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Divorce if Separation is long

JHARKHAND HIGH COURT

Bench: JUSTICE Hari Shankar Prasad

SHANKAR CHAKRAVARTY
Vs.
PUSPITA CHAKRAVARTY

On 29 September 2004

JUDGEMENT

This appeal, at the instance of the appellant, is directed against the judgment dated 28-8-1998 and decree dated 7-9-1998 passed in Matrimonial Suit No. 19/13 of 1991-97.

2. The case of the petitioner – appellant in brief is that the petitioner is Hindu governed by Hindu Marriage Act, 1955 and marriage of the petitioner with the respondent was solemnized on 25th July, 1982 at quarter No. 12, Jaba Road, Haludbani, P. S. Parsudih, town Jamshedpur, District Singhbhum East according to Hindu rites and customs and after marriage respondent came to her Sasural and both the petitioner – appellant and respondent lived together as husband and wife from 26-7-82 to 1-4-85. Their marriage was consummated and out of the wedlock a son was born to the petitioner and respondent on 18-11-83. The petitioner was maintaining a very good and cordial relation with the respondent. It is stated that during the stay with petitioner the respondent behaved very irrationally with him and his family members and she used to quarrel with all of them and this caused mental suffering to the petitioner. It is further submitted that respondent used to go out of matrimonial home without consent of the petitioner and when petitioner used to protest, then she used to quarrel with him and it is alleged that on 2-4-85 respondents mother Rita Banerjee took the respondent to her home on the plea that respondent shall be staying there for a month and thereafter she will return to the house of the petitioner and at that time mother of the petitioner was seriously ill and petitioner and his family members requested the respondent not to leave her matrimonial home but respondent left the house with her child and articles and did not return from there. The petitioner went to the house of the mother of the respondent several times and even persuaded the respondent to return with him but the respondent declined and refused to stay with the petitioner as husband and wife and respondent even misbehaved with the petitioner. On 1-8-86 mother of the petitioner died and on this very occasion the respondent was requested and even persuaded to come but she did not come. In the month of July a panchayati was also held in presence of the petitioner and respondent but that panchayati could not materialize on count of interference by the mother of the respondent and respondent. Thereafter respondent instituted a case under section 125 cr. p. c. for grant of maintenance for herself as well as for her child, which was numbered as Misc. Case No. 6.87 and the aforesaid case was decided on 11-1-91 and petitioner was directed to make payment of Rs. 300 per month in favour of the respondent and Rs. 200 per month for the child and the petitioner has been paying Rs. 500 per month as maintenance to the respondent and her child. It is alleged that she has deserted continuously for a period of more than 5 years and there has been no cohabitation between the petitioner and respondent during the said period and this has caused cruelty to the petitioner and, therefore, this suit for decree of divorce has been instituted.

3. Respondent appeared and filed written statement and submitted that petition is not maintainable. It is alleged that ever since marriage of the respondent with petitioner, mother, sister and brother of the petitioner continuously ill-treated and misbehaved with her for the sake of dowry. Respondents are poor persons and not in a position to meet heavy demands of dowry and that led to ill-treatment of the respondent by the petitioner and his family members and ill-treatment included ruthless beating and some time denial of meal by the petitioner and inmates of his house. It is denied that during her stay with petitioner, she behaved irrationally with the petitioner and his family members and she used to quarrel with them. It is also denied that on 2-4-85 her mother came and took her away and on the other hand, it is stated that a sum of Rs. 10,000/- was demanded from the mother of the respondent for construction of room, which was not fulfilled by the respondent and by her mother, as a result of which respondent was mercilessly beaten by the petitioner and ultimately driven out of the house with only one torn sari. She has not taken any article with her. It is also denied that petitioner ever visited her mothers house for taking her away. All allegations that petitioner visited the house of the mother of the respondent and persuaded her and her mother for taking her away are not correct and on the other hand, petitioner always demanded Rs. 10,000/- as dowry.

4. On the other hand, a show cause was filed on behalf of the petitioner in the proceeding under section 125 cr. p. c. and allegation has been levelled that respondent has developed immoral habits at her parentage house and she has no check over her and that is the version of the petitioner and in that view of the matter, can there be any genuine plea on behalf of the petitioner for taking her away to his house. The respondent has alleged that no panchayati was held and it is further alleged that she has not caused any mental cruelty to the petitioner and further that she has not deserted the house of the petitioner without any reasonable cause.

5. On the aforesaid pleadings of the parties, the learned Court below framed the following issues for their determination in the suit :

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

(ii) Whether the petitioner has got valid cause of action?

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

(iv) Whether the Respondent has withdrawn from the society of the petitioner without any reasonable cause or whether the petitioner has kicked her out from his house for the fulfillment of his demand of Rs.10,000/- as dowry for the construction of a room?

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

6. The learned Court below, after recording evidence both oral and documentary of the parties concerned, decided the issues and ultimately came to a finding that no case for grant of decree of divorce is made out and, therefore, dismissed the suit of the petitioner for a decree of divorce.

7. The case of the petitioner – appellant is that his marriage was solemnized according to Hindu rites and customs with the respondent on 25th July, 1982 and the respondent went to his house and remained there till 1-4-1985 and during this period he maintained cordial relations with the respondent and out of the wedlock a son was born to them in 1983 but all of a sudden mother of the respondent came and on the plea that she would stay at her house for a month, took the respondent to her house and since then she has not come back to his house, although he made several attempts to bring her back and even persuaded her mother and her but she is not willing to come to his house. In the meanwhile respondent filed a case under section 125 cr. p. c. , in which an order was passed and respondent was allowed maintenance allowance @ Rs. 300 per month and Rs. 200 per month for her child and he has been paying Rs. 500 per month as maintenance allowance. On the other hand case of the respondent is that she was brutally assaulted and humiliated by petitioner and even meal was denied to her for non-fulfilment of demand of dowry of Rs, 10,000/- which petitioner and his family members made for construction of a room in the house and when she and her mother failed to fulfil his demand she was mercilessly assaulted and ultimately driven out of the house and in such a situation she has left the house of the petitioner, but not without any reasonable cause.

8. Now the point that arises for determination in this appeal is whether the plaintiff is entitled to grant of decree of divorce on the ground of cruelty and desertion.

9. The learned Court below has perused the evidence of the witnesses produced on behalf of the parties and has also heard the submissions of the parties and after careful scrutiny of evidence, both oral and documentary, came to a finding that no case for grant of decree of divorce is made out and, therefore, dismissed the suit.

10. The learned counsel appearing for the petitioner-appellant, submitted that petitioner and respondent are living separate from each other for the last 19 years and there is no chance of their living together and, therefore, on the basis of their long separation, a decree of divorce should be passed because marriage was solemnized in the year 1982 and only three years they remained together and out of their wed lock a son was born to them but thereafter from 1985 both of them are living separate from each other and thus by now they have remained separate for the last 19 years and there is no chance that they will be willing to reside together. In that view of the matter, learned counsel for the appellant placed reliance upon (2002) 2 JLJR 619 : AIR 2002 Jhar 154 : 2002 AIR – Jhar HCR 1003, in which it has been held that parties living separate from each other for the last 22 years, the Court has allowed the divorce and allowed both the sides to permanently live separate from each other and in the instant case also the petitioner and the respondent are living separate from each other for the last 19 years and there is no chance of settlement and when there is no chance of settlement and so it is better that both the parties be permanently allowed to live separate from each other.

11. In that view of the matter, this appeal is allowed and the judgment and decree of the learned Court below are hereby set aside and decree of divorce is allowed but subject to the condition that petitioner- appellant will pay a sum of Rs. 1,50,000/- to the respondent as permanent alimony. No order as to costs.

Appeal allowed.

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