The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Appellate Jurisdiction) First Appeal No. 283 of 2019 Anupama Pandey, wife of Sri Vikram Pandey, resident of M. N. Colony, near Boreya River Bridge, Arsanda, PO and PS Kanke, District Ranchi Versus ......Appellant Vikram Pandey, son of Keshwav Prasad Pandey, permanent resident of 21/C, Road No. 1, Ashok Nagar, PS Argora, PO Ranchi, District Ranchi, at present posted at IDBI Bank, at Shukla Bhawan, 1415 Wright Tower, PO and PS Jabalpur, District Jabalpur, Madhya Pradesh ..... Respondent --------------- CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant For the Respondent
Legal Reasoning
: Ms. Alka Kumari, Advocate Ms. Sonal Sodhani, Advocate : Mrs. Ritu Kumar, Advocate Mrs. Shatakshi, Advocate ---------------
Decision
O R D E R 12th January 2023 Per, Shree Chandrashekhar, J. In this First Appeal, Anupama Pandey who is the wife of Vikram Pandey has challenged the order dated 25th June 2019 passed in Original Suit No. 236 of 2016. 2. The application under section 9 of the Hindu Marriage Act, 1955 which was filed by the wife seeking restitution of conjugal rights has been registered as Original Suit No. 236 of 2016. 3. The Family Court has rejected the said application on the ground that the wife was leading an adulterous life. 4. The Principal Judge, Family Court, Ranchi has held as under: “29. In view of the discussions above made this Court has got no confusion that the petitioner, being wife of the respondent and their relationship as husband and wife still subsisting, having been found to be in adulterous relationship with an unknown male, has lost her right to claim maintenance from the respondent-huband. The claim for maintenance is liable to be dismissed and the maintenance petition is, accordingly, dismissed. It is, therefore, ordered that both the above mentioned cases Original Suit No. 236 of 2016 and Original Maintenance Case No. 80 of 2016 is dismissed on contest.” 2 First Appeal No. 283 of 2019 5. The marriage of the appellant with the respondent was solemnised on 19th April 2012 at Hotel BNR Chankya, Ranchi. The appellant has made allegation against the respondent that he has relations with another woman whose name she subsequently came to know as Sonu Karla. She has pleaded that her husband admitted before her that he was not ready for the marriage and would not leave Sonu Karla. She has further stated that her husband committed various acts of harassment and torture upon her and left her company on 23rd May 2012. The respondent has on the other hand denied the allegations of cruelty inflicted upon the appellant and set up a defence that his wife has adulterous relationship with another man. 6. Ms. Alka Kumari, the learned counsel for the appellant has raised a fundamental issue in law which pertains to power of the Court to refer to evidence laid by the parties in another suit, may be between the same parties. It is submitted that without producing the original documents and proof thereof, no evidence particularly documentary evidence can be taken cognizance of by the Court to render a judgment in another case. 7. Per contra, Mrs. Ritu Kumar, the learned counsel for the respondent has contended that the maintenance case and the restitution case were both tried one after another in the same Court and therefore the Family Court was well within its rights to use evidence laid by the husband in the present case. 8. The Code of Civil Procedure (in short, CPC) lays down the manner in which documentary evidence can be laid by the parties during the trial. Order VII Rule 14 CPC provides that the plaintiff who relies upon any document in his possession or power shall provide a list of such documents when the plaint is presented and at the same time deliver the documents with a copy thereof to be filed with the plaint. The next step in the trial of a suit is provided under Orders XI and XII CPC whereunder the steps for discovery and inspection as well as admission by one party to the documents produced by the other party have been laid down. Furthermore, Order XIII Rule 1 provides that before settlement of issues the original documents upon which the parties are relying must be produced in the Court. However, what has happened in Original Suit No. 236 of 2016 is something contrary to the procedural regime laid down in CPC. The Compact Disc (CD) which the 3 First Appeal No. 283 of 2019 respondent produced as evidence in Original Maintenance Case No. 80 of 2014 to deny the claim of the appellant for maintenance on the ground that she has adulterous relationship with another man has been referred to and relied upon by the Family Court, to dismiss the restitution case. The Family Court has further referred to evidence of the respondent and other documentary evidences such as certificate issued by Buzz Dynamics Noida vide exhibit-B and Bill dated 13th January 2016 vide exhibit-B/1 which were tendered in maintenance case, to dismiss the restitution case. 9. Section 9 of the Hindu Marriage Act provides that if the respondent withdraws from the society of the petitioner without any reasonable excuse, on a petition for restitution of conjugal rights the Court being satisfied of the truth of the statements made in such petition and upon forming an opinion that there is no legal ground for not granting the prayer may decree restitution of conjugal rights. Explanation to section 9 provides that the burden to prove reasonable excuse lies on the person who has withdrawn from the society. 10. Section 9 of the Hindu Marriage Act is extracted below: “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.]” 11. It seems that the respondent to meet the aforesaid requirement in law has tried to tender evidence on supposedly adulterous relationship of the appellant. But then, whatever may be the fact which was proved in the maintenance case of which the judgment has been delivered through the common order dated 25th June 2019, such fact could not have been considered and relied upon by the Family Court to dismiss the restitution case. 12. Having regard to the aforesaid facts and circumstances in the case, we find serious infirmity in the order dated 25th June 2019 passed in 4 First Appeal No. 283 of 2019 Original Suit No. 236 of 2016. Therefore the said order is set aside and, accordingly, FA No. 283 of 2019 is allowed. 13. Since we have interfered with the order under challenge on a pure legal issue, the matter is remanded back to the Family Court for a fresh consideration on the basis of the materials on record, without being prejudiced by any observation made in this order. 14. It is expected that the Family Court shall deliver the judgment in the restitution case within next three months. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 12th January 2023 Tanuj/ N.A.F.R