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Divorce if Separation is long

JHARKHAND HIGH COURT

Bench: JUSTICE Hari Shankar Prasad

SHANKAR CHAKRAVARTY
Vs.
PUSPITA CHAKRAVARTY

On 29 Sep 2004

JUDGEMENT

This appeal, during a instance of a appellant, is destined opposite a visualisation antiquated 28-8-1998 and direct antiquated 7-9-1998 upheld in Matrimonial Suit No. 19/13 of 1991-97.

2. The box of a postulant – appellant in brief is that a postulant is Hindu governed by Hindu Marriage Act, 1955 and matrimony of a postulant with a respondent was solemnized on 25th July, 1982 during entertain No. 12, Jaba Road, Haludbani, P. S. Parsudih, city Jamshedpur, District Singhbhum East according to Hindu rites and etiquette and after matrimony respondent came to her Sasural and both a postulant – appellant and respondent lived together as father and mom from 26-7-82 to 1-4-85. Their matrimony was done and out of a nuptials a son was innate to a postulant and respondent on 18-11-83. The postulant was progressing a really good and considerate propinquity with a respondent. It is settled that during a stay with postulant a respondent behaved really irrationally with him and his family members and she used to argue with all of them and this caused mental pang to a petitioner. It is serve submitted that respondent used to go out of matrimonial home though agree of a postulant and when postulant used to protest, afterwards she used to argue with him and it is purported that on 2-4-85 respondents mom Rita Banerjee took a respondent to her home on a defence that respondent shall be staying there for a month and afterward she will lapse to a residence of a postulant and during that time mom of a postulant was severely ill and postulant and his family members requested a respondent not to leave her matrimonial home though respondent left a residence with her child and articles and did not lapse from there. The postulant went to a residence of a mom of a respondent several times and even swayed a respondent to lapse with him though a respondent declined and refused to stay with a postulant as father and mom and respondent even misbehaved with a petitioner. On 1-8-86 mom of a postulant died and on this really arise a respondent was requested and even swayed to come though she did not come. In a month of Jul a panchayati was also hold in participation of a postulant and respondent though that panchayati could not manifest on count of division by a mom of a respondent and respondent. Thereafter respondent instituted a box underneath territory 125 cr. p. c. for extend of upkeep for herself as good as for her child, that was numbered as Misc. Case No. 6.87 and a aforesaid box was motionless on 11-1-91 and postulant was destined to make remuneration of Rs. 300 per month in foster of a respondent and Rs. 200 per month for a child and a postulant has been profitable Rs. 500 per month as upkeep to a respondent and her child. It is purported that she has forlorn invariably for a duration of some-more than 5 years and there has been no cohabitation between a postulant and respondent during a pronounced duration and this has caused cruelty to a postulant and, therefore, this fit for direct of divorce has been instituted.

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3. Respondent seemed and filed created matter and submitted that petition is not maintainable. It is purported that ever given matrimony of a respondent with petitioner, mother, sister and hermit of a postulant invariably ill-treated and misbehaved with her for a consequence of dowry. Respondents are bad persons and not in a position to accommodate complicated final of dowry and that led to hurt of a respondent by a postulant and his family members and hurt enclosed cruel violence and some time rejection of dish by a postulant and inmates of his house. It is denied that during her stay with petitioner, she behaved irrationally with a postulant and his family members and she used to argue with them. It is also denied that on 2-4-85 her mom came and took her divided and on a other hand, it is settled that a sum of Rs. 10,000/- was demanded from a mom of a respondent for construction of room, that was not over by a respondent and by her mother, as a outcome of that respondent was mercilessly beaten by a postulant and eventually driven out of a residence with usually one ripped sari. She has not taken any essay with her. It is also denied that postulant ever visited her mothers residence for holding her away. All allegations that postulant visited a residence of a mom of a respondent and swayed her and her mom for holding her divided are not scold and on a other hand, postulant always demanded Rs. 10,000/- as dowry.

4. On a other hand, a uncover means was filed on interest of a postulant in a move underneath territory 125 cr. p. c. and claim has been leveled that respondent has grown incorrigible habits during her descent residence and she has no check over her and that is a chronicle of a postulant and in that perspective of a matter, can there be any genuine defence on interest of a postulant for holding her divided to his house. The respondent has purported that no panchayati was hold and it is serve purported that she has not caused any mental cruelty to a postulant and serve that she has not forlorn a residence of a postulant though any reasonable cause.

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5. On a aforesaid pleadings of a parties, a schooled Court next framed a following issues for their integrity in a fit :

(i) Whether a petition of a applicant is maintainable?

(ii) Whether a postulant has got current means of action?

(iii) Whether a Respondent is guilty of causing mental cruelty to a petitioner?

(iv) Whether a Respondent has cold from a multitude of a postulant though any reasonable means or either a postulant has kicked her out from his residence for a accomplishment of his direct of Rs.10,000/- as dowry for a construction of a room?

(v) Whether a applicant is entitled to a direct of divorce as prayed for?

6. The schooled Court below, after recording justification both verbal and documentary of a parties concerned, motionless a issues and eventually came to a anticipating that no box for extend of direct of divorce is done out and, therefore, discharged a fit of a postulant for a direct of divorce.

7. The box of a postulant – appellant is that his matrimony was solemnized according to Hindu rites and etiquette with a respondent on 25th July, 1982 and a respondent went to his residence and remained there compartment 1-4-1985 and during this duration he confirmed considerate family with a respondent and out of a nuptials a son was innate to them in 1983 though all of a remarkable mom of a respondent came and on a defence that she would stay during her residence for a month, took a respondent to her residence and given afterwards she has not come behind to his house, nonetheless he done several attempts to move her behind and even swayed her mom and her though she is not peaceful to come to his house. In a duration respondent filed a box underneath territory 125 cr. p. c. , in that an sequence was upheld and respondent was authorised upkeep stipend @ Rs. 300 per month and Rs. 200 per month for her child and he has been profitable Rs. 500 per month as upkeep allowance. On a other palm box of a respondent is that she was brutally assaulted and flustered by postulant and even dish was denied to her for non-fulfilment of direct of dowry of Rs, 10,000/- that postulant and his family members done for construction of a room in a residence and when she and her mom unsuccessful to do his direct she was mercilessly assaulted and eventually driven out of a residence and in such a conditions she has left a residence of a petitioner, though not though any reasonable cause.

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8. Now a indicate that arises for integrity in this interest is either a plaintiff is entitled to extend of direct of divorce on a belligerent of cruelty and desertion.

9. The schooled Court next has perused a justification of a witnesses constructed on interest of a parties and has also listened a submissions of a parties and after clever inspection of evidence, both verbal and documentary, came to a anticipating that no box for extend of direct of divorce is done out and, therefore, discharged a suit.

10. The schooled warn appearing for a petitioner-appellant, submitted that postulant and respondent are vital apart from any other for a final 19 years and there is no possibility of their vital together and, therefore, on a basement of their prolonged separation, a direct of divorce should be upheld since matrimony was solemnized in a year 1982 and usually 3 years they remained together and out of their marry close a son was innate to them though afterward from 1985 both of them are vital apart from any other and so by now they have remained apart for a final 19 years and there is no possibility that they will be peaceful to reside together. In that perspective of a matter, schooled warn for a appellant placed faith on (2002) 2 JLJR 619 : AIR 2002 Jhar 154 : 2002 AIR – Jhar HCR 1003, in that it has been hold that parties vital apart from any other for a final 22 years, a Court has authorised a divorce and authorised both a sides to henceforth live apart from any other and in a present box also a postulant and a respondent are vital apart from any other for a final 19 years and there is no possibility of allotment and when there is no possibility of allotment and so it is improved that both a parties be henceforth authorised to live apart from any other.

11. In that perspective of a matter, this interest is authorised and a visualisation and direct of a schooled Court next are hereby set aside and direct of divorce is authorised though theme to a condition that petitioner- appellant will compensate a sum of Rs. 1,50,000/- to a respondent as permanent alimony. No sequence as to costs.

Appeal allowed.

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