The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No. 294 of 2018 Mamta Devi --------- Versus ... … Appellant Rohit Manjhi ... … Respondent --------- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE DEEPAK ROSHAN --------- For the Appellant For the Respondent : Mr. Abhijeet Kumar, Advocate : Ms. Alka Kumari, Advocate 20/16.06.2023 Heard Mr. Abhijeet Kumar, learned counsel for the appellant and Ms. Alka Kumari, learned counsel appearing --------- for the respondent. 2. This appeal is directed against the judgment dated 09.03.2018 and judgment of Decree dated 09.03.2018 passed
Legal Reasoning
by Sri Birendra Pratap, learned Principal Judge Family Court, Dumka in Original Suit No. 24 of 2017 by which the application for dissolution of marriage preferred by the appellant u/s 13 (i) (ib) of the Hindu Marriage Act, 1955 has been allowed and the marriage of the respondent with the appellant has been dissolved on the ground of cruelty and desertion. 3. It has been submitted by Mr. Abhijeet Kumar, learned counsel for the appellant that a fraud has been committed to the effect that an affidavit was filed at the behest of the appellant showing her inclination not to stay with the respondent and it is apparent that the day when her new counsel has appeared on the same day such affidavit was filed which is in fact contrary to the averments made in the written statement. It has been submitted that in the written statement preferred by the appellant she has categorically stated that she had tried on many occasions to resolve the matrimonial ties with the respondent but on several occasions she was driven out from her matrimonial house by the respondent as her parents were unable to fulfill the demand of motorcycle and jewellery as demanded by the respondent. It has been submitted that though in the affidavit -2- filed by the appellant she admits the signature but the contents of the said affidavit were not read over to her which clearly indicates fraud committed upon the Court. Learned counsel has also submitted that in the month of April, 2018 the respondent has solemnized a second marriage and consequent thereto the appellant could come to know about the decree of divorce passed against her which led her to preferring the present First Appeal. Referring to the order dated 05.01.2021; learned counsel for the appellant submits that though a part of the various schemes of the government has been extended to her but an amount of Rs. 55,000/- is needed to be sanctioned to the appellant for construction of a Goat Shed as only Rs. 10,000/- has been given to her apart from the fact that the Ration Card has not yet been issued to the appellant citing some technical reasons. He submits that besides the benefits extended to the appellant, on the factual aspects of the case it is absolutely clear that the respondent had failed to make out any ground of cruelty and desertion which has not been properly appreciated by the Court below and hence the judgment and decree dated 09.03.2018 deserves to be set aside. 4. Ms. Alka Kumari, learned counsel appearing for the respondent has primarily referred to the affidavit filed by the appellant in which she had indicated that she is not willing to stay with her husband and wants to get the marriage dissolved. Learned counsel further submits that in the suit preferred by the respondent u/s 9 of the Hindu Marriage Act although notice was deemed to have been validly served upon the appellant but she do not choose to appear as a result of which the said suit was decreed in favour of the respondent. It has been submitted that her non-appearance in the said suit for restitution of conjugal rights indicates disinclination to continue the marital life with the respondent and in fact these facts have been appropriately considered by the learned -3- Court below while allowing the suit for dissolution of marriage preferred by the respondent. 5. We have considered the rival submissions and have also perused the Lower Court Records. Initially the appellant had preferred a suit for restitution of conjugal rights being Matrimonial Suit No. 60/2015 before the learned Principal Judge Family Court, Dumka but in spite of service of notice the appellant failed to appear in the said suit preferred u/s 9 of the Hindu Marriage Act and ultimately vide judgment dated 04.07.2016 the suit was allowed and the appellant herein was directed to return to her matrimonial house and lead her conjugal life with the respondent. Subsequent to the passing of the judgment in the suit preferred u/s 9 of the Hindu Marriage Act since according to the respondent the appellant had refused to resume her matrimonial ties with the respondent a suit for dissolution of marriage on the ground of desertion and cruelty was preferred by the respondent in Original Suit No. 24 of 2017 and the consequent judgment and decree dated 09.03.2018 allowing such suit constrained the appellant to prefer the present appeal. 6. In the petition which was filed by the respondent herein being Original Suit No. 24 of 2017, it has been inter alia mentioned that the marriage between the respondent and the appellant was solemnized on 26.02.2011 as per Hindu Rites and customs at village Bhaturia and both started living together as husband and wife at village Sharmi at the house of the respondent. It has been averred that there was no issue born out of the said wedlock. The respondent has further stated in his petition that the appellant used to frequently leave her matrimonial house and go to the house of her parents and in June, 2014 the father of the appellant had taken her back to his house and since then the appellant is living at her parents’ house. It is the case of the respondent that the appellant had deserted the respondent for a continuous period of two years and in spite of the suit u/s 9 -4- of the Hindu Marriage Act having been decreed in favour of the respondent no efforts have been taken by the appellant to resume her matrimonial ties with the respondent which amount to desertion and cruelty on the part of the appellant. 7. On being noticed the appellant had appeared in the suit and had filed the written statement in which she had denied the allegation leveled against her by the respondent and in fact has stated that she was frequently subjected to torture on account of non-fulfillment of the demand of motorcycle and jewellery on account of assault and torture committed upon her and she was forced to stay at her parents’ house. It has further been averred that in spite of the intervention by the Panchayat the same did not evoke any sympathy on the mind of the respondent and she was intermittently subjected to torture and assault by the respondent. It has been stated that on 28.11.2014 she was ousted from her matrimonial house and since then she is residing at her parents’ house. 8. The issues which were framed and which were to be decided by the learned Court below are as follows: I S S U E S I. Is the present matrimonial suit, as framed, maintainable? II. Whether both the petitioners were married as per Hindu rites and rituals on 28.03.2004? III. Whether the respondent has been living separate after driven out from the house of the petitioner? IV. Whether respondent has leading a happy marital life after marriage with the petitioner? V. Whether any other case is going on in between the parties apart from this case? VI. Whether it is possible to both the petitioners happily continue their marital tie in future? VII. Is the petitioner entitled to the decree of restitution of conjugal right? VIII. To what other relief or reliefs, the petitioner is entitled to? 9. Issue Nos. II and IV have been decided conjointly as the said issues have a considerable significance in coming to a -5- justifiable conclusion. In support of his case the respondent has examined three witnesses including himself while the appellant herein had filed an affidavit on 22.11.2017. So far as the evidence adduced on behalf of the respondent herein is concerned the witnesses have been consistent with respect to the desertion and cruelty committed by the appellant upon the respondent. Although in the written statement denial has been made by the appellant regarding the allegations made against her in the petition filed by the respondent but subsequently on 22.11.2017 a petition has been filed on behalf of the appellant in which she has categorically stated that she had stayed with her husband for a year and no physical relationship was established between them. She has also expressed her desire not to stay with her husband in future. Her disinclination in continuing with the marital ties with the respondent in future seems to have been consistently averred in the said application. This application which forms the primary basis for allowing the suit for desertion of marriage preferred by the respondent appears to have been doubted by the learned counsel for the appellant as it has been submitted that during the proceeding a mediation was held but subsequent thereto the application has been filed in which the appellant had categorically refused to resume her conjugal ties with the respondent. At the same time, learned counsel for the appellant submits that signature on the said application is not denied but the contents thereof according to him were not read over to the appellant and therefore the appellant was not aware that such averments have been made in the said application. 10. In the context of the aforesaid submissions advanced by the learned counsel appearing for the appellant, we must also at the same time take into consideration the suit for restitution of conjugal rights preferred by the respondent u/s 9 of the Hindu Marriage Act in which though the appellant was served with a notice but she never appeared -6- and the said suit was decreed exparte. Her conduct with respect to her non-appearance in the suit u/s 9 of the Hindu Marriage Act if co-related with the application preferred in the suit for dissolution of marriage would not only indicate about her unwillingness to resume the matrimonial ties with her husband but would also contradict the submissions advanced by the learned counsel for the appellant regarding the purported fraud committed upon the Court by the respondent. The learned Court below on consideration of the evidence available on record particularly with respect to the petition filed by the appellant on 22.11.2017 rightly decreed the suit in favour of the respondent and having found no materials to disagree with such findings, we hereby dismiss this appeal. 11. At the same time, we give a direction to the Secretary, DLSA, Dumka to examine the grievances of the appellant with respect to her not having received Ration Card citing technical reasons and the balance amount for construction of Goat Shed. So far as the other benefits including opening an account in the name of the appellant as well as getting a house under the “Ambedakar Yojna” is concerned, the same has already been acted upon. 12. With the aforementioned observations, this appeal stands dismissed. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Alok/-