1. Heard learned counsel for the appellant Mr. A.K.Sahani and Mr. Anil Kumar for the respondent No.1.
2. The appellant has preferred this appeal against the judgment dated 29.06.2013 and decree dated 17.07.2013 passed in Mat. Case No. 24/2008 by
the learned Principal Judge, Family Court, Palamau at Daltonganj whereby the matrimonial suit filed by the husband/plaintiff/appellant under section
13(1)(i) of the Hindu Marriage Act, 1955 has been dismissed by the learned Court below.
3. Learned counsel for the appellant Mr. A.K.Sahani has submitted that the learned Family Court has dismissed the suit without taking note of the
pleadings and materials available on record. Mr. Sahani, learned counsel for the appellant has submitted that the Family Court has framed 5 issues
which are as under:
“I- Is the suit, as framed, maintainable?
II- Has the plaintiff/petitioner got valid cause of action for the suit?
III- Are the plaintiff and the defendant no.1 are legally married husband and wife?
IV- Is the defendant no.1 living in adultery with defendant no.2?
V- Is the plaintiff entitled for relief claimed?â€
Learned counsel for the appellant has further submitted that Family Court has not decided the issues in proper prospective rather has taken all the
issues together simultaneously except issue no.4 regarding wife living in adultery with defendant no.2, her own brother-in-law? This issue was
separately discussed as Issue no.IV in para-10 of the impugned judgment and discussion relating to that are from para-11 to 15 wherein it has held in
para-16 as under:
“I find and hold that the plaintiff/petitioner has failed to prove the fact of adultery alleged against his wife (respondent/Opp. Party no.1)
by circumstances. Accordingly, issue no. IV is answered.â€
Learned counsel for the appellant has submitted that though the issue has not been framed with regard to desertion but from the evidence brought on
record, it appears that the wife has deserted the appellant, as such, his application filed under section 13(1)(i) of the Hindu Marriage Act has been
wrongly dismissed by the learned Family Court. Learned counsel for the appellant has further submitted that the parties are living separately since
1998. As such, the appeal may be allowed since there are no chances of reunion of the parties as the process of mediation undertaken by this Court
vide order dated 01.02.2018 has also not brought any fruitful result. The parties could not arrive at an amicable settlement despite best efforts as
reported by learned Mediator, JHALSA contained in letter no. 679 dated 19.03.2018. As such, the marriage may be dissolved by passing a decree of
divorce.
4. Mr. Anil Kumar, learned counsel for the respondent-wife has submitted that a nasty allegation has been leveled against the wife by her husband
jolting the very concept of marriage. The appellant could not substantiate such nasty allegation before the Family Court and thus failed to prove the
factum of adultery alleged against his wife. Learned counsel for the respondent has submitted that faith and mutual understanding between the parties
is a sine qua non to the institution of marriage and key to conjugal happiness. The moment either of two is affected, it leads to a dent in such
relationship. Learned counsel for the respondent wife has further submitted that once a husband has alleged his wife of being involved in adultery with
her own brother-in-law (bahnoi), the same has caused a loss of confidence in the marriage. Adultery is a serious matrimonial offence coupled with
criminality against the male partner i.e. bahnoi which may also tarnish the peaceful matrimonial life of sister of the respondent. The husband without
having any valid proof has made such cheap allegation, which he has failed to prove as the same requires a high standard of proof. As such, the
impugned judgment and decree does not require any interference by this Court and the appeal be dismissed with cost. Learned counsel for the
respondent has further submitted that the respondent-wife has filed complaint case No.1112/07 (Anita Devi vs. Prashidha Kumar Verma) instituted
under sections 498A, 323, 379, 307, 120B of the IPC and section 3/4 of the Dowry Prohibition Act in which the husband has been convicted by the
learned trial court. Certified copy of order passed from 18.11.07 to 02.03.13 has been brought on record as Exhibit-A. Learned counsel for the
respondent has further submitted that wife has also preferred an application vide M.P. Case No.61/08 which was allowed directing the husband to pay
Rs.1200/- per month to the applicant wife Anita Devi vide order dated 30.07.2012 in addition to the amount of Rs. 800 per month for her maintenance
which was passed under the provisions of CrPC. Learned counsel for the respondent has submitted that wife has genuine reason to live separately
from her husband. She has filed Complaint case No.1112/07 under section 498-A, 323, 379, 307, 120B of the IPC and 3/4 of the Dowry Prohibition
Act. Thereafter, the present divorce case vide MAT Case No.24/08 was preferred by the husband. Under the aforesaid circumstances the appeal is
fit to be dismissed as it is devoid of any merits.
5. Heard learned counsel for the appellant and respondent. Perused the impugned judgment and decree as well as lower court record. It appears that
suit was filed on 05.08.2008 by the husband under section 13(1)(i) of the Hindu Marriage Act, 1955 in which the respondent-wife appeared on
10.09.2008. The conciliation was held by the learned Family Court on 03.01.2009 which continued for several days and was ultimately dropped vide
order dated 17.06.2009. In the meantime an application under section 24 of the Hindu Marriage Act was filed on 16.03.2009 which was disposed of
directing husband to pay a sum of Rs.300/- per month to wife defendant no.1 towards litigation expenses and Rs.500/- per month towards her
maintenance in terms of order dated 12.08.2009. The aforesaid five issues were framed on 04.01.2010. The appellant/plaintiff/husband has adduced
six witnesses and also exhibited a number of document up to Exhibit-3 which are as follows:
“A.P.W.1 is Amna Devi, A.P.W.2 is Hakim Mian, A.P.W.3 is Chandradeo Singh, A.P.W.4 is Jagdish Singh, A.P.W.5 is Fauzdar Singh,
A.P.W.6 is Prasidh Kumar Verma. Exhibits-1 to 1/2 are Doctor's prescription, Exhibits-1/3, 1/6, 1/7, 1/8, 1/9, 1/10 and 1/15 are pathological
reports, Exhibits-1/4, 1/5, 1/11, 1/12, 1/13, 1/14, 1/16 and 1/17 are also the Doctor's prescription, Exhibit-2 is cash memo of Nose pin of
Kanak Mandir, Exhibit-3 is the certified copy of the judgment dated 28.02.2012 passed by learned Judicial Magistrate, 1st Class,
Daltonganj in G.R. Case No.1735/2007 arising out of Patan P.S. Case No.144/07 for alleged date of occurrence dated 24.11.2007 at 9.00
P.M. in the house of informant at Sikkikala whereby Janki Raj Prasad, Renu Devi, Anita Devi (wife), Shri Ram Singh have been acquitted
of the charge under sections 147, 148, 323, 341, 504, 506, 379 IPC and only Ghanshyam Narayan Singh, Dhiraj Raj Prasad have been
found guilty and convicted under section 323 of the IPC.
The respondent-wife has also examined three witnesses and also adduced a number of document up to Exhibit-A to A/2 which are as follows:
“O.P.W.1 is Anita Devi, O.P.W.2 is Mahabir Ram, O.P.W.3 is Anil Ram.
Exhibit-A is the certified copy of order sheet from 18.11.2007 to 02.03.2013 passed in Complaint case No.1112/07, Exhibit-A/1 is certified
copy of order from 30.06.2008 to 28.07.2012 in M.P. Case No.61/08 (Anita Devi vs. Prasidha Kumar Verma).â€
6. On 06.01.2011 on the request of both the parties, the Family Court again took recourse of re-conciliation which ultimately failed on 04.08.2011 and
lastly the evidence of the plaintiff/appellant was closed on 18.04.2012. The defendant/respondent wife also adduced evidence regarding maintenance
case preferred by her under section 125 CrPC against her husband Prasidh Kumar Verma. The last order dated 30.07.2012 reveals the fact that
learned A/c, Principal Judge, Family Court, Palamau at Daltonganj was pleased to direct the petitioner to pay Rs. 1200/- per month to the Opposite
Party No.1 Anita Devi in addition to the amount of Rs.800/- per month awarded in the matrimonial case. A/2 is certified copy of order date
30.07.2012 passed by the then learned A/c, Principal Judge, Family Court, Palamau who has been pleased to pass detailed order in Misc. Case
No.61/08.
7. From perusal of the impugned judgment, it appears that the husband appellant Prasidh Kumar Verma has miserably failed in proving the case
against wife respondent Anita Devi.
The Principal Judge, Family Court has rightly held that appellant/ husband has failed to prove the adulterous relationship of defendant/ respondent no.1
wife Anita Devi with her own brother-in-law Dheeraj Ram, defendant no.2.
So far other issues no.I, II, III and V are concerned, the Family Court has given a finding on the issue no.3 regarding the relationship of the plaintiff
Prasidh Kumar Verma and defendant Anita Devi as legally wedded husband and wife in para-17 of the impugned judgment, holding that according to
section-58 of the Indian Evidence Act, facts admitted need not be proved, as such, both are legally married husband and wife.
So far the issue no. I and II regarding maintainability of the application and valid cause of action for filing the suit by the plaintiff-husband is
concerned, the Family court has dealt the same in para-18 and held that suit as framed is not maintainable and the plaintiff/ petitioner has got no valid
cause of action for the suit and accordingly, issues no.I and II are answered.
8. We have considered the second argument made on behalf of the appellant regarding desertion by the wife since 1998 till date alleging irretrievable
breakdown of marriage.
9. From materials available on record, the issue of desertion has not been framed nor any legal material was placed on record to suggest that wife has
deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition as envisaged under
section 13(1)(i-b) of the Hindu Marriage Act.
From the material brought on record, it appears that the original Matrimonial Suit No.24/08 was filed by the husband before the Court of District
Judge, Palamau at Daltonganj on 05.08.2008 specifically under section 13 (1)(i) of the Hindu Marriage Act. The certified copy of the judgment dated
28.02.2012 passed in G.R. Case No.1735/2007 arising out of Patan P.S. Case No.144/07 for the occurrence dated 24.11.2007 at 9.00 P.M. shows
that allegations were made by the husband/ appellant/informant of the case Prasidh Kumar Verma that his marriage was solemnized 14 years ago
with daughter of late Mangnu Ram of village Bishrampur. After marriage, the conduct and behaviour of the wife Anita Devi was not good with him
and his family members. She was mostly residing at her maiyka. In this regard 2-3 times panchayati was held with family members. Last year on the
occasion of Chhath, family members of his wife had come for bidaai, then husband/informant asked them to come after festival for bidaai upon which
they abused the informant/ husband and also gave threatening to implicate in a false case. In the meantime on 24.11.2007 at 9.00 P.M., the accused
persons came on Bolero to his house and took his wife Anita forcibly by causing offence. This document has been exhibited as Exhibit-3. This
document shows that till 24.11.2007 wife Anita Devi was living with husband Prasidh Kumar Verma who filed Mat. Suit No.24/2008 on 05.08.2008.
10. From perusal of the material brought on record including the complaint case filed earlier by the wife Anita Devi against the husband/
appellant/plaintiff Prasidh Kumar Verma bearing complaint case No.1112/2007 under section 498-A and coupled with this document, the
plaintiff/appellant/husband has failed to establish his case under section 13(1) (i-b) of the Hindu Marriage Act regarding desertion by the wife for a
continuous period of not less than two years immediately preceding the presentation of the petition which was filed on 05.08.2008. The wife had filed
complaint case earlier i.e. 1112/07 and subsequent to that the husband has filed Patan P.S. Case No.144/07, G.R. Case No.1735/07. Plaintiff/ husband
who has been convicted in this case has failed to make out a case of desertion as envisaged under section 13(1)(i-b) of the Hindu Marriage Act as the
respondent wife had a reasonable cause to stay away from the matrimonial home due to cruelty in marriage as a result of non-fulfilment of demand of
dowry.
11. So far, irretrievable breakdown of marriage is concerned, as submitted by learned counsel for the appellant, such provision is not recognized by
law for grant of decree of divorce under section 13 of the Hindu Marriage Act.
12. Under the aforesaid circumstances we are of the opinion that the appellant/plaintiff-husband Prasidh Kumar Verma has failed to establish his case
by bringing on record any material evidence, rather the pleadings of the husband is different from the material adduced during evidence. None of the
doctor's prescription has been brought on record or has been examined nor any of the technician has been examined with regard to pathological test.
On the other hand the adulterous relation alleged by the husband against his wife with her own brother-in-law (bahnoi) has also not been proved by
any positive and cogent evidence considering the seriousness of the allegation and the resultant stigma attached to it. On the contrary, it appears that
wife Anita Devi has instituted criminal case against the husband vide complaint case no.1112/2007 under section 498A and thereafter the divorce case
was filed under section 13(1)(i) of the Hindu Marriage Act, 1955 which he failed to establish by any cogent evidence on record. The learned Family
Court has rightly dismissed the suit for divorce of the husband/appellant which does not require any interference by this Court.
13. Accordingly, appeal is hereby dismissed being devoid of any merit. Decree accordingly.
