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Judgment
Heard learned counsel for the appellant and learned counsel for the respondent.
At the very outset it may be stated that during the pendency
of the appeal in this Court, efforts were made for amicable
settlement of the dispute between the parties at the hands of the
trained Mediator at JHALSA and the matter was referred for
mediation. The report of the Mediator has been received in this
Court which shows that in spite of his best efforts, the matrimonial
dispute between them could not be amicably settled and the
mediation failed. Hence, we have heard both the parties on the
merits of this case.
The appellant husband is aggrieved by the Judgment and
Decree dated 08th December, 2014, passed by the learned
Principal Judge, Family Court, Garhwa, in M.M. Case No. 06
of 2013, whereby the Matrimonial Suit filed by the appellant
husband in the Family Court, for dissolution of the marriage
between the parties by a decree of divorce, alleging adultery and
cruelty against the respondent wife, has been dismissed on contest
by the Family Court.
The facts of this case lie in the short compass. The marriage
between the parties and birth of a son out of wedlock are admitted
facts in this case. Both the parties were married according to Hindu
rites and customs on 20.6.2002 and they were blessed with a son
out of wedlock, who was aged about 8 years at the time of filing of
the suit in the year 2013.
It is alleged in the plaint filed by the petitioner husband that
one Sunil Ram started visiting the house of petitioner to meet his
wife, which was objected by the husband. A love letter allegedly
written by the respondent wife was also found by the husband and
upon questioning his wife, the wife stated that she was in love with
Sunil Ram and he would marry him. Thereafter she did not allow
the petitioner to have any physical contact with her. It is alleged
that since the year 2008 the marriage had not been consummated
between them and she withdrew from the society of the petitioner
without any reasonable cause and left the matrimonial home. It is
also stated in the plaint that in the year 2009 the petitioner went o
his in-laws'' place, by the order of the Court, for bringing her back,
but on that occasion also Sunil Ram was present in the house and
the petitioner was not allowed to enter the bedroom and the wife
refused to come back with the husband. On 5 th March, 2013, the
petitioner husband again went to bring back his wife, but again he
saw Sunil Ram present in the bedroom of his wife and he was
abused in filthy languages and his wife refused to lead the
matrimonial life with him. Alleging adultery and cruelty against the
wife, the appellant filed the matrimonial suit in the Court below,
praying for dissolution of marriage between the parties by a decree
of divorce.
Upon notice, the respondent wife appeared in the Court
below and filed her written statement, in which she denied the
allegations made against her. It is the specific case of the
respondent wife that Sunil Ram is none else but her own maternal
uncle (Mama) and, accordingly, alleged allegations with him were
also denied. It is the case of the respondent wife that she was
being subjected to cruelty and torture for dowry by her husband and
she had been ousted from the matrimonial home, taking her child
away, for which she had also filed a criminal case, being Complaint
Case No. 18 of 2009, against her husband for the offence under
section 498-A of the Indian Penal Code, in which he was also
convicted and sentenced.
The impugned Judgment shows that on the basis of the
pleadings of the parties, issues were framed in the Court below,
including the issues related to cruelty and adultery by the wife. Two
witnesses were examined on behalf of appellant husband in the
Court below, who are P.W.1 Chandra Shekhar Ram, the petitioner
himself and P.W. 2 Sunil Ram. The petitioner has supported his
case in his evidence and has also proved the letter allegedly written
by the wife to the said Sunil Ram, which was marked Ext.1.
However, the fact remains that the writing of the said letter had
been denied by the respondent wife in her evidence and it is stated
that it is not in her handwriting and she had never written such
letter. There is no other proof on record about the authenticity of
the said letter. In his cross-examination, the petitioner husband has
admitted that he had been convicted for the offence under Section
498-A of the Indian Penal Code in the case filed by his wife. He has
also admitted that he had also filed a criminal case against his wife
for the offence under sections 323 and 379 of the Indian Penal
Code. (The said case ended in discharge of his wife and her family
members). He has also admitted in his cross-examination that he
had never seen his wife and Sunil Ram in any compromising
position. Though, he stated in his cross-examination that he had
seen Sunil Ram embracing his wife in the bedroom, but there is no
such allegation in the plaint filed by the petitioner husband and the
Court below has not relied on this evidence, being against the
pleadings.
The other witness examined on behalf of appellant husband
in the Court below is P.W. 2 Sunil Ram, who is the brother-in-law of
the petitioner. This witness has admitted that Sunil Ram, with whom
the adultery is alleged by the petitioner husband, is none else than
the maternal uncle of the respondent wife and, as such, this
witness has supported the case of the respondent wife that
Sunil Ram was none else than her maternal uncle. Though this
witness has stated that there was illicit relationship between the
respondent wife and Sunil Ram, but he has admitted in his
cross-examination he had never seen them in objectionable
condition, and the alleged love letter was not recovered in his
presence nor he had read it.
Three witnesses were examined on behalf of the respondent
wife in the Court below, including the respondent herself, who was
examined as D.W.-1. In her evidence, she has denied the letter to
be written by her, which was marked Ext.1, and she has reiterated
that Sunil Ram is her own maternal uncle. She has also stated that
she was being subjected to cruelty and torture, including assaults,
for demand of dowry, for which she filed the criminal case C-18
of 2009 for the offence under Section 498-A of the Indian Penal
Code, in which her husband was convicted and sentenced. She
has proved the certified copy of the judgment, which was marked
Ext-A. She has also stated that now her husband has married
another lady. She has also proved the certified copy of the order
passed by the competent Court by which she and her family
members were discharged in the criminal case filed by her
husband, which was marked Ext-C. She has stated that she was
turned out of her matrimonial home taking her child away from her.
The other two witnesses examined on her behalf, are her parents,
who have also supported her case.
On the basis of the evidence on record, learned Court below
found that the appellant husband has not been able to prove the
case of adultery and cruelty against the wife, and has dismissed the
suit on contest.
Learned counsel for the appellant has submitted that
impugned Judgment and Decree passed by the Court below, are
absolutely illegal and cannot be sustained in the eyes of law. It is
submitted that appellant had been able to prove the cruelty and
adultery on the basis of the evidence brought in the Court below
and admittedly it is a case in which both the parties are living
separately since the year 2008 itself. It is submitted that this itself
amounts to cruelty against the husband, as in-spite of taking two
attempts for bringing his wife back to the matrimonial home, she
refused to come back. Learned counsel accordingly, submitted that
the impugned Judgment and Decree are fit to be set aside, and the
suit is fit to be decreed.
Learned counsel for the respondent wife, on the other hand,
has opposed the prayer and submitted that on the basis of the
evidence on record, the appellant has miserably failed to prove the
allegations against the respondent wife. The person with whom the
adultery is alleged is the own maternal uncle of the wife, and no act
of adultery has been proved. The alleged cruelty by the wife is also
not proved, rather it is a case in which the wife had been subjected
to cruelty and torture for demand of dowry by the husband, and
turned out of the matrimonial home. It is submitted that the suit has
been rightly dismissed by the learned Court below.
Having heard learned counsels for both the parties and upon
going through the record, we find that the suit has been filed
mainly on two grounds. First ground is the alleged adultery with
Sunil Ram and Ext.1, which is said to be a letter written by the
respondent wife to said Suni Ram. In the evidence adduced by the
petitioner himself in the Court below, it is an admitted fact that said
Sunil Ram is none else than the own maternal uncle of the
respondent wife and it is also admitted position that there is no
allegation that the respondent wife and Sunil Ram were ever seen
in any compromising position. Simply talking with her maternal
uncle cannot make out a case of adultery. The writing of the letter is
completely denied by the respondent wife and she has stated that
this letter is not in her hand writing and it was never written by her.
There is no other proof of the said letter on record.
As regards the second ground, i.e., cruelty also, we find from
the record that it was the wife who was being subjected to cruelty
by the appellant-husband and if the wife is living separately from
her husband, it is the husband, who is solely responsible for the
same. The criminal case filed by the respondent-wife for the
offence u/s 498 A of the Indian Penal Code has ended in conviction
of the appellant husband. The evidence on record also shows that
the appellant-husband had also filed a criminal case against his
wife and her other family members for the offence under sections
323 and 379 of the Indian Penal Code, which ended in their
discharge, and this was also proved in the Court below. This itself
is a cruelty by the appellant husband himself on the respondent
wife. Indeed it is also stated by the respondent wife in her evidence
that she had been subjected to cruelty and torture for demand of
dowry by the husband, and turned out of the matrimonial home,
taking away her child, and during the pendency of the case, the
husband has married another lady.
Thus, from the evidence on record, it is apparently clear that
the appellant had neither been able to prove the charge of adultery,
nor the allegation of cruelty against the respondent wife in the Court
below .
In that view of the matter, we do not find any illegality in the
impugned Judgment and Decree dated 08 th December, 2014,
passed by the learned Principal Judge, Family Court, Garhwa, in
M.M. Case No. 06 of 2013, whereby the suit has been dismissed
on contest.
There is no merit in this appeal and the same is accordingly,
dismissed. Let the Lower Court Record, called for in this case be
sent back along with a copy of this Judgment.