Court No. - 34
Case :- FIRST APPEAL No. - 276 of 2011 Appellant :- Prabhat Kumar Roy Respondent :- Smt. Chandana Roy Counsel for Appellant :- B.K. Shukla,Anil Kumar Srivastava,S.K. Srivastava Counsel for Respondent :- Mamta Singh,Satish Kumar Pandey
Hon'ble Sudhir Agarwal,J. Hon'ble Shashi Kant,J.
1. Sri A.K.Srivastava, learned counsel for the appellant is present. None appeared on behalf of respondent though the case has been called in revised. Hence we proceed to decide appeal after hearing counsel for appellant.
2. This appeal under Section 19 of Family Court Act, 1984 (hereinafter referred to as “Act, 1984”) has arisen from judgment and decree dated 30.05.2009 passed by Sri Babu Lal Kesarwani, Additional Principal Judge, Family Court, Allahabad, whereby suit of the plaintiff-husband filed under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as “Act, 1955”) for seeking decree of divorce being Matrimonial Case No.125 of 2007 (Prabhat Kumar Rai Vs. Smt. Chandana Rai) has been dismissed.
3. The facts in brief as emerges from record are that appellant filed a suit under Section 13 of Act, 1955 stating therein that :
i. The marriage of the appellant was solemnized with respondent on 22.11.1991 according to Hindu rites and rituals at Allahabad.
ii. Out of their wedlock, two children namely Km. Neelanjana Roy and Anirudha Roy were born.
iii. The appellant as well as respondent both are employed. The appellant is working as Cipher Operator in Divisional Railway Manager's office, North Central Railway, Allahabad and the respondent is working on the post of Ward Sister in a Prestigious institution of Allahabad namely Kamla Nehru Memorial Hospital, Allahabad. At the time of marriage, respondent-wife was employed as Lieutenant in Military Nursing Services.
iv. After marriage, respondent started misbehaving with appellant and his widow mother on one or the other pretext, quarreled with them on minor issues. She abused screaming and throwing utensils and other households items on them. She often locked the children inside the room and bullied them without any reason.
v. After sometime of the marriage, respondent-wife started developing relation with the outsiders and often seen with different persons on the street and on the public places. Since behaviour of respondent wife was not tolerable in any manner, hence the appellant filed divorced petition which was dismissed by the impugned order.
4. Respondent contested the suit by filing written statement stating therein that :
i. From the very inception, the behaviour of the appellant was cunning. He married with the respondent by concealing his real caste ans saying him “Bengali”.
ii. At the time of marriage the respondent-wife was working on the post of Lieutenant in the army and worked there upto the year 1992.
iii. Due to the pressure of the appellant, she left her job in the Army.
iv. The plaintiff-applicant from the very beginning was metally disturbed and spent most of his earning in the addiction and was not proving financial assistance in maintaining the children on account whereof the respondent-wife had to serve in Kamla Nehru Hospital on the monthly salary of Rs.3,000/-.
v. The plaintiff-appellant was torturing her mentally and had illicit relation with other women.
vi. The plaintiff-appellant had performed court marriage with a woman and after payment a lot of money to her, quit all relation with her.
vii. The Plaintiff-appellant had taken a lot of money from her mother to purchase a flat in the name of the respondent-wife but after some time she came to know that he had purchased flat No.6 at Shivam Kunj Apartment, New Baihrana, in his own name, which is beside the flat of one Surita, with whom the appellant is having illicit relation.
5. On the basis of pleadings of parties, Court below framed following issues :
^^1&D;k izfrokfnuh dk pky&pyu eqrkfcd okni= Bhd ugha gS vkSj izfrokfnuh us fnukad 20-1-06 dks fcuk ;qfDr&;qDr dkj.k ds oknh dk ifjR;kx fd;k gqvk gS \ 2& D;k oknh }kjk izfrokfnuh dks ekufld rFkk 'kkjhfjd izrkM+uk nsus ds vfrfjDr oknh dk voS/k lEcU/k lquhrk lokZf/kdkjh uke dh L=h ls gksus ds vuqlkj oknh us tkjrk esa jgrs gq, izfrokfnuh dk ifjR;kx fd;k gqvk gS \ 3& vuqrks"k] oknh ftls izkIr djus dk vf/kdkjh gS \^^ “1. Whether the defendant is not of good character as mentioned in the plaint, and whether she has, without any reasonable cause, deserted the plaintiff since 20.01.2006?
2. Whether the plaintiff, besides subjecting the defendant to mental and physical harassment, has had illicit relations with a woman named Sunita Sarvadhikari, thus being in adultery, has deserted the defendant?
3. Relief, the plaintiff is entitled to get?”
(English Translation by the Court)
6. No documentary evidence has been produced by either of the parties. To prove his case, appellant examined himself as PW-1 and his daughter Neelanjana Rai as PW-2. The respondent-wife has filed his affidavit to prove her case.
7. After hearing parties and assessing evidence available on record, Court below has recorded its issue-wise findings. While deciding issues 1 and 2, Court below has recorded findings that plaintiff could not prove allegations regarding adultery and cruelty and decided the same against plaintiff-appellant and in favour of the defendant-respondent. On the basis of findings recorded on issues 1 and 2, plaintiff was found not entitled to get a decree of divorce as such relief claimed by plaintiff-appellant was denied and consequently divorce suit of appellant was dismissed.
8. Being aggrieved therefrom, appellant has filed this appeal.
9. Learned counsel for appellant urged that the judgment and decree passed by lower court is totally perverse. Trial Court has wrongly dismissed plaintiff's suit for divorce as such the impugned judgment and order is bad in facts and law and liable to be set aside.
10. In view of the various contentions raised by learned counsel for appellant, only one question has arisen for consideration of this Court:
"Whether findings recorded by the Court below are based on the evidence available on record and the impugned judgment and order is sustainable in the eyes of law."
11. We have considered the arguments of learned counsel for the appellant and carefully perused the record.
12. Appellant told that character of respondent-wife was bad and so many persons were coming to her. In para 11 of plaint plaintiff- appellant has pleaded that his well-wisher has seen respondent in company of other man whom he knew but in his cross examination he could not name even a single person with whom respondent has been seen. He also could not tell time and place where he has seen his wife alongwith other persons. In respect to cruelty, he neither referred to any such incident in his plaint nor stated in his examination-in-chief or cross-examination as PW-1 by which it may be inferred that marriage has been broken irretrievably and parties are not in position to live with each other.
13. Admittedly, appellant and respondent both are living in separate portions of same flat no.6. The daughter of appellant and respondent, Km. Neelanjana Roy, aged about 14 years also deposed in her evidence regarding bad character of her mother but it may be noticed here that she is minor girl aged 14 years at the time of her evidence and was living with his father. In these circumstances her evidence could not be given much weightage specially when appellant himself as PW-1 could not name any person with whom he has seen his wife as well as place and time of such event. Respondent in her evidence clearly stated that earlier appellant performed Court marriage with a woman and subsequently left her by paying huge money. This evidence of respondent wife is uncontroverted. Even daughter of appellant PW-2 has admitted in her evidence that in absence of his father, one woman namely Surita was assisting her and her family and has active role in the family matters of appellant. In respect of her, respondent had deposed in his evidence that she is a widow, working in Railway Department. Appellant has purchased flat no.6 besides the flat of Surita, only with a view to get company of above lady easily, with whom he has illicit relations. Respondent-wife was lieutenant in the Army in Medical wing but due to pressure of appellant, left the job and presently working in Kamla Nehru Hospital.
14. Considering the above aspect and evidence and material available on record, the Trial Court has recorded findings on various issues which are based on evidence available on record. This is not case of appellant that findings of Court below are not based on evidence available on record or based on consideration of any non- consideration of any non admissible evidence or any evidence has been left from consideration.
15. In the above background we find no good reasons to record a different conclusions drawn by lower court below. For reasons aforesaid, the question formulated above is answered in negative i.e. against the appellant.
16. Consequently, the appeal is dismissed with cost throughout.
Order Date :- 22.2.2018 KA