Appeal against dismissal of divorce suit on grounds of cruelty. High Court upheld lower court's finding that wife's conversion of fixed deposit in minor daughter's name did not constitute cruelty. Appellant's conviction for 498-A IPC and acquittal for bigamy did not establish wife's cruelty.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Appeal from Original Decree No. 131 of 2016
(Against the judgment dated 25.6.2016 passed by the learned Court of Principal Judge, Family Court, Chatra in Original Suit No. 09 of 2011)
-- Ranjeet Kumar Singh .....Appellant Versus Smt. Kalyani Devi . .....Respondent --For the Appellant: Mr. V.K.Sharma, Advocate For the Respondent : Mr. B.K.Dubey, Advocate Mr. V.K.Tiwari, Advocate
CORAM:HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE RATNAKER BHENGRA
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By Court : Heard learned counsel for the parties.
2 . Appellant is the husband aggrieved by the dismissal of the Original Suit No. 9 of 2011 vide judgment dated 25.6.2016 passed by learned Principal Judge, Family Court, Chatra, whereunder his petition seeking dissolution of marriage with the respondent-wife on grounds of cruelty in terms of Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 has been dismissed.
3. Petitioner pleaded before the learned Family Court that his marriage was solemnized with the respondent on 19.5.2005 as per Hindu rites and customs in the district of Chatra. They started living together and matrimonial obligations were fulfilled. After fifteen days, brother of the respondent-wife took her to her parents’ house. On 25th August, 2005 he took her to village Litta. He is the only son of his parents. His father on retirement from colliery, received an amount of Rs. 8 lacs as retirement benefits which was deposited in State Bank of India, Branch, Itkhori in the joint name of his father and mother. On her request, her in-laws opened two fixed deposits in the joint name of both the spouses for a sum of Rs. 2 lakhs each in State Bank of India, Itkhori Branch bearing receipt Nos. 0793615 and 0793616. On the same day T.D.A. No. 0793614 for a sum of Rs. 4 lakhs was issued in the name of his father and mother. The two original TDA certificates were in custody of the petitioner. However, respondent with ulterior motive went to her parental house without his knowledge on 24th September, 2005 along with her brother and took away both the original TDA receipts including her ornaments and belongings. He
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tried to bring her back but her parents misbehaved with him. He sent a legal notice on 23.7.2007 asking her to come back and resume matrimonial relationship within two months but she did not respond. Petitioner alleged that her conduct had caused mental and physical torture. She also instituted an FIR on 1st October, 2008 under section 498 A of the IPC r/w section ¾ of the Dowry Prohibition Act against him and his family members alleging demand of dowry of Rs. 50,000/- in cash and a Hero Honda motorcycle. However, on investigation charge-sheet was submitted only u/s 498 A IPC as no case was made out u/s ¾ of the Dowry Prohibition Act. Petitioner and his parents had to take bail which has caused serious mental torture and cruelty upon them. Respondent has got the TDAs converted in her own name without consent and signature of the petitioner which had caused him serious monetary setback. He had instituted complaint case in the court of CJM, Chatra against the Branch Manager for his high handedness. On 16.3.2011 respondent was requested to come to Chatra Court but she flatly refused to live with him and threatened to implicate him and his family members in several false cases. She and her mother have been eying her father’s money deposited in the joint name and therefore have instituted false case. On 18.3.2011 respondent had also instituted complaint case no. 71 of 2011 alleging second marriage with one Tanu Devi against the petitioner. Respondent does not intend to live with him and therefore, having no alternative he has sought dissolution of marriage. 4. Respondent through her written statement asserted that the suit is not maintainable and has been instituted to save skin from conviction in the criminal case. She has admitted averments made in para 1 to 4 of the petition but neither admitted nor denied averments made in para 5,6 and 7 of the plaint. She stated that a girl child Divya was born out of the wedlock and is aged seven years. She had never requested her in-laws to deposit any money in her joint name. She received Rs. 4 lakhs in cash on account of partition of ancestral property from her father and brother in lieu of her share which she took her to her matrimonial house. This money was deposited in the State Bank of India, Itkhori Branch in the joint name of both the spouses to be operated by either or survivor. As such any one of them could operate the account. She did not require her husband’s consent. She alleged torture after six months of marriage by petitioner and his family members for demand of Rs.50,000/- in cash and one Hero Honda motorcycle. She has been brutally assaulted on refusal by her father to pay such amount. She further alleged about second marriage of the petitioner
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with one Tanu Devi for which she has instituted complaint case under section 494 IPC.
5 . Based on the rival pleadings of the parties the following issues were
framed by the learned trial court.
6. During course of trial petitioner himself examined as PW-1, PW-2 Rajvanti Devi, his sister and PW-3 Ballabh Rana who however did not appear for cross-examination and as such his evidence was not considered.
Respondent examined herself as DW-1, her brother Uday Singh as DW-2 and Brajesh Kumar Singh her another brother as DW-3.
7 . Petitioner adduced following documents in support of his case.
“Ext.1 Certified copy of deposition of Usha Devi recorded in G.R. case no. 923 of 2008
Ext.2 certified copy of deposition of Uday Singh recorded in G.R. case No. 923 of 2008.
Ext.3 Certified copy of Smt. Kalyani Devi’s deposition recorded in G.R. case no. 923 of 2008.
Ext.4 Certified copy of deposition of Raj Bahadur Singh recorded in G.R. case no. 923 of 2008.
Ext.5 Photocopy of Bank Pass Book of A/c No. 11473625693 maintained by Ramadhin Singh in SBI, Branch, Itkhori
Ext.6 Letter dated 25.3.2013 under Right to Information Act, 2005 addressed to Ramadhin Singh, village Lipda P.S. Itkhori, District Chatra signed by Om Prakash Singh, Regional Manager cum Central Information Officer, SBI.”
8. Learned family court was of the opinion that no specific grounds have been urged in the plaint but as per the averments made therein petitioner had set up a case of cruelty against the respondent for seeking divorce. Issue No. 3 and 4 were taken together for consideration. The respondent with minor daughter aged about 7 years had been living separately. She had instituted a maintenance petition u/s 125 of the Code of Criminal Procedure which was decided on 23.6.2016. She lodged Itkhori P.S. case no. 160 of 2008 u/s 498 A of the Indian Penal code and Complaint Case No. 71 of 2011 u/s 494 of the Indian Penal code on allegation of having contracted second marriage by her husband. Learned family court dealt with each one of the specific contention of the petitioner i.e.
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(i) Conversion of TDA of Rs. 2 lacs each in the name of spouses by the respondent in collusion with her parents without his knowledge into her own name .
(ii) Legal Notice dated 23.7.2003 requesting her to resume matrimonial ties within two months failing which legal action shall be taken.
(iii) Refusal of the respondent to go to Civil Court, Chatra on 16.3.2011. Her refusal to live with him and threat to implicate him and his family members in criminal case.
(iv) Institution of FIR u/s 498A IPC and Section 3/4 of Dowry Prohibition Act at Itkhori Police Station against the petitioner, his parents, sister and brother-in-law on false allegation of demand of dowry.
(v) Institution of complaint case on allegations of second marriage with one Tanu Devi on 18.3.2011.
9. Learned family court discussed the evidence of the petitioner as well as the respondent. Petitioner PW-1 supported his case in his examination-in-chief. In his cross-examination, accepted the birth of the child from the wedlock; institution of a case u/s 498 A of the IPC in 2008 and also deposed that Panchayati was held but she did not return to her house. He denied any Panchayati on 7.1.2011. He denied having performed second marriage with Tanu Devi @ Hina. He denied having any knowledge of partition amongst the family members of his wife’s paternal family and that she obtained four lakhs in lieu of her share. PW-2 his sister gave her examination-in-chief on affidavit and in crossexamination denied knowledge of any panchayati held between the parties. She denied second marriage of the petitioner. PW-3 did not turn up for his cross-examination and his evidence was not considered.
10. D . W.-1 respondent in her examination-in-chief accepted the factum of marriage and her living at matrimonial house at village Litta. She stated that petitioner and his family members started torturing her on nonfulfilment of the demand of Rs. 50,000/- in cash and a motorcycle . She was beaten up and ousted from the matrimonial house. Despite that her father paid Rs. 10,000/- to them but they did not allow her to return to the matrimonial home and kept on demanding Rs. 40,000/- and a Hero Honda motorcycle. As such she instituted Itkhori P.S. case No. 160 of 2008 u/s 323 and 498 IPC. Mediation between the parties took place and she also returned to the matrimonial house but she realized that her husband had
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married one Tanu Devi @ Hina. She also stated about the partition in her family amongst her five brothers in the year 2005 but did not remember the date when dowry was demanded. She first met Tanu Devi on 8.2.2010. DW 2 and 3 her brothers supported her case in their examination-in-chief. In their cross-examination D.W. 2 could not produce any document of second marriage of the petitioner.
11. Learned family court upon appraisal of the evidence on record held that two TDAs in the joint name of the spouses for a sum of Rs. 2 lakh each were not marked as Exhibit. However, perusal of these certificates showed that they were to be operated in either or survivor mode. As such, conversion of one of the fixed deposits in the name of her minor daughter did not require consent of the petitioner or her father-inlaw. Therefore, no wrong was committed. Petitioner had also not brought on record any evidence that there was any precondition imposed while opening of the two TDAs in the name of the spouses, that it would be returned to his father on demand or that she had to take permission. Learned Family Court also took into note the institution of criminal case relating to cruelty in marriage on non-fulfillment of demands of dowry and was of the opinion that the allegation of the petitioner of cruelty in marriage is therefore untenable. The learned Court discussed the ingredients of mental cruelty as laid down by the Apex Court and observed that petitioner had failed to bring on record any evidence that respondent had inflicted such mental pain or suffering upon him which made it impossible for him to live with her. As such, he had failed to establish the grounds of cruelty for seeking relief. The other two issues were accordingly decided against him.
12. Learned counsel for the appellants submits that findings of the learned court are not balanced. The oral testimony and the documentary evidence on record in the nature of deposition of witnesses in GR Case No.923 of 2008 including the photocopy of the pass book of the account maintained by his father in SBI, Itkhori Branch went to show that the respondent had in a calibrated manner through her sustained conduct, inflicted such mental cruelty upon him which created an apprehension in the minds of the petitioner that it was impossible for him to live with her. No wife could take away fixed deposits opened in the joint name of the spouses and convert it without knowledge or consent of the other spouse. The institution of an FIR, bearing Itkhori PS Case No. 160 of 2008, on grounds of demand of dowry and cruelty in marriage were also intended to inflict tremendous
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mental cruelty upon the petitioner and his family members. The police after investigation did not find any merit in the allegations so far as the demand of dowry is concerned. However, learned counsel for the appellant submits that during pendency of this appeal the appellant has been convicted for the charge under Section 498 of the Indian Penal Code by the learned Court at Chatra. The appeal is pending before this Court, in which, the appellant has been granted bail. The appellant has however been acquitted on the charge under Section 494 of the Indian Penal Code. As such, this amounted to a false accusation. All these acts taken together definitely point out to a sustained conduct of not only neglect but inflicting of pain and torture in a deliberate manner. The marriage between the parties is unlikely to survive as there are no emotional ties left between them. The findings of the learned family court, therefore, suffers from errors of law and on fact. It has failed to consider the evidence in its right perspective. As such, the appeal deserves to be allowed.
13 . Learned counsel for the respondent-wife has supported the findings rendered by the family court. He submits that the petitioner has miserably failed to establish the ingredients of cruelty more specifically mental cruelty in marriage against the respondent. On the other hand, it is the respondent, who was the victim of cruelty in marriage on non-fulfillment of demand of dowry. The learned court at Chatra has convicted the appellant of the charges under Section 498-A of the Indian Penal Code. Therefore, it is the appellant who has been found guilty of cruelty in marriage. The appellant has been acquitted by the learned Court in the Complaint case No. 71 of 2011 under Section 494 of the Indian Penal Code. However, it is in the circumstances, where the respondent could not bring such evidence on solemnization of the second marriage by the petitioner with the said Tanu Devi. The conversion of the fixed deposit in the name of the only daughter born out of the wedlock also can in no way be treated as an incidence of mental cruelty. Respondent through her statement indicated that the said amount was out of her share obtained upon partition of the ancestral property of her father. The appeal is, therefore, devoid of merit and deserves to be dismissed.
14 . We have considered the submissions of the learned counsel for the parties at length, gone through the impugned judgment and also the relevant material evidence on record as relied upon by the learned counsel for the parties and discussed by the learned family court. We find from the pleadings of the parties and the evidence adduced by them, recorded
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above, that the suit was instituted only on the grounds of cruelty in marriage. The petitioner sought to establish the ingredients of cruelty on such acts of the respondent i.e. conversion of a fixed deposit in the name of the only girl child born out of the wedlock; institution of a case under Section 498-A of the Indian Penal Code by the respondent against the petitioner and his family members; institution of maintenance case under Section 125 of the Code of Criminal Procedure (decided in her favour by order dated 23.06.2016); institution of a Complaint Case No. 71 of 2011 under Section 494 of the Indian Penal Code alleging second marriage by the petitioner.
15. The learned family court has discussed each of these allegations at length in the light of the evidence on record and its findings do not suffer from any misappreciation of evidence or perversity. Conversion of a TDA/ Fixed Deposit in the name of the only daughter born out of the wedlock by the respondent could not be an instance of mental cruelty. The matrimonial suit was instituted after three years of the institution of the Itkhori PS Case No. 160 of 2008 on allegations of demand of dowry and cruelty in marriage. During the pendency of this appeal, the appellant has been convicted of the said charge. As such, the allegations of cruelty have been made against the petitioner rather than the respondent. The acquittal of the appellant in a case under Section 494 of the Indian Penal Code for want of evidence can alone not lend support to the petitioner’s allegations of cruelty in marriage in such circumstances. It is common experience that evidence of solemnization of a second marriage is difficult to be brought by the complaining spouse. As such, on an analysis of the entire material evidence on record and the pleadings of the parties, we do not find any such error of law or on facts, which deserves to be disturbed.
16. The appeal is, therefore, without merit. It is, accordingly, dismissed. Decree accordingly.
(Aparesh Kumar Singh,J)
(Ratnaker Bhengra,J)
Jharkhand High Court, Ranchi Dated 17th July, 2018 S.B./KNR/ NAFR
3 issues framed by the court
Whether the conversion of a fixed deposit in the name of the joint daughter and the institution of criminal complaints by the wife constitute cruelty sufficient for decreeing dissolution of marriage.
Whether the lower court's finding that the appellant failed to establish mental cruelty warrants setting aside the dismissal of his divorce suit.
Whether the conviction of the appellant under Section 498-A IPC and acquittal under Section 494 IPC affect the ground for divorce in the civil suit.
Ranjeet Kumar Singh
Smt. Kalyani Devi
Apareesh Kumar Singh
Ratnaker Bhengra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court