Patna High Court
Manoj Kumar vs Neeta Kumari @ Muli on 17 January, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.734 of 2018
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Manoj Kumar, son of Sri Devnath Prasad Yadav, resident of Babu Bazar Road
No. 10, P.S. Gardanibagh, P.O.- Anisabad, District- Patna.
... ... Appellant/s
Versus
Neeta Kumari @ Muli, wife of Manoj Kumar and daughter Hari Nandan
Yadav, resident of in front of Prakash Talkies, Sharma Gali, Khagaria, P.O.
and P.S.- Khagaria, District- Khagaria.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Harendra Kumar, Advocate
For the Respondent/s : Mr. Bharat Bhushan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
And
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. B. PD. SINGH)
Date : 17-01-2025
Interlocutory Application No. 1 of 2019
This Interlocutory Application has been filed by the
appellant under Section 5 of the Limitation Act, 1963 for
condoning the delay of 36 days in filing the instant
Miscellaneous Appeal.
2. Considering the averments made in the
interlocutory application, sufficient cause have been
shown which prevented the appellant from filing the
Miscellaneous Appeal in time.
3. Accordingly, this interlocutory application is
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allowed and the delay of 36 days in the filing of the
Miscellaneous Appeal is condoned.
4. The present appeal has been filed under Section
19(1) of the Family Court Act, 1984 impugning the
judgment and decree dated 05.06.2018 and 18.06.2018
respectively passed by learned Principal Judge, Family
Court, Patna in Matrimonial Case No. 302 of 2011,
whereby the matrimonial suit, preferred by the appellant,
for a decree of divorce, on dissolution of marriage, on the
ground of cruelty and desertion, has been dismissed.
5. The case of the appellant as per petition filed
before the Family Court is that the marriage of the
appellant with respondent was solemnized on 01.07.1995
as per Hindu Rights and Customs and out of the wedlock
a daughter namely, Niharika@Tannu born on 02.12.1996
and a son namely Akash Ansh @ Babu born on
01.08.2003
. The appellant and respondent lived together
as husband and wife for about 7 years. It is alleged that
the respondent was a quarrelsome lady and always used
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to quarrel with her husband and other in-laws family
members and always used to go to her parents’ house
without giving any information. The behaviour of the
respondent was also not good towards children. In the
year 2003, she went to her parental house along with
children. The appellant made several attempts to bring
the respondent and children to her matrimonial house but
all his efforts went in vein. Ultimately, the appellant
moved before the Family Court to save his physical and
mental life because the appellant suffered a lot in terms
of mental, physical as well as financial. The respondent
deserted the appellant without reasonable cause and
without the consent or against the wish of appellant. The
respondent had left her matrimonial house on 4 th May
2003 and since then she resides at her parental house at
Khagaria. It is further alleged that only to harass the
appellant, she has filed Complaint No.514/290 of 2011
on 21.04.2011 against the appellant in the Bihar State
Women’s Commission, Patna. It was therefore, prayed to
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pass an order for the divorce in favour of the appellant.
6. In response to the summon/notice issued by the
Court, respondent/O.P appeared and filed her
reply/written statement.
7. It is submitted by learned counsel for the
respondent that marriage of respondent with the
appellant was solemnized more than 15 years ago and out
of the wedlock, one daughter and one son were born. The
appellant has filed the present matrimonial suit in counter
blast of the complaint petition dated 21.04.2011 filed by
the respondent before Bihar State Women Commission,
Patna against the appellant-husband. After marriage, the
respondent was tortured mentally and physically and she
was restricted to meet her children. Though, she work as
Neyojit Teacher at Khagaria but after taking leave in
vacation, the respondent always used to come to her
matrimonial house at Patna. The respondent is still living
in her matrimonial house and trying to lead happy
peaceful conjugal life but the attitude of the appellant-
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husband, his mother and sisters did not change and they
used to torture in routine affairs. During pendency of the
proceeding, the appellant-husband and the respondent-
wife physically appeared on 06.06.2011 before the Bihar
State Women Commission, Patna and settled their
dispute but after disposal of the said complaint, the
appellant-husband again started torturing the
respondent-wife and compelled her to leave her
matrimonial house. The appellant-husband is trying to
marry with another girl and the instant matrimonial suit
has been filed without any reason or occasion.
8. On the basis of the rival contentions of both the
parties, following issues were framed in this case by the
learned Court below:-
1. Whether the case as framed is
maintainable?
2. Whether the petitioner has cause of
action to file this case?
3. Whether the opposite party has
deserted the petitioner continuously for a
period of more than two years since
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case?
4. Whether the petitioner was
subjected to cruelty by the opposite party?
5. Whether the petitioner is entitled to
relief as claimed for?
6. Whether the petitioner is entitled to
any other relief or reliefs?
9. During course of trial, altogether four witnesses
have been produced on behalf of the appellant which are
P.W. 1 Manoj Kumar (appellant himself), P.W. 2 Sudha
Mandal (sister of the appellant), P.W. 3 Pushpa Singh
(sister of the appellant), P.W. 4, Niharika Yadav(daughter
of appellant).
10. Apart from the above oral evidence of the
witnesses, a documentary evidence has been produced on
behalf of the appellant which has been marked as Exhibit –
1 which is photocopy of notice of State Women
Commission.
11. On behalf of the respondent/O.P., four
witnesses have been produced who are O.P.W. 1 Akash
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Ansh (son of respondent), O.P.W. 2 Harinandan Prasad
Yadav (father of respondent), O.P.W. 3 Sarita Kumari,
O.P.W. 4 Neeta Kumari (respondent herself).
12. Apart from the above oral evidence, some
documentary evidences have also been exhibited on
behalf of the respondent.
Ext. A/A/1-Photographs
Ext.-B Original Fee card of Akash Ansh
Ext.-C Photocopy of PMC rent receipt
Ext.-D Original Complain application
dated 21.04.2011.
Ext.-E Photocopy of notice issued by
State Women Commission.
Ext.-F Photocopy of proceeding of
State Women Commission.
Ext.-G Photocopy of receipt of
complaint dated 21.04.2011
Ext.-H Photocopy of report dated
24.12.2011
Ext.-I Photocopy of notice issued by
Women Commission.
13. After conclusion of the trial, the learned
Principal Judge, Family Court has held that appellant has
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not proved that he was subjected to cruelty at the hands
of the respondent as well as deserted by the respondent
and the case filed by the appellant is not maintainable and
also the appellant has no valid cause of action to file the
instant case. Accordingly, the Court below came to the
conclusion that the appellant was not entitled for decree
of divorce on the ground of cruelty as well as desertion
and the suit was accordingly dismissed.
14. Thereafter, being aggrieved and dissatisfied
with the aforesaid judgment and decree passed by the
learned Court below in Matrimonial Case No. 302 of
2011, the present appeal has been filed by the appellant.
15. Learned counsel appearing on behalf of the
appellant has submitted that the judgment and decree
passed by the learned Court below is bad and appears to
be mechanically passed without application of judicious
mind. The respondent had deserted the appellant since
2003. The appellant made several attempts to bring back
the respondent to her matrimonial house but the
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respondent was not interested to continue matrimonial
relationship with the appellant. The matrimonial house of
the respondent is at Patna but she choose to work as
Niyojit Teacher at Khagaria and since 2007, she has been
working as a Teacher in Khagaria. The daughter of the
respondent namely Niharika Yadav has deposed in her
evidence that her mother’s behaviour is cruel towards her
father and grandfather and grandmother.
16. Per contra, learned counsel appearing on
behalf of the respondent has submitted that the
impugned judgment and decree is just legal and in
accordance with law. The learned Trial Court has rightly
appreciated the evidence adduced on behalf of both the
parties in the right perspective and has correctly
dismissed the suit for divorce filed on behalf of the
appellant.
17. This Court, vide order dated 29.08.2024 had
directed both the parties to file assets and liabilities
statement in the form of Affidavit. The appellant has filed
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supplementary affidavit in this regard but the respondent
did not file any affidavit in this regard nor entered
appearance thereafter.
18. In view of the rival contentions and the
arguments adduced on behalf of the appellant as well as
the evidences brought on record, the main points for
determination in this appeal are as follows:-
(i) Whether the appellant is entitled to
the relief sought for in his petition/appeal.
(ii) Whether the impugned judgment of
Principal Judge, Family Court, Patna is just,
proper and sustainable/tenable in the eyes of
law.
19. After perusal of the materials available on
record and consideration of submissions made by learned
counsel for the appellant as well as materials available on
record, we find that appellant-husband has deposed in his
evidence that respondent-wife always used to make
quarrel with him and his family members but no specific
instance of date has been mentioned in the plaint as well
as in his evidence nor he has made any complaint before
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any authority. He has also admitted in his evidence that
prior to filing of this divorce case, respondent-wife has
made a complaint before Bihar State Women Commission
in which reconciliation proceeding took place but the
record shows that appellant-husband himself refused to
reconcile with the respondent-wife. The P.W. 2 Sudha
Mandal, during her cross-examination at para-5 has
admitted that her Babhi (respondent) never misbehaved
with her as well as with her parents. At para-4 she has
clearly stated that she does not want separation of
appellant and respondent-wife. P.W. 4 Niharika Yadav,
daughter of appellant and respondent, in her evidence at
para-2 has stated that behaviour of her
mother(respondent-wife) was not cordial towards her
father and grandparents but at the same time, during her
cross-examination at para-7, this witness has admitted
that her father (appellant) has a house in which her
grandparents, mother, elder father and mother all used to
reside together. The O.P.W. 1 Akash Ansh who is son of
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the appellant and respondent has deposed in his evidence
that his father(appellant) used to visit school during
parents meeting at Khagaria which shows that appellant-
husband was having cordial relationship with respondent-
wife. The father of the respondent-wife who has adduced
his evidence as O.P.W. 2 has deposed that appellant-
husband has filed this divorce case after a complaint case
filed by the respondent-wife in Bihar State Women
Commission in which reconciliation was made and
appellant-husband was ready to live with respondent-
wife. Opposite party’s witness No. 3 has stated that after
solemnization of marriage, opposite party, Nita has been
residing at her Sasural. She has seen very good relation
between the petitioner and opposite party. The
respondent-wife herself has adduced her evidence as
O.P.W. 4 and stated that her Nanad (sister-in-law) has
kept her daughter and she was not allowed to meet with
her. At para-5 she has stated that she used to prepare
meal jointly for herself and her in-laws. She has filed
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complaint before Bihar State Women Commission prior to
filing of this divorce case. At para-17 she has admitted
that her relationship with her mother-in-law and father-
in-law was cordial.
20. So far as, the ground of cruelty for taking
divorce is concerned, the word ‘cruelty’ has not been
defined in specific words and language in the Hindu
Marriage Act, 1955, but it is well settled position that
cruelty is such of character and conduct as cause in mind
of other spouse a reasonable apprehension that it will be
harmful and injurious for him to live with O.P.-
respondent.
21. It is observed by the Hon’ble Apex Court in
leading case of Samar Ghose vs. Jaya Ghose reported in
2007 (4) SCC 511 that a sustained unjustifiable conduct
and behaviour of one spouse actually affecting physical
and mental health of the other spouse. The treatment
complained of and the resultant danger or apprehension
must be very grave, substantial and weighty. More trivial
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irritations, quarrel, normal wear and tear of the married
live which happens in day-to-day live would not be
adequate for grant of divorce on the ground of mental
cruelty.
22. In this context, we are tempted to quote the
golden observation made by the Hon’ble Apex Court
during decision in case of Narain Ganesh Dastane vs.
Sucheta Naraih Dastane reported in, AIR 1975, 1534,
which are as follows:-
“One other matter which needs to be
clarified is that though under Section 10(1)
(b), the apprehension of the petitioner that
it will be harmful or injurious to live with the
other party has to be reasonable, it is wrong,
except in the context of such apprehension,
to import the concept of a reasonable man
as known to the law of negligence of judging
of matrimonial relations. Spouses are
undoubtedly supposed and expected to
conduct their joint venture as best as they
might but it is no function of a court inquring
into a charge of cruelty to philosophise on
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may want to keep late hours of finish the
day’s work and some one may want to get
up early for a morning round of golf. The
court cannot apply to the habits or hobbies
of these the test whether a reasonable man
situated similarly will behave in a similar
fashion. “The question whether the
misconduct complained of constitutes
cruelty and the like for divorce purposes is
determined primarily by its effect upon the
particular person complaining of the acts.
The question is not whether the conduct
would be cruel to a reasonable person or a
person of average or normal sensibilities,
but whether it would have that effect upon
the aggrieved spouse. That which may be
cruel to one person may be laughed off by
another, and what may not be cruel to an
Individual under one set of circumstances
may be extreme cruelty under another set of
circumstances”. The Court has to deal, not
with an ideal husband and ideal wife
(assuming any such exist) but with the
particular man and woman before it. The
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ideal couple or a near-ideal one will probably
have no occasion to go to a matrimonial
court for, even if they may not be able to
draw their differences, their ideal attitudes
may help them overlook or gloss over
mutual faults and failures.”
23. After going through the above entire
documentary and oral evidence adduced on behalf the
appellant-husband, it is crystal clear that appellant-
husband has failed to prove the cruel behaviour of the
respondent towards him and his family members by the
strength of cogent, relevant and reliable evidence, while
burden of prove of cruelty rests upon the appellant-
husband of this case, because, he has sought relief of
divorce on the basis of cruel behaviour of the respondent
towards him. Not even single alleged incident with
reference to date of alleged cruelty has been urged in the
plaint before the Family Court. Furthermore, alleged
certain flimsy act or omission or using some threatening
and harsh words may occasionally happen in the day-to-
day conjugal life of a husband and wife to retaliate the
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other spouse but that cannot be a justified/sustainable
ground for taking divorce. Some trifling utterance or
remarks or mere threatening of one spouse to other
cannot be construed as such decree of cruelty, which is
legally required to a decree of divorce. The austerity of
temper and behaviour, petulance of manner and
harshness of language may vary from man to man born
and brought up in different family background, living in
different standard of life, having their quality of
educational qualification and their status in society in
which they live.
24. So far as ground of desertion is concerned, it
has come in the evidence of the appellant-husband (PW-
1) that respondent-wife, in year 2003 went to her
parental house along with kids and since then appellant-
husband went twice-thrice to bring back his wife but she
did not return and misbehaved with him, but at the same
time in para-11, during his cross-examination, he has
admitted that in reconciliation proceeding at Bihar State
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Women Commission, he was not ready to live with the
respondent-wife and has specifically stated that he
himself deserted his wife and now does not want to live
with her. The respondent-wife herself in her evidence
stated that she used to do service as Niyojit teacher at
Khagaria but during holidays, she lives at Patna in the
house of the appellant-husband. At para 19, she has
stated that the appellant-husband made physical relation
with her one week prior and she was cross-examined on
10.03.2016 which shows that there was marital
relationship with the appellant-husband. The respondent-
wife has also filed rent receipt issued by Patna Nagar
Nigam which has been marked as Exhibit-C on which the
father-in-law of the respondent-wife has endorsed that
respondent-wife resides with them in their house. So, on
the ground of desertion also, the appellant is not entitled
to get any decree of divorce.
25. Thus, considering the above entire aspects of
this case and evidence adduced on behalf of both the
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parties, we find that appellant has failed to prove the
allegation of cruelty, much less, the decree of cruel
behaviour of respondent which is legally required for
grant of decree of divorce under section 13(1) (ia) of the
Hindu Marriage Act as also the appellant-husband has
failed to prove that the respondent-wife has deserted the
appellant-husband.
26. Hence, we find no merit in the present appeal
warranting any interference in the impugned judgment.
The Family Court has rightly dismissed the matrimonial
case of the appellant seeking divorce.
27. The present appeal is dismissed accordingly,
affirming the impugned judgment.
( S. B. Pd. Singh, J)
(P. B. Bajanthri, J)
Shageer/-
AFR/NAFR NAFR CAV DATE 26/11/2024 Uploading Date 18/01/2025 Transmission Date N/A
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