Patna High Court
Alok Kumar Jha,versusNilu Kumari
- Decided
- Disposal
- DISPOSED
Holding
The Court allowed the admission of the later criminal judgments as additional evidence under Order 41 Rule 27(b) and remanded the suit for fresh consideration.
Summary
The appellant filed an appeal against the dismissal of his divorce suit on the ground of cruelty under the Hindu Marriage Act. He sought to introduce two later criminal judgments – an acquittal in a Section 498‑A case (2024) and the dismissal of a defamation complaint (2021) – as evidence in the matrimonial matter. The respondent objected, arguing that the criminal cases were decided after the divorce suit was disposed and therefore could not be admitted under Order 41 Rule 27 of the CPC. The Court examined the provisions of Order 41 Rule 27, noting that Rule 27(b) permits the appellate court to admit additional evidence if it is required to pronounce a judgment, and held that cruelty is a continuing cause of action allowing later evidence. Relying on the principle that subsequent judgments relevant to the alleged cruelty may be considered, the Court rejected the respondent’s objection, allowed both applications, and remanded the matter to the trial court to consider the new documents with an opportunity for cross‑examination. The appeal was consequently disposed of and the suit remanded for fresh adjudication.
Issues considered
- Whether additional documentary evidence relating to criminal proceedings decided after the decree of the matrimonial suit can be admitted at the appellate stage under Order 41 Rule 27 of the CPC.
- Whether the ground of cruelty under the Hindu Marriage Act constitutes a continuing cause of action permitting later evidence.
Legislation cited
- Code of Civil Procedure — s. Order 41 Rule 27
- Code of Criminal Procedure — s. 203
- Hindu Marriage Act — s. 13(1)(i-a)
- Indian Penal Code — s. 34, 498A, 500
Subjects
- divorce
- cruelty
- additional evidence
- Order 41 Rule 27
- continuing cause of action
- Hindu Marriage Act
- IPC 498A
- defamation
- appellate procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.181 of 2020
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Alok Kumar Jha, son of Anant Ram Jha, resident of Gosal Gaon, P.S.
Gopalpur, District Bhagalpur at present residing at Flat No. 204, Devyani
Tower, Basant Vihar Colony, Zero Mile, P.S. Industrial Area, District –
Bhagalpur. ... ... Appellant/s
Versus
Nilu Kumari Wife of Alok Kumar Jha, Daughter of Amarnath Jha, Resident of
Jai Vihar Colony, Jhurkhuria Road, P.S. Industrial Area, District Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Anil Kumar Singh, Advocate
For the Respondent/s : Mr. Ranjan Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
16 07-04-2026 Interlocutory Application (I.A.) Nos. 03 of 2025 and
04 of 2026 are two applications filed by the appellant praying
for bringing additional evidence at the stage of appeal under the
provision of Rule 41, Order 27 of the Code of Civil Procedure
(CPC).
2. In I.A. No. 03 of 2025, it is submitted by the
appellant that Matrimonial (Divorce Case No. 139 of 2015),
renumbered as Matrimonial (Divorce Case No. 46 of 2019) was
disposed of on 30th November, 2019 by the learned Principal
Judge, Family Court at Purnea, whereby and whereunder, the
learned Principal Judge dismissed the suit on contest with cost.
The appellant has challenged the said judgment and decree of
dismissal by filing the instant appeal.
3. In I.A. No. 03 of 2025, it is stated by the appellant
Patna High Court MA No.181 of 2020(16) dt.07-04-2026
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that at the instance of the respondent, a case under Section 498-
A of the Indian Penal Code (IPC) was instituted against the
appellant and the said criminal case bearing G.R. Case No. 5426
of 2017 ended vide judgment dated 23th September, 2024,
whereby the appellant was acquitted of the charge. The
appellant wants to bring the said document in evidence for
consideration by the learned Principal Judge, Family Court,
Purnea in the aforesaid Matrimonial (Divorce Case). By filing
another application which was registered as I.A. No. 04 of 2026,
it is submitted by the appellant that the respondent filed a
petition of complaint before the learned Chief Judicial
Magistrate, Purnea alleging commission of offence under
Section 500 read with Section 34 of the IPC which was
registered as Complaint Case No. 180 of 2020. After initial
inquiry, the said complaint was dismissed by the learned
Magistrate vide an order dated 4th February, 2021 under Section
203 of the Code of Criminal Procedure (Cr.P.C.). The
appellant/petitioner also wants to bring the said documents in
evidence for proper adjudication of the Matrimonial Case.
4. The learned Advocate on behalf of the
respondent/opposite party has raised vehement objection against
the prayer made on behalf of the appellant. Counter objection
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has also been field by the respondent. It is contended on behalf
of the respondent that the matrimonial case was disposed of in
the year 2019. The judgment in 498-A case was delivered in the
year 2024 and the case for defamation was dismissed on 4 th
February, 2021. Therefore, on the date of delivery of the
judgments of the above-mentioned criminal cases did not see
the light of the day, therefore, the said documents cannot be
considered for consideration of the matrimonial case under
Order 41, Rule 27 of the C.P.C.
5. Order 41, Rule 27 runs thus:-
“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]
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(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) Wherever additional evidence is allowed
to be produced by an Appellate Court, the
Court shall record the reason for its
admission.”
6. It is needless to say that there are three grounds
contained in Rule 27 of Order 41 and in the instant case, we are
concerned with Rule 27(B) of Order 41 which states that if the
Appellate Court requires any documents to be produced or any
witness to examined to enable it to pronounce judgment, or for
any other substantial cause, the Appellate Court may allow such
evidence or document to produced, or witness to be examined.
7. It is needless to say that the appellant filed the
matrimonial case on the ground of cruelty as envisaged in
Section 13(1) (i-a) of the Hindu Marriage Act. A case based on
cruelty under the Hindu Marriage is having continuing cause of
action, meaning thereby the cause of action accrues day-by-day
with the matrimonial relationship being live only on cessation of
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matrimonial relationship, the ground of cruelty ceases.
8. In the instant case though the petitioner states in
paragraph 17 of the plaint that the cause of action arose much
earlier but on 14th April, 2014 when the respondent crossed her
limits and created nuisance and finally on 1st May, 2015 she
lastly left the petitioner and went to her Maykaa. Thus,
discontinuation of marital relationship and conjugal life for a
pretty long time also amounts to a form of cruelty observed by
the Hon’ble Supreme Court in the case of Samar Ghosh Vs.
Jaya Ghosh reported in 2007 4 SCC 511.
9. In the instant case since the cause of action is
continuing one, perpetration of alleged cruelty till the date of the
decree may be brought in evidence for consideration of the
Court. Since the appeal is in continuation of the suit, the
Appellate Court can consider subsequent judgments between the
parties touching upon the allegation of cruelty in the
matrimonial case.
10. In view of such circumstances, the decision of the
Hon’ble Supreme Court in Gobind Singh & Ors. V. Union of
India & Ors reported in 2026 INSC 211 is not applicable under
the facts and circumstances of this case.
11. Since we have allowed both the applications under
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Order 41 Rule 27 of the CPC and permitted the appellant to
produce the documents, in question, before the Trial Court for
consideration, the instant appeal be disposed of on contest and
the suit be remanded back to the Trial Court with a direction to
bring the judgment of G.R. Case No. 5426 of 2017 and
Complaint Case No. 180 of 2020 and give opportunity to the
respondent to cross-examine the witness on behalf of the
appellant and also to adduce evidence in support of her case and
to decide the matter afresh on the basis of the documents to be
filed by the appellant and the evidence and cross-examination
by the parties on such documents.
12. With the above direction, the instant appeal is
disposed of.
13. However, the Trial Court is directed to rehear the
appellant and the respondent within two months from the
communication of this order and dispose of the case within one
month thereafter positively.
(Bibek Chaudhuri, J)
(Chandra Shekhar Jha, J)
Jyoti Kumari/-
U
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