<•»•• IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR F.A. (Mi No. ^ / / 2QW- ^^\^^^ R^ APPELLANT APPLICANT Bad Vijay Kumar S/0 Amuram Chandrakar, 34yrs, R/0 Village Chhati, Teh. Kurud, ^ ^ ^^ .y^ District Dhamtari (C.G.) VERSUS n^SS®3® UilS ^ py''":'" RESPONDENT NON-APPLICANT ^...[•^- ^.-Pushpa Bai ^ W/o Vijay Kumar Chandrakar, Aged about 27 years, R/o Village-Vinayakpur, Tehsil & District Durg (C.G.) /^^y- ated^-y"FIRST APPEAL U/S 28 OF THE HINDU MARRIAGE ACT, 1955 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 (Ml No. 51 of 2008 Vijay Kumar Vs Pushpa Bai JUDGMENT FOR CONSIDERATION ^vn^ G- ""3^e AAi» HON'BLE SHRI I.M. QUDDUSI, J ^ ^-f'^r- ^Al- ^ Q^^c ^·^^ POST FOR JUDGMENLON^SEPTEMBER, 2011 ^—» Sd/- ,1f":l-.'^ ' ^ ,,,_^,-r^,, ^ :1 1 ^;:-^-~^.<^ 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 (Ml No. 51 of 2008 Vijay Kumar Vs Pushpa Bai Present: Mr. Prafull Bharat, counsel for the appellant. Mr. SP Sahu, Advocate on behalf of Mr. Manish Upadhyaya, counsel for the respondent. JUDGMENT (Delivered on 2^ September, 2011) Per G. Minhaiuddin. J 01. This appeal has been filed by the appellant/plaintiff under Section 28 of the Hindu Marriage Act, 1955, against the judgment and decree dated 24.8.2007 passed by First Additional Principal Judge, Family Court, Raipur, in Civil Suit No.15-A/05, whereby and whereunder application of the appellanVplaintiff for dissolution of marriage between him and the respondenVdefendant on the ground of desertion by a decree ofdivorce, has been rejected. 02. The undisputed fact of the case are that marriage was solemnized between the appellant/husband and the respondenVwife as per Hindu customs in May, 1990 atVillage -Vinayakpur, Distt. Durg. After marriage, the respondent/wife started residing with the appellant/husband at his home at Village-Chhati, Distt. Dhamtari. Out of their wedlock, a male child named Yogesh Kumar was born on 12.7.1992. The respondent/wife^Jias^initiated proceedings for grant of ^y tV maintenance against the appellant/husband and presgrftly she is residing separately along with her child at her maternal home. 03. As per averments made in the application for dissolution of marriage by the appellant husband, sister Meena of the appellant was married to brother Pawan of the respondent. However, after a few days, on account of being physically and mentally tortured by Pawan, Meena came back to her maternal home and started residing there. On this, the respondent/wife took objection and on her own, went back to her maternal home in the year 1998 saying that, "if the appellanVhusband does not send his sister back to her matrimonial home, she will not live with him". The appellanVhusband tried several times to bring the respondenVwife back, but was unsuccessful. The respondent/wife has also initiated criminal proceedings against the appellanVhusband in connection with demand of dowry. 04. In her reply to the said application, the respondent/wife denying all the adverse averments contended that right from the time of marriage, sister Meena of the appellant did not like her brother Pawan, and after.a few days of the marriage, she left Pawan and went on her duties as she is working as Nurse in the Health Department. On account of disputes between respondent's brother Pawan and appellant's sister Meena, the behaviour of the appellant/husband and his family members became cruel towards her. However, for the sake of her son and family, she continued to tolerate the same. {In the year, 1998, brother-in-law Surendra of the respondent/wife on the pretext that her mother-in-law is going on pilgrimage, dropped her at her maternal home. However, even after return of her mother-in-law from pilgrimage, when nobody came to bring the respondent/wife back to her matrimonial home, the respondent's father along with other members of the Chandrakar community went to the appellant's home along with the respondent/wife, whereupon the appellant/husband refused to keep her. 05. The core question to be decided in this appeal is - whether the respondenVwife has withdrawn herself from the company of the appellant/husband without any reasonable cause and has thereby, deserted him? 06. Heard learned counsel for the parties, perused the impugned judgment as also the record ofthe Family Court. 07. To substantiate the allegations made in the application for divorce, the appellanVhusband has, in addition to himself as PW-1, examined his brother Surendra Kumar as PW-2 and Bhupendra Mishra as PW-3. On the other hand, respondent/wife to substantiate the averments made in reply to the divorce application, has examined President of the Chandrakar Community - Ombai Chandrakar as DW-1, her brother Madanlal as DW-2, herself as DW-3, Gendlal as DW- 4 and Khilawan Chandrakaras DW-5. In addition to this, the respondenVwife has filed photocopy (EX.D/2A) of the decision taken by the Chandrakar Community in its meeting ^ held on 17.5.1998 and examined Khilawan ChandraM^r 5) for proving the same. 08. As per the statements of the appellanVhusband Vijay Kumar (PW-1), his brother Surendra Kumar (PW-2) and Bhupendra Mishra (PW-3), the respondenVwife after her marriage in 1990 had remained peacefully along with the members of her in-laws family for a short time and after that, she was always quarreling with her husband (appellant) and his family members on the ground that sister Meena of the appellant, who after leaving her husband (brother of the respondent) is residing in her maternal home, should be sent back to her matrimonial home. 09. According to the statements of the appellant/husband (PW-1), his brother Surendra Kumar (PW-2) and Bhupendra Mishra (PW-3), the respondent/wife was in the habit of always going to her maternal home without informing anyone and used to remain there for pretty long time and when the appellant/husband used to go to bring her back, she used to refuse to accompany him saying that unless her sister-in-law Meena (wife of respondent's brother Pawan) is sent back by the appellant to her husband Pawan, she (respondent) will not come back to her matrimonial home. 10. On the contrary, as per statements of respondent/wife Pushpa Bai (DW-3) and her brother Madanlal (DW-2), because Meena Bai, sister of the appellant, after living for a very short period with her husband Pawan, had left her in- laws' house after leveling^many allegations against Pawan LAA ^^y^\ I I %^ ^^^ %^Sr^-^' 11. 12. \J>-\ and had started living in her maternal home, therefore, anger the appellant and his family members on the pretext that as the mother-in-law of the respondent is going on pilgrimage, she may, during her absence, go and live with her parents, dropped her through brother of the appellant at her maternal home in the year 1998 and thereafter, neither the appellant nor any of his family members ever tried to bring her back^ or allowed the respondenVwife to come back to her matrimonial home when Madanlal (DW-2) went to the appellant's home along with his sister (respondent) to drop her. On this point, the statement of respondenVwife Pushpa Bai (DW-3) and her brother Madanlal (DW-2) is corroborated by the statement of Bhupendra Mishra (PW-3), who has admitted in para-3 of his statement that because mother-in- law of the respondent had gone on pilgrimage, therefore, they had dropped the respondent at her parents' home. According to the appellant/husband, he tried a number of times to bring the respondent/wife back, but the respondent/wife as well as his brother Pawan were adamant that unless the appellant's sister Meena is sent back to her husband Pawan, the respondent Pushpa Bai will also not be sent back to the appellanVhusband. On the contrary, as per statement of the respondent Pushpa Bai (DW-3) and her brother Madanlal (DW-2), the respondent's brother Madanlal had taken his sister (respondent) to drop her at her matrimonial home, but the appellant/husband refused to keep her and had asked ....rr~~'<^x '^ k—1-. Madanlal (DW-2) to take his sister (respondent) back along with him, otherwise he (appellant) will pour kerosene oil upon her and set her ablaze. On hearing this, Madanlal (DW-2) had brought his sister (respondent) back. 13. The appellant/husband had denied that any meeting of their Chandrakar community was ever convened at his instance, but contrary to this, brother of the appellant Surendra Kumar (PW-2) has admitted in para-3 of his statement that they had convened a meeting of their Chandrakar community to decide about frequent going to her maternal home by the respondent and leveling of false charges against the appellant and his family members. The appellant (PW-1) and his brother Surendra Kumar (PW-2) have stated that the respondenVwife used to level false charges against the appellant that he is having illicit relationship with his mother and her brother-in- laws keep an evil eye on her. However, there is no pleading on this point in the application for divorce and thus, in the absence of such pleading, no amount of evidence can be looked into and the statements made by the appellant (PW-1) and his brother Surendra Kumar (PW-2) are nothing but an afterthought. 14. From the statements of Ombai Chandrakar (DW-1), Gendlal (DW-4) and Khilawan Chandrakar (DW-5), it is clear that at the instance of respondent Pushpa Bai, a meeting of the Chandrakar community was convened, in which a decision was taken that respondent Pushpa Bai and Meena Bai should be sent back to their husbands i.e. appellant Vijay Kumar and ^—^. ^,^,.^^.^^ respondent Madanlal had taken his sister (respondent) with intent to drop her at the appellant's home, but the appellant refused to keep her and had asked his brother-in-law Madanlal (DW-2) to take his sister (respondent) along with him, otherwise he (appellant) after pouring kerosene oil on the respondent, will set her ablaze, and hearing this, Madanlal (DW-2) had brought his sister (respondent) back. 15. Ombai Chandrakar (DW-1) and Gendlal (DW-4) have also stated that pursuant to the decision taken by the Chandrakar community in its meeting convened at the instance of the respondent/wife, that Ombai (DW-1) and Gendlal (DW-4) had taken respondent Pushpa Bai along with them to drop her at her matrimonial home at Village - Chhati, but the appellant/husband had refused to keep her, on account of which the appellant/husband was expelled from the community, against which he had filed an appeal and the same was also decided against the appellant with a direction to him to keep his wife (respondent) along with him. The appellant/husband in his statement has stated in clear words that in any case, he is not ready to keep his wife (respondent) along with him and he wants divorce from her. 16. Thus, from the above evidence on record, it is clear that resppndent/wife Pushpa Bai had not withdrawn herself from the company of her husband (appellant) and had not deserted him without any sufficient cause. But, on the contrary, without any reasonable cause, the appeNant/husband had got his wife %.. 1 1 W-^J r;^ 17. 18. (respondent) dropped at her maternal home and there's refused to take her back in her matrimonial home. As such, the appellant/husband has been unsuccessful in establishing any ground of desertion on the part of respondenVwife for obtaining a decree of divorce for dissolution of marriage. The finding recorded by the Family Court suffers from no illegality or legal infirmity, calling for any interference by this Court and the same deserves to be affirmed. In the result, the appeal being devoid of any substance is hereby dismissed. No order as to costs. Additional Registrar (Judicial) is directed to draw a decree accordingly. Sd/- l^.Quddusi Judge Sd/- G.Minhajuddin Judge !<7