Anil Kumar Pandey v. CORAM:HON'BLE
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No.288 of 2019 ------ Anil Kumar Pandey ----- Appellant Deepa Pandey ----- Respondent ------ Versus CORAM:HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE DEEPAK ROSHAN ------- For the Appellant For the Respondent : Mr. Kaushik Sarkhel, Advocate : Mr. Pratyush Lala, Advocate ------- Per R. Mukhopadhyay, J. 18/10 .06.2024 Heard Mr. Kaushik Sarkhel, learned counsel appearing for the appellant and Mr. Pratyush Lala, learned counsel appearing for the respondent. 2. This appeal is directed against the judgment and decree dated 6.8.2019 (decree signed on 20.08.2019) passed by Shri Manoj Srivastava, learned Principal Judge, Family Court, Jamtara in Original Suit No. 19 of 2017, whereby and whereunder the Suit preferred by the appellant for dissolution of marriage has been dismissed. 3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned trial court. 4. The petitioner (appellant herein) had preferred a Suit under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of his marriage with the respondent (respondent herein) in which it has been stated that the respondent was earlier married to Anil Dixit in the year 2003 but Anil Dixit died a premature death. During the subsistence of her marriage with Anil Dixit the respondent had filed a case under Section 498A I.P.C. as well as a case for maintenance against Anil Dixit and his family members. Before the marriage of the respondent the brother of the respondent Vijay Pandey had taken some amount from the family of the girl slated to marry Vijay Pandey but when the marriage was refused, the girl namely Radha Dewari had filed a case in which the respondent was made an accused. It has been stated that the petitioner was also married earlier but his wife had prematurely died in the year 2010.
Legal Reasoning
From his first marriage the petitioner has one daughter and two sons aged 30, 28 and 22 years respectively. On 30.06.2011 the marriage between the petitioner and the respondent was solemnized at Chandrachur Mandir within Asansol Sub-Division of West Bengal. After 27 days of marriage the brother-in-law of the petitioner died in an accident and the respondent was taken by the brother of the petitioner to her parental house but she never came back. After a year the respondent had filed a case against the petitioner in Jamtara Court which was compromised on the following terms :- (i) The respondent will not go to the house of the brother of the petitioner. (ii) The respondent will also not come to the place of service where the petitioner is working. (iii) When the plaintiff will construct a new house, the respondent will go to the said house and live with the petitioner and till then she will live with her mother in her father’s place. (iv) The petitioner has to give Rs.3,000/- per month to the respondent and it will come directly in the account of the respondent from the salary of the petitioner. 5. It has been stated that in the meantime the parents of the petitioner died in the year 2013 at an interval of five months, but the respondent never came to the house of the brother of the petitioner at Mihijam for a single day or participated in the mourning. As per the previous compromise the petitioner had taken a house on rent at 2 Mihijam in the year 2014 for a period of one year. The petitioner had stayed twice in the rented house with the respondent but the behavior of the respondent was not cordial. It has been stated that marriage of the only daughter of the petitioner from his first wife was solemnized on 3.5.2015 and despite repeated requests, the respondent did not participate in the marriage ceremony. When the youngest son of the petitioner was appearing in the matriculation examination, the petitioner had requested the respondent to look after his youngest son but she refused and it was the younger brother of the petitioner who helped him in preparation for the examination. The respondent did not visit the petitioner even once during the treatment of the petitioner in the hospital. Whenever the petitioner made attempts to converse with the respondent over phone she used to abuse her. The respondent has leveled allegations against the petitioner for the death of the child she had given birth to but the petitioner was unaware about the delivery as this information was never given to the petitioner by either the respondent or her mother. It has been stated that on 1.2.2017 the respondent had come to the house of the brother of the petitioner and had abused the family of the brother of the petitioner and this was repeated on 10.2.2017 and household articles were thrown by her on the road. For the last three years the petitioner and the respondent have not lived together as husband and wife and during this period there has been no cohabitation between them. 6. On being noticed the respondent had appeared and filed her written statement in which the allegations leveled against her by the petitioner have been denied. It has been stated that on 27.2.2017 the respondent had filed a case against the petitioner for enhancement of maintenance and for compensation which was registered 3 as D.V. Case No.01 of 2017 and notice was issued to the petitioner and only in order to counter the said case, the Suit has been filed on 7.4.2017. The terms and conditions of the compromise has wrongly been quoted by the petitioner and in fact the following terms and conditions had been agreed upon :- (i) The petitioner Anil Kumar Pandey shall get the name of his wife Deepa Pandey registered in his service book and other service documents as his wife and nominee. (ii) The petitioner Anil Kumar Pandey shall pay Rs.3,000/- from December 2012 per month to the respondent and he will make such arrangements by which the said amount shall be remitted to Deepa Pandey directly from his salary. (iii) Anil Kumar Pandey shall as soon as possible construct a separate house at Mihijam for accommodation of his wife Deepa Pandey. (iv) For the present the respondent Deepa Pandey shall remain in the house of her father. The petitioner Anil Kumar Pandey shall ensure that his relations will not disturb her. She has stated that she had come to the joint family house of the petitioner and had participated in the rituals of his parents. In order to avoid constructing a new house the petitioner had taken a house on rent in 2014 where both the parties lived together twice. It has been stated that the respondent had conceived through the petitioner and a child was also born but unfortunately it died and the petitioner did not have any remorse for such death. In March 2015 the petitioner came on leave and put up in his own house where the respondent joined him and both stayed together for 10 days. In March 2016 the respondent lived with the petitioner in his ancestral house but the brother of the petitioner drove her out. On 23.6.2016 the 4 petitioner again came back to his ancestral house and remained there for 12 days and the respondent also lived with the petitioner in the same house. After July 2016 the petitioner used to intermittently come and stay at Mihijam where the respondent had also joined him. 7. Based on the pleadings of the parties, the following issues were framed for adjudication:- i. Whether the Suit is maintainable or not ? ii. Whether there is any cause of action for the Suit or not ? iii. Whether the petitioner is subjected to cruelty by the respondent ? iv. Whether the petitioner and respondent lived jointly within the same roof within a period of last two years ? v. Whether the respondent had refused to live with the petitioner ? vi. Whether the petitioner is entitled for relief as claimed, if yes to what relief is entitled under equity and justice ? 8. The petitioner in support of his case has examined seven witnesses including himself. 9. PW 1 Bishwanath Saw has stated that he is acquainted with both the sides. Petitioner was earlier married and from the said wedlock two sons and a daughter were born. After the wife of the petitioner died he had solemnized marriage with Deepa Pandey. The petitioner and the respondent do not have any issue. He has stated that the petitioner is in service in Bihar Police. At the time of marriage of the daughter of the petitioner neither the respondent came nor had she participated in the marriage ritual. The purpose of the petitioner for solemnization of marriage with the respondent was to look after the household chores as well as to look after the children but the said desire was frustrated by the respondent. When the petitioner had fallen sick and was hospitalized, the respondent did not even come to meet him. The parties do not have any conjugal relationship. 5 In cross-examination he has deposed that the petitioner is his friend. He had attended the marriage of the petitioner and the respondent. He had not attended the marriage ceremony of the daughter of the petitioner. 10. P.W. 2 Dilip Kumar Jha is in service in the Police Department and is a colleague of the petitioner. He had participated in the marriage ceremony of the daughter of the petitioner but the respondent had not attended the marriage. The petitioner had undergone an operation for which he was hospitalized but in spite of repeated requests neither the respondent came nor did she make any effort to look after the petitioner. He has stated that till date the respondent has not visited the work place of the petitioner. In cross-examination he has deposed that he neither knows the respondent nor had he ever seen her. 11. P.W. 3 Vijay Kumar Pandey is well acquainted with the family of the petitioner and in festivals and other occasions he visits the house of the petitioner. He is the cousin brother of the petitioner. Though it is the second marriage of the petitioner, but the couple does not have any children. The petitioner has never stayed with the respondent. The respondent had never assisted in the welfare of the children born out of the first marriage of the petitioner. He has stated that the respondent never participated in the marriage ceremony of the daughter of the petitioner. In cross-examination he has deposed that he does not know as to when the marriage of the petitioner and the respondent was solemnized. He does not know the reason for the petitioner and the respondent staying separate from each other. 12. P.W.4 Anil Kumar Pandey is the petitioner who has stated about solemnization of his marriage with the respondent on 29.6.2011 at Chandrachud Mandir near 6 Asansol. He was earlier married and two sons and a daughter were born out of the said wedlock but his first wife met with an untimely death in the year 2010. The respondent was earlier married also but after the death of her first husband she had married with the petitioner. The respondent neither had any issue from her first husband nor with him. He is posted in BMP as a Havildar (Driver). He does not have any land or house in Mihijam and whenever he comes to Mihijam he stays in the house of his brother Ajit Kumar Pandey. Within one month of his marriage his brother-in-law died and on receiving such information he had gone to the parental house of the respondent and extended all possible assistance. Respondent had never stayed with him at Mihijam and whenever he had come to Mihijam he had met the respondent at her parental residence. After one year of the marriage the respondent started giving him threats and a case for domestic violence was instituted by her at Jamtara. The said case ended in a compromise and it was directed that an amount of Rs. 3000/- per month would be deducted from the salary of the petitioner and transferred to the account of the respondent and since then such amount is being deducted from his salary. The respondent had never looked after the welfare of the children from the first marriage and she did not even participate in the marriage ceremony of his daughter despite several requests. He has stated that since he had fallen sick and was admitted in Patna in a hospital for one month but in spite of giving information to the respondent she never came. Whenever he had tried to converse with the respondent from his work place, he had to listen to various expletives used by her. For the last three years there has been no conjugal relationship between them. In cross-examination he has deposed that the respondent stays at Mihijam. He had gone to Mihijam about 7 2 ½ years back but he had not called the respondent from her parental house. Whenever he had gone to Mihijam, he had stayed in the parental house of the respondent. After marriage he wanted to keep the respondent with him in his quarter. The respondent used to call him but he had refused citing his work as it was not possible to leave his work and stay with the respondent. 13. P.W.5 Krishna Kumar Diwedi is a relative of Ajit Kumar Pandey, the brother of the petitioner. The father of Ajit Kumar Pandey during his life time had gifted the entire property to Ajit Kumar Pandey as per a family settlement and he had signed on the deed in his capacity of a witness. In cross-examination he has not stated anything of subtance. 14. P.W.6 Ajit Kumar Pandey is the brother of the petitioner who has stated that after the death of the first wife of the petitioner, he had solemnized marriage with the respondent. Within one month of the marriage, the brother of the respondent had died and he had taken the respondent to her parental house and since then she is staying there. The respondent had never stayed in his house or with the petitioner in his work place on a permanent basis. He has stated that the petitioner works in Bihar Military Police. The respondent had not attended the marriage ceremony of his niece and had not fulfilled the responsibility of a mother. The property at Mihijam was gifted by his father during his life time with the consent of his siblings. When this fact came to the notice of the respondent, she had come with her parents and quarreled with his family and the matter even went up to the Police Station. The petitioner and the respondent had never stayed together in his house. In cross-examination, he has deposed that the document by which the ownership of the property was transferred to him has not been produced in Court. The 8 parental house of the respondent is at a distance of 250 Meters from his house. Whenever the petitioner had come to Mihijam, he had not asked the respondent to come. 15. P.W. 7 Adarsh Kumar Pandey is the son of the petitioner who is disabled and has a poor vision. Though the petitioner had solemnized a second marriage, but his second mother had never stayed with them and had never looked after his welfare or the welfare of his siblings. Respondent did not participate in the marriage ceremony of his sister. In cross-examination he has deposed that he had not attended the second marriage of his father. 16. The respondent has examined three witnesses in support of her case. 17. O.P.W.1 Dinesh Thakur is a neighbour of the petitioner and his brother as well as parental house of the respondent. He is acquainted with both the sides from before. Though the petitioner works in Bihar but he some times comes to Mihijam and stays at his ancestral house. A few years back the respondent had filed a case for maintenance and he had heard that the said matter was compromised. The petitioner had agreed to construct a house at Mihijam and till the house is constructed the respondent shall continue to stay at her parents place. The petitioner neither purchased a land nor did he build a house but instead he had taken a house on rent and from the year 2014 he had seen both of them staying together in the rented house. In 2015 in the month of March at the time of Holi he had seen the respondent residing with the petitioner in his ancestral house. In cross-examination he has deposed that the respondent still resides in her parents house. He had attended marriage of the petitioner and the respondent but not in the capacity of a barber. 18. O.P.W.2 Ashok Bouri has stated that he is acquainted with both the sides. He sometimes works as a 9 labour in the ancestral house of the petitioner and Ajit Kumar Pandey. He has sometimes seen the petitioner come and stay at his ancestral house in Mihijam. He had also seen the petitioner and the respondent residing together in the year 2014 in a rented accommodation. In the year 2015 and 2016 at the time of Holi he had seen both the petitioner and the respondent staying together. In cross-examination he has deposed that he had seen the petitioner in Mihijam at an interval of 10-15 days and he had also conversed with them. 19. O.P.W.3 Deepa Pandey is the respondent who has stated in her sworn statement that on 27.2.2017 she had filed a case for enhancement of maintenance and though notice was issued to the petitioner but he managed to evade the notice and instead filed the Suit as a counterblast. If the petitioner thinks that she has to take care of his adult children from his first wife, then he is mistaken and it is an impossibility. Petitioner had earlier filed a Suit for restitution of conjugal rights being Mat. Case No. 49 of 2012 in which the matter was compromised in the following terms :- (a) The petitioner would get her name entered in the service book as well as all related documents as his wife. (b) An amount of Rs.3,000/- per month will be deposited in her account by the petitioner. (c) The petitioner will construct a new house for her. (d) She will stay at her father’s house and the petitioner shall ensure that no disturbance shall be caused to her by any of his family members. 20. Since the petitioner did not want to construct a new house, he had taken a house on rent during the period of Holi in the year 2014 where she was kept and in July 2014 they had attended a marriage together. It is incorrect to say that her behavior is not proper. Petitioner has suppressed the fact that a child was born to them but unfortunately it did not 10 survive. The petitioner however does not have any remorse for such tragic Incident. The petitioner on one pretext or the other avoided the construction of a new house and in the meantime the petitioner and his brother started searching for a purchaser in order to sell off their ancestral house. She has stated that both the brothers wanted to flee Jamtara for which they had already taken a house on rent in Patna. In March 2014 and June-July 2014 both stayed in the rented house and after the petitioner left for his place of work he stopped paying rent due to which she was forced to leave the house and start residing at her parental house. In March 2015 the petitioner had taken leave and had come to Mihijam and she stayed in his ancestral house for 10 days. In March 2016 she had stayed with the petitioner at his ancestral house and when the petitioner left she wanted to stay but the brother of the petitioner ousted her. On 28.6.2016 the petitioner had come to Jamtara after taking a leave of 12 days and both stayed together. Sometimes the petitioner would come and stay for a day or two and she joined him whenever such opportunity arose. In cross-examination she had deposed that she is not aware as to whether the petitioner was admitted in Command Hospital from 13.5.2015 to 31.5.2015. During the Matriculation examination of the son of the petitioner she had not gone to Patna. The petitioner has an illicit relationship with his sister-in-law Sindhu Pandey. After the marriage she never took any effort to look after the children since they were adults. She does not know the place where the daughter of the petitioner has been married. 21.
Legal Reasoning
Mr. Kaushik Sarkhel, learned counsel appearing for the appellant has submitted that the impugned judgment dated 06.08.2019 is perfunctory as the learned court below has not applied its mind to the issues of cruelty and desertion which has been proved beyond any reasonable doubt by the 11 appellant. It has been submitted that refusing to stay with the petitioner and refusing to take care of the children of the petitioner amounts to mental cruelty. Several instances have been given by the petitioner which would exemplify the act of cruelty and desertion on the part of the respondent. 22. Mr. Pratyush Lala, learned counsel appearing for the respondent/wife has submitted that the children of the petitioner were adults and have gained sufficient maturity to take independent decision and interference in their life by a step-mother (respondent) would have been of no consequence and could have backfired upon the respondent and therefore the respondent had rightly stated in her evidence her abhorrence to such expectations. The respondent had always wanted to lead a happy conjugal life with the petitioner but the conduct of the petitioner in not taking the respondent for a single day to his work place and immediately entering into a compromise and not making any attempts to construct a house appears to be designed to torture the respondent instead. The issue of desertion fails since the petitioner and the respondent had resided for six days on 28.6.2016 and the Suit has been instituted on 7.4.2017. On such grounds learned counsel for the respondent has prayed for dismissal of the appeal. 23. We have heard the learned counsel for the respective parties and have also perused the lower court records. 24. Issue No.(iii) and (iv) are of paramount importance in the Suit as they relate to cruelty and desertion against the respondent as alleged by the petitioner. These Issues and Issue No.(v) have been decided by the learned trial court in the following manner :- “16. I have heard the argument of both the sides and perused the record. From perusal of the record as well as in the above facts and circumstances of the the materials whatsoever case and considering 12 available on the record, it appears that plaintiff has not been able to prove the issue no.(3) “Whether the petitioner is subjected to cruelty by the respondent?” and Issue no. (4) is “Whether the petitioner and respondent lived jointly within the same roof within a period of last two years?” and Issue no.(5) is “Whether the respondent had refused to life with the petitioner?” in his favour. Accordingly, these issues are decided in favour of the respondent Deepa Pandey against the plaintiff Anil Kumar Pandey.” 25. Before we delve into Issue No.(iii) which is with respect to cruelty, we may profitably quote from the case of Savitri Pandey v. Prem Chandra Pandey, reported in (2002) 2 SCC 73 :- “6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more 13 than ordinary wear and tear of the family life.” 26. It is not in dispute that both the petitioner and the respondent were earlier married and the petitioner had three children from his first marriage while the respondent was issueless. As per the petitioner his intention to solemnize marriage again was for the welfare of the children. The earlier spouses of the petitioner and the respondent had died prematurely prompting them to solemnize marriage which was performed on 29.6.2011. The petitioner and his witnesses have given instances of cruelty suffered by the petitioner at the hands of the respondent who according to them neither took care of the children of the petitioner nor the petitioner who was hospitalized for a considerable period in Patna. She did not even participate in the marriage of the daughter of the petitioner despite several requests and had put forth stringent conditions like construction of a new house after which the respondent will reside with the petitioner. A question mark has also been put over her behavior which was not at all cordial towards the petitioner. The respondent though has denied most of the allegations, but has accepted the fact in her evidence as O.P.W.3 that it was an impossibility to look after the children of the petitioner as they are adults and capable to look after themselves. This has been reiterated by her in her cross-examination. She has also accepted the fact that she had not gone to Patna where the son of the petitioner was appearing for his matriculation examination. Her indifference towards the petitioner is further borne from the fact that she was not even aware about the hospitalization of the petitioner which appears to be far-fetched as the respondent had herself stated about both of them staying together intermittently either in the rented house of the petitioner or in his ancestral home at Mihijam. The petitioner is posted at Bihar Military Police as a Havildar (Driver) and there is no denial to the assertion of the petitioner that the 14 respondent had never visited his work place and stayed with him. When the respondent had married the petitioner, she must have been well aware about the dependents of the petitioner as her parental house is not very far from the ancestral house of the petitioner at Mihijam. She could have essayed the role of a mother to the children of the petitioner, irrespective of the fact that they were grown up but she had flatly refused thus decimating the already fragile relationship with the petitioner. Though not stated by the petitioner but the evidence of his son Adarsh Kumar Pandey (P.W.7) reveals that he is disabled and has a poor vision and it was all the more necessary for the respondent to take care of him. The entire scenario depicted above reveals an apathy towards the petitioner and his children and thus would amount to ‘mental cruelty’ on the part of the respondent. Her imposition of various conditions upon the petitioner when a compromise was arrived at in a case specifically with respect to construction of a new house which was an obligatory condition for the respondent to stay with the petitioner seems to enhance the cruelty alleged by the petitioner in the background facts of the case coupled with her lack of concern for the petitioner as her not visiting the hospital where the petitioner was admitted and never staying at the work place of the petitioner would indicate. The learned trial court in its judgment has not given any finding or reasoning as to why Issue No.(iii) was decided against the petitioner. 27. Considering the absence of reasons we could have relegated the parties to the learned trial court by remanding the matter with a direction to pass a reasoned order in each of the issues but regard being had to the fact that more than seven years have passed since the Suit was instituted, we have accordingly dealt with the issues by giving an independent finding specifically with respect to the core issues governing the Suit. The issue of cruelty i.e. Issue 15 No.(iii) in terms of the discussions made herein above is decided against the respondent and in favour of the petitioner. 28. So far as desertion is concerned which formulates Issue No.4, there appears to be divergent views from the evidence on record and the petitioner has failed to prove that the respondent had deserted him continuously for a period of more than two years prior to the institution of the Suit. As per the cross-examination of the petitioner (P.W.4) the respondent had called him on some occasions to Mihijam but he had refused citing his work. From the evidence of the respondent (OPW-3) it transpires that the petitioner and the respondent had stayed intermittently either at the rented house of the petitioner or in his ancestral house and as per the OPW-3 a year prior to the institution of the Suit both had stayed together. Therefore the issue of desertion is answered against the petitioner. 29. Since the core issues of cruelty and desertion have been decided by us, we need not go into the other issues and we affirm the findings of the learned trial court with respect to Issue No.(i)(ii) and (iii). 30. As a consequence to our finding with respect to cruelty [Issue No.(iii)] which we have decided against the
Decision
respondent, we accordingly set aside the judgment and decree dated 6.8.2019 (decree signed on 20.8.2019) passed by Shri Manoj Srivastava, learned Principal Judge, Family Court, Jamtara in Original Suit No. 19 of 2017. The marriage between the petitioner/appellant and the respondent accordingly stands dissolved. 31. 32. closed. This appeal stands allowed. Pending Interlocutory application, if any, stands (Rongon Mukhopadhyay, J.) Shamim/- (Deepak Roshan, J.) 16