Barin Ghosh -
(1.) By the judgment and order under appeal, Family Court, Sikkim at Gangtok has allowed a petition filed by respondent under section 13 (1) (i-a) of Hindu 'Marriage Act, 1955, and thereby has dissolved the marriage between respondent and appellant. Appellant contends that the judgment and order under appeal is not sustainable on the basis of evidence on record. She also contends that learned Family Court, while rendering the judgment and order under appeal, failed to appreciate facts and circumstances of the case, pleadings of the parties and evidence that was brought on record. She further contends that learned Court failed to take note of the fact, which stands established, that appellant wanted to reconcile with respondent. Appellant contends that the learned Judge, before rendering the judgment and order under appeal, for no just reason, refused to allow appellant to examine witnesses, who were well conversant with the facts and circumstances of the case. On the point of law, it was contended that placing reliance upon the judgment rendered by the Judicial Magistrate. First Class, East & North Sikkim in G. R. Case No. 1 of 2004 by the Family Court was not permissible in terms of the provisions contained in section 43 of Evidence Act.
(2.) Facts of the case, to which there appears to be no dispute, are that the parties hereto are Hindu by faith. On 7th March, 1997 marriage between appellant and respondent was solemnized and on 12th March. 1997, a girl child, named Shreya Pradhan, was born out of the wedlock. On 28th June, 2002, appellant submitted a written complaint against respondent with the Officer-in-charge, Sadar Police Station, Gangtok, complainant about cruelties, mental and physical, meted out by respondent upon appellant and about demand of dowry since the very beginning of the marriage. In the complaint a request was made for taking necessary legal action as per law. On lodgment of the complaint Sadar Police Station Case No. 61 (6) 02 dated 28th June, 2002 was registered under section 498-A of I. P. C. against respondent. In course of investigation respondent was arrested on 28th June, 2002 and was kept in custody for a period exceeding 48 hours. Inasmuch as respondent, a Government employee, was detained in custody for a period exceeding 48 hours, by an Order dated 2nd August, 2002 he was suspended with effect from the date of his detention, i.e. from 28th June, 2002, in terms of Rule 8 (2) of the Sikkim Government Servants' (Discipline and Appeal) Rules, 1985. After respondent was arrested, he was admitted in hospital on 29th June, 2002 and was discharged therefrom on 8th July, 2002. In course of investigation, brothers and sisters of appellant, the neighbours and the maid servant of the household were questioned. On completion of investigation a charge-sheet was filed against respondent under section 498A of Indian Penal Code. The Court upon consideration of the charge-sheet and materials on record and after hearing the parties framed charge under section 498-A of I. P. C. when the case was tried before the Judicial Magistrate, First Class, East & North Sikkim at Gangtok, prosecution examined 10 witnesses including appellant and those, who were questioned in course of investigation. Respondent was examined under section 313 of Cr. P. C., 1973 and his statement was duly recorded. No evidence was tendered in defence. After trial was concluded, by a judgment and order rendered on 30th June, 2006, the learned Magistrate held as follows :
"In the end result, in view of the poor quality of the evidence put forward by the prosecution, absence of clear and cogent evidence against the accused and the highly doubtful version of the prosecution I find that the prosecution gas miserably failed to prove the case against the accused under section 498-A, I.P.C., 1860. I, accordingly, find accused R. K. Pradhan innocent.
Accordingly, R. K. Pradhan is acquitted of the charge under section 498-A of I. P. C., 1980 by giving him the benefit of doubt."
(3.) On 17th may, 2007, respondent presented the petition under section 13 (1) (i-a) of Hindu Marriage Act, 1955, seeking dissolution of the marriage of respondent and appellant on the ground of cruelty in the interest of justice. Appellant contested the petition by filling a written objection. Before the Family Court, respondent deposed first and he was cross-examined by appellant. Thereafter she deposed and she was cross-examined by respondent. In his deposition, respondent wanted divorce on the grounds mentioned in paragraphs 12 and 13 of his petition. Appellant reiterated her contentions contained in her written objection while she deposed. After consideration of materials on record, learned Family Court passed the judgment and order under appeal.;