Krishna Murari Sinha vs Smt. Asha Sinha & Anr on 21 July, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.433 of 2014

Krishna Murari Sinha son of Baijnath Prasad Resident of Near S.B.I. Officer’s
Colony, Devi Mandap Road, Ratu Road (Near Nalini Complex) Hehal, P.S. –
Sukhdeo Nagar, District and Town Ranchi

…. …. Appellant
Versus

1. Smt. Asha Sinha son of Late Jageshwar Prasad Mehta, Wife of Krishna Murari
Sinha Resident of Village – Bharaopar, P.S. – Laheri, Dist.- Nalanda

2. Kedar Nath Sinha son of Late Somar Mahto Resident of Village – Bargaon, P.S.

– Nalanda, District – Nalanda

…. …. Respondents

Appearance :

For the Appellant : Mr. Bachan Jee Ojha, Advocate
Mr. Umesh Prasad, Advocate
For the Respondents : Mr. Arvind Kumar Tiwary, Advocate
Mr. Manoj Kumar Singh, Advocate

CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN
and
HONOURABLE MR. JUSTICE S. KUMAR
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. KUMAR)
Date: 21 -07-2017

This Miscellaneous Appeal has been filed by the

appellant-husband against the judgment and order dated 11.06.2014

passed by the Principal Judge, Family Court, Nalanda, Biharsharif, in

Divorce Case no. 114 of 2005 whereby and whereunder the family

court has dismissed the divorce petition filed by the appellant-

husband under Section 13(i) of the Hindu Marriage Act.

2. The brief fact in the present appeal is that the

appellant-husband had married respondent-wife on 24.06.1988

according to Hindu rites and customs. The appellant-husband is the
Patna High Court MA No.433 of 2014 dt 21-07-2017 2

resident of village-Kahuara, P. S. Nardiganj, District- Nawada. After

marriage the respondent-wife started living with appellant-husband at

village-Kahuara. The case of the appellant is that the behaviour and

conduct of respondent-wife made life of appellant/husband miserable

and it became impossible for the appellant-husband to stay with

respondent-wife. The divorce petition has been filed by the

appellant-husband on the grounds of (i) adultery (ii) desertion (iii)

mental disorder (iv) cruelty.

3. The trial court in paragraph-2 of its impugned

judgment dated 11.06.2014 has given details of the appellant-

husband’s case on the basis of which he was seeking divorce from

the respondent-wife. Paragraph-2 of the judgment is quoted below :-

“Para-2- As per petition dated 25.06.2005 of the petitioner
Krishna Murari Sinha, the fact of the case is that he got married
with O.P. Smt. Asha Sinha on 24.06. 1988 according to Hindu
religion and rites. The plaintiff is resident of village Kahuara,
P.S. Nardiganj, Distrit-Nawadah (Bihar). It was an arranged
marriage. So when after the marriage, o.p. Smt Asha Sinha
started living with the plaintiff at village Kahuara. Then he
came to know that she is suffering from mental depression
because she was using filthy and dirty language regarding sex,
not only in bed room, but also publicly. The plaintiff-petitioner
and the respondent/opposite party live together for about a year
but was married life was unhappy due to mental torture given by
the respondent to the plaintiff. The O.P. No.1 always used to
suspect the character of the plaintiff and used to watch day to
day affair. She alleged that the plaintiff has got illicit relation
with his Bhabhi, namely, Sunaina Devi. She used to state that
Smt. Sunaina Devi is a prostitute and plaintiff is a dog. She also
Patna High Court MA No.433 of 2014 dt 21-07-2017 3

used to state that they were having sexual relation regularly. It
has also been alleged that O.P. No. 1 was having illicit sexual
relation with her Bahnoi Sri Kedar Nath Sinha, who is O.P. No.
2 and is resident of village Bargaon P.S.-Nalanda, District-
Nalanda where O.P. No. 1 used to visit regularly in the gap of
two to three months and they were having sexual intercourse
knowing the fact that O.P. No. 1 is lawfully wedded wife of
petitioner. It has also been alleged that on 04.01.2004 O.P. No.
2 Kedar Nath Sinha came at Ranchi and threatened the plaintiff
to kill him if he object his relation with O.P. No. 1 Asha Sinha.
Several time he came at Ranchi and gave some threatening. She
used to threat that the petitioner has kept Sunaina Devi who is a
prostitute and so threatened to be nude in public. She would go
naked in police station, she would walk nacked in public with
red flag and would raise slogan against the petitioner. It has also
been stated that the marriage took place in the year 1988 but the
O.P. has not spent a period of 15 months altogether with the
petitioner. Even the O.P. No. 1 refused to have sexual
intercourse with the petitioner and used filthy language against
him whenever the petitioner tried to have sexual intercourse.
The O.P. No. 1 assaulted him and tried to injure his male organ.

It has also been stated that after February, 2000 the O.P. No. 1
visited the place of petitioner at Ranchi several times on some
gap but she never allowed him to have sexual intercourse. The
petitioner tried to have sexual intercourse for a child but she did
not allow him due to her mental depression. It has also been
alleged that she used to say that the petitioner is Namard. The
petitioner is a Government servant working in the post office. It
has been stated that he has become tired due to cruelty
committed by O.P. No. 1 on account of mental depression. He
has been deeply hurt regularly due to non-corporation in sexual
relation for procuration of children. She has deserted him since
February, 2000. It has been stated that the cause of action arose
on 17.02.2005 when O.P. No. 1 compelled the petitioner to send
her Maike at village- Bharoapar, P.S. Laheri, District-Nalanda,
otherwise she will commit suicide in the house. She also stated
Patna High Court MA No.433 of 2014 dt 21-07-2017 4

that she would never come against at Ranchi. She deserted the
petitioner on 17.02.2005. The petitioner is living in Ranchi.
The plaintiff has claimed relief that his marriage with O.P. No. 1
Asha Devi be dissolved and decree of divorce may be passed in
his favour.”

4. Adultery – The first ground on which the divorce

petition was filed is the allegation of adultery against the respondent-

wife that she had illicit relation with her brother-in-law, i.e., Kedar

Nath Sinha (who is made opposite party no. 2 here). Inspite of

notice served, he had not contested the matter before the family

court. However, he has appeared before this Court. In the divorce

petition the appellant-husband has alleged that the respondent-wife

was living in adultery with respondent no. 2 who is none else but her

brother-in-law. It was alleged in the divorce petition that the

respondent-wife in every 2/3 months went to the house of Kedar

Nath Sinha, her brother-in-law and she had illicit relation with him.

The specific instance of adultery that appellant-husband saw

respondent-wife in compromising position on 04.01.2004 in Ranchi

has been disbelieved by the family court. The trial court has

meticulously examined the issue of adultery and has come to a

definite finding that the ground of adultery as alleged by the

appellant-husband is not established. After going through divorce

petition, written statement and evidences led by both the parties, we

concur with the finding of the family court that the accusation of
Patna High Court MA No.433 of 2014 dt 21-07-2017 5

adultery as alleged by the appellant-husband is not proved.

5. Desertion – The second ground on which the appellant-

husband has sought divorce was desertion. From the records of the

case, it is apparent that after filing of the complaint case by the

respondent-wife, the appellant-husband gave an undertaking before

the court that he would take and keep the respondent-wife with

dignity and honour and family life with the respondent-wife will be

resumed and on such undertaking given before court the appellant-

husband took his wife to Ranchi and family life and co-habitation

were resumed at Ranchi and only on 25.06.2005 on account of

differences with appellant-husband, she returned to her Maike and

thereafter appellant-husband filed the divorce petition at Ranchi in

2005 whereupon on the petition of respondent-wife before the Apex

Court the divorce case was transferred to the family court at Nalanda

at Biharsharif, as such, the mandatory requirement of desertion of

two years prior to filing of Divorce Case is not fulfilled and

desertion is not established.

6. Mental Disorder – The third ground on which the

appellant-plaintiff sought divorce was mental disorder of respondent-

wife. It was alleged that respondent-wife was suffering from mental

depression. The family court has held that although appellant-

husband has stated that respondent-wife was suffering from mental

depression and he got treated her at Ranchi but no prescription of
Patna High Court MA No.433 of 2014 dt 21-07-2017 6

any doctor or hospital regarding treatment was produced before the

Court. Mental disorder should be of such a kind and to such an

extent that petitioner cannot reasonably be expected to live with the

respondent. The family court has disbelieved the allegation of

mental disorder of respondent-wife and we concur with the finding

arrived by the family court.

7. Cruelty – In paragraph-2 of the impugned judgment the

family court has noted instances of cruelty as given by the appellant-

husband in order to seek divorce on the ground of cruelty. But

strangely the family court has neither discussed nor given any

finding with respect to cruelty.

8. The Apex Court in paragraph-10 of its judgment

reported in (2015) 11 SCC 539 (Ramchander v. Ananta) has defined

cruelty, which is quoted below :-

“Para-10- The expression “cruelty” has not been defined in the
Hindu Marriage Act. Cruelty for the purpose of Section 13(1)(i-

a) is to be taken as a behaviour by one spouse towards the other,
which causes a reasonable apprehension in the mind of the latter
that it is not safe for him or her to continue the matrimonial
relationship with the other. Cruelty can be physical or mental. In
the present case there is no allegation of physical cruelty alleged
by the plaintiff. What is alleged is mental cruelty and it is
necessarily a matter of inference to be drawn form the facts and
circumstances of the case. It is settle law that the instances of
cruelty are not to be taken in isolation but to take the cumulative
effect of the facts and circumstances emerging from the evidence
on record and then draw a fair inference whether the plaintiff has
been subjected to mental cruelty due to conduct of the other
Patna High Court MA No.433 of 2014 dt 21-07-2017 7

spouse. In the decision of Samar Ghosh case this Court set out
illustrative cases where inference of “mental cruelty” can be
drawn and they are only illustrative and not exhaustive.”

8. (i) The first instance of cruelty as enumerated by the

appellant-husband in his divorce petition is that respondent-wife was

of highly suspicious nature and she used to level frivolous and

serious allegation against him regarding his character and about his

illicit relation with bhabhi, namely, Sunaina Devi. She used to call

his bhabhi as prostitute and the petitioner as a dog. Now it is well

established that accusation of having illicit relation or extra marital

affairs is assault on character, honour and reputation of a person and

if same has been leveled in a reckless manner and could not be

substantiated by the party making such allegation amounts to cruelty.

Although such accusation made by the appellant-husband has been

cited as one of the grounds of cruelty but in her written statement

filed before the family court the respondent-wife has accepted that

she has made such accusation against the appellant-husband.

However, in order to substantiate her claim although she has been

examined as a witness before the family court, only a vague

statement has been made that she has seen the appellant-husband

with his bhabhi, namely, Sunaina Devi, in a compromising position

two or three times. She has failed to give any date or time or place

when she saw both of them in a compromising position. She has
Patna High Court MA No.433 of 2014 dt 21-07-2017 8

further stated that her appellant-husband was working in Postal

Department and was posted at Ranchi and she used to live in the

ancestral house at Nawada with other family members. She has

further stated that when appellant-husband used to come to his

ancestral house at Nawada, she found that her husband showed

intimacy towards his bhabhi and therefore she presumed that her

husband had illicit relation with his bhabhi. She has further stated in

her deposition that she lived in her sasural at Nawada only for one

year and her husband and other family members behaved well with

her but later on their behaviour with her changed. We have

examined the evidence led on behalf of the parties and deposition of

witnesses on this issue and come to the conclusion that the

respondent-wife has miserably failed to substantiate her allegation

against the appellant-husband of having illicit relation with his

bhabhi, namely, Sunaina Devi and leveling such allegation without

any basis is cruelty, however, at the same time husband has also

levelled charges of adultery but has miserably failed to prove that.

Apart from the above, the conduct and subsequent act of the

appellant suggest that he had condoned the act of cruelty by

resuming the cohabitation.

8. (ii) The second instance of cruelty as alleged by the

appellant-husband and noted in detail at paragraph-2 of the

impugned judgment is that the respondent-wife always refused
Patna High Court MA No.433 of 2014 dt 21-07-2017 9

intercourse with the petitioner and used to assault the appellant-

husband on his private part when desire of intercourse was made by

the petitioner. The denial of sexual intercourse by wife for a long

time without sufficient reason amounts to cruelty. In the present

case the appellant-husband has alleged that the respondent-wife

refused intercourse with him and his desire of having children with

wedlock was never accomplished. It is also an admitted fact that out

of their wedlock no child was born. This fact also supports the case

of the appellant-husband that the respondent-wife refused intercourse

with him and used to utter abusive language with him whenever such

desire was made by the appellant-husband. Although the

respondent-wife in her written statement as well as in her deposition

before the family court has denied such allegation, the fact remains

that as per her own statement she stayed at the matrimonial house

only for one year and according to appellant-husband the total span

of married life was for a period of fifteen months. The respondent-

wife used to leave her matrimonial house without sufficient reason.

Although a vague statement of torture has been made but no specific

nature of torture has been spelt out. The behaviour and conduct of

respondent-wife and her abusive language and refusal to have

intercourse with appellant-husband amounts to cruelty and same

cannot be regarded as wear and tear of family life.

9. Although the appellant-husband has filed divorce
Patna High Court MA No.433 of 2014 dt 21-07-2017 10

petition on the ground of cruelty also and in his divorce petition as

well as evidence led by him instances of cruelty have been made out

and a number of incidents were mentioned therein but unfortunately

the family court has not discussed or dealt with the issues of cruelty

and no finding on this issue has been recorded by the family court.

However, on the basis of the divorce petition, written statement filed

by the respondent-wife and evidences led by both the parties, we

find that the appellant-husband has made out a case of cruelty

against the respondent-wife.

10. It is an admitted fact that marriage was solemnized on

24.06.1988 and the husband and wife had strained relation and same

reached breaking point when the respondent-wife filed a complaint

case being Complaint Case No. 1034C of 2000 against the appellant-

husband under Section 498-A of the Indian Penal Code after 12

years of marriage. The copy of the complaint case has not been

made available either before the family court or before this Court.

As such, it can not be known what were the allegations made in the

complaint case filed under Sections 498-A of the IPC. But the

appellant-husband instead of seeking dissolution of marriage

solemnized second marriage with Mamta Devi which is void and

punishable under Section 494 of the IPC. The respondent-wife filed

a case under Section 494 of the IPC against the appellant-husband in

2001 and both cases are pending before the criminal court and from
Patna High Court MA No.433 of 2014 dt 21-07-2017 11

the records it appears that appellant-husband appeared in the

Complaint Case No. 1034C of 2000 on 05.09.2001 and gave

undertaking before the said court that he will take his wife at his

place of posting, i.e. Ranchi and would keep her with dignity and

honour. Pursuant to such undertaking given by the appellant-

husband he took the respondent-wife to Ranchi and co-habitation

and married life was resumed. It further appears from the records of

this case that respondent-wife went to her Maike in the year 2003 to

attend shradh of her Bahnoi and thereafter returned to Ranchi with

appellant-husband to live with him and she remained at Ranchi till

25.06.2005 when on account of differences with her husband she

again returned to her Maike and started living there. She had also

filed a case for maintenance being Misc. Case no. 92 of 2007 in the

year 2007 and getting maintenance of Rs. 8,000/- per month by order

dated 24.09.2012. From the conduct on the part of the appellant-

husband it is established that the cruelty on the part of the

respondent-wife was condoned by the husband by resuming co-

habitation till 25.06.2005 the date of alleged separation and, as such,

this Court comes to a finding that earlier aberration on the part of the

respondent-wife stands condoned by the subsequent conduct of the

appellant-husband. As such, no decree of divorce can be granted on

the ground of cruelty as alleged by the appellant-husband in view of

Section 23(b) of the Hindu Marriage Act. The family court has
Patna High Court MA No.433 of 2014 dt 21-07-2017 12

taken note of the facts that vital facts have been suppressed by the

appellant-husband, this is one of the reasons of refusal by the family

court to grant any relief to the appellant-husband and this Court also

concurs with the said finding of the family court.

11. For the reasons, as stated above, the Miscellaneous

Appeal filed on behalf of the appellant-husband is devoid of merit

and is accordingly dismissed.

(S. Kumar, J)

Dr. Ravi Ranjan,J : I agree.

.

(Dr. Ravi Ranjan, J)

sudip/-

AFR/NAFR AFR
CAV DATE 20.06.2017
Uploading Date 24.07.2017
Transmission NA
Date

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