f; ^^^ !BTHEH!SHCOURTOPJUDICATUgSATBILASPUR TWP^&^^~I^n^ ^SSI^ifi F!BSTAPPEALl®a§TCm^°"HEFAM!Ly COURTSAr'T, 1934 APPELLANT/ DEFENDANT Cam Bai, D/o Raghuvir Yadav (W/o Jagdish Prasad ye^Ts, ^,,.,....^..g,.<J.(..^ R/o;village Amlibhawana, Police ' «'S ^ged,about 35 y.ears' .B. No........--^-e>-y-(""^ ^SSRted fcV ;K!';t <^W^'e<:'rMT' y T^J^ZT" ^^a^ ivuda, ^'a'"^J....^..;^/-A\-^vw9^ District Kaigarh (CG) ., Station Ketra Road, Tahsil and '^ RESPONDENT/: ^AINTIFF VBRSUS ^dish Prasad Yadav, 'o Sitaram Yadav, Aged about 37 years, R/o^ Sambhalpuri, Police Station Chakradhar Nagar, Tahsil~'and District Raigarh (CG) ^- -WT-^'^5,' ^F< HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Satish K. Agnihotri, & Hon'ble Shri Prashant Kumar Mishra, JJ FIRST APPEAL (M) No. 50 of2008 Ram Bai. VERSUS Jagdish Prasad Yadav. Judgment For Consideration Sd/- Satish K.Agnihotri Judge Hon'ble Shri Prashant ICumar Mishra,! Sd//- Ji g^/^Lj^ Prashant Kumar Mishra Judge Postfor^/01/2010 Sd/- HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT DEFENDANT FIRST APPEAL (M) No. 50 of2008 Ram Bai. RESPONDENT PLAINTIFF VERSUS Jagdish Prasad Yadav. FIRST APPEAL UNDER SECTION 19 OF THE FAMILY COURTS ACT, 1984 DB: Hon'ble Shri Satish K. Aenihotri, & Hon'ble Shri Prashant Kumar Mishra, JJ Present: Shri Sanjay K. Agrawal, Advocate with Shri Sudeep Agrawal, Advocate for the appellant. Shri S.K.Tiwari, Advocate for the respondent. JUDGMENT (Delivered on ..../.&. day of January, 2010) Per Satish K. Asnihotri, J. 1. By this appeal, the appellant seeks to challenge the legality and validity of the order dated 22.2.2008 (Annexure P/l) passed by the Judge, Family Court, Raigarh, in Civil Suit No. 19-A/2006 whereby the application filed by the respondent under section 13 ofthe Hindu Marriage Act, 1955 (for short 'the Act, 1955') for grant ofa decree ofdivorce has been allowed. 2. The case of the respondent/plaintiff before the Trial Court was that the marriage between the parties was solemnized according to the Hindu rites on 6 May, 1992. After the marriage, the appellant/defendant treated the respondent/plaintiff and his family members with cruelty. The wife-appellant even refused to have cohabitation with the respondent/plaintiff. According to the respondent/plaintiff, the appellant used to go to his patemal house without informing her in-laws. On 25,03.1993, the wife left her matrimonial ^-z- ^. home and went to her parental home and even afiter repeated efforts and request to her, she did not retum to her matrimonial home. It was further the case of the respondent/plaintiff before the Trial Court that the appellant/defendant on her own has deserted him and has given divorce in writing and thereafter, they had beeh living separately for the last 13 years. Thus, the respondent/plaintiff filed a civil suit, being C.S. No. 19-A/2006, for a decree ofdivorce under provisions ofsection 13(l)(ia) ofthe Act., 1955. 3. The case ofthe appellant/defendant before the Trial Court was that she was subjected to harsh and cmel treatment by her husband and her in-laws. The respondent/plaintiff himself had pressurized her to sign over the divorce document. She never wanted to reside separately from the husband. Thus, she prayed for dismissal ofthe application for grant ofa decree ofdivorce. 4. The learned Trial Court, after hearing the parties and considering the materials on record, came to the conclusion that the parties have been residing separately for the last 13 years and no efforts have been made by the appellant/defendant for restitution of their conjugal rights. On the contrary, the appellant/defendant has filed an application under section 125 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for grant of maintenance. The Court has also endeavoured for compromise and settlement oftheir dispute under section 23(2) ofthe Act, 1955, section 9 ofthe Family Courts Act, 1984 and Order 32-A Rule 3 of the Code of Civil Procedure, 1908, but no settlement could be arrived between the parties. The appellant/defendant has treated the respondent/plaintiff with cmelty, and thus, he was held to be entitled to a decree of divorce. Accordingly, the application of the respondent/plaintiff for grant of a decree of divorce was decreed. ^- On perusal of the records, it appears that the marital life of the parties was not healthy and in turbulence. They were living separately since March/April 1994. The respondent/plaintiff is employed in the Railway Department and the appellant/defendant is also an Angan Badi worker eaming a sum of Rs. 9391- p.m. Under the provisions of section 125 of the Cr.P.C. the appellant/defendant is getting a sum of Rs. 600/- p.m. The said amount was later on enhanced to Rs. 1000/-. The allegation of both the parties are that they were subjected to cruel treatment. Jagdish Prasad Yadav, (PW/1)5 the respondent/plaintiff, in his deposition stated that since the marriage dated 6 May^ 1992, the appellant/defendant lived with her only for six months. She was having a continuous fight with brothers, sisters and parents of the respondent/plaintiff. Thereafter, the appellant/defendant left him for her parental home. Despite their efforts and the members ofthe society, she did not come back to her matrimonial home. In cross examination, it was stated that she further threatened him with dire consequences. Shri Dubraj Rathia^ (PW/2), in his deposition stated that the parents of the appellant/defendant took the appellant-wife to their parental home. The members of the society tried for their settlement, but nothing could be done and she remained away from her matrimonial home for about 13 years. Her parents were paid Rs. 5000/- as compensation also. The appellant/defendant (DW/1) in her deposition stated that she was deprived food and the members ofthe society were prejudicial to her. She wanted to live with her husband but no amicable situation was created wherein she could live comfortably with her husband. Accordingly, she left her matrimonial home and started living in herparental home. ^^ ^ 9. Smt. Ahilya Yadav (DW/2) in her deposition stated that she was informed by the appellant that she wanted to go to her matrimonial home but her husband i.e. the respondent/plaintiffwas not agreeable. 10. One more witness namely Sukhmet Bai Sidar (DW/3) deposed that she was informed by the appellant wife that the respondent/plaintiff was harassing the appellant/defendant for food and clothings that's why she decided not to live with the respondent/plaintiff for the last 13 years. 11. On perusal of the judgment and decree, we have found that the Court below has appreciated the evidence properly and have come to the right conclusion. Accordingly, a decree ofdivorce was granted on 22 February, 2008. 12. It is informed at the bar that the respondent/plaintiff has solemnized second marriage. The respondent-husband is at present eaming Rs. 6000/- per month and the appellant-wife is earning Rs. 2000/- per month. The appellant-wife is getting a sum of Rs. 1000/- under the provisions of section 125 Cr.P.C. However, no amount was granted as permanent alimony under section 25 of theAct, 1955. 13. In Vinita Saxena v. Pankaj Pandit, wherein the Court below declined to grant a decree of divorce which was confirmed by the High Court, the Supreme Court, while considering the dead relationship between the parties for over 13 years, observed as under: "52. In our view.> the orders ofthe courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years. The resultant agony and injustice that has been caused to the appellant, it is a fit case for interference under Article 136 of the Constitution and reversal of findings of ~the courts below which have resulted in grave miscarriage ofjustice.95 1AIR 2006 SC 1662 ^- 14. The Supreme Court, in Naveen Kohli v. Neelu Kohli2, while dealing with the identical issue involved in this case, observed as under: "91...A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond." 15. In Gananath P'attnaik v. State of Orissa3, the Supreme Court observed as under: "7. The concept ofcruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cmelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case." 16. Further., in Parveen Mehta v. Inderjit Mehta , the Supreme Court obser^ed as under: "21, Cruelty for the purpose of Section 13(l)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind ofthe latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state ofmind and feeling with one of the spouses due to the behaviour or behavioural pattem by the other. Unlike the case of physical cmelty, mental cmelty is difficult to establish by direct evidence. It is necessarily a matter ofinference to be drawn from the facts and circumstances of the case. A feeling of anguish., disappointment and fmstration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from .the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation ahd then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The AIR 2006 SC 1675 3 (2002) 2 SCC 619 4 (2002) 5 SCC 706 c- <^) 17. approach should be to take the cumulatlve effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other." In Suman Kapur v. Sudhir Kapur5, afiter grant of divorce, the husband entered into a second matrimonial alliance -during thc limitation period for filing the appeal, the Supreme Court observed as under: 26. Regarding remarriage by the husband, it was stated that after the decree of divorce passed by the trial court, the husband did not remarry. But the decree ofdivorce was confirmed by the High Court. The husband thereafter had taken the action which cannot be said to be illegal or otherwise unlawful. The wife^ therefore, cannot take a technical contention that the husband should have waited till the period of filing special leave to appeal to this Court would expire. It was, therefore, submitted that the appeal deser^es to be dismissed. 18. Having regard to the facts situation ofthe case, a decree ofdivorce cannot be reversed on account of the fact that the respondent/plaintiff has entered in second matrimonial alliance, it would be proper to grant a sum ofRs. 1000/- p.m. as permanent alimony in addition to the amount already paid under the provisions ofsection 125 Cr.P.C, payable to the appellant-wife. The appeal is accordingly dismissed wlth the above stated order. There shall 19. be no order asto costs 20. A decree may be prepared accordingly. Sd/- Satish KAgnihotri Judge Sd//- Prashant Kumar Mishra Judge Amit ' (2009) 1 SCC 422