Dismissed

Sangeeta Kujur v. Vijay Kujur

Jharkhand HC1 Nov 2022FA/409/2018

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed an appeal against the dismissal of a divorce petition. Upholding the Family Court’s view, the court held that pleadings are not evidence, a vague police letter was insufficient to prove mental cruelty, and the husband’s denial of seeing an illicit relationship did not disprove the wife’s cause of action, yet no cruelty was established.

What did the court decide?

The Additional Appeal (IA No. 9845 of 2022) was disposed of; the First Appeal (FA No. 409 of 2018) was dismissed.

Sangeeta Kujur Vs Vijay Kujur — Matrimonial and Divorce | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Appellate Jurisdiction)

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FA No. 409 of 2018

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Sangeeta Kujur, wife of Mr. Vijay Kujur, daughter of Flora Lakra, resident of Tiril Road, Kokar, Bariatu, PO & PS Bariatu, District Ranchi at present residing at Office of French Embassy, 68-Sundar Nagar, PS Nizamuddin PO Zorbagh, New Delhi-110003. … …. Appellant

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Versus

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Vijay Kujur son of Fedrick Kujur, resident of village Kokar, Tiril, PO & PS Bariatu, District-Ranchi … …. Respondent

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------CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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-----For the Appellant(s) : Mr. Satish Kumar Keshri, Advocate Mr.Neel Kamal, Advocate For the Respondent : Mr. Shyam Narsaria, Advocate

O R D E R

1^st November 2022

Per, Shree Chandrashekhar,J.

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IA No. 9845 of 2022

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We have examined the additional documents sought to be produced by the appellant as additional documents. However, keeping in mind the principles under Order XLI Rule 27 of the Code of Civil Procedure, we do not find it necessary to take these documents on record as additional documents because these documents are completely unrelated to the issue arising in this case and are not necessary to pronounce judgment in the present case.

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IA No. 9845 of 2022 stands disposed of.

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FA No. 409 of 2018

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Sangeeta Kujur filed a petition under section 10(1)(x) of the Divorce Act, 1869 seeking dissolution of her marriage solemnized with Vijay Kujur on 22^nd April 2007. This petition was registered as Original Suit No. 473 of 2016 (in short, “divorce suit”) which has been dismissed on contest by the judgment dated 30^th July 2018.

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This First Appeal has been preferred by the wife on the ground that the Family Court has misconstrued meaning of the expression 'cruelty' as envisaged under section 10(1)(x) of the Divorce Act, 1869, inasmuch as, false accusations on her character by the respondent would amount to mental cruelty which shall be a ground for divorce.

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For examining the aforesaid plea, it is necessary to have a glance

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2 FA No. 409 of 2018

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through discussions by the Family Court in the divorce suit, which are as follows:

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“9. From the fact mentioned in the present suit, it appears that petitioner Sangeeta Kujur is presently residing at Delhi. According to case of petitioner marriage between the parties was solemnized on 22.04.2007 as per Christian (Catholic) rituals at Kokar Ranchi. In the petition allegation about the alleged cruelty and bad habits of respondent is made but in the evidence of petitioner herself (the only witness examined on her behalf), these allegations and facts stated in petition have not been stated to corroborate and support these facts. The only witness examined on behalf of petitioner is Sangeeta Kujur, the petitioner herself. In her examination-in-chief which is an affidavited statement running in seven paragraphs no where any specific instance of cruelty is mentioned. One Xerox Copy of Police intimation has been brought on the record and same is marked exhibit 'X'. This exhibit marked 'X' for identification is a letter addressed to S.H.O., Nizammaldin Police Station Delhi, wherein it is stated that a complaint is being made by petitioner against her husband. It is mentioned that husband used to do beating and therefore the complainant (wife) does not want to live with him. This letter to SHO appears a vague cryptic information not mentioning date, time and place of alleged beating incident and it appears that because of this ambiguity even no formal FIR has been registered and any action taken by the concerned Police. Apart from this there is nothing on record which may show any alleged cruelty on the part of respondent in the present case. If one goes through the examination-in-chief filed on affidavit under Order-XVIII Rule-4 (1) CPC no material facts regarding the allegations of any cruelty are stated by the petitioner. There is reference of an information given to Kokar Police, Ranchi about alleged threat given by the respondent, but said FIR is not brought on the record.

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10. On behalf of the respondent/wife two witnesses have been examined. The respondent witness no. I is Vijay Kujur, the respondent himself, in his examination-in-chief he has stated that the petitioner has developed intimacy with one Ankit who was tenant in the house and upon objection she started quarreling with him. Even both of them have beaten the respondent. He has denied the allegation of cruelty as alleged in the petition of Sangeeta Kujur. Another witness Jems Nayan Toppo has also stated that petitioner Sangeeta Kujur has developed intimacy with Ankit even she used to give him money.

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11. From the appreciation of evidence available on the record, 1 do find that the facts alleged in the petition by petitioner-wife Sangeeta Kujur are not found proved and established in her evidence and therefore I am of the view that petitioner has failed to establish her case making a ground of divorce by dissolution of marriage. Accordingly issue no.-III is decided against the petitioner.”

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Mr. Satish Kumar Keshri, the learned counsel for the appellant has urged that in her evidence the appellant referred to the divorce petition and while so the allegations made by her in the petition for divorce can be read into the evidence. The learned counsel for the appellant would submit that the complaint filed by the appellant a copy of which was marked as Ext-X (for identification), if read in the background of the allegations made by the appellant in the divorce suit, would amount to mental cruelty as explained by the Hon'ble Supreme Court in

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3 FA No. 409 of 2018

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“Samar Ghosh v. Jaya Ghosh” (2007) 4 SCC 511.

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The learned counsel for the appellant has also relied on the following judgments:

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(i) “Smt. Kakali Das v. Dr. Asish Kumar Das”AIR 2004 Calcutta 176; (ii)“Joydeep Majumdar v. Bharti Jaiswal Majumdar” LL 2021 SC 117, and; (iii) “Meenu Devi v. Amit Kumar” 2018 (3) JLJR 468.

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The expression 'cruelty' as can be gathered from the language employed under section 10(1)(x) of the Divorce Act, 1869 would mean that if the petitioner has been treated by the other spouse in such manner as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful and injurious to live with the respondent, such acts of the other spouse would amount to cruelty so as to make the petitioner entitled for a decree of divorce.

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Section 10(1)(x) of the Divorce Act, 1869 provides as under:

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“ 10. Grounds for dissolution of marriage. —(1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent—

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…......................................................................................... (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.”

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In “Samar Ghosh v. Jaya Ghosh” (2007) 4 SCC 511, on which the learned counsel for the appellant has placed heavy reliance, the Hon'ble Supreme Court has observed as under:

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“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

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(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

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(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

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(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

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(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

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(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

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4 FA No. 409 of 2018

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(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

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(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

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(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

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(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

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(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

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(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

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(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

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(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

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In the backdrop of the judgment in “Samar Ghosh” , if evidence of the appellant is read, it can be seen that there is no specific instance of any act or omission on part of the respondent which can be construed to mean and fall under the expression 'cruelty'.

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For the sake of clarity, we would extract whole of the examination-inchief of the appellant which contains only eight sentences running across seven paragraphs.

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In her examination-in-chief, the appellant has stated as under:

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“I, Sangeeta Kujur, D/o Flora Lakra, R/o TIRIL Road Kokar, P.O. & P.S. Bariatu, Dist. Ranchi PIN 834009, states as follows:-

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1. That the above mentioned case is filed U/s. (10) (i) (x) of the Divorce Amendment Act, 2001.

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2. That the case is under Heading of Evidence.

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3. That the petitioner submits the case issue has been

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5 FA No. 409 of 2018

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settled as Cruelty & Desertion (Main ground).

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4. That earlier in September 2016 petitioner filed under affidavit revealing Desertion since three years between the parties.

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5. That at the time of filing Original Application petitioner filed proof of Cruelty by way of Documentary Evidence. Exhibit - 1 marked-X(for identification).

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6. That petitioner prays the Documentary Evidence be exhibited for the convenience of the Court & parties.

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7. It is pertinent to note that petitioner on 21^st Dec.2017 appeared in the Hon'ble Family Court and returned back to Delhi by evening Flight in between opposite party Vijay Kujur and his brother reached the parental house and threatened dire consequences. On 22^nd Dec. petitioner again came to Ranchi by Flight and reported the complain in Police Station (Sadar) Kokar, Ranchi.”

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The marriage between the parties was solemnized according to Christian (Catholic) rituals and practices on 22^nd April 2007 and out of their wedlock two children were born. The appellant is employed with French Embassy and posted at New Delhi where, according to the respondent, she developed relationship with Ankit Yadav who is a tenant in their house. In her petition for divorce, the appellant made allegations that the respondent has bad drinking habit and of consuming tobacco which in spite of her insistence the respondent did not give up. But in her evidence in the Court, the appellant has not stated even these facts. The appellant has admitted in the cross-examination that her marriage with the respondent was a love marriage. But in her evidence, except referring to a complaint made with the police in which she has alleged that the respondent abused and assaulted her, she has said nothing at all about cruelty inflicted upon her by the respondent. This is consistent case of the respondent that on account of intimacy with Ankit Yadav his wife refused to discharge her matrimonial obligations and was, in fact, living with the said Ankit Yadav in live-in relationship. On the contrary, the appellant filed an information with Nizammuddin Police at New Delhi but the said complaint was not even converted into a First Information Report.

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In the first place, such complaint/information is of no consequence inasmuch as the appellant has not said a word about mental agony and harassment suffered by her on account of acts of her husband for which she filed complaint with the police. As noticed hereinabove, the appellant has failed to tender any evidence much less evidence of such nature which could have probabilized her case that the respondent has been inflicting mental cruelty upon her. Even if the information by the appellant to the police is taken into account, the appellant has failed to demonstrate how she has suffered loss of reputation or any injury on account of the acts of her husband – her evidence is completely silent on this aspect. In the cross-examination, the appellant has stated that the main reason for

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6 FA No. 409 of 2018

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quarrel between the couple was that the respondent was suspecting her chastity. In the cross-examination, specific suggestions as regards her intimacy with Ankit Yadav were put to her which, of course, she has denied. But, at the same time, she has also stated that she does not want any reconciliation with her husband. She has further stated that she is staying away from the company of her husband for the last three years. In “Joydeep Majumdar v. Bharti Jaiswal Majumdar” LL 2021 SC 117 the Hon'ble Supreme Court has observed that normal wear and tear of the middle class married life shall not be construed as a broken marital relationship.

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The plea urged on behalf of the appellant that the allegations made in the petition for divorce may be considered to have been incorporated in her examination-in-chief cannot be accepted. If this course of procedure is adopted that would definitely cause injustice to the respondent and would be in breach of the rules of natural justice as the respondent had no opportunity to answer the case of the appellant, as sought to have been projected before this Court. By the Act 22 of 2002, Rule 4 to Order XVIII has been amended in the Code of Civil Procedure to provide a speedy mechanism for disposal of suits under which the parties are permitted to file their examination-in-chief on affidavit. A statement which does not form part of the examination-in-chief of the appellant cannot be read as her evidence. The reason is that the pleadings are no substitute for proof and also because such statements in the pleadings are not available to have been subjected to cross-examination.

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This is fundamental in law that the allegations in the pleadings of the parties shall not be treated as evidence. Order VI Rule 1 of the Code of Civil Procedure provides that pleadings shall mean plaint and written statement. The provisions under Order VI contain a bar under Rule 2 to the effect that every pleadings shall contain; with further emphasis on “and contain only”, statements in a concise form of the material facts but not the evidence by which they are to be proved. No doubt, Rule 2 has a reference to the evidence that the parties may lay in course of trial but this much is clear from the said rule that pleadings and evidence are two different things which are laid at two different stages in the civil proceedings.

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In “Manager, Reserve Bank of India, Bangalore v. S. Mani & Ors.” (2005) 5 SCC 100 the Hon'ble Supreme Court has held as under:

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“19. Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore not correct to contend that the plea raised by the respondents herein that they had worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. In any event the contention of the respondents having been denied

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7 FA No. 409 of 2018

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and disputed, it was obligatory on the part of the respondents to add new evidence. The contents raised in the letters of the union dated 30-5-1988 and 11-4-1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved, particularly in view of the fact that the contents thereof were not proved by any witness. Only by reason of nonresponse to such letters, the contents thereof would not stand admitted. The Evidence Act does not say so.”

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In yet another case, in “Ayaaubkhan Noorkhan Pathan v. State of Maharashtra” (2013) 4 SCC 465 the Hon'ble Supreme Court has observed that an affidavit is not “evidence” within the meaning of Section 3 of the Evidence Act, 1872.

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The Hon'ble Supreme Court has observed as under:

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“31. It is a settled legal proposition that an affidavit is not “evidence” within the meaning of Section 3 of the Evidence Act, 1872 (hereinafter referred to as “the Evidence Act”). Affidavits are, therefore, not included within the purview of the definition of “evidence” as has been given in Section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the court passes an order under Order 19 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”). Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any court or tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation. (Vide Sudha Devi v. M.P. Narayanan and Range Forest Officer v. S.T. Hadimani)”

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The learned counsel for the appellant has referred to paragraph no.28 of the cross-examination of the respondent who tendered evidence as RW1, to indicate that the respondent has admitted that he did not see illicit relationship of the appellant with Ankit Yadav. This statement of the respondent has been referred to by the learned counsel for the appellant to submit that the respondent has been making false allegation of adultery against the appellant. To fortify this submission, the learned counsel for the appellant has referred to the judgment in “Joydeep Majumdar” to submit that baseless complaints which cause harm to the reputation of a person shall also come within the meaning of mental cruelty.

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Paragraph No. 28 of the cross-examination of RW1 reads as under: “28. eSa vius vkWa[kksa ls vkosnhdk vkSj vafdr dk uktk;t lEca/k gksrs ugha ns[kkA vkosnhdk dk Qksu esa vkosnhdk vkSj vafdr dk QksVk eSlst] pSfVax ns[ksaA ”

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English Translation:

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“28. I have not seen the applicant and Ankit engaged in illicit relationship. I have seen photo-message and chatting of the applicant and Ankit in the phone of the applicant.”

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In the context of admission of the respondent in paragraph No.28 of

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the cross-examination, we would only indicate that whole of the said paragraph has

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FA No. 409 of 2018

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to be read together. Not only that, the evidence of the respondent has to be read together and not in piecemeal. The statement of the respondent that he has not seen the appellant engaged in sexual intercourse with Ankit Yadav cannot be read in isolation. The respondent has said that he found evidence of relationship of the appellant with Ankit Yadav in their photo-messages and chatting in the mobile phone of the appellant. Moreover, evidence of the respondent in a matrimonial petition cannot be the basis to grant relief to the petitioner.

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In “State of M.P. v. Nomi Singh” (2015) 14 SCC 450 the Hon'ble Supreme Court has observed as under:

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“11. It is settled principle of law that in respect of relief claimed by a plaintiff, he has to stand on his own legs by proving his case....”

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In view of the aforesaid discussions, we do not find any reason to interfere with the judgment dated 30^th July 2018 passed in Original Suit No. 473 of 2016 and, accordingly, this First Appeal is dismissed.

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 1^st November, 2022 SB/Nibha-AFR

Sangeeta Kujur v. Vijay Kujur

Case brief

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Sangeeta Kujur v. Vijay Kujur

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