The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Dr. Renu Teresa Dung Dung First Appeal No. 269 of 2018 ... Versus Appellant Charles Peter Alva … Respondent --- CORAM: HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant For the Respondent Dated 06.02.2024 Per R. Mukhopadhyay, J. : Mr. Ankit Vishal, Advocate : Mr. Mrinal Kanti Roy, Advocate --- JUDGMENT 1. 2. 3. 4.
Legal Reasoning
Heard Mr. Ankit Vishal, learned counsel for the appellant and Mr. Mrinal Kanti Roy, learned counsel appearing for the respondent. This appeal is directed against the judgment and decree dated 14.05.2018 (decree signed on 14.05.2018) passed by Sri Satya Prakash Sinha, learned Principal Judge, Family Court, East Singhbhum at Jamshedpur in Original Suit No. 06 of 2013, whereby and whereunder, the suit preferred by the appellant for dissolution of marriage with the respondent has been dismissed. For the sake of convenience both the parties are referred to in this appeal as per their status before the learned court below. The petitioner (appellant herein) had filed a suit u/s 27(1) (ib)(id) of the Special Marriage Act, seeking dissolution of marriage with the respondent (respondent herein), wherein it has been stated that the marriage of the petitioner was solemnised with the respondent on 04.11.2006 before the Marriage Officer, Mumbai under the Special Marriage Act. The marriage was consummated, but no issue was born. The petitioner is a reputed Doctor while the respondent is an Engineer, but due to the cruel behaviour of the respondent, the petitioner was of the view that the marriage between them should be dissolved. The respondent has a suspicious nature and he was always having a doubt over the petitioner whenever she conversed with somebody on phone. The petitioner was insulted by the respondent in presence of her friends and relatives due to which the prestige of the petitioner was lowered in 2 the society. It has been stated that the respondent did not allow the petitioner to visit her parental house at Jamshedpur. The petitioner ultimately had to leave her matrimonial house at Mumbai on 07.11.2010 and started residing at her parental house in Birsa Nagar, East Singhbhum. The respondent had come to her house at Jamshedpur on 17.11.2020 and threatened the petitioner that if she does not want to continue with her conjugal life, she can give a divorce to him. On 20.11.2010, the respondent had left Jamshedpur and since then the petitioner has been deserted by the respondent. The efforts made by the relatives and well wishers of the petitioner did not yield any fruitful result. 5. On being noticed, the respondent had appeared and filed a written statement in which the allegations levelled against him have been denied. It has been stated that he was always taking good care of the petitioner and had also got her treated for her infertility. The respondent also used to take the petitioner during holidays to different places. It has been stated that the petitioner used to chat with married men on mobile and receive and send obscene articles from the respondent’s computer which the respondent detected in March, 2010 and strongly objected to it. The petitioner was always allowed to visit her parents in Jamshedpur. The respondent has also given the details of his travel along with the petitioner to different places. It has been denied that the petitioner and the respondent last resided together in November, 2010. 6. Based on the pleadings of the parties, the following issues were framed for adjudication:- Is the suit as framed, maintainable? I. II. Whether the applicant has valid cause of action? III. Whether the respondent has deserted the applicant for a period of not less than two years preceding the filing of the application? IV. Whether the defendant has committed acts of cruelty on the applicant? V. Whether the applicant is entitled to a decree of divorce? VI. To what other relief or reliefs the applicant is entitled for? 7. 8. 3 The petitioner has examined three witnesses on her behalf including herself. PW 1 Dr. Renu Teresa Dung Dung is the petitioner who has stated that her marriage was solemnised with the respondent on 04.11.2006 before the Marriage Officer, Mumbai under the Special Marriage Act. The marriage though was consummated, but no issue was born out of the said wedlock. Due to the cruel behaviour of the respondent, she was of the belief that the marriage should be dissolved. After marriage she was continuously tortured by the respondent at Mumbai due to which her health deteriorated. The respondent always used to insult her in front of friends and relatives as a result of which her prestige in the society was lowered. The respondent had not cohabited with her since 20.11.2010. She has stated that the documents filed by the respondent regarding her travel with the respondent are all forged and fabricated. The respondent had hacked her e.mail and had filed her e.mails to defame her. In cross examination she has deposed that they do not have any issue out of the marriage for which she and the respondent had got themselves treated at Mumbai. Although she has stated in her sworn statement that the respondent had defamed her in her work place, but the said statement does not find place in the plaint. She has stated about her e.mail being hacked by the respondent and during the said period her e.mail i.d. was [email protected]. She has identified four out of five e.mail chatting which were sent through her e.mail account. She has denied that it was her fantasy which lead her to create an e.mail in the name of a stranger. She has admitted that she in her plaint has not mentioned about any date and day of the incident which occurred between her and her husband. She has also not specified in the plaint the manner of mental and physical torture, she was subjected to. She has admitted to have not stated in the plaint as to in what manner she used to be humiliated by the respondent. She has not filed any criminal case against the petitioner. P.W. 2 Rosy Dungdung is the mother of the petitioner who has stated about the torture and humiliation committed by the respondent upon 4 her daughter. Her daughter does not have any relationship with the respondent for the last 8 years. In cross examination she has deposed that the respondent used to assault her daughter and abuse her as she could not beget a child. She had also witnessed an incident in which the respondent had pushed her daughter. The respondent did not want any child. There was no medical reason for her daughter not to give birth to a child. P.W. 3 Pradeep Kumar Naithaniel is acquainted with both the sides. He has stated that the petitioner and the respondent are living separately since 2010 and he had not seen the respondent visit the house of the petitioner at Birsa Nagar. He has a shop on rent in the house of the mother of the petitioner. In cross examination he has deposed that the he has personally never met the respondent. The petitioner had disclosed to him that her relationship with the respondent was not good, which was the reason for her to stay separate from the respondent since the year 2012. The respondent has examined only himself as a witness. 9. 10. D.W. 1 Charles Peter Alva is the respondent who has stated that the petitioner was given the best possible treatment for infertility. He had sponsored the Post-Graduation of the petitioner and also got her Internship for project work in BPCL (Mumbai Refinery). He had taken the petitioner to holidays in Goa, Bangalore, Kerala, Lonavala and Igatpuri. The petitioner used to unnecessarily chat with married men on mobile phone and internet and receive and send vulgar/ obscene messages from his personal computer which he detected in March, 2010 and which was strongly objected to by him. The sister of the petitioner migrated from Jamshedpur to Mumbai for employment and till she secured hostel accommodation as Resident Doctor at Holy Spirit Hospital, Bandra, she has put up in his house. He has stated that the petitioner was always allowed to visit her parental place at Jamshedpur and he had also visited Jamshedpur on several occasions with the petitioner. He and the petitioner had lastly resided as husband and wife at Jamshedpur on 10.11.2010. In cross examination he has stated that it is true that the petitioner used to unnecessarily chat with married men on mobile and on internet and 5 receive and send vulgar/ obscene articles from her personal computer and on discovering the same, he had strongly objected to it. It is not true that prior to March, 2010, the marriage has broken down irretrievably. He has denied that he had tortured the petitioner and forced her to leave Mumbai. He still loves and respects his wife. 11. It has been submitted by Mr. Ankit Vishal, learned counsel for the petitioner (appellant herein) that the petitioner has been able to prove cruelty and desertion but the learned court below without considering her evidence in its totality has primarily concentrated on certain factual aspects mentioned in her evidence, but not included in the plaint. It has been submitted that both the parties are living separately since the year 2010 and the marriage has virtually become dead and therefore continuation of the marital life would be an exercise in futility. Apart from cruelty it appears that it was the respondent who had intentionally abandoned the petitioner and therefore a case of desertion is also made out in favour of the petitioner. 12. Mr. M. K. Roy, learned counsel appearing for the respondent has submitted that the petitioner has failed to specify any instance which can be termed to be cruelty. In fact it was the petitioner who had got herself involved with married man with whom she used to exchange vulgar messages and this conduct on the part of the petitioner was itself a mental cruelty committed upon the respondent. The respondent in his written statement as well as in his evidence has categorically given instances of his efforts made to lead a normal marital relationship and had also made every efforts to get the petitioner cured of infertility by extending the best possible medical treatment available to her. According to Mr. Roy, it is the petitioner who had without any apparent reasons cocooned herself from the society of the respondent. 13. We have heard the learned counsel for the respective parties and have also perused the lower court records. 14. 15. Issue No. III and IV are the pivotal issue for determination. Initially the suit was decreed ex parte vide judgment dated 19.01.2014, but subsequently vide order dated 20.12.2017 in Misc. (Civil) Case No. 07/2014, the ex parte judgment and decree was set aside and the suit was decided on merit after evidence was adduced on behalf of both the 6 sides. The petitioner in her plaint appears to have given bland statements regarding the purported torture committed upon her by the respondent and without any reason withdrawing herself from the society of the petitioner. Her evidence as P.W. 1 seems to suggest that the same is an attempt to improve her case and stabilise the vague statement given in the plaint. She has admitted that in her plaint she has not given any specific date of cruelty or the manner in which the respondent used to insult her. Her evidence of assault seems to have been corroborated by her mother (P.W. 2), but here also the statements are vague and can be concluded to be clothed with scepticism. So far as desertion is concerned, there is nothing on record to indicate that the wilful abandonment of the petitioner was on the part of the respondent. The opposite appears to be true as the petitioner without any valid reasons whatsoever had left her matrimonial house on 07.11.2010 and it was the respondent who had come to Jamshedpur on 17.11.2010 to convince and persuade her to continue with the marital ties, but the same remained unresponsive. The apparent failure on the part of the petitioner to demonstrate cruelty and desertion suffered by her have further been strengthened by the respondent in his written statement as well as in his evidence as D.W. 1. Documentary evidence has been filed as reinforcements and which falsifies the allegations levelled against the respondent. The respondent it seems had taken all efforts to iron out the difference between them and even after the petitioner had left her matrimonial house at Mumbai attempts were made by the respondent to restore normalcy in relationship. The intent of the respondent to resume marital ties with the petitioner is further borne out from the fact that after the order of ex parte decree was passed, the respondent had filed an application for setting aside the ex parte decree which was allowed and consequent to the same the suit was decided on contest. 16. Another important feature of the case appears to be the conduct of the petitioner. The allegation against the petitioner of conversing and chatting with married person as chronicled in his written statement as well in his evidence as D.W. 1 seems to find support from the e.mail chats exhibited. In her evidence as P.W. 1, the petitioner has admitted about her e.mail i.d. being created in another name and the exchange of 7 mail between the petitioner and other persons seems to be fortified by virtue of such admission. 17. Mr. Ankit Vishal, learned counsel appearing for the appellant has stressed upon irretrievable break down of marriage as the parties are living separately since the year 2010 and the marriage has ultimately reached a point of no return. The Special Marriage Act does not contain any provision of irretrievable break down of marriage being one of the conditions for dissolving a marriage between the parties. In such circumstances, the submissions advanced by the learned counsel for the petitioner cannot be taken note of. 18. We, therefore, conclude that Issue Nos. III and IV have correctly been decided by the learned court below in favour of the respondent and
Decision
against the petitioner and consequently we dismiss this appeal. Pending I.As. are closed. MK (RONGON MUKHOPADHYAY, J.) (DEEPAK ROSHAN, J.)