1. Heard Mr. R.S. Mazumdar, learned Senior Counsel for the appellant and Mr. Pandey Neeraj Rai, learned counsel appearing for the respondent.

2. This appeal is directed against the judgment and decree dated 12.06.2017 passed by Shri Chandra Prakash Asthana, learned Principal Judge, Family Court, Ranchi in Original Suit (MTS) No. 522 of 2014, whereby and whereunder the suit preferred by the appellant for dissolution of his marriage with the respondent has been dismissed.

3. For the sake of convenience both the parties are referred to in this judgment as per their status before the learned court below.

4. During the pendency of this appeal the petitioner (appellant herein) had preferred an application under Order 41 Rule 27 of the CPC for bringing on record additional documents being I.A. No. 9370 of 2019 which was countered by the respondent (respondent herein) by filing a reply thereto. This Court vide order dated 06.04.2022 had allowed the aforesaid Interlocutory Application and the operative part of the order reads as follows:

“27. In view of the aforesaid observations by the Hon’ble Supreme Court, we are inclined to allow IA No.9370 of 2019 to the extent that:

(a) the averments made in the application that in terms of the mediation report dated 12th June 2019 stating Smt. Nandini Mallick and Anushri Jha have settled their dispute;

(b) in Maintenance Case No. 150 of 2017, a compromise between Nandini Mallick, Tanvee Mallick, Tamanna Mallick on the one side and Tapas Mallick on the other side was signed on 27th March 2018 during mediation at Civil Court, Ranchi;

(c) evidence as regards payment made by the appellant vide Annexure IA-3 and Annexure IA-4, and

(d) the contents of compromise dated 27th March 2018 vide Annexure IA-2; shall be made part of the records.”

5. The order dated 06.04.2022 was challenged by the respondent before the Hon’ble Supreme Court in Civil Appeal No. 4746 of 2022 and vide order dated 14.07.2022 the order passed by this Court on 06.04.2022 was set aside and I.A. No. 9370 of 2019 was directed to be taken up afresh along with the main appeal. The order dated 14.07.2022 passed in Civil Appeal No. 4746 of 2022 reads as follows:

O R D E R

“

Leave granted.

This appeal by way of special leave arises out of the order passed High Court of Jharkhand at Ranchi allowing an application under Order XLI Rule 27 of the Civil Procedure Code, 1860 (hereinafter referred to as the ‘Code’) pending disposal of an appeal arising out of the judgment in a petition for divorce under the Hindu Marriage Act, 1955.

Mr. Kush Chaturvedi, learned Advocate-onRecord, who is on caveat, takes notice on behalf of the respondent.

Admittedly, the appeal arising out of the judgment of the Family Court under Section 13(1) and (i-a) of the Hindu Marriage Act, 1955 is pending before the High Court.

The Division Bench has committed two mistakes. They are :

(1) It has independently considered the application under Order XLI Rule 27 of the Code, while the normal rule is to take it up along with the main appeal; and

(2) The Division Bench has indicated the extent to which the additional evidence has to be considered.

In other words, the relevancy, admissibility, etc. of the documents had not been gone into by the Court.

Therefore, the appeal is allowed. The impugned order is set aside and the application being IA No. 9370 of 2019 is directed to be taken up afresh along with the main appeal being F.A. No. 207 of 2017.

The arguments advanced by both the parties regarding the admissibility, relevancy and proof of the additional documents are left open to be advanced at the stage of the final hearing of the appeal along with the application.”

6. In view of the aforesaid order dated 14.07.2022 we have heard the learned counsel for the respective parties in I.A. No. 9370 of 2019 as well as F.A. No. 207 of 2017.

7. The suit was preferred by the petitioner-husband u/s 13 of the Hindu Marriage Act 1955 for dissolution of his marriage with the respondent-wife in which inter-alia it has been stated that the marriage of the petitioner was solemnized with the respondent on 16.02.1993 at Rishra, West Bengal out of a love affair and courtship for over two years and on mutual consent from both the families as per Hindu Rites and customs. It has been stated that from the very beginning the respondent wanted to go to her parents’ house on one pretext or the other and wanted to stay with her parents without the consent of the petitioner. The petitioner was working in a private company and after sometime of his marriage he was transferred to Ranchi on 01.06.1993. It has been stated that due to the said wedlock the petitioner and the respondent were blessed with a female child named Tanvee on 09.06.1994 who is an adult now and presently living with the respondent and studying at St. Xaviers College, Ranchi. The respondent after the initial days of marriage started having regular quarrels with the petitioner and the main reason for such quarrel was on account of the obsession of the respondent to be in Kolkata with her parents’ which was not possible for the petitioner due to his commitment to his job which was very demanding. The parents of the respondent regularly visited the house of the petitioner at Ranchi and during this period the petitioner and the respondent also decided to keep their children in Kolkata to stay with her maternal grandparents. On account of the mental tension given by the respondent the petitioner left his private job and started doing business in medical equipments and after sometimes also started computer education in Ranchi. It has been stated that the respondent wanted to work and put pressure upon the petitioner so that the petitioner could get her some job. Finally, the respondent secured a job in a Diagnostic Centre at Ranchi where she worked for about two years. During this time the behavior of the respondent changed for the worse and she started misbehaving with the petitioner and also refused physical intimacy with the petitioner. The situation aggravated further as the petitioner expanded his business operation from Ranchi to Jamshedpur and since his business prospects looked brighter at Jamshedpur, he decided to shift residence from Ranchi to Jamshedpur. During the period when the petitioner starting staying at Jamshedpur the petitioner had requested the respondent to join him at Jamshedpur but she refused and stayed back at Ranchi. It has been stated that the behavior of the respondent became more rude and she showed no respect for the relationship and the respondent started behaving like a single woman. The respondent would often call up the petitioner at Jamshedpur and also tortured the petitioner and she used her male friends in order to teach the petitioner a lesson. On being mentally and physically abused the petitioner decided to forcefully bring the respondent from Ranchi to Jamshedpur in July, 1999 but after coming to Jamshedpur the behavior of the respondent worsened. The respondent at one point of time attacked the petitioner with a Kitchen knife but somehow the petitioner managed to save himself. The marital life between the petitioner and the respondent in course of time deteriorated to such an extent that on 17.09.1999 the respondent left Jamshedpur for her parental house in Kolkata. From 17.09.1999 till April, 2000 both stayed separate and thereafter the petitioner had decided to file a case for separation. However, in the meantime, the parents of the respondent intervened and requested the petitioner to give one more chance to the respondent with a promise that she would mend her ways and would never misbehave in future. The parents of the respondent had also given an assurance that if the respondent ever misbehaved in future the petitioner would be free to send her back and take legal steps against her for separation. The respondent thereafter came back to Jamshedpur and behaved properly for about six months but once again had resumed her earlier behavior and started ill-treating the petitioner. In May, 2023, the petitioner got a temporary job in the Govt. of Jharkhand and shifted back to Ranchi while the respondent stayed back at Jamshedpur. The respondent finally shifted to Ranchi in the year 2005 and both started residing in the same house though in separate rooms. It has been stated that the petitioner and the respondent had purchased one flat each at Nest Apartment, South Office Para, Doranda, Ranchi, and both started residing in separate flats. In the year 2007 in order to improve their relationship the petitioner requested the respondent to go for a second child and on 06.05.2008 a second child was born to them. The situation did not improve and despite several requests made by the petitioner the respondent continued to reside in a separate flat. In July, 2012, the petitioner purchased two flats at Kanke Road, Ranchi on the hope that in a better ambience the situation would improve but the respondent refused to shift to the new accommodation of the petitioner with her children. Despite repeated requests when the respondent remained adamant to stay separate the petitioner involved his family members at which his elder brother and sisterin-law went to the parental house of the respondent to inform them about the upheavals in the marital life the petitioner and the respondent were experiencing. However, the parents of the respondent refused to speak with the petitioner and also did not come to Ranchi which compelled the petitioner to file a suit for dissolution of his marriage with the respondent.

8. On being noticed the respondent had appeared and filed her written statement in which the allegation leveled against the respondent by the petitioner in the application for divorce has been denied. It has been stated that at the time of marriage the petitioner was struggling for his livelihood and he had no support of his parents due to the marriage of the petitioner and the respondent and he always forced the respondent to go to her parental house to shift her burden upon the parents of the respondent due to scarcity of funds but in spite of the same the relationship between the petitioner and the respondent was cordial. She had accompanied the petitioner to Ranchi and she is still staying with him along with their daughters. The respondent never wanted to leave the petitioner even for a moment as it was known to the respondent that if she left the petitioner for a long duration the petitioner will indulge himself with other women as he was not a person of a strong character. The petitioner always used to be on friendly terms with young women and whenever he got deeply involved with any woman, he would persuade the respondent to visit her paternal house at Kolkata. It has been stated that the petitioner is having a close relationship with one Amushree Jha @ Laxmi and they are frequently found together in all social and commercial meetings and places of public entertainment where the petitioner had introduced the said woman as “Mrs. Mallick.” The suit for divorce has been filed by the petitioner in order to legalize his relationship with Amushree Jha. The respondent has denied of having misbehaved with the petitioner or having refused to establish physical relationship with him. It has further been stated that when the petitioner shifted to Jamshedpur, he had got himself associated with politicians and came in contact with some women of dubious character and consequently started neglecting the respondent and her daughters who were staying at Ranchi. Whenever the respondent had opposed his immoral relationship, the petitioner became furious and threatened to divorce her. The petitioner had constructed a multistoried building with his own funds and he had kept two Apartments for himself and in one Apartment he has put the nameplate of his mother while in the other one the nameplate of Amushree Jha @ Laxmi finds place. The respondent and her two daughters were not allowed to enter inside the campus of the multistoried building constructed by the petitioner at Kanke Road, Ranchi. The respondent stays at Doranda with her daughters where occasionally the petitioner comes to visit them. The respondent is willing to live with the petitioner at any place as husband and wife. It has been stated that on the occasion of the opening ceremony in Pantaloon Tower he introduced Amushree Jha as his wife and when the respondent and her daughter arrived the petitioner and Amushree Jha made themselves aloof and due to the immoral behavior of the petitioner it became an awkward situation for the respondent.

9. Based on the pleadings of the parties the following issues were framed for adjudication:

I. Whether suit is maintainable in its present form

II. Whether the petitioner has valid cause of action

III. Whether the respondent has treated the petitioner with cruelty and deserted him

IV. Whether the petitioner is leading an adulterous life and wanted to take advantage of his own wrong

V. Whether the petitioner is entitled to get decree of divorce

VI. To what are the relief or reliefs, the petitioner is entitled to

10. The petitioner has examined as many as three witnesses in support of his case including himself.

11. P.W.1 (Sumit Agarwal) is acquainted with both the sides. He has stated that he knows the petitioner since the year 2008. The relationship developed as both started doing business which they are still continuing. The behavior of the respondent towards the petitioner was never cordial and he had never seen the petitioner and the respondent together in a public place. The petitioner stays at his residence at Kanke Raod while the respondent resides at Doranda. The respondent, as per his information is separately residing from the petitioner since the year 2012. The respondent never used to extend love, affection and care towards the petitioner and she was only concerned with the assets and wealth of the petitioner. He has stated that on several occasions he had made attempts to mediate between the petitioner and the respondent but the respondent never gave any respect to the petitioner as her husband and in fact once the respondent had asked him to furnish some plain papers signed by the petitioner so that she could transfer the entire properties of the petitioner in her name. Due to the ill behavior of the respondent the mental agony of the petitioner intensified and though positive efforts were made by the family members of the petitioner the respondent continued with her misbehavior and refused to listen to any advice. He has stated that the respondent has an illicit relationship with a Yoga Instructor and he had seen both of them together and recently they had gone outside the State posing themselves as husband and wife.

In cross-examination, he has deposed that he knows that the petitioner had passed out Engineering from IIT, Kharagpur. He was not present at the time of marriage between the petitioner and the respondent. He is residing in Ranchi since 2010 and he is not an employee of the petitioner but a partner. He had first met the petitioner in Delhi and the petitioner used to reside at Freedom Fighters Colony which is situated in Saket area. The petitioner used to reside alone in his flat at Delhi. The business office of the petitioner is situated at Freedom Fighters Colony in a rented place and employs 200-300 persons. He does not know in how many firms the petitioner has the ownership. The petitioner is the Director of India Infra Construction Pvt. Ltd. and he is also the Director of the said firm. He has stated that India Infra Construction Company deals in Real Estate and investment and its Headquarter is at Kolkata and its branch office is at Ranchi. There are four Directors in India Infra Construction Company including himself, the petitioner, Punit Khaitan and Prasanjit Mallick. He is the working Director of the company for which he gets a remuneration of Rs. 25,000/- per month. The petitioner has two flats in Shree Ram Garden, Ranchi. The flats at South Office Para also belong to the petitioner but he has given them to his daughters. In one of the flats in Shree Ram Garden the petitioner resides while the other is used as an office. He has not read the contents of the plaint and written statement. He has deposed that in Pantaloon building the petitioner has a franchise named Pooja Shoppe which has been entrusted to someone else. He does not know that when Arjun Munda was the Chief Minister of Jharkhand the petitioner was his P.S. In the opening ceremony at Pantaloon building the respondent along with her children had come. He knows about Amushree Jha to the extent that she is the Director of Divus E-Commerce Company. In the opening ceremony of Pooja Shopee Amushree Jha was also present. He had never seen Amushree Jha in the office of the petitioner situated in the flat of the petitioner. The petitioner and Amushree Jha do not stay together. The petitioner has not made any of his daughters as partners in his business ventures.

12. P.W.2 (Tapas Kumar Mallick) is the petitioner who has stated about solemnization of his marriage with the respondent on 16.02.2023 as per Hindu rites and customs. From the very initial stage of marriage the respondent started frequently going to the house of her parents without seeking his permission. At that point of time, he was employed in a private firm and on 01.06.1993 he was transferred to Ranchi. On 09.06.2014 a daughter was born to the couple who was named “Tanvee” who is at present a student in Ranchi University. From the inception of the marriage the behavior of the respondent towards him was rude and it became a habit for her to quarrel on trivial issues and not listen to him, the reason being her desire to shift to Kolkata and settle down with her parents. However, due to his service and business commitments it was not possible for him to accept such proposal. The parents of the respondent used to regularly visit his house and interfere in his marital life. Due to such mental tension and anxiety, he left his private job and started a business. The respondent got a job in a Diagnostic Centre and without his permission she had sent his daughter to Kolkata to her parents. The respondent started mental torture upon him and also expressed her disinclination to have physical intimacy with him. In the meantime, he shifted his business from Ranchi to Jamshedpur on account of better prospects and though he had asked the respondent to shift with him to Jamshedpur but she refused and continued to stay at Ranchi. The behavior of the respondent towards him turned from bad to worse and she started projecting herself as a single woman. In spite of being tortured by the respondent he forcibly brought the respondent from Ranchi to Jamshedpur in July, 1999 to reside with him but her ill behavior towards him was unwavering and she become adamant to go back to Ranchi and on refusal she had once made an attempt to bodily harm him with a Kitchen knife but he was somehow saved. He has stated that all of a sudden on 17.09.1999 the respondent had left for Kolkata and from 17.09.1999 to April, 2002 both he and the respondent stayed separate. When he was exploring the possibility of a judicial separation the parents of the respondent intervened and requested him to give one more chance to the respondent at which he agreed to restore marital life with the petitioner. The respondent had promised not to ill treat her and would rigorously fulfill the duties and responsibilities of a wife. He had thereafter brought back the respondent to Jamshedpur where her behavior was cordial for six months but thereafter, she once again adorned her earlier self. In the meantime, he had secured a job in the Govt. of Jharkhand in the year 2003 and he and the respondent came back to Ranchi in 2005 where both started staying together in a house though in separate rooms. He has stated that he had purchased two flats in Nest Apartment, South Office Para, Doranda, Ranchi, and both started residing in separate flats. On 06.05.2008 the couple had another child which made him optimistic that the relationship between them would become better.

He had requested the respondent to stay together in one flat but she refused and continued residing separately. Whenever his parents came to Ranchi and stayed with him for 2-4 days the respondent used to misbehave with them and used to go out with her friends to have food in a hotel. The respondent used foul language against his family members whenever he extended financial assistance to his parents. The respondent was always waiting for an opportunity to grab his properties. In July, 2012 he had purchased two flats at Kanke Road with the sole objective that if both stayed together in the newly acquired property their relationship may improve. The respondent however refused to shift to the flat at Kanke Road and she continued to reside at Doranda along with her children. In order to save the marriage, he had asked for intervention from the relatives of both the sides and in September, 2013 his elder brother and sister-in-law had gone to Kolkata to discuss about the issue with the parents of the respondents and they uniformly agreed that his marriage with the respondent has run into rough weather. The parents of the respondent had refused to come to Ranchi on his invitation to drill some sense into the respondent.

In cross-examination, he has deposed that he has his flats at Kanke Road in Shree Ram Garden Apartment. He does not have any flat or house other than those at Ranchi except an office-cum-residence in Delhi. He has a company in Delhi in the name and style of Divus E-Commerce of which he is the Director. He is also the Director of India Infra Nirman Ltd. whose head office is at Kolkata. He is the owner of the Real Estate Firm named Global Corp. and he is also the Director of Zenith Infra Projects Limited. He was also a Director in Rajveer Infra Com. Pvt. Ltd. but at the present moment he is not in the company. He has deposed that at the time of his marriage he was working in Wipro GE Medical System and he was posted at Kolkata. When he was posted at Kolkata his wife used to stay with him. After he was transferred to Ranchi both started residing in a rented house in Bariatu Housing Colony and later on shifted to an accommodation above the Diagnostic Centre of Dr. K.K. Sinha where they resided till 1998. When he started the business of medical equipments his financial condition was not stable. During that period his parents did not come but sometime the parents of the respondent used to come to Ranchi. The respondent did not want his parents to come and stay with them. In 1997, he had managed to secure a job for the respondent as a C.T. Scanner Operator and during the said period his daughter used to stay with his parents-in-law. He has deposed that Shomila Banerjee used to work at his STG Ranchi Centre Office but he does not remember in which post she was working. He does not know the place at Ranchi where Shomila Banerjee is working. He does not remember of getting the father of Shomila Banerjee treated when he was ill. He has denied of having any relationship with Shomila Banerjee. He has denied that only in order to marry Shomila Banerjee he had deliberately distanced himself from the respondent. He had secured a contractual employment in C.M. House which was for the period 2003-2006 and the employment came to a close when the tenure of the then Chief Minister ended. When his elder daughter Tanvee had passed out the 5th Standard his wife came to Ranchi along with their daughters and that it was on account of the pressure created by him upon the respondent. Whenever his parents came, they stayed for very few days as the respondent used to commit torture upon them. He has suffered the acrimonious behavior of the respondent for more than twenty years which constrained him to file a suit for divorce. Though he has stated in his own statement about his desire to bring back his wife but he had not filed any case for restitution of conjugal rights. He has denied to have known Miss Jamshedpur. His wife and daughters had joined him after one year of his shifting from Jamshedpur to Ranchi and they stayed in the C.M. Campus though in separate rooms. He has deposed that in Nest Apartment he and the respondent had bought separate flats in the year 2005. They shifted to the said flats in the year 2006. Both the flats were interconnected. His Real Estate Business Office remained in the flat for two months but thereafter the office shifted to another flat in the same locality. He has deposed that though the flats both had purchased in Nest Apartment were interconnected but the door connecting both the flats remained closed. He was not facing any difficulties in running his office from Nest Apartment and there was also no problem with the education of his daughters but he was being mentally tortured by the respondent. He and the respondent sometimes used to attend the parents’ teacher meeting together. He has two flats in Shree Ram Apartment in his name and both flats are residential. In Divus ECommerce there are four Directors including himself and the rest are Prasanjit Mallick, Prabal Sen and Dr. Amushree Jha. He got acquainted with Dr. Amushree Jha in November, 2015. He was shown a photograph which was identified by him as that of Dr. Amushree Jha which has been marked as Exhibit-A. He came to know about Amushree Jha not from Facebook but in a party organized by his friend. In June, 2015, he had gone to Bangalore alone. On 17.07.2016, he had come from Delhi to Ranchi for a court related work and while looking at Mark-Y he has deposed that his seat no. was 6A and he does not remember as to whether seat no. 6B was booked in the name of Amushree Jha. When he was confronted with the PNR No. in the ticket he has stated that he does not know as to how his as well as the ticket of Amushree Jha had the same PNR number. He has three flats in Shree Ram Garden and one was purchased by him during the pendency of the suit. He stays in one flat while the other two flats have been given on rent. One of the flats has been given to Amushree Jha while another flat has been rented out to a company. He has deposed that Amushree Jha had taken his flat on rent since her house at Harihar Singh Road is under construction. He has denied that he had solemnized marriage with Amushree Jha at Tirupati. Amushree Jha stays at the flat which bears the nameplate “Laxmi”.

13. P.W.3 (Tapan Kumar Mallick) is the brother of the petitioner who has stated about the marriage solemnized between the petitioner and the respondent and the birth of two children. After marriage both the petitioner and the respondent had frequent quarrels and the respondent used to dislike the family members of the petitioner. The respondent used to behave improperly with him and his wife. He sometimes frequented the house of the respondent and the respondent also used to come to his house. Though he and his family members tried to make the respondent understand about her behavior but there was no change in her behavior. When his brother had shifted to Ranchi in the year 2005, he and his family had visited Ranchi and he had seen the petitioner and the respondent residing in separate rooms. When he had confronted the petitioner about the said fact the petitioner had disclosed the quarrelsome nature of the respondent as the reason behind living separately. Whenever the family members of the petitioner gave advice to the respondent to mend her ways the respondent abused and humiliated them. The respondent used to commit physical and mental torture upon the petitioner. He has stated that after the petitioner had taken a flat in Kanke Road in the year 2012 there has been no relationship between the petitioner and the respondent. In spite of repeated efforts made by the petitioner the respondent refused to come to Kanke Road to stay with the petitioner. The respondent wants to remain as the wife of the petitioner in order to grab the property of the petitioner. There is no possibility of a settlement between the parties. He has stated that he and his wife had met the parents of the respondents and had tried to impress upon them to go to Ranchi and salvage the situation but they refused and disclosed that they are ready for a divorce.

In cross-examination, he has deposed that the flats in South Office Para are separate and there was no interconnecting door between them. When he and his wife had gone to Ranchi they had stayed in the flat of the petitioner while the respondent resided in the other flat along with her two daughters. When the petitioner resided in South Office Para, he had a very affable relationship with his daughters. He never had a cordial relationship with the respondent. He has knowledge that the petitioner and the respondent are staying separate since the year 2012. The respondent had never disclosed to him that the petitioner has illicit relationship with other woman. He has claimed that he does not know Amushree Jha.

14. The respondent has examined three witnesses including herself.

15. R.W.1 (Nandini Mallick) is the respondent and the wife of the petitioner who has stated about the love marriage solemnized between her and the petitioner on 16.02.1993 at Konnagar in the State of West Bengal. After marriage she had gone to her matrimonial house at Rishra where they started residing together as husband and wife. At the time of marriage, the petitioner was working in Wipro and in June 1993, the petitioner was transferred from Kolkata to Ranchi and she came to Ranchi along with the petitioner. On 09.06.1994, she gave birth to a daughter who was named Tanvee at her maternal place and after the birth she had spent some days at her parent’s place. On the advice of the petitioner, she had undergone training as Operator of C.T. Scan Machine for which she had to leave her daughter at her mother’s place. After completion of training the petitioner had managed to secure a job for her in the Clinic of Dr. K.K. Sinha where she worked for three years. The petitioner had left his job at Wipro and opened a Computer Centre in the name of STG at Ranchi and he had also opened another Centre at Sakchi in Jamshedpur. The petitioner had opened a third Centre at Bistupur in Jamshedpur as the petitioner was of the view that Jamshedpur had better business prospects. The petitioner had thereafter called her from Konnagar to Jamshedpur and both started residing together. In the Computer Centre of the petitioner at Ranchi Shomila Banerjee used to work and the petitioner had developed an illicit relationship with Shomila Banerjee and when she objected to such relationship the petitioner threatened her that he will give divorce in order to get married to Shomila Banerjee. This was the reason why she was called back to Jamshedpur from Ranchi so that there would not be any obstacles for the petitioner to meet Shomila Banerjee at Ranchi. She has stated that women are the weakness of the petitioner. The petitioner used to spend money on Shomila Banerjee and had also borne the expenses incurred on the treatment of the father of Shomila Banerjee. Shomila Banerjee used to stay in H.E.C., Dhurwa and the petitioner had secured a job for her in Voltas in Jamshedpur. She has stated that the petitioner had left his business of running a Computer Centre and joined the Arjun Munda Government on a contract basis in the post of P.A. at C.M. House. In the year 2004, she left Jamshedpur and came to Ranchi and she started staying in the allotted premises in the C.M. House Campus. The petitioner was afflicted with brain malaria due to which he experienced seizures. After his stint at C.M. House the petitioner started a business of Real Estate. In the year 2006, the petitioner had purchased two flats in Nest Apartment and both the flats were interconnected. She started staying with the petitioner and her daughter at Nest Apartment and the differences which cropped up between them were on account of entering of a woman in the life of the petitioner. She and the petitioner never resided in separate rooms and she had never disapproved the advances of the petitioner for physical relationship. In the year 2008, she gave birth to a second daughter who was named ‘Tamanna’ which itself proves that there was a husband-wife relationship between them. The petitioner in the year 2012 had purchased two flats in Shree Ram Garden Apartment and he started residing therein while she remained at Nest Apartment but the petitioner never asked her to shift to Shree Ram Garden. The reason was an illicit relationship which had developed between the petitioner and Amushree Jha and even on the occasion of house warming she was not invited. She had gone with her children to Shree Ram Apartment on several occasions but she was not allowed to stay and ultimately, she had to come back to Nest Apartment. The petitioner is residing in a flat at Shree Ram Garden as husband and wife with Amushree Jha. The petitioner wants to solemnize marriage with Amushree Jha which is the reason for him to seek divorce. She had never shouted in a loud voice at the petitioner nor had she used expletives. After the marriage, she had gauged the nature of the petitioner and in spite of efforts made by her the inclination of the petitioner towards other women continued to remain. The petitioner had opened a company in the name of Divus E-Commerce in which Amushree Jha had been made a Director. She has stated that the petitioner regularly goes out with Amushree Jha and introduces her as his wife. The petitioner has taken a flat and for business purposes an office in Delhi and he regularly goes on visit to Delhi. She has further stated that on 30.08.2016 her sister-in-law and her two daughters had come to Shree Ram Garden Apartment where she went on being asked by her sister-in-law and Amushree Jha had started fighting with her that the petitioner is her husband. Her sister-in-law and her two daughters were favoring Amushree Jha and they had supported Amushree Jha in ousting her and her daughters from the house. The petitioner and Amushree Jha stayed at flat no. 702 at Shree Ram Garden and the nameplate bears the nickname of Amushree Jha which is “Laxmi” from which it can be deduced that the said flat has been transferred by the petitioner in the name of Amushree Jha. The petitioner is involved in Real Estate business in several States and earns a huge amount due to which his family members support him. Due to the behavior of the petitioner, she had to face mental and physical agony as well as humiliation in the society. Both the daughters remained in a pensive mood due to the behavior of the petitioner. Her elder daughter is doing her P.G. in Ranchi University while the younger daughter studies in school. She has stated that she is a house wife and the maintenance amount of Rs. 40,000/- per month is not enough to maintain herself as well as her two daughters. She has denied the charges leveled by the petitioner that she is having an illicit relationship with her Yoga Instructor.

In cross-examination, she has deposed that she had taken the training of C.T. Scan on her own wish and after that she had worked for 3-4 years. After the petitioner shifted to Jamshedpur for the purposes of his business she also stayed with the petitioner and their relationship was very cordial. Since the petitioner had fallen ill she had come back to Ranchi. Even otherwise she had made up her mind to shift to Ranchi. She has deposed that the petitioner had seizure only once. She has further deposed that the flat in which she stayed is in her name but she does not know as to whether the other two flats are in the name of her daughters or not. It is true that the petitioner had purchased three flats, one flat in her name and the rest two flats in the joint name of Tanvee and her. She has another flat in her name at “Puspanjali”. She also has a fixed deposit amount of Rs. 70-75 lakhs which was given to her by the petitioner. The petitioner had purchased two flats in Nest Apartment, one in her name and the other in the name of the petitioner and later on he had gifted his flat to her and her daughter. She has deposed that as per her information Shomila Banerjee used to work at STG and she had come to know from the friends of the petitioner about Shomila Banerjee and the petitioner and how the petitioner had helped her by various means. She had met Shomila Banerjee in the year 2002 as she had spent a night in her house and the petitioner was in Hazaribag. Her parents-in-law used to regularly visit her house. Between the period of birth of her first and second child she had undergone abortion on four occasions. She does not know as to why the petitioner had shifted to his flat in Shree Ram Garden. On the day of house warming, she had gone to Shree Ram Garden at 12:00 Noon along with the children when she had seen the petitioner completing the pooja alone and was feeding his friends which was opposed by her. The petitioner has a relationship with Amushree Jha since 2005 and both used to regularly chat on facebook. She had made several attempts since 2012 to stay with the petitioner at Shree Ram Garden but the petitioner had refused to let her stay there. She has deposed that she had stayed with the petitioner at Shree Ram Garden for several days. After the “Grih Prawesh” she and her children had stayed for a few days at Shree Ram Garden but Amushree Jha’s presence was not there. She had not seen Amushree Jha during “Grih Prawesh” also. She cannot furnish any proof that the petitioner stays at Shree Ram Garden with Amushree Jha as husband and wife. She also does not know the whereabouts of Shomila Banerjee and also does not know whom she had married. The petitioner had a relationship with Shomila Banerjee and she has the print out of the chatting. She has herself seen the petitioner and Amushree Jha having dinner at Shree Ram Garden. In order to meet Amushree Jha the petitioner would leave his family and business and go to Delhi. She does not know as to when Amushree Jha had entered into the life of the petitioner. She has proof in her mobile of the petitioner and Amushree Jha staying together as husband and wife. She had not seen the contents of the written statement.

16. R.W.2 (Indrani Basu) is the sister of the respondent who has stated that after the birth of Tanvee the petitioner had forcibly got an abortion carried out upon the respondent on four occasions. She has stated that whenever a woman came into the life of the petitioner his behavior towards the respondent changed and he become negligent towards the children. When the petitioner had opened STG Computer Centre at Ranchi, he had developed a relationship with Shomila Banerjee who was working in the said institute. When the respondent had gone to her parent’s place at Konnagar to see her daughter who was staying with the parents of the respondent, the petitioner without informing the respondent had managed to end her job and when he came to Konnagar assured the respondent that she will be offered a job in STG Computer Centre, Jamshedpur as the business prospects in Jamshedpur are better. This conduct of the petitioner was to enable him to frequently roam around with Shomila Banerjee as presence of the respondent would have disrupted such adventures. At the present the petitioner has developed an illicit relationship with Amushree Jha with whom the petitioner wants to solemnize marriage and at the same time the petitioner is continuing with his relationship with Shomila Banerjee. Once when the respondent was in Konnagar, the petitioner had informed her over phone that he is going to solemnize marriage with Shomila Banerjee and when on receiving such information the respondent approached her in- law’s family, she did not get any assistance at which she came back to Jamshedpur and finally the petitioner agreed to keep the respondent with him at Jamshedpur. In 2008, the respondent had given birth to a daughter who was named ‘Tamanna’. The respondent is so frustrated with her marital life that she cannot even meet her parents. When she had gone to Nest Apartment, she had found happiness in the relationship between the petitioner and the respondent which also made her contended. She has stated that in May, 2014 when she and her husband had come to Ranchi, she had found the respondent and her children staying at Shree Ram Garden but the respondent was desolate and disturbed about the presence of Amushree Jha. The respondent had never misbehaved with the petitioner whereas the petitioner had a habit of developing illicit relationship with other woman. At the present moment the petitioner is staying with Amushree Jha as husband and wife and he has expressed his desire to solemnize marriage with Amushree Jha.

In cross-examination, she has deposed that the financial condition of the petitioner at the time of marriage was not stable. She has come to know that the marriage of Shomila Banerjee has taken place. She had never witnessed the petitioner and Shomila Banerjee going around together. She has heard that the petitioner has purchased three flats for the respondent. She does not know whether the petitioner has solemnized marriage with Amushree Jha or not but she has proof that without solemnizing marriage both are residing together as husband and wife. She has produced some photocopies of colored photographs which have been marked as Z to Z/5 with objection. The petitioner had himself admitted about his relationship with Amushree Jha. She had never seen the petitioner establishing any relationship with any woman but the petitioner had himself disclosed that he has physical needs which the respondent cannot fulfill.

17. R.W.3 (Tanvee Mallick) is the daughter of the petitioner and the respondent who has stated that when she was 7-8 months old her father had left her at her maternal grandfather’s place so as to enable her mother to undergo training of C.T. Scan Operator. She has reiterated the statements of R.W.2 with respect to the job of her mother coming to an end due to the petitioner and the impending marriage of the petitioner and Shomila Banerjee as told by her father as well as the humiliation faced by the respondent at the hands of her in-laws. At the time of inauguration of the third Computer Centre, Shomila Banerjee had come and she had stayed in the night at her place. She had never seen the respondent getting agitated and angry and on the other hand the petitioner used to insult and humiliate the respondent in the presence of his staffs. Her uncle and aunt had never extended help and when the petitioner was in jail it was her maternal grandfather who had given Rs. 20,000/- to help the petitioner come out of jail. The petitioner always used to complain to others about the respondent and her children. The petitioner never involved either her or her mother in any business ventures but Shomila Banerjee was given the post of a Manager in STG Computer Centre and Amushree Jha was made the Director of Pooja Shopee. The petitioner had earlier wanted to solemnize marriage with Shomila Banerjee but at present he wants to solemnize marriage with Amushree Jha. After she passed out Class-12th from JVM Shyamali, she wanted to study in St. Xaviers College, Ranchi but the petitioner had taken her to Delhi and got her admitted in Shaheed Bhagat Singh College and thereafter she was taken to Kolkata and admitted in St. Xaviers College, though she wanted to settle down in Ranchi. Her younger sister was also forcibly got admitted in an educational institution so that the respondent would stay with them in Kolkata and the petitioner would freely enjoy his life at Ranchi with Amushree Jha. She had once tried to open her Facebook account in the Blackberry mobile of the petitioner but instead the Facebook account of the petitioner got opened and she saw her father’s chat with Shomila Banerjee. When they were residing at Shree Ram Garden after the ‘Grih Prawesh’ her younger sister fell sick and it was diagnosed as paracardiac bronco pneumonia. The doctor had advised rest for her and not to attend school. She has stated that one day when everyone was discussing about Amushree Jha the petitioner got angry and threw a laptop towards her which broke and he had also thrown shoes upon her while threatening them with Police action. When they had shifted to Nest Apartment the petitioner used to frequently come to the said Apartment. After a few days the petitioner came to Nest Apartment with his head shaved and disclosed that he has solemnized marriage at Tirupati with Amushree Jha. The petitioner had also taken a flat in Delhi where he started living with Amushree Jha. They were never taken on foreign tours by the petitioner but the petitioner had taken with him Amushree Jha to USA, UK, Singapore, Thailand etc. where both stayed as husband and wife. On 12.12.2015 they had given a visit to the petitioner at Shree Ram Garden where she saw the petitioner and Amushree Jha having drinks in the bedroom. The petitioner had told her younger sister that Amushree Jha is her mother at which her younger sister started crying loudly. On 30.08.2016, when they had gone to Shree Ram Garden to meet some relations her mother (respondent) was insulted by Amushree Jha. Whenever she used to demand money from the petitioner, he promised to give money provided the respondent agrees for a mutual divorce. The petitioner should not be granted divorce as she has committed torture upon his wife and children which had affected her and her sister’s studies.

In cross-examination, she has deposed that she does not have any personal knowledge of the incidents which occurred between 1988 and 1999 but thereafter she has stated about knowing such incidents. Shomila Banerjee has got married to one Soubhik and she resides in the United Kingdom. She has deposed that the petitioner used to have illicit relationship with other women. Her educational and other expenses are met from the monthly maintenance of Rs. 40,000/- given by the petitioner. The petitioner had gifted them the property in which she resides with her mother and sister.

18. Equipped with the evidence of the witnesses, we now venture to consider the application preferred by the petitioner for additional evidence as contained in I.A. No. 9370 of 2019. In I.A. No. 9370 of 2019, it has been stated that the respondent and her witnesses have consistently disclosed about the petitioner having an illicit relationship with Amushree Jha and to substantiate such allegations the respondent has filed some obscene photographs of Amushree Jha and some intimate photos of the petitioner with Amushree Jha. When Amushree Jha came to know about the said fact, she had filed a complaint case before the learned Judicial Magistrate which has been registered as Complaint Case No. 2909/2017 and after the inquiry was conducted cognizance was taken for the offences punishable u/s 500, 501/34 of the Indian Penal Code read with Section 67A and 43(b) of the Information and Technology Act, 2000 against Nandini Mallick (respondent) and Indrani Basu. The said accused persons had preferred an anticipatory bail application being A.B.P. No. 561/2019 which was sent to the Mediator where Nandini Mallick and Tanvee Mallick had appeared and they have admitted that they don’t have the original source of the photographs and they have also regretted their act in their evidence in the suit. It has been stated that such false allegation amounts to cruelty committed upon the petitioner. The petitioner also wants to bring on record by way of additional evidence the Meditation Report dated 27.03.2018 passed in Maintenance Case No. 150/2017. The petitioner is also desirous of bringing on record relevant certificates from the Bank which would indicate transfer of a huge amount of money in favour of the respondent in order to enable her to lead a normal life.

19. A counter affidavit has been filed to I.A. No. 9370 of 2019, in which, it has been stated that the evidences and facts sought to be introduced are irrelevant and non-germane to the issue in the First Appeal. It has been stated that mediation cannot be led as evidence for then no party would freely deliberate on the disputed issues for the fear of being alleged to have admitted one or the other thing.

20. It has been submitted by Mr. R.S. Mazumdar, learned Senior Counsel for the appellant/petitioner that the documents which has been sought to be adduced by the petitioner are of relevance and seminal in nature as the said documents would enable the appellate court to pronounce judgment and advance the cause of justice. The report of the Mediator in the complaint case instituted by Amushree Jha reveals an acknowledgement by the respondent and her daughter Tanvee Mallick that they do not have the original source of the intimate photographs of the petitioner and Dr. Amushree Jha and though the said agreement was not acted upon since Indrani Basu who was one of the accused did not participate in the mediation process but that by itself would not take away the credibility of the admission of the respondent and Tanvee Mallick. Learned Senior Counsel has also submitted that in the Mediation Report dated 27.03.2018, the respondent has admitted that she and the petitioner are staying separate from 2012 which itself indicates an irretrievable breakdown of marriage.

21. Mr. Pandey Neeraj Rai, learned counsel appearing for the respondent has submitted that the petitioner has been unable to show as to how the documents sought to be inducted as additional evidence are required by the court for pronouncing the judgment. The petitioner has failed to discharge his burden towards the same. The additional evidence proposed by the petitioner are not at all required by the appellate court as there is no inability faced by the court in pronouncing judgment on the basis of available materials without taking into consideration the additional materials. So far as the photographs are concerned, the learned trial court has relied upon Section 14 of the Family Courts Act which is the discretion exercised by the trial court as the statute confers to it by virtue of Section 14 of the Family Courts Act but permits the Family Courts to receive any evidence, any document or matter which otherwise may not be relevant and admissible under the Indian Evidence Act. So far as the Mediation Report dated 27.03.2018 in Maintenance Case No. 150/2017 is concerned, it merely acknowledges the money/property given by way of permanent alimony for the wife and the maintenance of the daughter. The intention of the parties in the mutual agreement is clear and the transfer of properties or giving an undertaking cannot be said to be an act of cruelty. It has been submitted that parties living separately since 2012 does not constitute desertion as desertion would signify abandonment of a spouse by the other without any reasonable cause. As regards the Bank transactions are concerned, the same bares testimony toward what the husband has done for the wife according to his own consent. Mr. Rai has further submitted that existence of power is one thing and existence of circumstances justifying the exercise of power is another thing.

22. Both the learned counsels have also addressed us on the merits of the case which also shall be dealt with by us.

23. Order XLI Rule 27 of the Civil Procedure Code reads as follows:

"27. Production of additional evidence in Appellate Court.— (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if—

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

1[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

24. The documents which are proposed as additional evidence according to the learned Senior Counsel for the appellant/petitioner are of utmost importance as such documents would enable the Court to pronounce judgment. We, therefore, have to infer from the contents of the said documents as to their admissibility and/or reliability and relevancy if at all for enabling the Court in the pronouncement of the judgment.

25. The first document to be adduced as additional evidence is a Mediation Report dated 12.06.2019 which was entered into between Amushree Jha on one side and Nandini Mallick and Tanvee Mallick on the other in A.B.P. No. 561/2019 arising out of Complaint Case No. 2909 of 2017, the contents of which reads as follows:

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26. The photographs mentioned in the Mediation Report quoted above are related to the intimacy between the petitioner and Amushree Jha and those photographs are the photocopies. The second document sought to be brought on record is another Mediation Report dated 27.03.2018 in connection with Maintenance Case No. 150/2017 and in connection with the same Bank statements have also been sought to be introduced. The Mediation Report dated 27.03.2018 is quoted hereinunder:

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27. Before dissecting the submissions of the learned counsel for the respective parties we must consider the law laid down by the Hon’ble Supreme Court in matters related to Order XLI Rule 27 of the CPC.

28. In the case of “Union of India versus Ibrahim Uddin” reported in (2012) 8 SCC 148, [LQ/SC/2012/578] it has been held as follows:

“49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh and Natha Singh v. Financial Commr., Taxation.)

52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential / inexecutable and is liable to be ignored.”

29. In “A. Andisamy Chettiar versus A. Subburaj Chettiar” reported in (2015) 17 SCC 713, [LQ/SC/2015/1621] it has been held as follows:

“12. From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ext. A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not.

13. In K.R. Mohan Reddy v. Net Work Inc. this Court has held as under: (SCC p. 261, para 19)

“19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction.”

14. In North Eastern Railway Admn. v. Bhagwan Das this Court observed thus: (SCC pp. 515- 16, para 13)

“13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist.”

15. In N. Kamalam v. Ayyasamy this Court, interpreting Rule 27 of Order 41 of the Code, has observed in para 19 as under: (SCC p. 514)

“19. … the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal— it does not authorise any lacunae or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.”

16. In Union of India v. Ibrahim Uddin this Court has held as under: (SCC p. 171, para 49)

“49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.”

30. In a recent judgment of the Hon’ble Supreme Court in the case of “Sanjay Kumar Singh versus State of Jharkhand” reported in (2022) 7 SCC 247, [LQ/SC/2022/324 ;] which has approved the principles laid down in the case of “A. Andisamy Chettiar versus A. Subburaj Chettiar” (supra) has held as follows:

“8. As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.”

31. In the case of “Ramesh Kumar versus Kesho Ram” reported in 1992 Supp (2) SCC 623, it has been held thus:

“6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ‘cautious cognizance’ of the subsequent changes of fact and law to mould the relief. In Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [AIR 1941 FC 5 [LQ//1940/1] : 73 CLJ 51 : 53 MLW 373] Chief Justice Sir Maurice Gwyer observed: (AIR p. 6)

“But, with regard to the question whether the court is entitled to take into account legislative changes since the decision under appeal was given, I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In Patterson v. State of Alabama [(1934) 294 US 600] , Hughes C.J. said:

‘We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered’.”

And in Pasupuleti Venkateswarlu v. Motor & General Traders [(1975) 1 SCC 770 [LQ/SC/1975/124] : (1975) 3 SCR 958 [LQ/SC/1975/124] ] Justice Krishna Iyer said : (SCC p. 772, para 4)

We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice — subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad.”

These principles have since been reiterated and reaffirmed in Hasmat Rai v. Raghunath Prasad [(1981) 3 SCC 103 [LQ/SC/1981/258] : (1981) 3 SCR 605 [LQ/SC/1981/258] ].”

32. The test, therefore, which is to be applied is whether in view of the additional evidence which is sought to be adduced or its absence thereof would enable the appellate court to pronounce judgment or not. “Cautious cognizance” can be taken by the appellate court if the subsequent events have a bearing on the entitlement of the parties or on the basis of which the reliefs can be molded as held in “Ramesh Kumar versus Kesho Ram” (supra).

33. The Mediation Report dated 12.06.2019 contains an admission by Nandini Mallick (respondent) and Tanvee Mallick about the photographs of Amushree Jha and the petitioner to the effect that the photocopies have not been sourced from the original photographs and both have also regretted their action. The provision of the Evidence Act will not strictly apply to a proceeding before the Family Court which is embedded in Section 14 of the Family Courts Act itself. The subsequent events as would appear from the Mediation Report dated 12.06.2019 will have no bearing in the appeal and more so when one of the accused Indrani Basu did not even participate in the said proceeding. Apart from Section 14 of the Family Courts Act what would transpire is that no crossexamination was carried out by the petitioner on the point of electronic evidence produced by the respondent and her witnesses and which has also been noted in the impugned judgment dated 12.06.2017. Treating the Mediation Report dated 12.06.2019 as additional evidence would be dehors the ingredients of Order XLI Rule 27 of the CPC.

34. The other Meditation Report dated 27.03.2018 and some certificates of the Bank relating to payments made by the petitioner to the respondent are interlinked as they basically are confined to the same transactions. The relevant part of the Mediation Report dated 27.03.2018 are quoted hereinunder in its translated version:

“3. The second party will make payment as one time settlement to the first party of Rs. 85,00,000 (85 Lakhs) and out of this Rs. 85,00,000, Rs. 25,00,000 (25 Lakhs) will be given by the second party as permanent alimony to Nandini Mallick, Rs. 30,00,000 (30 Lakhs) to Tanvee Mallick and Rs. 30,00,000 (30 Lakhs) to Tamanna Mallick. The amount demarcated for the children will also be paid to Nandini Mallick and she will spend the money of the children as per her own wish. The amount of Rs. 85,00,000 will be given by the second party to the first party within three months.

Apart from this amount the second party had given an amount of Rs. 65,00,000 which was fixed deposited and in the case of divorce u/s 24 of the Hindu Marriage Act Rs. 40,000 per month during the pendency of the case before the Family Court. In the present case an amount of Rs. 1,50,000 has been given. The second party has also given to the first party four flats out of which two flats being Flat No. 101 and 103 are situated at South Office Para, Doranda while the third flat being Flat No. 305 is situated at Puspanjali Apartment, Doranda, Ranchi. The fourth flat, D.K. Associates is situated in the State of West Bengal…

If the daughters of the second party are interested in higher studies the second party is ready to bear all such expenses which are to be incurred.

The first party, shall not have any claim over the movable/immovable property of the second party and shall not make any claim whatsoever, in future and neither of the parties shall interfere in each other’s lives..

The first party shall not claim any expenses for their maintenance or any amount as permanent alimony from the second party nor will the second party be pressurized for such payment..

The second party has given to the first party permanent alimony for her maintenance and the expenses towards studies and marriage of the daughters.”

Be it noted that the first parties were Nandini Mallick (respondent), Tanvee Mallick and Tamanna Mallick while the second party was Tapas Mallick (petitioner).

35. The terms and conditions of the Mediation Report dated 27.03.2018 so far as the petitioner is concerned has been complied with and neither in the counter affidavit filed by the respondent to I.A. No. 9370 of 2019 nor in the submissions advanced by the learned counsel for the respondent this fact has been controverted.

36. The suit which has been preferred by the petitioner for dissolution of his marriage with the respondent is predominantly based on the grounds of cruelty and desertion. The issue of cruelty which has been negated by the learned trial court has been reignited and reinforced according to Mr. Mazumdar, learned Senior Counsel for the appellant/petitioner by virtue of the Mediation Report dated 27.03.2018. The Mediation Report dated 27.03.2018 arose out of a case of maintenance instituted by the respondent and her daughters against the petitioner. This was post the deliverance of the judgment passed in Original Suit (MTS) No. 522 of 2014. In the suit the evidence of the petitioner (P.W.1) is replete with assertions about the flats purchased in the name of the respondent which fact has been supported by his other witnesses and the Mediation Report in question seems to lead credence to such contentions. The terms and conditions of the Mediation Report dated 27.03.2018 has referred to the word “Permanent Alimony” on many an occasion. The intention of the parties in arriving at such settlement has to be considered taking a holistic view and not an isolated view. We must construe such contention broadly as a narrow interpretation will falter the purpose for which such conditions were agreed upon. A purposive construction of the terms and conditions agreed upon by both the parties in the maintenance case would widen the spectrum of the objectives behind such compromise. It has been noted in the Mediation Report dated 27.03.2018 that the mandate cast upon the second party (petitioner) is by way of a onetime settlement and is by way of “Permanent Alimony”. The agreement reveals an understanding that there shall be nothing less or nothing more than what has been agreed upon. All the factors necessary for ending the marriage amicably are present in the agreement sans any specific statement to that effect. The word “Permanent Alimony” is not defined in the Hindu Marriage Act, 1955. “Alimony” in Mariam Webster dictionary is defined as “an allowance made to one spouse by the other for support pending or after legal separation or divorce”. Section 24 of the Hindu Marriage Act, 1955 speaks of ad interim maintenance during the pendency of a suit brought by either of the parties to a marriage. Section 25 of the Hindu Marriage Act, 1955 deals with “Permanent Alimony” which the court may order at the time of passing a decree or even thereafter. The allowance which is, therefore, paid to the other spouse assumes a permanent nature only in a case of judicial separation or divorce. Whether there can be grant of permanent alimony in cases where the marital status of the aggrieved party has been affected or disrupted had come up for consideration, in the case of “Smt. Chand Dhawan versus Jawaharlal Dhawan” reported in (1993) 3 SCC 406, [LQ/SC/1993/506] wherein it has been held as follows:

“25. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under Section 18(1) of the Hindu Adoptions and Maintenance Act. The court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance.”

37. The claim of the learned Senior Counsel for the appellant/petitioner that accepting the terms and conditions as enumerated in the Mediation Report dated 27.03.2018 and the significance of the said report in its totality while at the same time controverting the prayer of the petitioner for divorce would amount to cruelty does have substance and is a relevant feature of the case and, therefore, in the precincts noted above, we allow the Mediation Report dated 27.03.2018 to be treated as an additional evidence.

38. Though the fulfillment of the terms and conditions of the Mediation Report dated 27.03.2018 has not been denied by the respondent the Bank statement whose contents have also not been denied by the respondent are just a prelude to such attainment of the conditions. We consequently allow the Bank statements to be marked as additional evidence in this appeal.

39. We, therefore, while dismissing the relevancy of the Mediation Report dated 12.06.2019, allow the Mediation Report dated 27.03.2018 and the Bank statements as at IA-2 and IA-3 as well as IA-4 respectively to be treated as additional evidence based on their relevancy and admissibility and accordingly the said documents are taken on record.

40. Reverting back to the suit the main issues for determination are Issue Nos. III and IV and which reads as under:

III. Whether the respondent has treated the petitioner with cruelty and deserted him

IV. Whether the petitioner is leading an adulterous life and wanted to take advantage of his own wrong

41. The question of desertion as a part of Issue No. III is related to Issue No. IV. It is the case of the respondent that it was the petitioner who had deserted her and not the respondent is based upon the purported promiscuous relationship the petitioner was having with Shomila Banerjee and Amushree Jha. The evidence of the respondent (R.W.1) and her daughter Tanvee Mallick (R.W.3) is replete with allegations of the petitioner leading an adulterous life. Initially it was Shomila Banerjee who had come into the life of the petitioner and it all started when the petitioner had opened a Computer Centre at Ranchi namely STG where Shomila Banerjee used to work and an intimate relationship had developed between her and the petitioner. The respondent as well as her witnesses have stated about the petitioner splurging money on Shomila Banerjee and he had also paid the expenses incurred in the treatment of the father of Shomila Banerjee. The petitioner had also secured a job for Shomila Banerjee in Voltas Limited. The petitioner thereafter seems to have got involved with Amushree Jha and various instances have been given regarding the proximity of the petitioner and Amushree Jha and how the faith of the respondent eroded on being confronted with such immoral conduct of the petitioner.

42. Instances have been projected as to how the petitioner has left his flat at Nest Apartment and shifted to Shree Ram Garden, Kanke Road where he had purchased two flats and he is residing in one flat with Amushree Jha. The petitioner has made Amushree Jha as Director of Pooja Shopee and both the children of the petitioner were deliberately got admitted in educational institutions situated at Kolkata so that the respondent would be compelled to stay at Kolkata giving a free hand to the petitioner to continue with his illicit relationship with Amushree Jha. The allegations made by the respondent and her witnesses have been founded upon various photographs and chats between the petitioner and Shomila Banerjee as well as Amushree Jha. We have dealt with the issue of adultery to cull out the reasons for the parties staying apart.

43. Section 13 of the Hindu Marriage Act, 1955 contemplates the various grounds on which a decree of divorce can be passed and the explanation to the said provision entails desertion and which means deserting the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage.

44. In the case of “Debananda Tamuli versus Smti Kakumoni Kataky” reported in (2022) SCC OnLine 187, desertion has been defined in the following manner:

“7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in Lachman Utamchand Kirpalani [Lachman Utamchand Kirpalani v. Meena, (1964) 4 SCR 331 [LQ/SC/1963/187] : AIR 1964 SC 40 [LQ/SC/1963/187] ] which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus:

“13. Divorce.—(1) * * *

Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

45. As we have noticed above there was no willful abandonment of the petitioner by the respondent and staying separate seems to have been actuated with the promiscuity of the petitioner. The petitioner though has tried to paint his canvas with efforts at resorting normalcy in the marital life but the evidence of the respondent far outweighs that of the petitioner so far as the desertion is concerned and we, therefore, affirm the findings of the learned trial court in that aspect.

46. The issue of cruelty is of paramount importance as the main thrust of the argument of the learned Senior Counsel for the petitioner seems to revolve around the said issue. Though cruelty has not been defined in the Hindu Marriage Act, 1955 but what would constitute “cruelty” has been considered by the Hon’ble Supreme Court on numerous occasions and, in such context, we may refer to the case of “Vishwanath versus Sau. Sarla Vishwanath Agrawal” reported in (2012) 7 SCC 288, [LQ/SC/2012/537] wherein it has been held as follows:

“22. The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.

25. After so stating, this Court observed in Shobha Rani case about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that: (SCC p. 108, para 5)

“5. … when a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance.”

26. Their Lordships in Shobha Rani case referred to the observations made in Sheldon v. Sheldon wherein Lord Denning stated, “the categories of cruelty are not closed”. Thereafter, the Bench proceeded to state thus: (Shobha Rani case, SCC p. 109, paras 5-6)

“5. … Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.

6. These preliminary observations are intended to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Reid observed in Gollins v. Gollins: (All ER p. 972 G-H)

‘… In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.”

47. In “Samar Ghosh vs Jaya Ghosh” reported in (2007) 4 SCC 511, [LQ/SC/2007/412] the ever-changing nature of cruelty has been taken note of while observing thus:

“99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.”

48. The petitioner in order to assert that he has been a victim of mental cruelty has stated about the quarrelsome nature of the respondent who used to quarrel with the petitioner on trivial issues when her inclination to shift to Kolkata to her parent’s place and settle down was disapproved by the petitioner. The respondent did not wish to heed the advice of the petitioner and would act as per her whims. The petitioner and the respondent started living in adjacent flats in Nest Apartment where the respondent had given birth to a second child on 06.05.2008. Instances have been given about the parents of the petitioner being subjected to abuses and humiliation whenever they visited the house of the petitioner. The petitioner had purchased two flats in Shree Ram Garden, Kanke Road but in spite of his repeated efforts the respondent did not come except on limited occasions. The act of the respondent in not staying with the petitioner was an act of cruelty. These assertions have however being denied by the respondent in her written statement as well as in the evidence of her witnesses taking recourse primarily to the promiscuous life of the petitioner.

49. The additional feature on account of I.A. No. 9370 of 2019 having been allowed by us is the Mediation Report dated 27.03.2018 which on a broad conspectus would reveal the intention of the respondent as even after agreeing to a onetime settlement and acceptance of permanent alimony she continues to prolong the litigation and is contesting the appeal seemingly oblivious to such settlement. As we have noted above while allowing I.A. No. 9370 of 2019 acceptance of permanent alimony would mean and signify the end of the marital ties between the petitioner and the respondent when the Mediation Report dated 27.03.2018 is considered in a broader arena primarily with respect to the intention of the parties and merely because such specific terms and conditions were not inserted the same would not make the Mediation Report dated 27.03.2018 ineffective for the limited purpose of dissolution of marriage.

50. In the case of “Hammad Ahmed vs Abdul Majeed & Others” reported in (2019) 14 SCC 1, [LQ/SC/2019/618] it has been held as follows:

“46. The well-known principle of interpretation of document is that one line cannot be taken out of context. It is a cumulative reading of entire document which would lead to one conclusion or the other. Some of the judgments relevant for determining as to the principle of interpretation of documents are delineated hereinafter. One of the judgments relating to the interpretation of documents is DDA v. Durga Chand Kaushish. It was held that the meaning of the document or of a particular part of it is to be sought for in the document itself. The Court held as under : (SCC pp. 832-33, paras 19-21)

“19. Both sides have relied upon certain passages in Odgers’ Construction of Deeds and Statutes (5th Edn. 1967). There (at pp. 28-29), the First General Rule of Interpretation formulated is:‘The meaning of the document or of a particular part of it is therefore to be sought for in the document itself’. That is, undoubtedly, the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect, with certain exceptions contained in Sections 95 to 98 of the Act. Of course, “the document” means “the document” read as a whole and not piecemeal.

20. The rule stated above follows logically from the Literal Rule of Construction which, unless its application produces absurd results, must be resorted to first. This is clear from the following passages cited in Odgers’ short book under the First Rule of Interpretation set out above:

Lord Wensleydale, in Monypenny v. Monypenny said:

‘the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed : a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions.’

Brett, L.J., Meredith, In re, ex p Chick observed:

I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke … They said that in construing instruments you must have regard, not to the presumed intention of the parties, but to the meaning of the words which they have used.’

21. Another rule which seems to us to be applicable here was thus stated by this Court in Radha Sundar Dutta v. Mohd. Jahadur Rahim : (AIR p. 29, para 11)

‘11. Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim “ut res magis valeat quam pereat”.”

51. It is manifest from the Mediation Report dated 27.03.2018 that though the term “divorce” has not been expressly provided but the intention of the parties from the construction of the language of the agreement clearly draws an inference that both had decided to go their separate ways by drawing curtains on their marriage itself. Apart from the respondent the daughters of the petitioner and the respondent have also been taken care of and have been assured a secured future. The agreement between the parties imbibe a legitimate expectation from the side of the petitioner which has been sought to be snuffed out by the respondent by mounting a challenge to the appeal of the husband and prolonging the litigation. The concept of “cruelty” is an ever expanding feature and as held in the case of “Samar Ghosh vs Jaya Ghosh” (supra) “the concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system” and the present case is one glaring example which reinforces the belief that “cruelty” cannot be put in a strait jacket formula considering the peculiarities attached with this case.

52. Though we are in agreement with the findings of the learned Principal Judge, Family Court, Ranchi so far as the issue of “cruelty” is concerned but the additional evidence taken on record gives an altogether new dimension to the claim of the petitioner and prolonging such marriage would be a travesty of justice in the background facts and circumstances of the case. We, therefore, hold that the act of the respondent in prolonging the litigation in spite of giving her assent to a onetime settlement and acceptance of permanent alimony and the terms and conditions having been fulfilled by the petitioner would amount to “cruelty” and as a corollary Section 13(1)(i-a) of the Hindu Marriage Act has been proved by the petitioner and he is, therefore, entitled to a decree of divorce.

53. We on the basis of the discussions made hereinabove allow this appeal and set aside the judgment and decree dated 12.06.2017 passed by Shri Chandra Prakash Asthana, learned Principal Judge, Family Court, Ranchi in Original Suit (MTS) No. 522 of 2014 and, dissolve the marriage between the petitioner and the respondent.

54. Pending I.A., if any, also stands closed.