff for which she was treated by Doctor Sanatan Rath at Cuttack. No medical prescriptions have been produced by the defendant to substantiate such contention. Unsubstantiated allegation touching upon the character of an individual as well as her mental status would amount to an act of cruelty. The defendant by his prying and suspicious nature has tried to defame the plaintiff in general and at her workplace in particular and this act of the defendant enlivens the act of cruelty as alleged by the plaintiff. 24. In the case of “Vijay Kumar Ramchandra Bhate vs. Neela Vijay kumar Bhate” reported in AIR 2003 2462, it has been held as follows: “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(ia) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock -12- in and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made the written statement or suggested in the course of examination and by way of cross examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.” to 25. Issue no. III was, therefore, rightly answered by the learned trial court in favour of the plaintiff and against the defendant. 26. Thus, on the basis of the findings recorded above, we are not inclined to interfere in the impugned judgment dated 06.01.2021 and decree dated 15.01.2021 passed by Sri Niraj Kumar Srivastav, learned Principal Judge, Family Court, Jamshedpur in Original Suit No. 254 of 2017 and consequently this appeal is dismissed. 27.
Decision
Pending I.A., if any also stands disposed of. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) High Court of Jharkhand at Ranchi Dated, the 4th day of October, 2023. Alok/NAFR