HIGH COURT OF CHHATTISGARH AT BILASPUR ' if A&pellant Applicant Respondent Non-applicant Coram : Hon'ble Shri T.P.Sharma and Hon'ble Shri R.L.Jhanwar, JJ First Appeal (Ml No. 59 of 2008 Deepak Gupta, son of Radheshyam Gupta, aged about 39 years, Occupation Private Job, residence of House of Shri R.B.Shukla, Malidipa, Boirdadar, Raigarh, Tahsil and District Raigarh, Chhattisgarh. Versus Smt. Shilpa @ Lata wife of Deepak Gupta, aged about 37 years, Occupation House Wife, residence of - 208, Laxmi Apartments Padmarao Nagar, Hyderabad (A.P.) Presently residence of House of Shri R.B.Shukla, Malidipa, Boirdadar, Raigarh, Tahsil and District Raigarh, Chhattisgarh. Memorandum of First Appeal under Section 19 (1) of the Familv CourtsAct, 1984 Present Shri G.K. Beriwal, counsel forthe appellant/applicant. Npne for the respondent though served. ' ORALJUDGMENT (Passed on 03rd December, 2009) The following oral judgment of the Court was delivered by T.P.Sharma, J. The challenge in this appeal is to the judgment and decree dated 31.03.2008 passed by the Judge, Family Court, Raigarh in Civil Suit No. 27A/2006 dismissing the petition under Section 13 ofthe Hindu Marriage Act, 1955 (for short 'the Act of 1955')for dissolution of marriage by a decree of divorce. The decree is challenged by the appellant merely on the ground that the Court below has not considered the proved case of .r^^^^, <" cruelty committed by the respondent upon the appellant and thereby committed illegality. 2. Brief facts necessary for disposal of the appeal is that the parties are Hindus and legally wedded husband and wife. Their marriage was solemnized on 17.01.1993. After marriage, they resided together at Hyderabad and also at Raigarh and after sometime respondent-wife started cruelty and torture upon the appellant and his family members. On one occasion, the respondent even assaulted the mother of the appellant by Belan (roller). 3. Finally, a petition under Section 13 of the Act of 1955 for dissolution of marriage by a decree of divorce was filed by the ^ppellant. The respondent has denied the allegations and specifically pleaded that she never committed cruelty on the appellant and in turn the appellant had himself has committed cruelty upon her. Ultimately, the learned Family Judge, after affording opportunity to both the parties for reconciliation, has dismissed the petition for dissolution of marriage by a decree of divorce. 4. We haveheard learned counsel for the appellant and have perused thejudgment impugned and record ofthe Family Couri:. 5. Counsel for the appellant vehemently argued that appellant has proved the fact of cruelty committed by the respondent upon the appellant but the Family Court did not consider it to be the proved case of cruelty. He further argued that the Family Court also failed in taking into consideration ofthe evidence offactum of cruelty adduced by independent witness Pawan Kumar Singhania on affidavit, which shows that even one occasion the respondent-wife assaulted the mother of the appellant by Belan (roller) and the mother was treated by the Government Doctor and on one occasion she told because of some decease she may die, upon which Doctor was called and examined the respondent and found that as a matter of fact she was not suffering from any disease or problem. This shows the proved case of cruelty. Learned counsel for the appellant placed reliance on Amita w/o Anil Kumar Rathore v. A.K.Rathore, 1999(2) M.P.L.J. 451 in which High Court of Madhya Pradesh has held .a that decree of divorce can be granted only on proof of cruelty which satisfied conscience of court that it has become impossible for parties to livetogether. 6. In order to appreciate the contentions of the appellant, we have examined the evidence available on record. The appellant has categorically deposed in his evidence in the form of affidavit that respondent has committed cruelty upon him and his family members and that the respondent during Dipawali season in 2003 assaulted his mother by Belan (roller) and inflicted injury. She was treated at Government Hospital, Raigarh. Further he has deposed that respondent used to misbehave with the servant, as a result servant has left his job. He has also deposed that the respondent also used to beat him and misbehave with him. On 15.12.2003 also the respondent taking the pretext of not bringing sugar misbehaved and assaulted him. In support of version of this witness, Pawan Kumar Singhania P.W.2 deposed on oath that the respondent is in the habit of quarrelling with the appellant and on many occasions she assaulted by Belan on the mother of the appellant. In his cross-examination, he has deposed that on one occasion she told that she is III and she may die and upon which Doctor was called but after examining the Doctor declared that she was not suffering from any Malaria or from other disease. In paragraph 2 of his cross-examination it also emerged that the Doctor has treated her by Glucose Drip on her complaint of weakness. 7. The respondent also led evidence by examining herself as D.W.1 and rebutted the allegations levelled against her. Her version is also supported by the evidence of Sureshchandra Agrawal D.W.2 and Santosh Devi Agrawal D.W.3, mother and father of the respondent. 8. The ground of cruelty substantially rests on three substantial facts, which are as under: i. that respondent on one time assaulted the mother of appellant by Belan and she was treated in District Hospital, Raigarh, ii. she used to misbehave with the servant, therefore, servant has left his job, and ^ r ^s^^ iii. with a view to harass the appellant on one occasion she told that she is suffering from illness and she may die and Doctor was called and after her examination Doctor declared that she was not suffering from any illness. 9. Regarding above substantial facts, the appellant, for the reasons best known to him, has not examined the Doctor and there is also no document to show that the mother of the appellant was treated by Government Doctor. For the reasons best known to the appellant, the appellant has also not examined the servant who would have been independent witness of the cruelty. The appellant has also not examined the Doctor who treated the respondent. In the absence of such substantial evidence and in view of the fact that the appellant has also not been able to rebut the evidence led by respondent/wife and her parents, it is difficult to hold that the respondent/wife has committed cruelty on the appellant. Thus, this is not proved case of cruelty. The case law cited by the learned counsel for the appellant is fully distinguishable on the grounds and facts of this case. 10. After appreciating the evidence available on record, the Family Court has rightly dismissed the petition for dissolution of marriage by a decree of divorce. After minutely scrutinizing the evidence available on record, we also do not find any ground of cruelty nor any illegality or infirmity in the impugned judgment. 11. Consequently, the appeal is without substance and is liable to be and is hereby dismissed. No order as to costs. 12. A decree be drawn accordingly. SdA I T.P. Sharma Judge Sd/~ R.L. Jhanwar Judge A^&^ vl