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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

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
                  ======================================================
                  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
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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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