'2= HIGH COURT OF CHHAmSGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA & HON'BLE MR. R.N. CHANDRAKAR. JJ. F.A.M. No. 81/2008 APPELLANT Smt. ChameU Swamkar RESPONDENT VERSUS Dhaniram Swamkar JUDGEMENT FOR CONSIDERATION Hon^ble Mr. R.N. Chandrakar Sd/- T.P. Sharma Judge _°) Sd/- R.N. Chandrakar Judge Post for Judgment on: ^ f 10/2009 Sd/- r ^ HICrHCOURTOFCHHATTISGARHATmLASPUR DIVISION BENCH CORAMS HON'BLE MR. T.P. SHARMA 8& HON'BLE MR. R.N. CHANDRAKAR. JJ. F.A.M^No. 81/2008 APPELLANT VERSUS RESPONDENT Smt. Chameli Swamkar W/o Dhaniram Swamkar Caste Swanikar, Aged 55 years, R/o Gadariya Para Damidi, Thana aiid Post Daundi, Tahshil Balod District Durg (C.G.). Dhaniram Swarnkar S/o late Punaram Swamkar, Caste Swamkar, aged 58 years, R/o near Yashwant Kirana Stores, 256 Chouk Rajhara, TahshU Balod, District Durg (C.G.). APPEAL UNDER SECTION 19(4) OF THE FAMILY COURTS ACT. Present:- Shri Shashi Kumar Kushwaha, Advocate for the appellant. Shri Jitendra Gupta, Advocate for the respondent. JUDGEMENT (Passedon^ /10/2009) The followine order of fhe Court was passed bv T.P. Sharma, J;- 1. This appeal under Section 19(4) ofthe Family Courts Act, 1984 is directed against the judgment and decree dated 17/4/08 passed by Additional Principal Judge, Family Court (Link Court) Balod District Durg in civil Suit No. 10A/07 whereby and where under leamed Additional Principal Judge, Family Court, Durg has dismissed fhe — t. 4. -^- suit for dissolution of marriage by decree of divorce filed by present appellant. Judgment and decree is challenged on the gi'ound fhat leamed Additional Prmcipal Judge has not considered the evidence of cruelty committed by the respondent and committed an illegality. The brief Facts givmg rise to this appeal m'e, as per pleading of tiie parties, the parties are legally wedded spouses and are govem by Hindu Law. They are resided together as husband and wife for last 19 years. In fhe yeai', 1996 respondent started committuig cruelty and finally respondent left fhe appellant and has not discharged marital obligation siiice last 12 years before filmg of fhe petition. On the ground of cruelty and desertion present appellant has ffled the application for dissolution of maiTiage by decree of divorce. Respondent has denied fhe aUegation of cruelty and desertion but has admitted the mmTiage in his pleading respondent has specifically pleaded that he has not committed cruelty or deserted the appellant. Behavior of the appellant is arbitrar^^ and she is in habit of misbehaving witli the respondent. On fhe basis of averments of the parties learned Additional Principal Judge, Family Couil has framed the issues and after affording an opportunity of heaiing to the Y\.:^^ ~^^^^r ^j. -^) parties dismissed the petition for dissolution of raamage by decree of divorce. 6. Leained counsel for the pailies are heai'd, 7. Judgment and decree impugned and record of Couils below perused. 8. Leamed coiinsel for the appellant vehemently argued that present respondent has committed torture and cruelty upon the appellant and has deserted the appellant for long time. Respondent has assaulted the appeUant many times and continuance of marital relation with the parties is not possible. 9. On the other hand, learned counsel for the respondent opposed the appeal and argued fliat respondent has not committed any torture or cruelty, respondent has assaulted the appeUant, behavior of the appellant is arbitrary. She hersetfhas deserted the respondent. 10. In order to appreciate the contentions of .the parties we have exammed the evidence adduced on behalf of fhe parties. Appellant Smt. Chameli Swarnkar has deposed in her evidence given in affidavit fhat present respondent has committed cruelty. He has assaulted her and deserted since 12 years wifhout any reasonable cause. Her witnesses Sarita Sahu, Arun Kumar Tripatlii had corroborated her version. Respondent has denied fhe aUegatiou of cruelty^ torture aiid desertion aiid deposed ^..^-^^^:^ ^^--<"^ T^ I ^^s^^' that behavior of tlie appellant is arbitraiy. She herself has deserted the appellant. Statement of the respondent has been corroborated by his witness Vijay Kumar Motwani in her cross examination, appellant has admitted fhat she married with respondent in fhe year 1975 and after one year of her marriage she appointed as a teacher. The dispute arose in fhe year 1996-1997 after lapse of 20 years. She has speciTically deposed iii Para -9 of her cross exaaiination fhat she is not ready to live with respondent. Presently she is residing witli her witness Smt. Sarita Sahu. Her witness Sarita Sahu has also admitted in her cross-examination fhat she is residing wifti appeUant. She is married but in her affidavit she has shown herself as a daughter of Hiinmat Ram, Sahu but not as a wife of her husband Lallu Tailor. Respondent has cross-examined fhe appellant and her witoess Sarita Sahu at length speciaUy on the ground that Sarita Sahu is a wo.man between appellant and respondent responsible for discontinuance of their inarital life. AppeUant has also cross-examined tiie respondent and his witnesses at length but has not brought anythtng in their cross examination to show or to prove the cruelty or tortnre committed by flie respondent It appears from fhe evidence of the parties fhat ftiey are residing separately and bofh are eaming member not depending upon each other. They are having no issue ^•;'^^. "°1 ^, :iv'^ !' ^ •.'.' •...- ' .^'' •-?%^::'.."^ —^ @ tlierefore, even they ai'e not depending each ottier for discharge of fhetr marital obligation. Respondent has not willfully deserted the appellaiit pr committed cruelty or torture upon the appellaiit. AppeUaiit is working as a teacher and her income is secured on the other hand respondent is petty shopkeeper his income is not secured. Appellant has not proved any ground of cruelty or wiltful desertion ground available under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by decree of divorce. After appreciatuig the evidence available on record leamed Additional Principal Judge, Family Court has dismissed the petition for dissolution of marriage by decree of divorce. Findmg of the Court below is based on evidence adduced on behalf of fhe parties not warraiitmg interference. We do not fmd any scope of interference m the judgment and decree impugned. ConsequenUy, this appeal is liable to be dismissed and it is hereby dismissed. 11. Parties shall bear thetr own cost. 12. Advocate fee as per schedule. 13. Decree be drawn up accordmgly. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge /*••^