\A c^-//- IN THE HON»BLEHIGH COURT OF CHHATTISGARH AT BILASPUR ^.n FIRST APPEAL (M) .N0. ^ Q OF 2010 APPELLANT : Ashok Sidar son of Mohan Sidar, aged APPLICANT \^ about-42 years, occupation- Service ' ^»* .^^-.S^ R/° santosh Nagar, Raigarh, Tah. & ^v'*' A-A^ ^. ^ A^ ^ _. 'y. "'- ^^*^ Distt- Raigarh (c-G •) VERSUS RESPONDENT NONAPPLICANT Smt. Dayawati wife of Ashok Sidar, aged about-40 years , R/o Patrapara, Dharamjaigarh Distt. Raigarh (C.G.). FIRST APPEAL (MJ UNDER SECTION 19 (1) OF THE FAMILY COURT ACT HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE SHRI I.M. QUDDUSI, & HON'BLE MR. G. MINHAJUDDIN, JJ. Appellant Applicant Respondent Non-Applicant First Appeal (M) No. 40 of 2010 Ashok Sidar Vs Smt. Dayawati A°> JUDGMENT FOR CONSIDERATION Sd/- G. Minhajuddin Judge 2_2-.9-20T1~ ^,... HON'BLE SHRI I.M. QUDDUSI. J J ^v^- Sd/- I.M.Quddusi Judge ^^.9.2011' POST FOR JUDGMENT ON ^1 SEPTEMBER. 2011 Sd/- G. Minhajuddin Judge /fv\ riasij ^. •y t... ^NN—^ ^ o HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE SHRI I.M. QUDDUSI, & HON'BLE IVIR. G. MINHAJUDDIN, JJ. Appellant Applicant Respondent Non-Applicant First Appeal (Ml No. 40 of 2010 Ashok Sidar Vs Smt. Dayawati Present: Mr. M.K. Sinha, counsel for the appellant. Mr. S. Bhardwaj, counsel forthe respondent. JUDGIVIENT (Delivered on2^September, 2011) Per G. Minhaiuddin. J 01. This appeal has been filed by the appellant/husband under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 15.12.2009 passed by Family Court, Raigarh, in Civil Suit No.56-A/07, whereby the application filed by the appellanVhusband under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955, on the ground of cruelty and desertion for dissolution of marriage by a decree of divorce, has been rejected. 02. The undisputed fact of the case are that the appellant was married to the respondent in the year 1983 and out of the wedlock, four children have been born, of which two are daughters and two are sons. The appellant and the respondent are residing separately since 26.6.1997. On the application ofthe respondenVwife under Section 125 of CrPC, maintenance @ Rs.800/- p.m. has been granted by the Family Court. hlowever, rest ofthe facts are disputed. z ^:^ ^..... ^KIIIIIII |» 03. As per averments made in the application for dissolution of marriage by the appellant husband, he was married to the respondent in the year 1983 at Patrapara, Dharamjaigarh. After marriage she resided with him for a period of 2-3 years at Patrapara, Dharamjaigarh, where his parental house is situated. However, on account of transfer of the appetlant to Bhopal, he along with the respondent wife started residing in Bhopal. While residing in Bhopal, the respondent wife started mentally torturing the appellant for taking her back to Dharamjaigarh. Therefore, the appellant husband tried to get himself transferred to Dharamjaigarh, but was unsuccessful. Thereafter, the respondent wife after quarrelling with the appellant husband without any reasons came back to Patrapara, Dharamjaigarh along with her children to her parent's house and started residing with her father. When the appellant husband used to come at Dharamjaigarh to take her back, she used to ill-treat and humiliate him and had refused to go back with him. She is residing with her father since 26.6.1997 without any sufficient cause and does not want to come back to live with the appellant husband. 04. In her reply to the said application, the respondent wife denying all the adverse averments contended that she had never resided in her parental house for more than three days. Since the appellant husband used to beat her after taking liquor, that she used to come back to her parental house at Dharamjaigarh for saving her life. It is the appellant husband who has, in fact, driven them out of his house after beating I ^::::.A 1 ^SJ -•^. ^^' ^ ^ v her. The appellant husband never tried to settle the matter and on the contrary, he had kept one lady namely Rameena Bai as a keep in the same house without consent of the respondent wife. 05. Heard learned counsel for the parties, perused the Lower Court Record (LCR) as also the impugned judgment. 06. The core question to be decided in this appeal is whether the respondent wife has acted with cruelty towards the appellant husband and since 1997 deserted him without any sufficient cause? 07. The appellant husband in support of his application under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955, examined himself as AW-1 and Anandram as AW-2. The respondent wife had examined her son-in-law Shyamrao Rajwade as NAW-1 and Banarsiram as NAW-2, in addition to herself as NAW-3. According to the statement of the appellant husband himself, when he was married to the respondent wife in the year 1983, he was unemployed but subsequently he was recruited in M.P. Police Service as a constable and posted at Bhopal. As per the statement of the appellant husband, after their marriage in 1983, his wife (respondent) resided with him for about 2-3 years. When he was transferred to Bhopal, she accompanied him to Bhopal also, but after some timeshe started torturing him mentally to get himself transferred to Dharamjaigarh and on her insistence, the appellant tried his level best for his transfer to ..^—^h. ,f- -^ :L^C ^ ^.^ ^NNIIIIIIIIIW Dharamjaigarh but was unsuccessful. After this, the respondent wife without any cause came back from Bhopal to Dharamjaigarh along with her children and started living with her father Haricharan, who was then employed in Public Works Department Rest House as a Caretaker. As per the appellant's statement, he tried his level best to take the respondent wife back along with him to Bhopal, but she was not willing to live with him and since June, 1997 she is living separately in her father's house at Patrapara, Dharamjaigarh. 08. Refuting all the adverse allegations against her by the appellant husband, the respondent wife (NAW-3) has stated that since very inception, her husband (appellant) used to beat her after returning home in a drunken state, on account of which there was no way out for her except to leave his house and take shelter in her father's house as there was imminent danger to her life. The respondent wife has alleged in her reply to the appellant's application that her husband had started living with a lady named Rameena Bai in the same house, whom he had kept as a keep and used to ill- treat the respondent wife and her children with cruelty and ultimately, had driven them out, on account of which she (respondent wife) had left his house and started residing with her father at Dharamjaigarh. As per her statement, since June, 1997 she is permanently residing separately from her husband in her father's house and the appellant had never cared for her and her children. ^ ^ :^ ImNiniiii ia»: 09. The appellant husband Ashok Kumar Sidar (AW-1) in his application for divorce under Section 13(1)(ia)(ib) ofthe Hindu Marriage Act, 1955 has specifically pleaded in para-5 that out of their wedlock four children have been born. However, the appellant while leveling allegations of adultery against the respondent wife, has stated in para-4 of his statement recorded before the Family Court that out offour children, first two children are through him and not the 3 and 4 children and through whom the 3rd and 4 children have been born to the respondent, is not within the knowledge of the appellant. 10. The respondent wife (NAW-3) has sta,ted that four children have been born to her through the appellant. The statement of respondent wife on this point is corroborated by Banarsiram (NAW-2), who is husband of the respondent's sister. The statements made by these witnesses that the respondent has four children through the appellant husband has not been challenged by the appellant. In such a state of affairs, after specifically pleading in para-5 of the divorce application that out of their wedlock four children have been born, by denying the paternity of 3 and 4th children in the subsequent statement before the Family Court, the appellant husband has himself committed an act of gross cruelty towards the respondent wife. 11. From the evidence on record, it is evident that the appellant husband has been unsuccessful in establishing that after marriage in 1983, at any point of time, the respondent wife •w. 1 '^ u t .1 ^y ^^ had been guilty of committing any act of cruelty towards her husband (appellant). 12. So far as deserting the company of the appellant husband by the respondent wife is concerned, it is not in dispute that since June, 1997, the respondent wife is living separately from the appellant husband along with her children in her father's house at Dharamjaigarh. Now the question to be considered is - whether the separate living of the respondent wife is justified in the facts and circumstances of the case? 13. The appellant husband has, in categorical terms, stated in para-3 of his statement before the Family Court that after 1987, there was no relationship of husband and wife between him and the respondent. hle has further stated that in 1987 he had made number of efforts to bring back the respondent wife but when he was unsuccessful in his efforts, that after 2- 3 years he had kept another woman as wife. On the contrary, he has pleaded in his application for divorce that since 26.6.1997, the respondent wife is not living with him and is living separately in her father's house at Patrapara, Dharamjaigarh. Thus, from the statements of the appellant husband, it is clear that he had kept a lady as a keep since about 1990 and when the appellant continuously treated the respondent wife and her children with cruelty and had driven them out of the house that the respondent wife along with her children left his house and started living in her father's house since 26.6.1997. This is also an admitted fact that after ^ 26.6.1997, the respondent wife had movedan application for maintenance under Section 125of CrPC before the Judicial Magistrate First Class, Dharamjaigarh and an amount of Rs.800/- per month has been awarded as maintenance in favour of the respondent wife. 14. In view of the admitted position, the facts brought on record and from the statements of witnesses, it is clear that separate living of the respondent wife is justified in the circumstances of the case because of keeping of second wife and cruel treatment meted out to the respondent wife and her children by the appellant husband. As such, by any stretch of imagination, it cannot be said to have been established that the respondent wife had deserted the appellant husband and is living separately without any reasonable and sufficient cause. 15. In view of this, we are of the opinion that the appellant husband has not been successful in establishing any ground to secure a decree for dissolution of marriage between him and the respondent wife. There is no illegality or infirmity in the impugned judgment of the Family Court warranting interference by this Court. 16. In the result, the appeal fails and is hereby dismissed. No order as to costs. Additional Registrar (Judicial) is directed to draw a decree accordingly. ','G Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge