HIéH COURT OF CHHATTISGARH: BILASPUR 5.3. HON'BLE SHRI VIJAY KUMAR SHRIVASTAVA, J FIRST APPEAL NO. 82 of 2004 r Appelianf : Deifendan‘l' I i I I \ Res‘gondenf: Plujin‘iff Nirmaia, aged abou‘r 32 years u ' W/o Ramesh Kumar Rafhore, D/o Rameshwar Prasad Rafhore, R/o Kirari, Police Sla'rion Baradwar, Tehsil Sak'ii, DisTricf Janjgir-Champa , (C6) , Vs. Ramesh Kumar 5/0 Dhanimm Ra‘i‘hor‘e Senior Technician (Geology), Employee No.212499, Mechanicai Mines, Qajahum, Bhiiai Sfeel PlanT, Rajaham, Dis‘l'ric‘l' Durg (CG) i i i i i PRESENT: i Shri H5 Pafei, Counsel for- The appelianf. i Shr'i Ashlsh Shrivasmva wrih 5hr! Rakesh Dubey, Counsel for fhe respondenf i I i This appeal has been direc‘red agains‘l' The judgmenf and deeree da‘l’ed 04.03.2004 passed by Addifional Dis‘rric‘l’ Judge, Sak‘ri, DisF'hJ'an‘jgir Champa in Civii Sui‘r No.13—A/2003 whereby The pefiTion i i \ «‘FL I field by The responden‘l' fplain'l'iff under Sec‘rien 13 of The Hindu M rriage ACT 1955 (hencexfor‘rh/ “The Acf") has been allowed and decree of divorce has been ‘passed. JUDGMENT. ( Dam: 16*“ February 2006) 1 \ V r ' ‘ 2) ‘ ‘ Ma'rerial facTs in brief for disposcd of fhis oppeai are . fhaf The marmage befween responden‘l' / plmn‘hf‘f — Ramash Kumar and appelian‘r / defendam’ — Nirmoia was solemmzed on 2O O4 1996 as per‘ Hindu rifuals and Thgreaffer, fhey smr‘fed living as husband and wife in 1Their' maTrin‘onial home. Appellan‘r/defendan'r lef‘r fhe house of her relspondent/plmn'hff did np‘r come back Thereaf‘rer on 06.02.1997, appelian‘r and responden‘r dissolved Their marhiage by cusfomary hdsband on 04.091996; who despi‘l'e several effor‘rs made by fhe \V‘ L ‘7 divorce and since Then They are llvmg separaTely On These grounds, respondenT/plainfiff filed an application under $ec‘rion 13 of fhe ACT for a decree of divorce; The appellanT/defendanT denied The dllegaTions leveled againsT her and pleaded ThaT on 04.09.1996, she‘ was beaten by her husband on The demand of dowry and was Thrown ‘ouT from her maTrimonial house. _ThereafTer, she made various aTTempTs To live wiTh her husband, buT respondenT/plainTiff refused lTo keep her. Divorce papers have been goT signed by her, keeping her lunder Th reaT. l3) BoTh- The parTies adduced evidence in respecT of Their cases. Learned Cour-T below, afTer appreciaTion of evidence, held ThaT There was no dispuTe regarding dowry beTween The parTies. Onv 06.02.1997, cusTomary‘divorce Took place beTween The parTies. They cohsenTed To iT and ThereafTer,‘~accepTing iT, are living separaTely. Learned courT below confirming The cusTomary divorce daTed 1 6 02.1997 granTed a decree of divorce from 04 O3 2004 wk QR 1 i 4); Bo‘rh The parfies are heard. Recard of The Trial Cour‘l’ perused. I 5) Responden‘r - husband filed an applicafion under, SecTion 1 l 13 of The ACT disclosing Tha’r on 06.02.1997, cusfomary divorce Took pl ca between him and his wife Nirmaia. When he himself is pleading Th f The relaTion 'of husband and wife remains no more since 0§.02.1997, he was noT enTiTled To fiie an applicaTion under SecTion 13 of? ‘Th‘e ACT, which auThorised only The husband or wife To file ap‘piicaTion for divorce. 6N The divorce has been granTed only on The basis ThaT l hLlsband and wife are living separaTely since lasT six years. AlThough learned CourT below has held ThaT appellanT/wife — Nirmala has deserTed her husband since 04.09.1996 buT The findings given againsT The issues are againsT Their own decision ThaT conTains in para 14 of l wk Tl'le judgment In para 14, lower CourT has decided and held ThaT husband and wife! accepTing cusTomary divorce daTed 06.02.1997, are livlingseparaTely. When boTh The parTies are living separaTely by muTual agreemenT, Then iT can noT be TreaTed a deserTion. The ground Taken by The respondenT/plainTiff was neiTher as per pleading deserTion, nor as per decision of The Trial CourT deserTion has'been prioved. l 1 l i o l vv\ l 71’ , ‘ NeiTher The respondenT’s peTiTion filed under SecTion 13 ( \ of The AcT was mainTainable nor any ground envisaged in iT has been pleaded or proved; seT aparTlunder SecTion 13 of The AcT, lower CourT l has no power- or auThoriTy To confirm The cus’romary divorce by passing i a decree of divorce. Therefore, The judgmenf and decree passed by The !ower Cour'r is Hobie To be se‘r aside. ' 5) In The result. The appeai succeeds and fhe impugned judgmenf and decree passed by fhe lower CourT is sei asEe. Sd/- i i i i i i ‘ i? i ii i V.K. Shrivastava Judge 16.02.2006