HIGH COURT OF CHHARTTISGARH AT B‘ILASPUR CORAM: Hon’ble Shri Dhirendra Mishra & Hon’ble Shri Rangnath Chandrakar, JJ First Appeal (M) No. 23 of 2007 Appellant Kripal Rao Jethe, S/o. Shri Ganpat Ram Applicant Jethe, aged about 37 years, rlo. Behind Dattatraya Mandir, Bramhapuri, Raipur (CG). Versus Smt. Deepti Jethe, w/o. Shri Kripal Rao Jethe, aged about 32 years, rlo. in front of Sapre School, Budhapara, Raipur (CG). Respondent {Appeal under Section 19 of the Family Court Act, 1984) Present: Shri Pawan Kesharwani, counsel forthe appellant. Shri B.P. Sharma with Shri Vivek Chopra, counsel for the respondent. JUDGMENT ‘ + (Delivered on o'zf day ofApril,2010) Q r. Per Ran nath Chandrakar, J. Challenge in this appeal is to the judgment and decree dated 14-12— Principal Judge, Family Court, Raipur, in Case No.18—A/2006, whereby the learned Judge, Family Court dismissed the application tiled by the appellant/husband under Section 13 (1) of the Hindu Marriage Act, 1955 .(for short, “the Act") for a decree of dissolution of marriage. 2006 passed by the learned iind Additional 2) Brief facts necessary for disposal of this appeal are that as per the pleadings of the parties, the parties are legally wedded spouses and the /\ marriage between the appellant and the respondent was performed according to Hindu rites and rituals on 27th January, 1999 in Raipur. Since both the parties are residents of Raipur itself, the appellant along with the respondent used to visit the maternal house of the respondent. After some time, the respondent/wife started visiting her maternal house alone even without the knowledge and permission of the appellant. ln the m x ssh-meantime, the respondent conceived and started pressurizing the appellant to go to her maternal house for delivery. The appellant tried to convince her but could not succeed. Ultimately, the respondent went to her maternal house and she gave birth to a male child in a Nursing Home of her own choice. The entire expenses incurred in delivery of the respondent was borne by the appellant. Even after the birth of child, the appellant tried to convince the respondent and bring her back but she did not heed his words. The Namkaran Sanskar of the child was also performed in the maternal house of the respondent and the intimation thereof was not sent to the appellant. Despite the aforesaid acts of the respondent, the appellant tried his level best but the respondent was stuck on her demand to' live separately from the in—laws. Thereafter, the appellant and the respondent started living separately. During the period, the father of the respondent used to come and threaten the appellant that if he lives with his parents, the respondent would be taken to her maternal house. After some time, mother of the appellant became sick and the appellant was required to look after his moth‘er but the respondent was not ready and proceeded to her maternal house with the child. The respondent also took away the jeweleries and cash kept in the almirah while going to her maternal house with her father. She also took away the keys of almirah with her. The appellant made several attempts to bring the respondent back. in this connection, the appellant also made an attempt for settle the dispute and went to his in-laws house on 5-1-2003 accompanied by the senior and respectable member of the society, but the respondent and her father declined their request. Thereafter, the appellant filed a case under Section 9 of the Act, 1955 on 34-2003 before the competent court for restitution of conjugal rights wherein the respondent was directed to live in the house of appellant but the respondent expressed her unwillingness to live with the appellant in his .- house. The aforesaid conduct and behaviour of the respondent caused serious mental agony and torture to the appellant which amounts to cruelty. Thus, the appellant prayed for grant of decree of dissolution of marriage. 3) The respondent filed written statement and denied the allegations made against by the appellant. She specifically pleaded that she never committed cruelty on the appellant and misbehaved with the in—laws. On T’ the contrary, the appellant and his family members used to ill-treat the respondent for bringing small dowry. She specifically pleaded that‘she never visited to her maternal house without consent of the appellant. She was made to go to her maternal house for delivery by the in—laws with a view to avoid the expenses and the entire expenses of her delivery were borne by her father. Even after the delivery of the child, nobody turned up to see the child and bring her back till 1% months. No Namkaran Sanskar ._ _ x .. of the child was performed in her maternal house. Thereafter shecame back to her matrimonial house with her mother-in-law but she was never given proper care and respect. Her in-laws always used to torture and i \ harass her due to which she apprehended that her life would be in danger. On 26-1-2002 “Loot” function of her child was organized in her maternal house with the permission of the appellant and in-laws and she was sent for the same on the condition that she would be sent back positively on 27— 1-2002. On 27—1-2002 when she returned to her matrimonial home along " > ‘ "‘ with her parents, they were misbehaved. On that day, there was wedding anniversary of the appellant and respondent, therefore, the appellant was called by the parents of the respondent for being greeted but he did not come and instead her father was misbehaved and the respondent was dragged inside thehouse and abused. When the respondent cried for help I and wanted to come out of the house, the appellant and his father chased her. No attempt for reconciliation was made on 5-1-2003 and in case of restitution of conjugal rights filed by the appellant, he was directed by the Court to live separately with the respondent and their child in a rented- house but the appellant did not obey the order and got the dismissed the case on 22-7—2006 without sufficient reason. In spite of all these, the ’respondent is still ready and willing to live with the appellant, 4) On the basis of averments made by the parties, issues were framed and after affording an opportunity of hearing to the parties, learned Judge, "~ ‘~ ‘ FamilyVCourt dismissed the application for grant of decree of dissolution of marriage. . 5) Learned counselappearing for the appellant vehemently argues that the learned Family Court has erred in not appreciating the evidence of PWI1 & PW/2 in its proper perspective. The Family Court ought tothave considered the fact of demand of dowry as an after thought as no evidence to this effect was led by the respondent. Further, the Family Court ought to [4M have considered the statement of the appellant about the cruelty ‘committed by the respondent on him and allowed the petition of the appellant. Thus, the impugned judgment and decree passed by learned Family Court is bad in law and the same be set aside. 6) On the other hand, learned counsel appearing for the respondent vehemently opposed the appeal and submitted that the respondent never visited her maternal house frequently and on few occasions she was taken to her maternal house by the appellant himself. The appellant and his parents always complained for bringing small dowry and they always used ‘ to have doubt on her. She was mentally and physically tortured. ln order to save expenses of delivery, she was forced by in-laws to go to her maternal house. Even after delivery, the appellant and his family members did not come to see the child. Subsequently, the mother of the appellant came to pick up her. Namkaran Sanskar was requested to be done but the appellant did not listen and demanded money to which the parents of the respondent refused. Refusal of the same made the parents of the. appellant annoyed. Whenever the respondent complained about the ill- behaviour of the in—laws to her husband, she was blamed and was asked to quit the house. The respondent never pressurized the appellant to live separate. She took proper care when her mother-in-law was sick and she never gave any threatening to the appellant. She never committed any cruelty on the appellant but she was subjected to cruelty for demand of ‘1- " T’ dowry by the her husband and in-laws who also misbehaved with her . parents. Despite the above, she is still ready and willing to live with the lagw a a 7 a99§Llant'. 7) We have heard Shri Pawan Kesharwani, Iearned counsel for the appellant and Shri B.P. Sharma and Shri Vivek Chopra, Iearned counsel for the respondent, perused the impugned judgment & decree and record of the Family Court. 8) ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. The appellant sought a decree for dissolution of marriage on the ground of cruelty and desertion alleging that the respondent wanted to live separately from her in-laws, she used to visit her maternal house frequently, misbehaved with the in-laws and ultimately she deserted the 'appellant. The application under Section 9 of the Act filed by the appellant also failed. 9) So far as the question of cruelty is concerned, it must be specifically proved by the cogent evidence. On perusal of the evidence adduced by the appellant by way of affidavit under~Order 18 Rule '4 of the C.P.C, it appears that he made the aforesaid allegations against the respondent/wife but in his cross examination he admitted that the facts mentioned in the affidavit were also mentioned in the case filed by him under Section 9 of the Act. He further admitted that he and the respondent together used to visit the maternal house of the respondent. Ex.P/1 is a document filed by the appellant which goes to show his date wise visit to ‘ the maternal house of the respondent from 27—2-2002 to10-10-2004. He also admitted that they together used to go to the office. Even on the day of Lok Adalat the appellant used to drop the respondent to the court. ln para 10 he denied the suggestion that he sent the respondent to her maternal house with a view to save the expenses of delivery and admitted that he possessed the mediclaim policy through which the medical %£Ex 11) . So far as the other allegation that the respondent/wife deserted the appellant on 27-1-2002 without sufficient reason as pleaded in para 5 of the application under Section 13(1) of the Act, is concerned, it is clear from the document (EXP/1) that the appellant was in regular contact with the respondent from 27-2-2002 to 10-10-2004. Even after tiling the case for' restitution of conjugal rights by the appellant on 3—4—2003, the appellant/husband was in regular contact with the respondent/wife as is clear from Ex.P/1. it also appears as admitted by the appellant in para 12 of his cross examination that a report regarding domestic violence against his father was lodged by the respondent in Police Station-an'd the same fact was not mentioned in the application under Section 13(1) of the Act which only goes to show that there was some sort‘ of dispute between the > parties which led the respondent/wife to leave the company ofvthe appellant. 12)‘ The aforesaid fact also finds corroborated by the evidence of the ' respondent/wife who categorically stated in para 6 that on 27—1—2002 when she was brought to her matrimonial house by her parents, they were misbehaved by her father—in-law and she herself was not only asked to quit ‘ the house but also thrown out of the house. Therefore, she went'to her V maternal house only with the clothes worn by her at that time. ln para 8"of her affidavit she expressed her willingness to live with the appellant/husband and stated that in the case under Section 9 of the Act registered as 33-A/2005 it was ordered on 7-5-2005 that the parties were ready and willing to lead conjugal life separately from their parents. ln her evidence she also stated that she was subject to cruelty by the‘appellant and in laws for want of dowry though she admitted in para 12 of her cross —\ \ ,x examination that she never made any such complaint against the appellant and his family members. in para 16 of her cross examination, she denied the suggestion that despite the request of the appellant and the order of compromise and went to live with the the court, she did not enter into appeilant. She further stated that she was ready and willing to live with the ‘ appeliant/husband. 13) On re—appraisal of the entire evidence on record, it is found that there are allegations and counter allegations by the parties. The‘ allegations made by the appellant againstthe respondent/wife appears to be self contradictory but the counter allegations made by the respondent against the appellant are probable as there was a report against the father of appellant regarding, commission of domestic vi with the respondent which is also admitted by the appellant. Therefore, if the respondent deserted the for the sake of arguments, it is admitted that appellant on .27-1-2002, there was sufficient reason and the same does not . amount to cruelty. Thus, the factum of cruelty as alleged by the appellant against the respondent by way of voluntary desertion and appellant is not proved in the case. behaviour attributed towards the 14) For the foregoing reasons, we are of the opinion that the Family Court below has rightly dismissed the petition. udgment impugned. and it is hereby dismissed. Parties ‘ illegality or irregularity in the j devoid of merit is liable to be dismissed - shall bear their own costs. 15> aWCC°rd‘“9'V~ l i Sd/- Dhirendra Mishra Judge olence on 27-2-2002 arbitrary Sd/- R.N. Chandrakar Judge We do not find any The appeal being