Rakhee Pranab Prakash ……… v. With
Case Details
First Appeal No. 229 of 2018 [Against the judgment and decree dated 15.05.2018 (decree signed on 28.05.2018) passed by Shri Yogeshwar Mani, learned Principal Judge, Family Court, Bokaro in Original Suit No. 310 of 2014] Rakhee Pranab Prakash ……….. Versus With ... … Appellant ... … Respondent First Appeal No. 230 of 2018 [Against the judgment and decree dated 15.05.2018 (decree signed on 28.05.2018) passed by Shri Yogeshwar Mani, learned Principal Judge, Family Court, Bokaro in Title (Mat.) Suit No. 97 of 2014] Rakhee ……….. Versus ... … Appellant Pranab Prakash ... … Respondent ……….. P R E S E N T HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE DEEPAK ROSHAN ……….. For the Appellant For the Respondent : Mr. Mukesh Kumar, Advocate : Mr. Aditya Raman, Advocate ……….. C.A.V. on 28/11/2023 Per Rongon Mukhopadhyay, J. Pronounced on 10/06/2024 First Appeal No. 229 of 2018 Heard Mr. Mukesh Kumar, learned counsel for the appellant and Mr. Aditya Raman, learned counsel appearing for the respondent. 2. This appeal is directed against the judgment and decree dated 15.05.2018 (decree signed on 28.05.2018) passed by Shri Yogeshwar Mani, learned Principal Judge, Family Court, Bokaro in Original Suit No. 310 of 2014, whereby and whereunder the suit preferred by the petitioner (respondent herein) for dissolution of his marriage with the respondent/appellant 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 court below. 4. The petitioner/husband (respondent herein) had preferred a suit u/s 13 1 (i-b) of the Hindu Marriage Act, 1955 for dissolution of his marriage with the respondent/wife (appellant herein) in which inter alia it has been stated that the marriage of the petitioner and the respondent was solemnized on 30.04.2006 at Bokaro Steel City as per Hindu rites and customs and after the marriage they started living together as husband and wife in the house of the petitioner at Quarter No. 2098, Sector-VI/A, Bokaro Steel City and also at the house of the petitioner at Noida (U.P.) Out of the said wedlock a son was born. The petitioner had earlier preferred a suit being Title Matrimonial Suit No. 298/2010 u/s 13 1 (ia) & (ib) of the Hindu Marriage Act, 1955 in which an order was passed on 22.08.2013 directing judicial separation for one year from the date of the judgment. It has been stated that the respondent is careless in her marital life having no sense of responsibility and she had not allowed the petitioner to cohabit without fulfillment of her illegal demands. On 27.04.2009 the respondent had left the house of the petitioner along with her child without any rhyme or reasons. The petitioner was also threatened by the respondent, her brother and father for implicating him in a false case of dowry for which the father of the petitioner had to file an Informatory Petitioner before SDM, Chas on 13.07.2009. It has been stated that for no obvious reasons the respondent had left her matrimonial house. 5. On being noticed the respondent had appeared and filed her written statement, in which, she has stated about filing an appeal before the Jharkhand High Court against the order of
Legal Reasoning
judicial separation being First Appeal No. 139 of 2013 which has been admitted for final hearing. The respondent is always willing to resume her marital life with the petitioner and it is the petitioner who has denied to keep her with full dignity and honor. The petitioner and his family members have committed torture upon -2- her for non-fulfillment of the demand of dowry. It has been stated that on the complaint made by the respondent, Mahila P.S. Case No. 12/2009 was instituted, in which, charge-sheet was submitted against the petitioner and his family members. 6. Based on the pleadings of the parties the following issues were framed for adjudication: I. Whether suit is maintainable in its present form? II. Whether there is any valid cause of action for filing the suit? III. Whether the respondent withdrawn herself from the society of plaintiff/petitioner without any reasonable cause since 27.04.2009? IV. Whether the plaintiff/petitioner is entitled to get a decree of divorce u/s 13 (i-b) of the Hindu Marriage Act? V. Whether the plaintiff/petitioner is entitled to get relief or reliefs as prayed for? 7. The petitioner has examined four witnesses in support of his case. 8. P.W.1 (Pranab Prakash) is the petitioner who has stated about solemnization of his marriage with the respondent on 30.04.2006 as per Hindu rites and customs and the birth of a child out of the said wedlock. Earlier a suit was filed by him being Title Matrimonial Suit No. 298/2010 for dissolution of marriage in which vide order dated 22.08.2013 judicial separation was ordered for a period of one year from the date of the judgment. He had stayed separate from the respondent for one year and thereafter had instituted the suit. The respondent in her matrimonial house neither gave any respect to him nor any respect to other members of his family. On 27.04.2009, the respondent had left her matrimonial house along with her child without any rhyme or reason. The respondent had instituted a case against him being G.R. Case No. 1366/2009 u/s 498A of the IPC and Section 3/4 of the D.P. Act which is pending. -3- In cross-examination, he has deposed that he had stayed with the respondent at Noida for three years and during this period his relationship with the respondent was cordial. On 27.04.2009, the respondent had come back from Noida to her parents house at Bokaro and in spite of best efforts made by him she did not come back to stay with him. 9. P.W.2 (Ashok Kumar Tiwari) is acquainted with both the sides and he was also present in the marriage between the petitioner and the respondent. After staying for a week the respondent left with the petitioner for Noida where both used to work. The respondent never gave respect to either the petitioner or his family members due to which the atmosphere in the house was very discouraging. On 27.04.2009, the respondent came back to Bokaro with her newly born child and filed a case of torture and demand of dowry against the petitioner and his family members. The petitioner and the respondent have stayed separate since 2009. In cross-examination, he has deposed that he had never seen the petitioner and the respondent quarrel. 10. P.W.3 (Sushanta Chatterjee) has stated on similar terms to what has been stated by P.W.2 in his sworn statement. In cross-examination, he has deposed that he had never seen the petitioner and the respondent quarreling. 11. P.W.4 (Anil Kumar) has reiterated in his sworn statement what has been stated by P.W.2 and P.W.3. In cross-examination, he has deposed that he knows both the sides for 20-25 years. He had not seen any quarrel between the petitioner and the respondent. 12. The respondent has examined two witnesses on her behalf including herself. 13. R.W.1 (Bindeshwar Prasad) is the father of the respondent who has stated that the marriage of the respondent -4- was solemnized with the petitioner on 30.04.2006 and after marriage she started residing in the quarter allotted in the name of the father of the petitioner. A son was born out of the said wedlock who is now aged eight years. The respondent has stayed with the petitioner at his work place at Noida. The respondent was tortured for not fulfilling the demand of dowry and she was finally ousted from her matrimonial house. The father of the petitioner had instituted C.P. Case No. 428/2009 against him and his family members and as a retaliation the respondent had instituted B.S. City Mahila P.S. Case No. 12/2009 and both the litigations are still pending. The order of judicial separation has been challenged by the respondent in the Jharkhand High Court but later on the same was withdrawn. The respondent had never misbehaved with the family of the petitioner or with the petitioner and till the year 2014 the petitioner and the respondent had together gone to Restaurants and had also done shopping. He has stated that even after the order of judicial separation the respondent along with her child had met the petitioner in a conducive atmosphere and despite repeated requests by the respondent to resume their marital ties the petitioner had refused and has been adamant in getting a decree of divorce. In cross-examination, he has deposed that the respondent is at present involved in a teaching job in Friendly Public School and gets a salary of Rs. 4000-5000/-. In spite of the order of judicial separation efforts were made by the petitioner and the respondent to stay together. 14. R.W.2 (Rakhee) is the respondent who has stated that after her marriage was solemnized with the petitioner on 30.04.2006, she had stayed at her matrimonial house for a few days and thereafter had shifted to Noida which is the workplace of the petitioner. Out of the wedlock, she had given birth to a male child. In Noida, she had taken a job of teaching in a private -5- school to provide financial assistance to the petitioner but the petitioner neglected her and he took her to Bokaro where for not meeting the additional demand of dowry she was subjected to mental and physical torture. When she had objected to such behavior she was ousted from her matrimonial house and a case was also instituted by the father of the petitioner against her and her family members. When all efforts at restoring the marital life failed she had filed a criminal case against the petitioner and his family members being B.S. City Mahila P.S. Case No. 12/2009. The anticipatory bail application of the petitioner was allowed by the Jharkhand High Court on account of a mediation effected by JHALSA and the petitioner was ready to resume marital ties with her but the said undertaking was not followed and later on an application for modification for removing such condition was filed which was allowed and the petitioner was granted anticipatory bail subject to deposit of Rs. 2,00,000/-. She has stated that she has never misbehaved with the petitioner or his family members and till the year 2014 they had dined together outside and spent time shopping. She had withdrawn the appeal preferred against the order of judicial separation. She had met the petitioner on several occasions and requested to end their differences but the petitioner had refused. In cross-examination, she has deposed that when she was pregnant she was sent to her parental house and after the birth of the child she had gone to Delhi where she stayed till April, 2009. Thereafter the petitioner managed to convince her father and sent her back to her parents place. From 2009 to 2017 she had stayed at her parental house but intermittently she had gone to her matrimonial house. In Delhi, the behavior of the petitioner towards her was not good and she was subjected to assault also. It is a fact that the father of the petitioner had instituted a case against her. She has expressed her desire to stay with the petitioner. -6- 15.
Legal Reasoning
It has been submitted by Mr. Mukesh Kumar, learned counsel for the appellant that the issue of desertion which is the ground for filing the suit has been extinguished on account of the willingness shown by the respondent/appellant to resume her conjugal life with the petitioner. It has been submitted that the learned trial court had reposed its findings on irretrievable breakdown of marriage which provision is non-existent in the Hindu Marriage Act, 1955. The issue of cruelty has also been given much prominence but such issue was never framed and the entire pleadings and prayer of the petitioner revolved around the issue of desertion. 16. Mr. Aditya Raman, learned counsel appearing for the petitioner/respondent has submitted that even after the order of judicial separation had been passed there had been no efforts to resume the marital life and, therefore, it has rightly been considered by the learned trial court that the respondent had willfully withdrawn herself from the society of the petitioner. There has been a long hiatus in their relationship and the marriage for all practical purposes have become dead and reigniting the marital life between the petitioner and the respondent will be an exercise in futility. 17. We have heard the learned counsel for the respective sides and have also perused the Lower Court Records. 18. The suit for dissolution of marriage was preferred by the petitioner u/s 13 1 (i-b) of the Hindu Marriage Act, 1955 and the pleadings of the parties led to culmination of desertion as the only issue to be decided which is Issue no. III. 19. The marriage of the parties were performed on 30.04.2006 and in the year 2010 a suit was preferred by the petitioner seeking dissolution of his marriage with the respondent on the grounds of cruelty and desertion. In the said case being Title Matrimonial Suit No. 298/2010 evidence was led by both the side -7- and ultimately vide judgment dated 22.08.2013 an order was passed for judicial separation for one year. The operative portion of the said judgment which has been marked as Exhibit-1 is quoted hereinunder: “10. Issue Nos. 1 & 4:- From the discussions made above, it is crystal clear that the suit as framed is maintainable, so far as ground of cruelty is concern. Now, the question arises as to whether the petitioner is entitled for the relief as claimed? From the discussions made above it transpires that the respondent has still hope for her re-union in future and restitution of her conjugal life with her husband-petitioner, as the petitioner has signed the admission paper of School of their son, which has been produced in the Court. So, I am of the opinion that both the parties should be given an opportunity and the house-breaking may be avoided. So in my view, the petitioner is entitled for the alternative relief I/s. 13A of the Hindu Marriage Act, 1955. 11. It is therefore, O R D E R E D that the suit be and the same is decreed in favour of the petitioner with alternative relief U/s. 13A of the Hindu Marriage Act, 1955 i.e. Judicial separation for 01 (one) year from the date of this judgment. Let, a Decree be prepared accordingly.” 20. A glance of the plaint and the evidence of P.W.1 (petitioner) would reveal that the incidents alleged are all of the stage prior to the order of judicial separation passed on 22.08.2013. There has been absolutely no mention of the period post 22.08.2013. On the other hand the evidence of R.W.1 and R.W.2 resonates a semblance of continuous marital relationship till the year 2014 as both used to regularly go out to dine or spent time for shopping. These statements have not been controverted by the petitioner. There also appears to be a consistent pattern about the willingness of the respondent to resume the marital ties with the petitioner. The learned trial court has virtually reviewed the earlier order of judicial separation dated 22.08.2013, in which, the -8- issues of desertion and cruelty held fort. The learned trial court has also given consideration to the parties living separately since long letting the assertion of R.W.1 and R.W.2 go into oblivion. In fact, there does not appear to be any ground raised by the petitioner which would enhance his claim for divorce on the ground of desertion. The assertion of the respondent (R.W.1) that till the year 2014 there were frequent meetings between the petitioner and the respondent seems to gather strength on account of the fact that the petitioner had never preferred a suit for dissolution of marriage u/s 13 (1A)(i) of the Hindu Marriage Act and instead had resorted to desertion as a focal point of his seeking divorce which the petitioner has miserably failed to prove. The institution of a criminal case for torture and demand of dowry would be another reason for the respondent to leave her matrimonial house but as would appear efforts have been made by her to restore her relationship with the respondent. 21. Such circumstances invite us to allow the appeal and we consequently set aside the judgment and decree dated 15.05.2018 (decree signed on 28.05.2018) passed by Shri Yogeshwar Mani, learned Principal Judge, Family Court, Bokaro in Original Suit No. 310 of 2014. 22. This appeal is allowed. First Appeal No. 230 of 2018 Heard Mr. Mukesh Kumar, learned counsel appearing for the appellant and Mr. Aditya Raman, learned counsel appearing for the respondent. 2. This appeal is directed against the judgment and decree dated 15.05.2018 (decree signed on 28.05.2018) passed by Shri Yogeshwar Mani, learned Principal Judge, Family Court, Bokaro in Title (Mat.) Suit No. 97 of 2014, whereby and -9- whereunder the suit preferred by the appellant u/s 9 of the Hindu Marriage Act, 1955 has been dismissed. 3. Both the parties are referred to in this judgment as per their status before the learned trial court by way of convenience. 4. The petitioner/wife (appellant herein) had preferred a suit for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955 with the respondent/husband (respondent herein), in which, it has been stated that the marriage of the petitioner and the respondent was solemnized on 30.04.2006 as per Hindu rites and customs at Bokaro Steel City. After marriage they started residing together as wife and husband at Sector-VI/A and thereafter at Noida. Out of the said wedlock a male child was born to the couple. After marriage there was a demand of dowry and on non-fulfillment of which the petitioner was subjected to mental and physical torture. When the torture of the respondent and the in- laws of the petitioner become unbearable she was forced to file a case being Mahila P.S. Case No. 12/2009 u/s 498A, 307/34 of the IPC & 3/4 of the D.P. Act. On completion of investigation charge- sheet was submitted against the respondent and her in-laws. It has been stated that the respondent had earlier filed a case u/s 9 of the Hindu Marriage Act, 1955 which was dismissed for non- appearance of the respondent. The respondent has also filed a suit for dissolution of marriage being Title Matrimonial Suit No. 298/2010, in which, an order of judicial separation had been passed. The petitioner had tried her best to restore normalcy in her marital life with the respondent but the respondent with a malicious intent had rejected such efforts. 5. On being noticed the respondent had appeared and filed his written statement, in which, he has denied the allegations leveled against him in the plaint. -10- 6. Based on the pleadings of the parties the following issues were framed for adjudication: I. Whether the suit is maintainable in its present form? II. Whether the plaintiff/petitioner has valid cause of action of the suit? III. Whether the respondent has withdrawn himself from the society of plaintiff/petitioner without any reasonable cause? IV. Whether the plaintiff/petitioner is entitled to get relief or reliefs as prayed for? 7. The petitioner has examined two witnesses in support of her case including the petitioner herself. 8. P.W.1 (Bindeshwar Prasad) is the father of the petitioner who has stated about solemnization of the marriage of the petitioner with the respondent on 30.04.2006 and the birth of a child out of the said wedlock. After marriage the respondent and his family members used to behave abnormally with the petitioner and she was subjected to physical and mental torture on account of non-fulfillment of the demand of dowry. When the torture upon the petitioner increased she was constrained to file a case being Mahila P.S. Case No. 12/2009 against the respondent and his family members. The respondent had filed a suit for restitution of conjugal rights being Title (M) Suit No. 168/2009 which was dismissed on account of the non appearance of the respondent. He has stated that the respondent had thereafter filed a suit for restitution of conjugal rights being Title (M) Suit No. 298/2010, in which, an order of judicial separation was passed which has been challenged by the petitioner before the Jharkhand High Court in First Appeal No. 139 of 2013. After the order was passed on Title (M) Suit No. 298/2010 the petitioner had on several occasions approached the respondent for resumption of marital ties but he refused and instead filed a suit for dissolution of marriage. In cross-examination, he has deposed that the petitioner had stayed with the respondent at Noida for about 1-1½ -11- years. His daughter had instituted a criminal case against the respondent and his family members while staying at his house. 9. P.W.2 (Rakhee) is the petitioner who has stated that her marriage was solemnized with the respondent on 30.04.2006 at Bokaro and she started residing with her husband at Sector VI/A, Bokaro Steel City Quarter No. 2098 which was allotted in the name of the father of the respondent. Out of her wedlock with the respondent a son was born to them. She had also stayed with the respondent at Noida. After marriage the behavior of her in-laws towards her was not good and she was subjected to physical and mental torture on account of non-fulfillment of the demand of dowry. When such torture went beyond all tolerable limit she had filed a case against the respondent and her in-laws being Mahila P.S. Case No. 12/2009 which is still pending. She has stated that the respondent had filed a suit for restitution of conjugal rights being Title (M) Suit No. 168/2009 which was dismissed for non- appearance of the respondent. The respondent had thereafter filed a suit for dissolution of marriage being Title (M) Suit No. 298/2010, in which, an order of judicial separation was passed. The said order has been challenged before the Jharkhand High Court in First Appeal No. 139 of 2013 which is still pending. She had after the order of judicial separation was passed approached the respondent for resumption of marital ties but it was refused by the respondent who had instead filed a suit for dissolution of marriage being Title (M) Suit No. 310/2014. In cross-examination, she has deposed that she had come to Bokaro in the year 2009 as she was ousted by the respondent from his house. She has stated that her parents-in-law are decent persons. 10. The respondent has also examined two witnesses on his behalf. -12- 11. R.W.1 (Pranab Prakash) is the respondent who has stated that no one in the family had demanded dowry from the petitioner and the criminal case instituted by the petitioner is based on false allegations. He had earlier filed Title (Mat) Suit No. 298/2010 for dissolution of his marriage with the petitioner in which an order of judicial separation was passed. Thereafter he had filed another suit for dissolution of his marriage being Title (Mat) Suit No. 310/2014. He has stated that the petitioner never gave him respect and her behavior in her matrimonial house was unbecoming of a daughter-in-law. On 27.04.2009, the petitioner along with the newly born child had left her matrimonial house without any reasonable cause and she and her brother and father had threatened to implicate them in a false criminal case. The petitioner had instituted a criminal case being Mahila P.S. Case No. 12/2009. In cross-examination, he has deposed that the leaving of the matrimonial house by the petitioner on 27.04.2009 without any reasons was not informed by him anywhere. It is a fact that the High Court had directed to keep the petitioner with him with full dignity. In the counseling he was ready to take back the petitioner but she was not ready to go with him. Even if the petitioner stays with him in a respectful manner he is not inclined to keep her. 12. R.W.2 (Anil Kumar) has reiterated in his sworn statement what has been stated by R.W.1. In cross-examination, he has deposed that he is the friend of the father of the respondent. It was the father of the respondent who had initially instituted a case against the petitioner, her parents and brother. 13. It has been submitted by the learned counsel for the petitioner/appellant that the petitioner had all along expressed her desire to stay with the respondent but the respondent without -13- any reasonable cause has refused such overtures of the petitioner and has also withdrawn himself from the society of the petitioner. The respondent has filed a spate of cases against the petitioner though he has off and on shown his inclination to keep the petitioner with him and his evidence seems to suggest that he has not shut the doors on the petitioner. 14. Mr. Aditya Raman, learned counsel appearing for the respondent has submitted that the institution of the criminal case against the respondent and his family members are justifiable reasons for staying apart from the petitioner. The petitioner had never made any attempts to restore the marital ties as the petitioner is not interested to stay at her parents’ house. 15. We have heard the learned counsel for the respective sides and have also perused the Lower Court Records. 16. Section 9 of the Hindu Marriage Act contains the provision of restitution of conjugal rights and the same reads as under: “9. Restitution of conjugal rights.- *** When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. [Explanation−Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]” 17. The petitioner in her application as well as in her evidence as P.W.2 has stated about her willingness to reside with her husband in spite of a spate of cases filed against each other. The petitioner had stayed for 1-1½ years at Noida with the respondent and there have been allegations of demand of dowry -14- and consequent torture on non-fulfillment of such demand. It appears that the father of the respondent had instituted a complaint case against the petitioner and her parents and brother. In spite of making various allegations against the petitioner the respondent himself had filed a suit for restitution of conjugal rights though subsequently the same was withdrawn purportedly on account of the criminal case instituted by the petitioner. The respondent who has been examined as R.W.1 in his cross- examination has stated that at the time of counseling he was ready to take back the petitioner but she had refused. The reasonable excuse as highlighted by the respondent for withdrawing from the society of the petitioner seems to have evaporated by virtue of his willingness in the counseling. Though the learned trial court has considered cruelty and the disinclination on the part of the petitioner to leave her parental house but nothing of substance in support thereof has been highlighted by the respondent either in his pleadings or in his evidence. The plethora of cases against each other and the irretrievable breakdown of marriage in such context seems to have played a pivotal role in dismissing the suit. Howsoever, there may be cases against each other the same could not be concluded to mean that the marriage has become dead for all practical purposes and there is no chance of revival of the marital ties especially in view of the absence of any reasonable excuse from the side of the respondent to withdraw from the society of the petitioner apart from the willingness of the petitioner to resume her marital ties with the respondent. Issue No. III which is the dominant issue in the suit has been in the backdrop of the discussions made hereinabove incorrectly answered in favour of the respondent and consequent to the same the judgment and decree dated 15.05.2018 (decree signed on 28.05.2018) passed by Shri Yogeshwar Mani, learned Principal Judge, Family Court, Bokaro in Title (Mat.) Suit No. 97 of 2014 is set aside and the suit -15- preferred by the petitioner for restitution of her conjugal rights with the respondent is allowed. 18. 19. This appeal is allowed. Pending I.As., if any, stand closed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) High Court of Jharkhand at Ranchi Dated, the 10th day of June, 2024. A. Sanga/NAFR -16-