IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.203 of 2001
Against the judgment and order dated 29.3.2001 passed by the
Additional District Judge-2nd, Siwan in Divorce Case No. 20 of 1996.
Indrasan Gond …. …. Applicant – Appellant
Lalmuni Devi …. …. Opposite Party – Respondent
For the Appellant : Mr. Rana Ishwar Chandra, Advocate.
For the Respondent : Mr. Ram Chandra Sahai, Advocate.
CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT Date: 25-04-2013
1. The applicant -appellant has filed this first appeal against the judgment and order dated 29.3.2001 passed by the learned Additional District Judge-2nd, Siwan in Divorce Case No. 20 of 1996 dismissing the applicant-appellant’s application under Section 13(1), (ia) i.e. the respondent is living in adultery and that she treated the appellant with cruelty.
2. The appellant filed the aforesaid divorce case claiming the relief of divorce on the ground of adultery and cruelty alleging that both were married in the month of May 1978 and second marriage was performed in February 1979. In February 1979 the respondent 2 came to the house of appellant and lived there up to the month of September 1982. A son was born in June 1982. After three months the respondent left the house of the appellant without any reason. The further allegation is that the respondent has got illicit relation with her brother-in-law namely Surendra Prasad Gond. The respondent is cruel and according to her behavior the applicant is living a deserted life. Since the month of September 1982 several times the appellant asked the respondent to come to him but she refused to reside with the appellant. Thereafter legal notice was sent on 15.4.1995 and thereafter also when she did not come and file an application under Section 125 Cr.P.C., the instant case for divorce was filed.
3. The wife Lalmuni Devi, who is respondent filed a contesting written statement denying all the allegations made by the appellant in the application. According to her she was being assaulted and ill-treated by the husband because the husband is himself illicit relation with her Bhabhi. She further alleged that the appellant started living with his brother’s new wife and left to look after the opposite party i.e. the wife. In December 1994 he assaulted the respondent and removed her from his house as such she came to her father’s house and started living there with her son and thereafter filed the application under Section 125 Cr.P.C.
4. After trial the lower court recorded the finding that the appellant has failed to prove his case of adultery and case of cruelty and accordingly, dismissed the appellant’s suit.
5. The learned counsel for the appellant submitted that there has been irretrievable break down of marriage between the parties since long and they are living separately since long therefore, the appeal may be allowed and the divorce may be granted. During the course of the hearing of this first appeal, the appellant has filed an application being I.A. No. 2359 of 2013 praying therein to add Surendra Prasad Gond as respondent No.2 in the first appeal. I heard the parties on this application also.
6. The learned counsel further submitted that it is admitted fact that since the year 1982 the respondent is residing in the house of her parents in spite of fact that several times the appellant called her and also several Panchayats were held but she refused to live with the appellant. The learned counsel placed in ex tenso the evidences of the witnesses. According to the learned counsel the court below has not considered the evidences in its right perspective and has dismissed the application. In support of his contention the learned counsel relied upon a decision reported in 2013 (1) PLJR 321 SC K. Sriniwas Rao vs. D.A. Dipa. On these grounds, the learned counsel submitted that the impugned judgment be set aside and the appellant’s application be allowed.
7. On the other hand, the learned counsel appearing on behalf of the respondent submitted that so far the ground of adultery is concerned, the Bahnoi of the respondent i.e. Surendra Prasad Gond has not been made party in the proceeding, therefore, this ground is not available to the appellant. Secondly, so far the cruelty is concerned, no evidence has been adduced by the appellant in support of the case of the cruelty. So far decision cited by the learned counsel for the appellant is concerned, it is not applicable in the present case because the appellant himself had driven out the respondent from his house and still he is not ready to keep her. The learned counsel for the respondent empathetically asserted before the court that the respondent is ready to reside with the appellant but the learned counsel for the appellant submitted that it is not possible to keep her with him at this stage. The learned counsel further submitted that all the evidences adduced by the appellant regarding holding of Panchayat are false and in fact in the evidence the respondent Lalmuni Devi herself stated that she was driven out and thereafter she filed the 125 Cr.P.C. proceeding in the court below and in counter blast to the said proceeding the present divorce application has been filed by the appellant. On these grounds, the learned counsel submitted that the first appeal may be dismissed.
8. In view of the above submissions of the learned counsel for the parties, the point arises for consideration in this first appeal is, as to whether the plaintiff has been able to prove his case of adultery and cruelty and whether he is entitled for the grant of divorce on the basis of the decision relied upon by the appellant and whether the impugned judgment and decree are sustainable in the eye of law ?
9. According to the plaintiff appellant’s case the respondent is living the adulterous life and is guilty of cruelty. On the other hand according to the respondent the appellant himself as driven her out from the house in the year 1994 and thereafter she filed an application under Section 125 Cr.P.C. In support of their respective cases, both the parties have adduced evidences. The applicant appellant has examined five witnesses. Out of them, PW 4 is the brother of the appellant and PW 5 is appellant himself. The other witness PW 1 has stated that in the month of September 1982 Lalmuni had left the house of the appellant and went to the house of her brother-in-law Surendra Prasad Gond. When the applicant went to call her she refused. Since then the respondent is living adultery life with Surendra Prasad Gond. Panchayaties were held for calling the wife of the appellant but she did not come. The other witnesses PW 3 and PW 4 have also stated the same thing. PW 4 being the brother and PW 5 being the applicant appellant himself have stated same thing as pleaded in the application.
10. Section 13(1), (1) and (ia) reads as follows: “(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife be dissolved by a decree by divorce on the ground that the other party;
(1) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty.”
11. In the divorce application filed by the appellant, the only statement made by the appellant is that in the month of June 1982 the respondent gave birth to a child and three months thereafter left the house of the applicant. Vide paragraph 3 and at paragraph 8 statements have been made to the effect that in the month of September 1982 the appellant asked the opposite party respondent and her family members but she always refused to return. There is no mention in the application about the holding of any Panchayat and calling of the petitioner or her relation in the Panchayat therefore, it appears that in the evidences the witnesses have developed the case. In the case of Bachhaj Nahar vs. Nilima Mandal and another 2008 (17) SCC 491 the Hon’ble Supreme Court has held that no amount of evidence on plea that is not pleaded in the pleading can be looked into to grant any relief, therefore, that part of the evidence which has been 7 produced by the petitioner regarding holding of Panchayat cannot be looked into. So far the other part of the evidences of the witness is concerned those are only bald statements made by the witnesses. The respondent has also examined four witnesses including herself being DW 4. She has clearly stated that she was driven out by the appellant after assaulting her and then she started living with her parents and she filed proceeding under Section 125 Cr.P.C. claiming maintenance. The fact of the filing of this proceeding is born from Ext.1 and 1/1 filed by the appellant himself. It appears that in the said proceeding the appellant never took any plea that she has left his house out of her own wish inspite of request made by the appellant. In the evidence Lalmuni has expressed her willingness to reside with her house i.e. the appellant. Before this Court also as stated above the respondent is ready to reside with the appellant but the appellant is not ready to keep her.
12. So far the ground of adultery i.e. Section 13(1) (1) rules have been made under Section 14 and 21 of the Hindu Marriage Act, 1955 by Patna High Court call the Hindu Marriage (Patna) Rules, 1955. According to Rule 16 of the said rules, in any petition presented by husband for divorce on the ground that the wife is living in adultery or judicially separation on the ground that the wife has since the solemnization of the marriage by the guilty of adultery the 8 petitioner shall make the alleged adulterer if alive a co-respondent in the said petition. Admittedly, in the present application for divorce the so called adulterer namely Surendra Prasad Gond has not been made party. However, as stated above at the time of hearing of this appeal the interlocutory application No. 2359 of 2013 has been filed by the appellant wherein a prayer has been made to add the said Surendra Prasad Gond as party respondent. Since no purpose will be served if Surendra Prasad Gond is added as respondent in this first appeal because unless an opportunity is granted to the said Surendra Prasad Gond for filing written statement and to lead evidence in support of the written statement by only making him a party the defective presentation of the application cannot be cured. The learned counsel for the appellant submitted that the notice may be issued to the said Surendra Prasad Gond. So far this prayer is concerned, even if notice is issued then also the defective application cannot be cured now and for the fault on the part of applicant himself the impugned judgment cannot be set aside and the matter cannot be remanded back to the court below for a fresh decision after giving opportunity to Surendra Prasad Gond.
13. In view of the Rule 16 of the aforesaid Rules Surendra Prasad Gond was a necessary party and in his absence no finding can be recorded as to whether there was sexual intercourse between the 9 opposite party and Surendra Prasad Gond. In my opinion therefore, so far the relief claimed by the appellant regarding Section 13(1)(1) is not maintainable in absence of the necessary party Surendra Prasad Gond. Accordingly, the interlocutory application filed by the appellant being I.A. No. 2354 of 2013 is hereby rejected.
14. So far the allegation against the respondent that she is living with her parents and inspite of calling her by the appellant she is not come to reside with the appellant is concerned, it may be mentioned here that it is not a ground of desertion as provided under Section 13(ib) which provides that “has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition”. Here the ground taken by the appellant is that the respondent is not coming to reside with him. On the contrary, in the evidences the respondent stated that she was ready to reside with the appellant and here also the respondent stated that she is still ready to reside but the appellant refused. Therefore, the submission of the learned counsel for the appellant to the effect that she is residing with her parents without any rime and reason in spite of calling by the appellant cannot be accepted. In my opinion, this plea is nothing but a plea for obtaining a decree of divorce when the respondent has filed an application for maintenance under Section 125 Cr.P.C. proceeding.
15. The learned counsel strongly relied upon a decision of the Apex Court reported in 2013 (1) PLJR 321 SC K. Sriniwas Rao vs. D.A. Dipa and submitted that since last 21 years the parties are residing separately and there is no chance of residing both of them together and meeting the conjugal life as earlier, no purpose will be served by not granting the decree. So far this submission is concerned also I find no force because in the said decision itself it has been held that irretrievable break down of marriage is not a ground for divorce under the Act. Here in the present case we have seen the witnesses produced by the appellant who have only baldly stated that the respondent is residing without any rime and reason with her parents. On the contrary, according to the respondent she has been driven out by assaulting from the house. As has been stated in Ext. 1 and 1/1 no such stand was taken by the petitioner appellant in the said proceeding and the concerned court has already granted maintenance. Now therefore, the fact emerges that the appellant himself assaulted the respondent and drove her out of the house. The respondent was saying and still saying that she was ready and is still ready to go and reside with the appellant but the appellant himself refusing to keep her. On the other hand, the appellant is saying that because there is no chance of re-union by the appellants the divorce may be granted. This is nothing but the ulterior motive of the appellant. In one hand he is 11 driving her out from the house and then saying it is impossible to keep her therefore, the divorce should be granted. On this ground alone therefore, no divorce can be granted.
16. From perusal of the decision before the Apex Court in the case of K. Sriniwas Rao vs. D.A. Dipa it appears that a criminal case was lodged by the wife under Section 498-A i.e. demand of dowry of Rs.10 lakh which was found to be false. The wife’s version that she was harassed and driven out by the husband was found to be false. In the present case, the fact is otherwise. Therefore, the decision referred to by the learned counsel is not applicable. Moreover, there is no specific plea in terms of the ground of desertion made in the divorce application.
17. In view of my above discussion, I find that the appellant has failed to prove his case of cruelty and that the respondent has deserted the appellant and that the plea of Section 13(1) (1) cannot be decided in absence of necessary party i.e. Surendra Prasad Gond the appeal has got no force. Accordingly, this first appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
Patna High Court, Patna (Mungeshwar Sahoo, J.)
Date : 25.04.2013