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Nitu Singh vs Dr. Ravi Shankar on 25 February, 2020

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
F.A. No. 140 of 2017

Nitu Singh ….. Appellant
Versus
Dr. Ravi Shankar ….. Respondent
———

For the Appellant : Mr. Sanjay Kumar Pandey, Advocate.

Mr. Ashwani Kumar Upadhyay, Advocate.

For the Respondent : Mr. Abdul Allam, Sr. Advocate.

Mr. Fahad Allam, Advocate.

———

PRESENT
HON’BLE MR. JUSTICE APARESH KUMAR SINGH
HON’BLE MR. JUSTICE KAILASH PRASAD DEO

———

Per Kailash Prasad Deo, J. Heard, learned counsel for the appellant Mr.
Sanjay Kumar Pandey assisted by Ashwani Kumar Upadhyay and
learned counsel for the respondent Mr. Abdul Allam, Senior Counsel
assisted by Fahad Allam.

2. The instant first appeal has been preferred by the wife /
respondent / appellant herein against the judgment dated 21.02.2017
and decree dated 24.03.2017 passed in Original (MTS) No. 177 of
2015 by learned Principal Judge, Family Court, Ranchi, whereby,
the learned Family court has partly allowed the suit and instead of
granting decree of divorce has granted decree of judicial seperation
under Section 10 read with Section 13(a) of the Hindu Marriage Act,
1955. Being aggrieved and dissatisfied with the impugned judgment,
the appellant (wife) has preferred this appeal.

It is relevant to state here that the Original Suit (MTS) No.
177 of 2015 was decided by the Family Court, Ranchi, though the
case was initially filed on 10.01.2013 before the court of Civil
Judge, Senior Division, Gautam Budh Nagar (U.P.). But the same
has been transferred vide order dated 15.01.2015 passed in Transfer
Petition (Civil) No. 1398 of 2013.

3. Learned counsel for the appellant has assailed the impugned
judgment on the ground that the learned Family Court has passed the
order of judicial separation, though the same was not prayed by the
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husband / petitioner / respondent (herein) before the learned Family
Court. Apart from this, the learned Family Court has not taken
judicial notice of the fact that the appellant Nitu Singh and her child
had been thrown out of house in March, 2011. Husband has never
preferred an application under Section 9 of the Hindu Marriage Act
for restitution of conjugal right before seeking divorce and there was
consistent demand of Rs. 50,00,000/- from the father of wife /
respondent / appellant.

4. Learned counsel for the appellant has further submitted that
learned Family court has not granted decree of divorce, but
unnecessarily passed the judgment and decree of judicial separation.
The wife has filed a criminal case vide Complaint Case No.
729/2013 against the husband / respondent under Sections 498A/323
of the I.P.C. and Section 3 / 4 of the Dowry Prohibition Act, which is
pending for evidence before the court of Judicial Magistrate, 1st
Class, Ranchi, as such the impugned judgment may be set aside.

5. Learned counsel for the respondent-husband has submitted
that the marriage was solemnized between the parties as per Hindu
rites and rituals on 29.01.2007 and they have been blessed with a
child, but since very beginning, the appellant was not interested in
happy conjugal life. She was lady of independent views interested in
leading luxurious life. She did not know to cook food and her
behaviour with the husband and other family members had been
extremely cruel and was not interested in discharging her marital
obligations. The wife in absence of husband without intimating him
used to go to her parental house and even on petty matters, she
quarrelled and harassed the husband. The wife had pressurized the
husband to transfer the entire properties in favour of her and her
child. The wife had stated that she is not happy with the marriage
and she want to lead life with her own choice. Since marriage i.e.
from January, 2007 till March, 2011, she had spent only six months
period with husband and in absence of husband, she fled away along
with child and properties.

6. Learned counsel for the respondent-husband has further
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submitted that even at the Mediation Centre before the Hon’ble
Supreme Court a paper was prepared regarding restitution of
conjugal right, but on the last date of Mediation the wife / respondent
/ appellant did not attend the Mediation Centre. Thereafter, the
Mediator could not finalize the terms and conditions between the
parties, which goes to show that the wife is hardly interested for
conjugal life amicably.

7. Learned counsel for the respondent-husband has further
submitted that between the period from 2007 to 2011, wife has
hardly lived for six months in marital status and they are living
separately since 2011. As such, seeing the conduct of the parties, the
Principal Judge, Family Court, Ranchi has granted judicial
Separation, which does not require any interference by this Court as
subsequent to that divorce case is pending before the Family Court,
Ranchi which is at final stage.

8. On the basis of the pleadings of the parties, the learned Family
Court has framed altogether seven issues:-

I. Whether the suit is maintainable in its present form?
II. Whether the petitioner has valid cause of action for the
suit?

III. Whether the respondent has treated the petitioner with
cruelty?

IV. Whether the petitioner has committed atrocities with
respondent due to non-fulfillment of dowry demand?
V. Whether the respondent had deserted the petitioner and
deprived him from cohabitation?

VI. Whether the petitioner is entitled to get decree of
divorce from the respondent?

VII. To what relief or reliefs the petitioner is entitled for?

9. The applicant/husband/respondent has examined altogether
three witnesses:

P.W.-1 is Vishwanath Prasad Singh, father of the husband.
P.W.-2 is Ravi Shankar, the husband himself.

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P.W.-3 is Krishna Kumar Singh is Uncle of the husband.

The applicant has also adduced petition dated 09.01.2013 on
record and thus admitted under Section 14 of the Family Court’s Act
for ends of justice as Exhibit-1.

10. The appellant-wife has also examined two witnesses i.e. Dr.
Nitu Singh herself as R.W.-1 and her father Awadesh Singh as R.W.-2.

11. Learned Family Court took up Issue Nos. 3, 4 5 jointly
regarding cruelty and desertion against each other.

P.W.-2, the respondent-husband Ravi Shankar, during his
evidence has stated that the wife has never discharged her
matrimonial duties. She often quarrelled on petty matters and
harassed the husband and without intimating him, she used to go to
her matrimonial house and put pressure upon the husband to transfer
his entire properties in her name and in the name of her child and
used to give threatening of committing suicide.

This evidence has also been supported by father of the
husband, who has been examined as P.W.-1. Vishwanath Prasad
Singh (P.W.-1) in his evidence has stated that respondent Dr. Nitu
Singh used to pressurize the husband Dr. Ravi Shankar to sell the
house situated at Noida and sent the parents to native village –
Chapra and shift with her at Ranchi and since March, 2011, Dr. Nitu
Singh is residing with her father. This witness has further stated that
he went to her maike with entire belongings, but she did not turn up,
even on sincere effort made on behalf of the husband, but they did
not lodge any complaint against her as there is no criminal act. The
daughter is living with her mother and entire expenses are meted out
by her. P.W.-1, father of the husband has stated that he met his grand
daughter twice, first time at house of the wife/respondent/appellant
at Ranchi and second time at Ranchi Airport, but his son met his
daughter first time at Delhi in Mediation Centre of Supreme Court
and second time at Ranchi Airport. Though, marriage was
solemnized in the month of January, 2007 their relationship became
strained since, May, 2007, when respondent insisted and went to her
father’s house at Ranchi and at that time, she was carrying pregnancy
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of three months. The husband has deep concern and care for safety
of mother and child in the womb. This witness and his wife several
times offered Dr. Nitu Singh on telephone to come back, so that
custom of second marriage could be performed, but no reaction came
from her side. She came herself to Delhi in the year 2009 and stayed
for four months only and went back to Ranchi with daughter without
intimating them. Again she came back to Delhi in September-
October, 2010 and stayed upto March, 2011. At that time the
relationship of wife and husband was strained and since then she is
living in Ranchi. Dr. Nitu Singh was threatening to call police and
once police came also. This witness being father of the husband tried
to convince her and call her father several times on telephone, but no
steps was taken by her or her father to resolve the dispute. Such
threatening and calling police in the matter of matrimonial dispute
by the wife is not conducive for maintaining cordial relation with the
husband rather torturous in nature. They also met at Haridwar, but
lived separately and the appellant-wife did not appear before the
Mediation Centre of Supreme Court on the last occasion so as to
finalize the terms of the mediation. This shows that the wife has no
inclination to restore the matrimonial relationship.

P.W.-2 the respondent husband Dr. Ravi Shankar has adduced
evidence stating therein that wife used to pressurize to sell or transfer
all properties situated at Greater Noida and sent back his parents to
native place at Chapra and move to Ranchi. She went to Ranchi in
April, 2008 without consent and intimation to the husband and
family members. Even on persuasion, she did not came back, rather
threatened to meet her demand as per her wishes. This witness got
information in October, 2010 that wife is coming alongwith daughter
after 15 months to Greater Noida. They celebrated birthday together
went to visit old school at Pilani, but as usual she abused him and his
parents. This witness has stated that since wife and child are living
separately from him and during intervening period, he has not given
any expenses, but he gave about 1.5 lakhs during Mediation arrived
in the Supreme Court, but ultimately that failed. The wife used to
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threaten him to jeopardize his career while he was studying for
Neuro Surgery Course. She informed his Head of the Department in
order to implicate him and when he called her parents to settle the
matter they came and started making false allegation before H.O.D.
and put pressure upon him to comply with wishes.

P.W.-3 Uncle of the husband has also supported the version of
the respondent husband that wife was not interested, rather she went
back to Ranchi on several occasions from Noida.

Dr. Nitu Singh who is examined as R.W.-1 has submitted that
during marriage in accordance with demand of husband and his
family members, her parents gave ornaments on occasion of Cheka,
Ring Ceremony and Tilak. Her Marriage was solemnized at
Matrimonial house at Giridih on 29.01.2007 and was taken to
Greater Noida where she lived about 1½ months and went to her
college Kishananganj for internship alone, as her husband refused to
accompany her. After completion of her internship, she went back to
her husband’s place at Greater Noida. Her mother-in-law took her
entire ornaments and costly wearings and did not return till today.
They satired her for coming with lesser dowry than expected.
Husband and his family members started putting pressure to bring
Rs. 50,00,000/- for admission in P.G. Course and thereby tortured
her. When she became pregnant, even then the family members
continued torturing her.

Her father examined as R.W.-2 has categorically stated that he
has not taken any action. He came to know from his daughter about
snatching of ornaments, but did not lodge any complaint. This
witness has categorically stated that demand was started after four
years of marriage. His daughter lived with her husband for 7-8
months between 2007 to 2013. This witness has further admitted that
husband has filed Divorce Case first then his daughter out of
vengeance filed case of torture in connection with dowry.

12. From perusal of the impugned judgment, it appears that the
learned Family court considered the evidence of both sides and came
to a finding that husband’s evidence suffers from least infirmity to
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prove cruelty whereas respondent / wife / appellant evidence are
self-contradictory and mutually contradictory to each other on
material particulars.

13. The mediation also took place at Supreme Court where the
conduct of the appellant-wife shows that she was hardly interested to
proceed for conjugal life. The parties are living separately since
March, 2011 and the divorce petition was filed under Section 13 of
the Hindu Marriage Act, 1955 in the court of Civil Judge, Senior
Division, Gautam Budh Nagar (U.P.) by the husband on 10.01.2013.
On the basis of order passed by the Apex Court after taking recourse
of mediation, the matter was transferred to the court of learned
Principal Judge, Family Court, Ranchi in terms of order dated
15.01.2015 passed by Hon’ble Apex Court in Transfer Petition
(Civil) No. 1398/2013. Thus, the Family court after taking entire
gamut of fact found it proper not to grant decree of divorce, but
considering their matrimonial status and difference towards restoring
conjugal life, granted judicial separation which has been assailed
before this Court.

14. After hearing the learned counsel for the respective parties and
on the basis of impugned judgment and perusal of the materials
available on record, the undisputed facts are like this:-

(i) Ring Ceremony took place at Hotel at Noida on
23.05.2006.

(ii) Marriage was solemnized on 29.01.2007 at Giridih as
per Hindu rituals and customs.

(iii) The wife / respondent / appellant went to her in-laws
place with husband/petitioner/respondent at Greater
Noida, where she lived for 1½ months and thereafter
went to Kishanganj for her internship alone. After
completion of the internship, she came to her husband’s
place at Noida and during stay, she became pregnant
and went to her father’s place at Ranchi carrying
pregnancy of three months, where she was blessed with
a girl child. The wife has alleged that there was demand
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of Rs. 50,00,000/- for which she was tortured, but this
fact has been contradicted by her father, who has stated
that demand of dowry was made after four years.

(iv) In July, 2009, the wife/respondent/appellant along with
minor child went to Delhi and stayed for four months,
but went back to Ranchi with daughter without
informing anybody and after 15 months again came to
Delhi and lived there from October, 2010 to January,
2011.

(v) Mediation Proceeding took place before Mediation
Centre of Supreme Court for restitution of conjugal life,
but on the final date of counselling,
wife/respondent/appellant did not appear and thus, the
terms of the compromise could not be finalized.

(vi) Admittedly from March, 2011, none of the parties
reside together. The husband / applicant / respondent Dr.
Ravi Shankar filed a petition under Section 13 of the
Hindu Marriage Act, 1955 on 10.01.2013 before the
court of Civil Judge, Senior Division, Gautam Budh
Nagar (U.P.), which was subsequently transferred to
court of Principal Judge, Family Court,Ranchi in terms
of order dated 15.01.2015 passed by Hon’ble Supreme
Court in Transfer Petition (Civil) No. 1398 of 2013.

(vii) The learned Family court after taking note of the entire
materials on record and considering that the evidence of
both the sides are suffering from infirmity, but
husband’s evidence suffer from least infirmity refused
to grant divorce. It observed that the wife/respondent /
appellant’s evidence seemed to be self-contradictory and
contradictory to the evidence of her father and took note
of her tendency to live separately since March, 2011 as
she had not taken interest before the Mediation Centre
at Supreme Court and she did not appear on the last date
of mediation.

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(viii) The evidence of R.W.-2 father of the wife shows that
after filing of the divorce petition by the husband, the
wife has filed a case of torture in connection with dowry
out of vengeance.

(ix) The learned Family Court, therefore, appears to have
rightly taken view of granting judicial separation
between the parties, so as to maintain social harmony.

15. After hearing both the parties, looking into the material
available on record and also discussed by the learned Family Court
in detail, it appears that there is a criminal case pending between the
parties and subsequent divorce case filed before the Family Court,
Ranchi is at the final stage, which clearly establishes that both
parties are in litigating terms, living separately since March, 2011
and are not interested in restoring conjugal life. Thus, interference in
the judgment of Judicial Separation is not warranted.

The impugned judgment and decree does not require any
interference as there is no illegality or irregularity in the same.

16. Accordingly, this first appeal is dismissed.

(Aparesh Kumar Singh, J.)

(Kailash Prasad Deo, J.)
Jharkahand High Court
Dated : 25/02/2020
Sunil/

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