Dismissed

Anna Kujur v. Ashim Kumar Singh

Jharkhand HC1 Nov 2022FA/424/2018

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed the First Appeal against an ex parte decree of divorce. The court held that no specific issue on desertion need be framed in ex parte proceedings lacking a opposing written statement. It rejected claims of fraud and non-service, finding the Appellant admitted separating voluntarily via signed documents, and upheld the decree based on evidence of long-term sepa

What did the court decide?

The First Appeal No. 424 of 2018 was dismissed, and the Original Suit No. 139 of 2016 decree was affirmed.

Anna Kujur Vs Ashim Kumar Singh — 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. 424 of 2018

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Anna Kujur, d/o late Phooljens Kujur, w/o Ashim Kumar Singh, r/o villageMission Primary School, Jeetpur Road, Gomoh, PS Hariharpur, Gomoh, District Dhanbad, presently residing at Hazi Mohalla, Gomoh, PO Gomoh, PS Hariharpur, District Dhanbad. ...... Appellant

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Versus

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Ashim Kumar Singh, s/o late Bijay Singh, r/o village Atithi Palace, Jeetpur (Gomoh), PO & PS Gomoh, District Dhanbad. ..... Respondent

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---------------

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mr. Birendra Kumar, Advocate Mr. Vishwanath Ray, Advocate Mr. Raj Kishore Sahu, Adavocate For the Respondent : Mr. Kalyan Banerjee, Advocate ---------------

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O R D E R 1^st November 2022

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Per, Shree Chandrashekhar, J.

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Ashim Kumar Singh instituted Original Suit No. 139 of 2016 (in short, Divorce Suit) seeking a decree of dissolution of his marriage solemnized with Anna Kujur on 8^th February 2008 under the Special Marriage Act 1954.

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The Divorce Suit has been decreed ex parte by judgment dated 23^rd June 2018 against which the present First Appeal has been filed by Anna Kujur.

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This First Appeal was filed on 5^th November 2018 with delay of 105 days, which was condoned by an order dated 3^rd December 2019 passed in I.A No.5793 of 2019. In the order dated 22^nd January 2020, this Court has recorded that mediation between the parties had failed.

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The appellant has challenged the judgment in the Divorce Suit raising interalia the following grounds: (i) the respondent failed to prove “desertion” as envisaged under clause (b) to sub-section 1 to section 27 of the Special Marriage Act 1954 and, on the contrary, coerced the appellant to take out a proceeding in the Court for divorce; (ii) judgment in the Divorce Suit is cryptic and does not deal with evidence by the respondent; (iii) suit has been decreed without framing a specific issue on desertion; and (iii) judgment in the Divorce Suit is a nullity.

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On 8^th February 2008, marriage of the appellant with the

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2 FA No. 424 of 2018

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respondent was registered under the Special Marriage Act, 1956 before the Marriage Officer, Dhanbad. In the divorce suit, the respondent has pleaded that the appellant left the matrimonial home on 15^th January 2012 to live with her parents at Gomoh, where she gave birth to a female child. According to the respondent, the appellant came to his house with her father on 3^rd May 2012, collected all her belongings and gave three hand-written endorsement/declaration that she was breaking all ties with her husband and those documents were countersigned by her father. The respondent further pleaded that his wife left behind their infant child who was undergoing treatment at CMC, Vellore and inspite of his repeated requests did not come back to the matrimonial home.

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The original records of the Divorce Suit which have been attached with the present First Appeal reveal that by an order dated 16^th March 2017 the appellant was debarred from filing written statement and the Divorce Suit was fixed for evidence of the respondent. The respondent was debarred from filing written statement by the order dated 16^th March 2017. Thereafter the Divorce Suit was listed in the Court on 23 occasions for hearing on the application filed by the respondent, evidence of the respondent and judgment.

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The order dated 16^th March 2017 reads as under:

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“16.03.17: Petitioner is present.

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Respondent is absent.

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Suit was fixed for filing written statement on behalf of respondent.

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Respondent is absent and takes no step for filing written statement despite of sufficient opportunity given to respondent. Therefore respondent is debarred from filing written statement and this suit is fixed for evidence on behalf of petitioner.”

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The order dated 16^th March 2017 has been passed on an understanding that the appellant had appeared before the Court on 29^th August 2016. Thereafter, the appellant was granted opportunity on 5^th December 2016 and 6^th February 2017 for filing written statement but the proceedings of these dates reveal that the appellant was absent on these dates. In this First Appeal, a specific ground has been raised by the appellant that no summons was served upon her and the respondent played fraud upon the Court by presenting another lady impersonating her as his wife. We have considered this plea in the context of any probable benefit to the respondent, if at all there is any substance in the plea raised by the appellant; and find that such a plea has been raised only for the sake of urging an additional ground in the present First Appeal. The order

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3 FA No. 424 of 2018

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dated 29^th August 2016 records that there was some possibility of settlement between the parties and the mediation exercise was in progress at that time. The order dated 5^th December 2016 records that the mediation exercise for an amicable settlement of dispute between the couple had failed. This order further records that a copy of the mediation report shall be kept in the records of the case.

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Now, in the aforesaid background, had there been any substance in the plea urged on behalf of the appellant that the respondent produced another lady before the Court whose presence has been marked on 29^th August 2016 the mediation exercise would have been a successful one. There would then have been a compromise for divorce mutually agreed upon between the parties but that is not the case here, rather the mediation has failed. Therefore, we are not inclined to accept the plea of fraud urged on behalf of the appellant as pleaded under ground no.(iii) in the memorandum of Appeal. Otherwise also, on such ground the present First Appeal is not the proper remedy for the appellant. Then the appellant was required to file an application in the same Court which has decreed Original Suit No. 139 of 2016; or, she could have filed an application under Order IX Rule 13 of the Code of Civil Procedure.

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As regards framing of issues, Rule 1 Order XIV of the Code of Civil Procedure provides that issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Therefore, issues are framed on the basis of the pleadings of the parties which is not a case here. There was no written statement filed on behalf of the appellant and while so it cannot be assumed that the parties were opposing each other on a particular issue of fact or not. We are, therefore, of the opinion that in an ex parte proceeding it was not necessary for the Family Court to frame issue(s) for rendering a judgment.

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That apart, we do not find any substance in the plea urged on behalf of the appellant to challenge the judgment in the Divorce Suit.

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The Family Court has referred to the evidence of PW1 and PW2 who are the neighbors of the respondent. The evidence of PW1 has been considered by the Family Court in the following manner:

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“5. PW-1 Punit Lal Mahato has fully supported the case in his chief according to the plaint. Due to non-cross-examination, the entire chief are intact against the respondent. Respondent is not appeared throughout and the case is running debarred. On perusal of documents, it is clear that respondent herself withdrawn from the society of the petitioner and she is not

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4 FA No. 424 of 2018

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willing to re-union with the petitioner. The record further shows that the petitioner is deserted more than two years by the respondent. Photo copy of the Family Court, Latehar in which respondent has already filed divorce case against the petitioner and the case was dismissed due to non-appearance of the petitioner.”

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The Family Court has further held as under:

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“6. PW-2 Binod Kumar and PW-3 Ashim Kumar Singh have stated the same and similar lines of PW-1”

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The main thrust of the argument of the learned counsel for the appellant is that the Family Court did not consider evidence of other witnesses and recorded a vague observation that PW2 and PW3 have also stated on same and similar lines as that of PW1.

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The contention raised at Bar is that there is no consideration by the Family Court as regards evidence laid by the respondent to establish desertion by his wife.

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To fortify his submissions regarding meaning of “desertion”, Mr. Birendra Kumar, the learned counsel for the appellant has referred to paragraph no. 10 of the judgment in “ Bipinchandra Jaisinghbai Shah v. Prabhavati ” AIR 1957 SC 176 which reads as under:

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“10. What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarised the case-law on the subject in these terms:"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".

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The legal position has been admirably summarised in paras 453 and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd Edn.), VoL 12, in the following words:-

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"In its essence desertion means the intentional permanent forsaking and abondonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.

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Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

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The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it

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5 FA No. 424 of 2018

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must exist for a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".”

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On the other hand, the learned counsel for the respondent would contend that the undertakings by the appellant which have been laid in evidence by the respondent unerringly disclosed intention of the appellant to leave the company of her husband forever.

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It is not in dispute that in the proceeding of the Divorce Suit the respondent produced a copy of the hand-written letter dated 3^rd May 2012 by the appellant, that she decided to part ways on her own. On the same day, the appellant has accepted return of household articles and further agreed that both parties would take out appropriate proceeding in the Court for divorce which has been marked as Exhibit-3. On the basis of Exhibit-3, a plea has been raised that before the statutory period of 2 years lapsed the respondent by coercing the appellant to execute this document prevented her from joining his company. We do not find any substance in this plea. There is no challenge by the appellant to genuineness of the documents hand-written by her. She by raising the aforesaid plea has, in fact, admitted execution of those documents.

¶48

For the sake of clarity, one of the documents written by the appellant, Exhibit-1 is reproduced hereinbelow:

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I Anna Kujur, wife of Ashim Kumar Singh, address Mission Primary School, Gomoh, PS Gomoh, District Dhanbad is separating from my husband on my own (Apni Marzi) from 3^rd May 2012 and from this day there shall be no relation between us. I am taking away all my belonging with myself. After today, nothing belonging to me remains in my Sasural and I would not raise any demand for any article in the future.

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I am writing this on my own in front of my husband so that the same may be utilized in future.

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Anna Kujur dated 3^rd May 2012

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The expression “desertion” has been explained by way of 2^nd explanation to sub-section 1 to section 27 of the Special Marriage Act which reads as under:

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“Explanation.- In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

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6 FA No. 424 of 2018

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The expression “desertion” as understood in legal parlance has specific meaning and connotation. For an act of a party to constitute desertion as envisaged for the purpose of seeking a decree of divorce the same must be accompanied with “animus deserendi”. To put shortly, the intention to end cohabitation and the act of leaving the company of the other party must exist and then only the consequence shall follow.

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Mr. Kalyan Banerjee, the learned counsel for the respondent has drawn our attention to the counter-affidavit filed by the respondent in which he has given details of another suit, filed by the appellant for divorce. The learned counsel for the respondent has referred to the paragraph nos. 12 and 13 of the counter-affidavit dated 16^th January 2020 which read as under:

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“12. That, as per the averment made in paragraph no.5 of the memo of appeal under reply are concerned they are partially admitted and partially denied wherein it is true that the appellant had filed a divorce case before the Family Judge, Latehar which was numbered as Matrimonial Suit No. 03/2012 but the appellant has knowingly tried to misguide this Hon'ble court by making wrongful submission regarding some settlement between the parties wherein in reality the said suit was 'Dismissed for nonprosecution' on dated 23.04.2014. Morefully it is denied that the appellant was ever subjected to any kind of torture or that she was outsted and as such the allegation is absolutely false and frivolous case wherein the case U/s 498A IPC filed by the appellant against the respondent being numbered as G.R. Case No.8/2013 (corresponding Harpihar P.S. Case No.01/2013) and the same has already been decided by the Ld. Court of Smt. Shikha Agarwal, J.M. 1^st Class, Dhanbad and the respondent has been acquitted from all the charges. Thus it is crystal clear that over the years it is the appellant who has committed cruelty upon the respondent and his family by withdrawing herself from the society of her husband i.e. the respondent without any reasonable excuse by leaving behind her milk feeding child and did not even bother to have a glimpse of him as the child is a specially abled child and thereafter by filing false and baseless cases against the respondent and thus subjected him to social humiliation and mental agony and trauma by misusing her female gender.

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13. That, as per the averments made in paragraph no. 6 of the memo of appeal under reply is concerned they are denied as being false and incorrect. It is hereby stated that the appellant was all along aware about the suit since the date and date the service of summon which was served upon her and the same is quite evident from the service report of the process server/bailiff and the receiving endorsement of the appellant herself wherein she received the summon in person on dated 28.07.2016.

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That, after receipt of summon the appellant herself appeared in the said suit on dated 29.08.2016 wherein the Ld. Court of Principal Judge, Dhanbad after hearing both the parties in person found some element of settlement and as such referred the parties to Mediation Centre and directed them to appear before the same on 02.09.2016 and thereafter appear before the Principal Judge after mediation on 05.12.2016, wherein subsequently the Ld. Court passed an order recording failure of mediation proceedings on dated 05.12.2016 and appellant being shrewd litigant chose to remain absent from the court proceedings but kept a close watch on the same and pile on the agony of the respondent. Hence it is evident that it is the appellant who is has been playing fraud by misguiding this Hon'ble court by filing such baseless appeal on

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false and baseless grounds.”

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In his evidence, the respondent who examined himself as PW3 has stated that the appellant lived with him till 14^th January 2012 and she is living separately since 15^th January 2012. On this basis, a plea has been raised by the learned counsel for the appellant that there is contradiction in the date of desertion, inasmuch as, in the petition for divorce the respondent has claimed desertion by his wife from 15^th January 2012. This plea seems to have its origin in paragraph no. 3 of the petition for divorce which is extracted as below:

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“3. That, the cause of action arose on 15/01/2012 at about: 09:00 A.M. When the respondent leave the House of the petitioner and went away her native place and thereafter came at Gomoh and lived separately.”

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Without indicating much, we would simply say that the aforesaid ground has been urged on a misreading of the aforesaid evidence . A cause of action and intention to leave forever as to constitute desertion under 2^nd explanation to sub-section 1 to section 27 are two different things. There may be series of cause of actions which would finally lead to filing of the case and it is not necessary that at the first point in time when the cause of action arose for the plaintiff/petitioner that must be the point in time when the other party decided to desert the petitioner. A reading of paragraph no.3 of the petition for divorce simply reveals that on 15^th January 2012 the appellant left her matrimonial home and went to her native place. In the same paragraph, it has also been stated that later on she came back at Gomoh and started living separately. The intention of the appellant to desert her husband has been accepted by her in the undertakings dated 3^rd May 2012, and the Divorce Suit was filed on 29^th February 2016 which is after lapse of 2 years' period for seeking divorce on the ground of desertion.

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Having thus examined all possible grounds of challenge, we are of the opinion that there is no merit in this First Appeal and, accordingly, FA No. 424 of 2018 is dismissed.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 1^st November 2022 RKM/ A.F.R

Anna Kujur v. Ashim Kumar Singh

Case brief

What is this about?

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Anna Kujur v. Ashim Kumar Singh

Case brief

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