IN THE HIGH COURT OF JUDICATURE AT BILASPUR ( C.G.) F.A.No.l3'-^ ./2007 APPELLANT ;?3i ...l^ '.'o...•••••'"'"'_; Ci.(jyiyt"n . y;tSS^^ iseem Dubey S/o Late Krishna Prasad Dubey, aged about 38 ' years, R/o Infront ofMaharastra Mandal, Choubey Colo.ny, Raipur(C.G.) VERSUS Smt. Mukta Dubey W/o Aseem Dubey, aged about 36 years. R/o Modern X-Ray Clinic, Brahaman Para, Durg (C.G.) ^ S3 W A. FIRST CIVILAPPEAL UNDER SECTION •SiS-OF THE Cffv>-J'A- a-'?-00' .Xl__. -MARRIAeE-ACt 3L953TREAD WITIi^ECTION 96 THE CODE OF CFVIL PROCEDURE 1908 ^ HIGH COURT OF CHHATTISGARH AT BILASPUf DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ Appellant First Appeal No. 133 of 2007 Aseem Dubey Vs Respondent Smt. Mukta Dubey Judament For Consideration Sd/- G.Miahajjudin Judge (^ . IV.AV HON'BLE SHRI I.M. QUDDUSI. J J ^r' Sd/- I-M.Quddusi Judge Post For Judament On -2- \ Qctober, 2011 Sd/- JUDGE '2_9 .10.2011 ^frs's^ /"^^ ^ S' &.3»-. R Y ^&^ '"^'ss^s^- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. Appellant First ARpeal No. 133 of 2007 Aseem Dubey Respondent Vs Smt. Mukta Dubey Present: Mr. Alok Nigam, counsel for the appellant. Mr. Manish Upadhyay, counsel forthe respondent. JUDGMENT (Delivered on 2-< October, 2011) PerG. Minhaiuddin, J 1. This appeal has been filed under Section 19(1) ofthe Family Courts Act, 1984 against thejudgment and decree dated 29th March, 2007 passed by II Additional Principal Judge, Family Court, Raipur (CG), in Case No. 47-A/06, dismissing the application of the appellant/husband for grant of divorce under Section 13 of the Hindu MarriageAct, 1955 on the ground ofcruelty and desertion. 2. The appellant filed an application under Section 13(5) of the Hindu Marriage Act, 1955, with the averments that marriage between the appellant and the respondent was solemnized on 8.12.1997 as per Hindu customs at Durg. After marriage, since the respondent was desirous of doing MBA, hence she wanted a separate room for study, to which the appellant agreed and arranged a separate room for her. However, on the pretext of study, she used to avbid the household works and on being persuaded, she used to become aggressive and threaten that she will implicate the appellant andhis family members in a false dowry case. The respondent used to go to her maternal home without informing anyone. Ultimately, in 2000 the respondent, along with herjewelry, left her matrimonial home for ^ '<-^. ^•"v ••^SB;| l \;,,^sy ./4?" her maternal home without informing anyone. When the appellant went to the maternal home of the respondent to bring her back, he was abused, insulted and threatened by father of the respondent. Moreover, on 20.9.2000 the respondent lodged a false report for the offence under Section 498A of the IPC against the appellant and his family members. The behaviour of the respondent has been cruel throughout towards the appellant and his family member and she is residing separately from the appellant since 2000 without any sufficient cause. Therefore, the appellant prayed for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion. 3. In the written statement, the respondent denied all the adverse allegations leveled against her by the appellant and contended that she was always willing to perform her household duties. On the contrary, the appellant used to force her to do some job instead of doing household works. The appellant and his family members were continuously harassing her mentally and physically for dowry of Rs.5 lacs on the pretext of indebtedness of the appellant, and for that, she was sent to her maternal home. The appellant had clearly told her parents that iftheir demand is not fulfilled, they will not take back the respondent. Therefore, having suffered continuous torture and harassment, ultimately she lodged a report against the appellant and his family members regarding demand of dowry and in that dowry case, the appellant has stood convicted. The respondent has further stated that she is still ready and willing to live with the appellant. 1. Heard learned counsel for the parties, perused the record of the Family Court as also the impugnedjudgment. 2. In addition to oral arguments, learnfed counsels for the parties have submittedwrittenargumentsalso. '^ 3. In support of his arguments, learned counsel for the appellant has also submitted photocopies of the judgments of the Hon'ble Supreme Court and other High Courts, and contended that after a few months of marriage, the respondent/wife continuously treated the appellant/husband and his familv members with cruelty and without any reasonable cause is residing at her parents' house since 2000 and thereby, has deserted the company of the appellant. He has further contended that marriage between the parties has broken down irretrievably and there are no chances of reunion between the parties and in such circumstances, in view of the judgments of the Hon'ble Supreme Court, a decree of divorce on the ground of cruelty and desertion ought to have been passed by the learned Family Court, but the same has wrongly been refused. 4. On the other hand, learned counsel for the respondent has supported the impugned judgment and decree, and contended that after a couple of months from the date of marriage, the appellant and his family members were continuously harassing and treating the respondent with cruelty on the ground of demand of dowry and had left her at her parents' house in the year 2000, imposing a condition that she will be taken back only in case she brings Rs. 5 lacs as dowry from her parents' house. All the efforts made by the respondent's family members for reconciliation have failed and in such circumstances, the respondent is living with her parents at Durg, which cannot be termed as deserting the company of the appellanVhusband. He has further contended that the respondent had neither treated the appellant and his family members with cruelty nor has deserted the company of the appellant and she is still ready to lead married life with the appellant. 5. Learned counsel for the respondent has also contended that when the harassment in connection with demand of dowry exceeded all limits, she was compelled to lodge an FIR at the police station, on the basis ofwhich offence under Section 498A ofthe IPC and under the provisions of Dowry Prohibition Act was registered against the appellant and his family members and after investigation, charge sheet was filed. Though in that case the appellant's family members were acquitted, but the appellant was convicted by the lower Court and his conviction was maintained in appeal by the Court of Sessions Judge. The above fact clearly demonstrates that there had been harassment and ill-treatment meted out to the respondent by the appellant and his family members for demand of dowry. 6. The main question to be decided in this appeal is - whether the respondent/wife has treated the appellant/husband and his family members with cruelty and has deserted the company of the appellant without any reasonable cause? 7. Before the Family Court, the appellant, in addition to himself as PW- 1, has examined his cousin brother Satish Dubey and his mother Smt. Krishna Devi as PW-2 and PW-3 respectively. The respondent in order to substantiate the pleadings in her written statement, has, in addition to herself as DW-1, examined her brother Manoj Tiwari, father Dr. NP Tiwari and mother Smt. Asha Tiwari as DW-2, DW-3 & DW-4 respectively. 8. It is not in dispute that engagement of the parties was performed in the month of June, 1997 and marriage was solemnized on 8.12.1997, after which, for a couple of months, the respondent/wife had lived with the appellant/husband and his family members at their residence situated at Choubey Colony, Raipur. According to the statement of the appellant (PW-1) and his mother Smt. Krishna Devi (PW-3), the respondent had lived peacefully and maintained cordial relationship for some time and after that, she expressed her desire to pursue further studies and for doing MBA, on which arrangement of a separate room for her study was made. After that, the respondent stopped doing household work on the pretext of studying for MBA and whenever the appellant used to advice her to attend to the household duties also because his mother was aged 70 years, the respondent used to quarrel with him and behave violently with the members of his family. According to the evidence adduced by the appellant, the respondent always used to intimidate them that she will commit suicideand implicate the appellant as well as his family members in a false dowry case as her grand-father is a leading advocate. , ^, 9. The respondent has denied all the allegations made against her by the appellant and his witnesses in their statements, and has stated that after some time of marriage, the appellant and his family members started demanding dowry and were pressurizing her to bring Rs. 5 lacs from her parents,_which she refused. After that, the appellant and his family members were continuously^arassing^and torturing her and ultimately in the year 2000, she was dropped at her parents' house along with the articles given by her parents, with the condition that she will not be taken back unless she brings Rs. 5 lac from her parents. 10. The appellant (PW-1) and his mother Smt. Krishna Devi (PW-2), have stated that the respondent did not used to discharge any household duties. But both these witnesses, in their cross- examinations, have stated that the respondent used to cook and serve food to the appellant and his family members. The appellant has stated that when the respondent on petty matters started intimidating that she will commit suicide and implicate the entire family of the appellant in a criminal case relating to dowry, that he had dropped all the goods as well as cash, given by parents of the respondent at the time of marriage, at the respondent maternal home. The appellant has also admitted that after that, the respondent had lived with him for about one year and had again gone to her parents' house in connection with engagement of her sister, which was held on 6* May, 2000, and after that she did not return back to her matrimonial home. 11. On the contrary, the respondent and her witnesses have stated that she was dropped by the appellant at her parents' house and the appellant had told that they will not take her back until Rs. 5 lac in cash is given. 12. The appellant (PW-1) and his mother Smt. Krishna Devi (PW-2) have admitted that though the appellant is a graduate engineer but was unemployed at the time of marriage and even after, marriage was not doing any work. The appellant has stated that before his marriage, he was working as a surveyor of the insurance company. The appellant has also admitted that no amount was given by-him to his wife/respondent for her personal expenses and only his mother used to give Rs.500/- per month to the respondent. It has also been admitted by the appellant and his mother (PW-2) that marriage of the appellant's elder brother Pradeep Dubey had also resulted in divorce and he is also not doing anything. As per version of mother '•^ of the appellant herself, her elder son used to dririR'^mrwas not good. 13. As per statements of the respondent and her witnesses, the family members of the respondent had tried their level best for reconciliation and for sending back the respondent to the appellant's home, but the appellant refused and insisted that unless the amount of Rs. 5 lac is paid, she will not be taken back. The appellant and her mother have admitted that they had never tried to bring the respondent back to their residence. The appellant has also admitted that he had not initiated any proceedings under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. He has also stated in very clear terms that even if the respondent is ready to reside with him, then also, under no circumstance, he is ready to keep her. 14. It is an admitted fact that the appellant has been convicted under Section 498A of the IPC on the report of the respondent and conviction of the appellant has been maintained by the Court of Sessions. The appellant has admitted in his cross-examination that an application for grant of maintenance had been filed by the respondent against him before the Court at Durg and he (appellant) is paying the amount of maintenance under Section 125 of Cr.P.C. 15. All these clearty demonstrate that the respondent/wife is not living at her parents' house of her own free will, but in compelling circumstances. As such, from the material available on record, it has been established that the respondent/wife has not treated the appellant and his family members with cruelty and deserted the company of the appellant without any reasonable cause. On the contrary, it stands proved on the basis of preponderance of probabilities that the appellant haS treated the respondent with cruelty in connection with demand of dowry and deseri:ed her, compelling her to reside at her parents' house. 16. So far as grant of decree of divorce on the ground of irretrievable break down of marriage is concerned, uptill now irretrievable break down of marriage is not a ground for divorce under Section 13 ofthe Hindu Marriage Act, 1955. Though certain cases have been cited -6 by learned counsel for the appellant, on the basis ofWfich he has sought a decree of divorce on the ground of irretrievable break down of marriage. 17. The Hon'ble Supreme Court in the said cases have granted a decree of divorce on the ground of irretrievable break down of marriage in exercise of powers conferred under Article 142 of the Constitution of India. Whereas no such power is possessed by this Court and therefore, no decree of divorce can be granted on the ground of irretrievable break down of marriage by any Court other than the Hon'ble Supreme Court. 18.0n the basis of aforesaid discussions, we find no substance in this appeal, the same deserves to be and is, accordingly, dismissed. The impugned judgment and decree of the Family Court is hereby affirmed. 19. No order as to costs. I.M.Quddusi Judge G.Minhajjudin Judge K/