Dr. Pritam Kumari Sri Deepak Kumar Jaiswal v. With F.A. No
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 114 of 2019 Dr. Pritam Kumari Sri Deepak Kumar Jaiswal Versus With F.A. No. 124 of 2019 Dr. Pritam Kumari Dipak Kumar Jaiswal Versus --------- ..… Appellant ..... Respondent ..… Appellant ..... Respondent
Legal Reasoning
CORAM: Hon’ble Mr. Justice Rongon Mukhopadhyay Hon’ble Mr. Justice Deepak Roshan For the Appellant For the Respondent --------- : Mr. Rajeeva Sharma, Sr. Advocate Mr. Om Prakash, Advocate : Mr. A.K. Sahani, Advocate Mr. Ajit Kumar, Advocate --------- 15/ 19.04.2023 First Appeal No. 124 of 2019: Heard learned counsel for the parties. 2. Mr. Rajeeva Sharma, learned senior counsel for the appellant seeks permission to withdraw this appeal in order to pursue First Appeal No. 114 of 2019. 3. Mr. A.K. Sahani, learned counsel appearing for the respondent- husband does not have any objection to the said prayer. 4. 5. Permission accorded. This appeal is dismissed as withdrawn in view of the submission advanced by learned senior counsel for the appellant. First Appeal No. 114 of 2019: 6. Heard Mr. Rajeeva Sharma, learned Senior Counsel for the appellant and Mr. A.K. Sahani, learned counsel for the respondent. 7. This appeal is directed against the judgment dated 20.06.2018 and decree dated 06.07.2018 passed by Shri Rakesh Kumar Singh, learned Principal Judge, Family Court, Godda in Original Suit No. 123 of 2017, whereby an ex- parte decree for dissolving the marriage has been passed in favour of the respondent herein. 8. The brief facts of the case reveal that the marriage of the appellant was solemnized with the respondent as per Hindu rites and customs on 26.04.2007. Out of the said wedlock a son was born on 18.11.2009 and a daughter was born on 25.06.2015. Since it is the case of the respondent herein that the appellant had deserted him and had ended all social and physical -2- relationship with him apart from the fact that respondent herein was treated with mental cruelty by the appellant, he was constrained to file a suit, being Original Suit No. 123 of 2017 under Sections 13 (1-a) (1-b) of the Hindu Marriage Act, 1955 for dissolution of his marriage. 9. The suit was admitted and notice was issued to the present appellant. It appears that since notices could not be served upon the appellant paper publication was resorted to but in spite of the same she did not appear and the suit proceeded ex-parte. Ultimately, vide judgment dated 20.6.2018, passed by the learned Principal Judge, Family Court, Godda, the marriage between the respondent and the appellant was dissolved. Consequently, a decree was issued on 06.07.2018. Aggrieved by the judgment dated 20.6.2018 and decree dated 06.7.2018, the appellant has preferred the present First Appeal. 10. Mr. Rajeeva Sharma, learned senior counsel for the appellant has submitted that the impugned judgment dated 20.06.2018 is perverse in the sense that no reason has been assigned while acceding to the prayer of the respondent for dissolving the marriage between the parties. It has further been submitted that in fact no cause of action seems to have arisen to institute the suit on the ground of desertion and mental cruelty. It is further submitted that a perverse finding has been recorded by the learned Principal Judge, Family Court, Godda that the appellant had deserted her husband for four years as it appears that the daughter of the appellant was born on 25.06.2015. Learned Senior Counsel has also submitted that the oral evidence has not been discussed appropriately by the learned trial court. In such circumstances, the impugned order dated 20.06.2018 deserves to be set aside. 11. Mr. A.K. Sahani, learned counsel appearing for the respondent has submitted that the appellant was always in the habit of assaulting her husband and abusing his parents. It has further been submitted that the respondent has been examined as P.W. 3 in which he has specifically stated about the desertion and mental cruelty heaped upon him as well as his parents. Mr. Sahani has further submitted that the appellant has never appeared in the suit in spite of publication of notice and the learned trial court was, therefore, correct in coming to the conclusion based on the oral evidence that the plea of desertion and mental cruelty has been sufficiently proved against the appellant and therefore, there is no illegality in the impugned judgment dated 20.06.2018. 12. We have considered the rival submission and have also perused the -3- lower court records. It appears that in course of trial four witnesses have been examined on behalf of the plaintiff/respondent. P.W. 3 is the plaintiff/respondent himself who has stated about the marriage which was solemnized in the year 2007 and the consequent birth of a son and a daughter. He has also stated about the assault committed by the appellant upon him as well as upon his parents as a result of which he could not continue with his practice in Civil Courts, Godda. He has also stated about the appellant herein having deserted him for more than four years. Three other witnesses were examined on behalf of the plaintiff respondent. When we peruse the impugned judgment dated 20.06.2018, we find that a conclusion has been arrived at by the learned trial court with respect to desertion that the appellant has deserted the respondent for the last four years without any rhyme and reason and had also tortured the respondent and his parents. It is not disputed that the birth of the daughter of the appellant had taken place on 25.06.2015 and the suit was instituted in the year 2017. Therefore, the finding that the appellant had deserted her husband for more than four years appears to be perverse. The impugned order further reveals that the evidence of the other witnesses, i.e. P.W. 1, 2 and 3 have not at all been discussed and it has been merely stated that their version is similar to what has been stated by P.W.3. In fact, so far as the physical and mental cruelty is concerned, which is one of the grounds seeking dissolution of marriage and which has been accepted by the learned trial court, no specific finding with respect to the same has been given in the impugned judgment dated 20.6.2018. Neither of the two grounds taken by the plaintiff respondent seeking dissolution of marriage, appears to have been appropriately dealt with by the learned Principal Judge, Family Court, Godda and in such circumstances, therefore, the impugned judgment dated 20.6.2018, passed in Original Suit No. 123 of 2017 and consequently, the decree dated 06.07.2018, are hereby set aside and the matter is remanded to the learned Principal Judge, Family Court, Godda to pass a fresh order in accordance with
Decision
law expeditiously. This appeal stands disposed of. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) sm/pramanik