HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal (M) No. 45 OF 2009 Appellant Ramkumar Soni Respondent Vs. Smt. Mongrabai Soni JUDGMENT FOR CONSIDERATION R.N. Chandrakar Juds Hon'ble Shri Dhirendra Mishra, J. 5 a^%&-- Sd/- Dhirendra Mishra Judge POST FOR JUDGMENT ON rr-6-2010 DhirmdraMishra Judge .f" ^d i^' 'a&sf; .ili '^S&^ ""sw V"IX HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal (IVI) No. 45of 2009 Coram: Hon'ble Shri Dhirendrahflishra, & Hon'bleShri R.N. Chandrakar, JJ Appellant Plaintiff Respondent Defendant Ramkumar Soni, aged about 62 years, S/o.Shri Rameshwar Soni, r/o. Kanker, P.S. Kanker, working with Public Works Department in Electric & Mechanical Department, Kanker, District Kanker, Chhattisgarh. Vs. Smt. Mongrabai Soni, D/o. Shri Udayram Soni, aged about 52 years, r/o. Sukrawari Bazar, Gudiari, Raipur, Chhattisgarh. (First Appeal under Section 19 (1) ofthe Family Court Act, 1984) Present: Shri Pawan Kesharwani, counsel for the appellant. None for the respondent. JUDGMENT (Deliveredon this | ^''day ofJune, 2010) Per Rananath Chandrakar, J. Challenge in this appeal is to the judgment and decree dated 23-3-2009 passed by the Ist Additional Principal Judge, Family Court, Raipur in Civil SuitNo. 185-A/2007, whereby the application filed by the appellant/husband under Section 13 (1) of the Hindu Marriage Act, 1955 (for short, the Act, 1955) for decree of dissolution of marriage between the parties was dismissed. 2) The facts of the case, in brief, as projected before the Family Court are that the marriage between the parties was solemnized 35 years ago. In the first night of their cohabitation the respondent/wife avoidingconsummation of marriage told the appellant/husband that she was carrying pregnancy of about 6 months out of the marriage took place at temple between her and one Johatram Sahu. According to the appellant/plaintiff there was a meeting held between the senior members of both the families in this issue where the father of the respondent/wife admitted the fact and took away her daughter with him on the 3 day. of marriage. Thereafter the appellanVhusband and respondent/wife never resided together and no marital relation existed between them for the last 30 years. It was specifically pleaded by the applicant/plaintiff thaf he had no physical relation with the respondent/wife from the date she was taken away by her parents. Thereafter, the appellant/husband was married to another lady and out of second wed-lock four children were born. In the year 1997 after about 28 - 29 years the respondent/wife filed a case for grant of maintenance against the appellanVhusband which was allowed whereby the appellant/husband is paying Rs.400/- per month to respondent/wife towards her maintenance. Thus, the appellant/husband sought a decree of divorce on the ground of cruelty and willful desertion. 3) The respondenVwife contested the case and denied the allegations made against her. She pleaded that the appellanVhusband was a truck driver in Government service and whenever he came to Raip.ur, he used to stay with her at Raipur in-the night. He also wrote letters to her. It is also pleaded that the appellant/husband remarried ;£S8^?'?l^E^;S^^ffi^B^:; ^i with the other woman without obtaining any divorce from her and filed this application with a view to avoid the legal complications. 4) On the basis of averments made by respective parties, issues were framedand after appreciating the oral and documentary evidence available on record, the Family Court dismissed the application for divorce with a finding that the appellant/husband failed to prove the factum of cruelty ahd desertion, therefore, he is not entitled for decree of divorce. 5) Learned counsel appearing for the appellant submits that the impugned judgment and decree passed by family court is contrary to law and material available on record. The Family Court failed to appreciate the fact that both the parties were residing separately for more than 30 years. Thus, the Family Court ought to have granted a decree of divorce on the ground of desertion. After 3 day of the marriage, the father of the respondent/wife took her away with him and since then she did not return to her matrimonial house to discharge her marital obligations. The findings recorded by the family court are perverse and bad in the eyes of law. Therefore, the impugned judgment and decree dated 23-3-2009 passed by the Family Court be set aside. 6) We have heard Mr. Pawan Kesharwani, learned counsel for the appellant, perused the judgment & decree and record of the Family Court. 7) In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. ^ 8) From perusal of the record of the family court, it is clear that the parties adduced their evidence by way of affidavit under Order 18 Rule 4 of the C.P.C. The appellant was not cross examined by the respondent/wife and was discharged without cross examination; hence his evidence could not be refuted as held by the Family Court in para 7 of its judgment. The appellant stated in his evidence that there was no consummation of marriage as the respondent was carrying pregnancy of six months at the time of their marriage and they were residing separately from 3 day of the marriage. He further stated that after taking away the respondent by her parents, he re-married to another woman and he was blessed with four children out of their wed-lock. The respondent/wife admitted in her evidence that she was married to appellant/husband in the year 1 966 and after one year two months of their marital life, she was left to her maternal house where she gave birth to a female child. Despite sending the information of the birth of the child, the appellant/husband never came to see her and till then no conversation took place between them. In para 16 of her cross examination, she admitted the suggestion that there is no cohabitation for the last 35 years. Thus, it.is clear from the evidence on record that there is no cohabitation between the parties for more than 40 years as on today. 9) - It is also pertinent to mention here that the respondent/wife stated in her evidence that she does not'want to get divorce from her husband, but if any permanent arrangement is made, she is ready for divorce. This conduct/statement of the respondent only goes to show that she herself is not interested to continue the matrimonial life with the '•\ ',,T~ @) appellant. In such condition, continuance of the marital relations between the parties holding the same to be a sacrament may only increase their mental agony and unhappiness, specifically in view of the fact that the appellant has four children out of his second wedlock. Apart from the above, therespondent/wife, if she was not at fault or has any interest in the marital relations with the appellant/husband, she must have instituted proceedings against the appellanVhusband under Section 9 of the Act, 1955 for restitution of conjugal rights, but there is no such evidence on record. She only filed a case under Section 125 of the Cr.P.C., against the appellant/husband for grant of maintenance that too after about 27 years. 10) On re-appraisal of the evidence of the parties led before the Family Court, we find that the marriage between the parties had broken down irretrievably as they have been living apart for the last 40 years. In these circumstances, we are clearly of the opinion that after the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. 11) For the foregoing discussion, appeal is allowed and the judgment and decree passed by the Family Court is hereby set aside. Parties shall bear their own costs. 12) Decree be drawn up accordingly. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Raju \