Chiranjeev Kumar Jha … v. Smt. Rekha Kumari Jha …
Case Details
First Appeal No. 188 of 2017 Neutral Citation No. ( 2024:JHHC:45152-DB ) Against the judgment and decree dated 31.05.2017 and 09.06.2017 passed by Shri Niraj Srivastava, Additional Principal Judge, Additional Family Court, Dhanbad in T.(M) S. No. 398 of 2015 . --- Chiranjeev Kumar Jha … … Appellant Versus Smt. Rekha Kumari Jha … … Respondent --- For the Appellant For the Respondent : Mr. Rajeeva Sharma, Senior Advocate : Mrs. Swati Shalini, Advocate --- Present: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE DEEPAK ROSHAN --- Per, R. Mukhopadhyay, J. Heard Mr. Rajeeva Sharma, learned senior counsel for the
Legal Reasoning
appellant and Mrs. Swati Shalini, learned counsel for the respondent. 2. This appeal is directed against the judgment and decree dated 31.05.2017 (decree signed on 09.06.2017) passed by Shri Niraj Srivastava, Additional Principal Judge, Additional Family Court, Dhanbad in T.(M) S. No. 398 of 2015 whereby and whereunder the suit preferred by the respondent herein for restitution of conjugal rights has been allowed. 3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned trial court. 4. A suit was preferred by the plaintiff (respondent herein) under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights with the defendant (appellant herein) in which inter-alia it has been stated that the marriage of the plaintiff was solemnized with the defendant on 24.06.2005 at village Maithan as per Hindu rites and customs. After the marriage, both started residing as husband and wife at village Shastri Nagar, district Dumka and out of said wedlock, two daughters named Rishika Jha and Bishika Jha were born. The plaintiff wants to reside with the respondent along with her two minor daughters under one roof. It has been stated that the defendant had earlier instituted a suit for restitution of conjugal rights being T.(M) S. No. 543 of 2013 which was dismissed on 26.02.2015 on the basis of a withdrawal application filed by the defendant. After the birth of the second child, the plaintiff had never shared the bed with the defendant which was one of the allegations made, but the same has been denied by the plaintiff and she is ready to cohabit with the defendant. The defendant had deserted the plaintiff on 27.07.2011. The defendant had sustained a fracture injury in his hand on 12.07.2011 on account of a road accident. He was treated at Dhanbad and was discharged from the hospital on 16.07.2011. When the plaintiff enquired as to when she could come back to Dumka, the defendant had answered in the affirmative that she will be brought back once his father would give him permission, but the defendant had not come to take back the plaintiff to her matrimonial house for the reasons best known to him. 5. On being noticed, the defendant had appeared and filed a written statement in which the allegations levelled against him by the plaintiff have been denied. It has been stated that from the very inception of the marriage, the behaviour of the plaintiff towards him and his parents was obnoxious and humiliating and with the passage of time, the plaintiff started to avoid cohabiting with the defendant. There is no physical relationship for the last six years between the plaintiff and the defendant. The defendant was humiliated on 27.07.2011 by the plaintiff and her brother while he was recovering from the accident and the defendant was ousted from her in-laws’ house. The defendant had preferred a suit under Section 9 of the Hindu Marriage Act, 1955 and on notice being received by the plaintiff, she moved an application before the High Court for getting the case transferred from Dumka to Dhanbad. After filing of the case, the defendant along with his father and other responsible persons of the society went to the parents’ house of the plaintiff for counseling, but the plaintiff flatly refused to resume her marital life with the defendant. The plaintiff had filed a criminal case before the Mahila Police Station, Dhanbad making false and frivolous 2 allegation against the defendant. The plaintiff had created such an unfavourable situation that the defendant was compelled to withdraw his suit filed under Section 9 of the Hindu Marriage Act, 1955. It has been stated that it is the plaintiff who has deserted the defendant and has treated him with cruelty due to which the marriage between them has become dead for all practical purposes. 6. Based on the pleadings of the parties, the following issues were framed for adjudication: (i) Whether the suit as framed is maintainable? (ii) Whether the plaintiff has got a valid cause of action for the suit? (iii) Whether the plaintiff is entitled to a decree of restitution of conjugal rights? (iv) Whether the defendant has reasonable excuse for withdrawal of the society of plaintiff? (v) Whether the plaintiff is entitled to any other relief or reliefs? The plaintiff has examined only herself in support of her P. W. 1 – Rekha Kumari Jha is the plaintiff who has stated 7. case. 8. that her marriage was solemnized with the defendant on 24.06.2005 and out of the said wedlock, two daughters were born. Since the defendant has deserted her, she has filed a suit for restitution of conjugal rights. On 13.07.2011, the defendant had taken her and the children to Maithan from Dumka for the purpose of his treatment and on 27.07.2011 after his treatment was completed, he left them at Maithan and went back to Dumka. In order to create trouble for her, the defendant had instituted a case for restitution of conjugal rights and a case for dissolution of marriage. When in the case for restitution of conjugal rights, she had expressed her desire to stay with the defendant, the defendant had filed a withdrawal petition and in view of the same, the suit was dismissed. In cross-examination, she has deposed that she has got a licence to practice law on 26.09.2011. The expenses for study of law was borne by her in-laws. It is incorrect to say that she had put pressure upon her husband to come and stay at Dhanbad to enable her to practice at 3 Dhanbad. She has also denied to have misbehaved with her husband. She has denied that on 27.07.2011, the defendant was ousted from her parents’ house. From 27.07.2011 onwards, no efforts were made by the defendant or his father to restore the marital ties between her and the defendant. She has not filed any case against the defendant. The defendant is at present an income tax and sales tax practitioner. 9. The defendant has also examined himself as a witness in support of his case. 10. D. W. 1 – Chiranjeev Kumar Jha has stated that the plaintiff has a rude nature and she does whatever she likes. He has further stated that she never stayed with him for a continuous period of 2-3 months. She always used to quarrel at the time of cooking of food and she used to become aggressive only in order to come to Maithan. She had never taken care of his ailing mother and in order to keep peace at house, he used to send her to Maithan. On her inclination to study law and with the permission of his father, she was got admitted to Dhanbad Law College, where she completed her course. After completion of law course, the plaintiff used to pressurize him to sell off the properties at Dumka, send his parents to the village and settle down at Maithan, so that she could practice at Dhanbad, but when he did not agree, the plaintiff became more rough and demeaning. He has stated that on 12.07.2011, he had suffered a motor-cycle accident due to which his right hand got fractured and he decided that he should be treated at Dhanbad. On 13.07.2011, he left for Maithan along with the plaintiff and the children. At Dhanbad, he was operated upon on 15.07.2011 by Dr. Choudhary and at the time of the operation, the plaintiff, her father and a family friend were present. He has stated that his father had directed that he should leave Maithan on 27.07.2011 and accordingly, he had informed the plaintiff that on 27.07.2011 they have to leave for Dumka. However, after half an hour, he was informed that the plaintiff and the children will go to Dumka and she will not stay with him. On being forced by the family members of the plaintiff, he had to leave Maithan on 27.07.2011. The plaintiff and family members for months did not take any efforts to know about his health condition. He was mentally 4 devastated with the behaviour of his wife and his in-laws and on 18.10.2011 her father, uncle and two respectable persons of the locality went to the house of the plaintiff at Maithan and the matter was tried to be settled, but the plaintiff in front of everyone present refused to go to Dumka. Again on 18.11.2011 his father and the persons who had earlier gone had once again gone to Maithan and it was decided to end the marital ties, but the plaintiff created such a ruckus that everyone had to return back to Dumka. He had filed a suit for restitution of conjugal rights, but was forced to withdraw the suit and he was forced to institute a suit for dissolution of marriage with the plaintiff. He has stated that in February 2013, the plaintiff has started practicing at Dhanbad Court. The admission of his children was also done by the plaintiff at Maithan School without informing him. In cross-examination, he has deposed that since he is unemployed, he cannot send money to his wife and children and he is totally dependent upon his father and he fulfills his needs from the pension of his father. 11. It has been submitted by Mr. Rajeeva Sharma, learned senior counsel for the appellant that the learned trial court has failed to take into consideration that it was the plaintiff who had deserted the defendant and refused to return back to her matrimonial house in spite of the best efforts made by the defendant. The plaintiff from the very beginning of the marriage had misbehaved with the defendant and his family members and had hardly stayed at her matrimonial house. 12. Mrs. Swati Shalini, learned counsel for the plaintiff/respondent has submitted that the plaintiff has although expressed her willingness to reside with the defendant, but it is the defendant who does not want to keep the plaintiff for which he had filed a separate suit for dissolution of marriage. 13. We have heard the learned counsel for the respective parties and have perused the trial court records. 14. It appears from the pleadings of the parties and the evidence led that earlier the defendant had filed a suit for restitution of conjugal rights at Dumka at which the plaintiff had approached this court for 5 transfer of the suit from Dumka to Dhanbad, but ultimately on an application filed by the defendant for withdrawal, the said suit was dismissed on 26.02.2015. It is apparent from the evidence of the defendant that he has no say in his marital life, as all decisions seem to be taken by the father of the defendant. As per the evidence of the defendant himself, when he had suffered an accident, he was looked after by the plaintiff and her family members at the time of operation and he had recuperated at the house of the plaintiff. The defendant has alleged about the rude behaviour of the plaintiff and her refusal to come back to her matrimonial house, but this allegation has not been corroborated as no other witness has been examined by the defendant. It also appears that during all these years when the plaintiff and the defendant have stayed separate, no instance of any act of vengeance has been highlighted by the defendant. On an overall conspectus of the case, the plaintiff has indeed made out a case for restitution of conjugal life and the issue no. 3 which is the core issue has been rightly answered in favour of the plaintiff/respondent and against the defendant/appellant. 15. We therefore do not find any reasons to interfere with the judgment and decree dated 31.05.2017 (decree signed on 09.06.2017) passed by Shri Niraj Srivastava, Additional Principal Judge, Additional Family Court, Dhanbad in T.(M) S. No. 398 of 2015 and consequently this appeal is dismissed. 16. Pending I.As, if any stands closed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Jharkhand High Court at Ranchi The 10th day of June, 2024 R.Shekhar/NAFR/Cp.3 6