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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RONGON MUKHOPADHYAY, DEEPAK ROSHAN, JJ.
Sanjit Kumar – Appellant
Versus
Manju Devi – Respondent
First Appeal No. 303 of 2019
Decided On : 21-07-2023
Desertion - Dissolution of Marriage - Hindu Marriage Act, 1955, Section 13(1)(i-b) - Summary of Acts and Sections: The court discussed the provisions of Section 13(1)(i-b) of the Hindu Marriage Act, 1955, which allows dissolution of marriage on the ground of desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. The court also highlighted the continuous nature of desertion and the requirement to prove both the fact of separation and the intention to desert. The court emphasized the importance of establishing a fresh cause of action for seeking divorce and the interconnection between the issues of cruelty and desertion.
Fact of the Case:
The appellant filed a suit for dissolution of marriage under Section 13(1)(i-b) of the Hindu Marriage Act, 1955, alleging cruelty and desertion by the respondent. The suit was dismissed on the ground of res-judicata as the issues were already a substantial issue in a previous suit.
Finding of the Court:
The court found that the suit was not barred by res-judicata, but dismissed the appeal based on the findings that the petitioner failed to prove desertion and cruelty on the part of the respondent.
Issues: The issues included the maintainability of the suit, the valid cause of action for the suit, and whether the petitioner was entitled to dissolution of marriage based on desertion and cruelty.
Ratio Decidendi: The court emphasized the need to establish a fresh cause of action for seeking divorce and the continuous nature of desertion. It also highlighted the interconnection between the issues of cruelty and desertion, and the importance of proving both the fact of separation and the intention to desert.
Final Decision: The appeal was dismissed based on the findings that the petitioner failed to prove desertion and cruelty on the part of the respondent.
JUDGMENT :
1. Heard Mr. Mukesh Kumar, learned counsel for the appellant and Mr. Shashank Shekhar, learned counsel appearing for the respondent.
2. This appeal is directed against the judgment dated 31.08.2019 and decree dated 11.09.2019 passed by Sri Peeyush Kumar, learned Principal Judge Family Court, Bokaro in Original Suit No. 53 of 2017, whereby and whereunder the suit preferred by the appellant for dissolution of marriage u/s 13(1)(i-b) of the Hindu Marriage Act, 1955 has been dismissed.
3. For the sake of convenience both the parties are addressed as per their party position in the court below.
4. A suit was preferred by the petitioner (appellant herein) being Original Suit No. 53 of 2017 u/s 13(1)(i-b) of the Hindu Marriage Act, 1955, in which, it has been stated that the marriage between the petitioner and Manju Devi (respondent herein) was solemnized on 06.03.1987 at Sahebganj according to the Hindu rites and customs. Out of the said wedlock two children were born; a son namely Shashang Anurag who is aged 26 years and a daughter namely Smita Anurag aged about 28 years. Since the petitioner was treated with cruelty by his wife he had filed a suit for dissolution of marriage u/s 13(1)(i-b) of the Hindu Marriage Act, 1955 being Title Suit (Mat) No. 46/2002 after which the family members of both the sides interfered and subsequently the suit was dismissed as withdrawn on 05.01.2003 on account of a withdrawal petition filed by the petitioner.
5. It has been stated that the respondent however did not mend her ways and continued to treat the petitioner with cruelty including resorting to physical assault which constrained the petitioner to once again file a suit for dissolution of marriage u/s 13(1) (i-a), (i-b) and (1A) of the Hindu Marriage Act, 1955. The said suit being Title (Mat) Suit No. 92/2003 was dismissed by the learned Principal Judge, Family Court, Bokaro vide judgment dated 04.05.2013. After the dismissal of Title (Mat) Suit No. 92/2003, the petitioner approached the respondent for settlement and to start a fresh lease of life as a couple but the respondent was adamant and refused to live with the petitioner. The petitioner had thereafter filed another suit being Title (M) Suit No. 58/2014 for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1959 in which the respondent had filed a written statement refusing to resume conjugal life with the petitioner. It has been stated in the plaint that in spite of the best efforts made by the petitioner to save his marriage but on account of the adamant attitude and cruel behavior of the respondent there is no chance to revive the marital ties. It has been stated that the petitioner and the respondent are living separate since 2003 and the petitioner is regularly paying monthly maintenance to the respondent. As per the petitioner the marriage has irretrievably broken down and the respondent has abandoned the petitioner without any cause or reasonable excuse.
6. The respondent on being noticed had appeared and filed her written statement in which inter-alia she has stated that the petitioner is in the habit of filing cases on one pretext or the other. The petitioner had earlier filed a suit being Title Suit (Mat) No. 46/2002 while the petitioner and the respondent were living happily with each other. The said suit was withdrawn but subsequent thereto another suit was filed being Title (Mat) Suit No. 92/2003 which was dismissed on 04.05.2013. The petitioner had also filed a suit for restitution of conjugal rights vide Title (M) Suit No. 58/2014 which was withdrawn by the petitioner. It has been stated that the present suit is barred u/s 11 CPC. The grounds which have been taken by the petitioner in the present suit have already been adjudicated upon in the earlier suit.
7. Based on the pleadings of the parties the following issues were settled:
(ii) Whether the petitioner has valid cause of action for the suit?
(ii
The main legal point established in the judgment is the requirement to establish a fresh cause of action for seeking divorce, the continuous nature of desertion, and the interconnection between the i....
The Family Court erred by dissolving the marriage based on irretrievable breakdown, not recognized under the Hindu Marriage Act, and failed to apply statutory criteria for divorce, specifically cruel....
The principle of res judicata does not apply when a subsequent matrimonial case is based on a new cause of action, allowing for the appeal to be upheld.
Cruelty is a sufficient ground for divorce under the Hindu Marriage Act, and a finding of cruelty necessitates the granting of a divorce, independent of other grounds such as desertion.
Divorce – Both parties living separately since long, that by itself would not be a ground for dissolving marriage in absence of there being any such provision in Hindu Marriage Act, 1955.
Cruel behavior and desertion can justify the dissolution of marriage under the Hindu Marriage Act, leading to the award of permanent alimony.
The main legal point established in the judgment is that evidence of cruelty and desertion must be adequately proven, and reliance on retracted allegations without considering the reasons for retract....
The principle of res judicata applies to matrimonial disputes, preventing re-litigation of previously dismissed claims of cruelty and desertion.
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