Deepak Kumar Vs Sushila Bareth

--- Respondent ____________________________________________________________ For Appellant : Mr. Ravi Kumar Banjara, Advocate For Respondent : Mr. Achyut Tiwari, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu Order On Board

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28/11/2024

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By this appeal filed under Section 28 (1) of the Hindu Marriage Act, 1955 (In short ‘the Act, 1955’), appellant has challenged the legality and sustainability of the impugned judgment and decree dated 24.04.2019, passed by the Third Additional District Judge, Balodabazar in Civil Suit No. (H.M.A.)-28A/2017, whereby the learned trial Court has dismissed the application for grant of decree of divorce under Section 13 (1) (i a) of the Act, 1955.

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Digitally signed by BALRAM PRASAD DEWANGAN Date: 2024.12.06 10:28:51 +0530

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Facts necessary for disposal of this appeal are that appellant got married with respondent on 12.04.2011 as per Hindu rites and customs. She left her matrimonial home in the month of October, 2016 and thereafter lodged report in the concerned police station against appellant and his family members, upon which, crime for alleged commission of offence under Section 498-A, 323, 34 of I.P.C. was registered which made the basis for filing of an application under Section 13 (1) (i a) of the Act, 1955. In the application filed seeking decree of divorce under the aforementioned provisions, appellant/plaintiff has pleaded that after their marriage on 12.04.2011, defendant started disliking him and stated that she would not be able to discharge her matrimonial obligations . Where she made repeated statement of like nature. Upon asking by appellant/plaintiff, she stated that she likes her brother-in-law Devcharan and wants to live along with him. Thereafter, the defendant started ill-treating and quarreling with plaintiff and also made attempt to run away from matrimonial home. It is also pleaded that she started making extra marital relationship with other persons of the village. When appellant/plaintiff asked not to indulged into such type of activity, she made threat of committing suicide and to involve them in false criminal case. She executed an agreement in the community meeting stating that till the decision is not taken by community, she is responsible for her acts. In the meeting dated 09.01.2016 of the community called by appellant, defendant and her family members did not appear.

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Respondent/defendants filed written statement to the application filed under Section 13 (I a) of the Act, 1955 and has denied all the adverse allegations made therein. It was further pleaded that it is the

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appellant/plaintiff, who was harassing and ill treating her on account of demand of dowry and further on the ground that she is keeping illegal relationship with her brother in law and wanted to oust her. She has not quarreled or ill treated with appellant/plaintiff. It is also pleaded that it is the appellant, who quarreled and also assaulted the defendant and many times left her at bus-station Bilaigarh. False allegations have been levelled against defendant by appellant/plaintiff of making extra marital relation with others and further that she has not refused at any point of time for cohabitation. She got the notice of meeting dated 09.11.2016 on the same day, on that day no other person was available in the house, therefore, she could not appear in the meeting. Considering the statement and the proceedings before the Mahila Police Station, case was registered against the appellant/plainiff for offence under Section 498-A, 323, 34 of I.P.C. In additional pleadings, it is pleaded that after one year of marriage, she was being harassed and ill treated for demand of dowry of motor cycle and Rs.5.00 lakhs. When defendant accompanied the plaintiff for earning livelihood to Delihi, appellant used to assault her under the influence of liquor and also made attempt to throw her from train. On 28.12.2016 father of defendant along with others took her to the house of plaintiff during that time, appellant did not return back to his house for three days. She was locked in room by family members of plaintiff. On 30.12.2016 when appellant came to his house, she was tied up with chair, her mouth was gagged and assaulted, her cloths were torned and hair was also cut. She somehow manage to escape from the house in the morning and reached to her own house thereafter, father of defendant

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came to the house of appellant/plaintiff and it is thereafter, report was lodged.

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Learned trial Court based on the pleadings made by respective parties has framed three issues for consideration “whether defendant wife had acted with cruelty found to be not proved and whether plaintiff is entitled for decree of divorce decided in negative and dismissed the application/suit.

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Learned counsel for appellant/plaintiff would submit that learned trial Court has dismissed the suit/application filed by appellant without appreciating the evidence brought on record in appropriate manner. He contended that finding recorded by the learned trial Court is erroneous and contrary to the evidence available on record. Learned trial Court has not considered the evidence brought on record by the appellant that in the community meeting called on 09.11.2016, defendant wife deliberately did not appear in the meeting from which adverse inference can be drawn that she did not want to reside in the company of appellant. As respondent/wife is not discharging her matrimonial obligations, while living in company of appellant would itself amount to treating appellant with cruelty which was not considered by learned trial Court.

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Learned counsel for respondent opposes the submission of learned counsel for appellant and would submit that learned trial Court has rightly appreciated the evidence brought on record by respective parties. He contended that cruelty as pleaded in the application filed under Section 13 (I a) of the Act, 1955 is not proved by appellant/plaintiff by placing cogent and reliable piece of evidence. On

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the contrary, witness examined by plaintiff Sunder Lal (P.W.-2) and Noor Mohammad (P.W.-3) in their evidence have admitted that appellant used to quarrel and assault the defendants and they also saw the hairs of defendant cut, which shows it is the defendant who was treated with cruelty by appellant. He also contended that making an allegation of adultery against wife itself is a cruelty when it is not proved by reliable and admissible piece of evidence. There is no illegality or infirmity of the finding recorded by learned trial Court calling interference by this Court.

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I have heard learned counsel for parties and perused the records of the Court below.

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Perusal of the pleadings in the application filed under Section 13 (I a) of the Act, 1955 would show that application was filed seeking decree of divorce on the ground that plaintiff was being treated with cruelty by defendant for which it is pleaded that after marriage, defendant started disliking him and upon asking she replied that she likes her brother-inlaw and wanted to reside with him. She started quarreling and illtreating plaintiff. It was pleaded that she was having extra marital relation with other persons of village. She lodged false and frivolous criminal case against him for alleged commission of offence under Section 498-A, 323, 34 of I.P.C..

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The pleadings made in the application was specifically denied by defendants in written statement and pleaded that in fact it is the appellant/plaintiff, who was ill treating, harassing, quarreling and also assaulting her. She wanted to reside in the company of appellant, however, it is the appellant/plaintiff, who wants to oust her for one or

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other reason. He also left her at bus stand after quarrel and assault. It is specifically pleaded that she did not live in adultery. It is further stated that just before leaving house, plaintiff along with other family members tied her in chair, assaulted her, sealed her mouth, torned her cloths and also cut her hair. Thereafter, her father along with 40-45 others peoples of village visited the house of appellant/plaintiff.

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Plaintiff in order to prove his case has examined himself as (P.W.-1) in evidence. He stated that from the marriage, he is having two children i.e. son Prakash, aged about 8 years and daughter Kavita aged about 4 years. In para-19, he admitted that on 28.12.2016, father of respondent/wife, along with community members and villagers came to his house at village Banikhar to leave respondent/defendant in his house and after leaving the defendant they went away. She was left forcefully in the house. He denied the allegation of assault made to the respondent/wife, including tying her to a chair, tearing her clothes, and cutting her hair. In evidence, he admitted that he has produced the documents Ex.P-1 and Ex.P-2 but he has not examined any witnesses to prove the said documents.

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Sunder Lal is examined as (P.W.-2). In his cross-examination, he stated that after marriage, appellant and respondent resided at village Banikhar happily. In para-17 of his evidence he stated that on 28.12.2016 father of defendant along with other community members went to the house of plaintiff to leave the defendant in her matrimonial home and at that time, appellant/plaintiff was not present in the house. He came to his house after 2-3 days. In para-18 he admitted that defendant/wife in presence of community members and is own stated

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that on 30.12.2016 when plaintiff came back to his house, in the night at about 9 PM, she was tied with chair by appellant and his family members. He also admitted that when he came to know that defendant fled away from her matrimonial home, he went to Banikhar from village Sarva and upon search, she was found in the house of Firu one community members, at that time he saw that hairs of defendant were cut and upon asking, she stated that plaintiff has cut her hairs.

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Noor Mohammad is examined as (P.W.-3). He is hearsay witness and has stated that he is not aware with respect to the major question put to him. In para-16, he stated that he is having the knowledge that on 20.12.2016, defendant fled away from the house and went to house of Firu.

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From the aforementioned evidence of plaintiff in particular the evidence of Sunder Lal (P.W.-2) it is appearing that on 28.12.2016 father of defendant along with other family members left the defendant in her matrimonial home and on 31.12.2016, defendant fled away due to illtreatment, harassment and assault given by appellant and his family members. Upon asking by the said witness to defendant, she stated that it was the appellant, who cut her hair. The independent witness examined on behalf of plaintiff has not supported the case of the plaintiff with regard to defendant treating appellant/plaintiff with cruelty. Witnesses examined on behalf of defendant have supported the case of the defendant and stated about ill treatment and assault under the influence of liquor by appellant/plaintiff.

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The Hon’ble Supreme Court while dealing with the allegation of extra marital affair in the matter of Vijaykumar Ramchandra Bhate V. Neela Vijaykumar Bhate , reported in (2003) 6 SCC 334 has observed in para-7 thus :-

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“7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13 (1) (i-a) of the Act. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)( i-a ) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting

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to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

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The Hon’ble Supreme Court in case of Narendra Vs. K. Meena, reported in (2016) 9 SCC 455 reiterating the view taken in the matter of Vijaykumar Ramchandra Bhate (supra) held that when the assassination of character is made by either of the parties it would constitute a mental cruelty for which a claim for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 would be sustainable.

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Though the appellant/plaintiff in application has pleaded about the defendant living in adultery and having extra marital relation with other persons of the village, however, no clinching and admissible evidence in this regard has been brought in either oral or documentary. Leveling allegation against wife that she is living in adultery itself is a cruelty to the wife.

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For the forgoing discussions made here-in-above, I do not find any illegality or infirmity in the judgment dismissing the application filed by appellant U/s. 13 (1) (i-a) of the Act, 1955 recording a finding that averment made in the plaint is not proved.

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The appeal being bereft of merit, it is liable to be and it is hereby dismissed.

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Decree be drawn accordingly.

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Sd/(Parth Prateem Sahu) Judge

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Balram

Deepak Kumar v. Sushila Bareth

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Deepak Kumar v. Sushila Bareth

Case brief

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