rr y\^ A&^_ HI&H COURT OF CHHATTIS^ARH A.T BIL.ASPUR &B: Hon'bl®Mr.T.P.Sharma & Hon'bte Mr.R.N.ChQndrakc&r, JJ. Flrst Anpe.ai (M) No.41 of Kam!eshwari Bai Versus Peeluram JUD^MENT FOR CONSIDERATION^ Sd/- T.P. Sharma Judge ? /10/200T Hw'b!®Mr., R. N, Chondr-QkQr 3 Sd/- R.N. Chandrakar Judge ^ /10/2009 Post for Judgme.nt on ':j^ /l0/2009 M^- •'^ HI^H COURT QF CHHATTES^RH AT :BILASPUR Flrst App@ffl! m} No-.4l ef 2008 DB: Hon-'bleMr.T.P. Sharma & Hon'bte Mr. R. N.ChesndrQkar. JJ. A5Bellant Kamteshwari Bai W/o Peeiuram Sahu aged about 33 yaars R/o Village 'Mohara, Post and Tahsii-^uryr .Dist- Durg (C.©.) Versys Respondent PeeSuram S/o Latkhor Sahu aged about 37 years &/o vi 1-1090 Teligundara Tahsil ^ Police Station - Patan Dist-Durg (FIRST APPEAL UNDER SECTEGN 19 (1) OF THE FAAULY COURTS ACT 1984) Pr'esent : Aftr. ATul Pandey, counsel for the appeSJant. Mr.N,S,Dhurandhar, counsel for the respondent. & ^.. JydQme-nt (Delivered on y^Octffber', 2009) The judgment of the Court was deilyered by T.P.Sharma. J.s- L This first appeal under Section 19 (1) of the Famiiy Courts Act, 1984 (in short.'the Act, i984') is directed against the Judgment <& decree dated 28.12.2007 passed by the First AdditionaJ PrinclpQ! Judge, FamiSy Court, Durg, in Civi! Suit No.l9A/07, whereby & whereynder iearned First Additiona! Principa! Judge haspassed decree of dlvorce. 2. The defcndant/appeibnt has chalJenged-the Jud9ment& decree of diyorce on the ground that •without there -being any • eyidence of w f" !^ <' cruelty <snd desertlon, the Court beiow has passed^ and thereby committed s!legality. 3; Brief facts of the partsesas per pleading are fhat the dppelbnt and the respondent are iHindus and legally wedded w Marrsage was sotemnized in 1+ie year 1993- Two childrcn were born out of the wedlock of the partles. Without c&ny ^^^ preserit ^ appeSlant has deserted the respondent "and ; ;went. to' her pcrtemdl:^<"? house: TTie present <ypel!ant was not ready to adjust in poor family of ^ the respc^ndent and has started commi+tin9 crue!tyr. She refused to go to fieid for work and she was in habit of frequent visst to her parental house. The respondent has,tnedlhisleve!;best;to r'eso.ive the probSem, but the appelfant was adamant and fsnatlysh^bdgedafatee report of demand of'dowry'ogaJnst the. responderit ond Jiis|re!atjyes. • The respondent and. hisTelatJves w€re'l<icquitt^|^Q^f-the, charges.. The oppe!!ant has deserted • the^; respo^i^.a^d'^ f<xHed - :to /discharge' her ••^' maritai ob^ation without ony reasortabte and cog^nt^^^^^r^ ground of cruelt^ ond deSertion, continue of mQrite! relcrt^on Wa^ "ot possible. On 1tie aforesak! basis, ^®respondent^has file^^^^^ for dissolution of marriage by a,decree of dwwce. ' ; y 4. Thc present appetiant has contesl^^ ^ suit and denied the aSSegatlon made-by..the;^sp^^ent. She she has neyer deserted-or commltt^d cruelt^:--:upon the ^r The present respondent has married with cyilQther woman nameiY Sumltra Bai oind he wcis;,rtessdin9 with\ her^^ The r|spondfen1'; u'sed td commit cruelty upon the-'^R^yant :Gnd;-us@d her-;.^Rrsa!!y, the respondent oustBd the-appelbnt fromhis^house ond .at: 'pre^ent, the c^peilant is resjding in her parental hoyse Bnder corTipuSs^^ respondent has demari!ded ^ Rs.50,000/T,.and^^ cruelty upon her, therefore, she lodged a repdrt c^ainst the respondent. The appellant is ready ta |jye with the respohdent and :A •^. ready to discharge marita! obligation. The present appeijant came to' know that the responclent has left Sumitra Bai, therefore, she is ready to !ive with the respondent. 5. On the basis of averments made by the parties, Jssued were framed and after affording an opportunity of adducing evidence end hearing to the parties/leQrned Flr'st Additsona! Princspal Jydge/Family Court; ^ Durg has passed a decree of dissolution of marriage by a decree of .divorce. 6» ¥/e have heard :learned counseJ for the parties and peruse.d the judgment A decree impugned and record of the Court beSow. Z Learned • counse! for the Qppe!!ant vehementJy -a^gyed 1+ioit the oppellant has not committed any cruelt^ or has not d^serted the respohdent, but the respondent himseif has ^committed crye!t/ and has ousted the appejbnt from his house, Learned counse! further argued' that 1+ie respondent has remarried with Sumitra Bai. The appe!!ant is residing in her parenta! house under compulsjon and the respondent has left and deserted her. Learned coynsel placed reliance in the matter of Shycsm Surrisr Xohll; y, Su^hma. Kohli @ Satya D®vj in which l^s Apex Court has held that on the grouncl of irretrievable breakdown, th@ Court musf not IJghtiy dissolve a marriage. It is only in extreme cjrcumstances that the Court may use this ground for dissolvsng a marrsage and jn the absence of evldence' of desertion by opposite party, a marriQge cannot be dlssolyed. Learned counsei further placed reliance ^in the matter of SCrlshan Kumar v. Shankari2 ;in which ths High Court of Deihi has hsld that institution of crlminal proceedings by wife wouid not by constitute crueSty and even if there was acquitta! in criminal proceedings by itself would not constitute cruelty, ''ii (2004)DMc 586 (SC) 'II (2007)DMc 367 ^''"•,4_._,____,__„„_ ¥ 8. On theol+ier hand, learned counsel forthe respondentsupportedthe Judgment & decree Qnd argued that the present Gppeltant has i^illfuliy deserted the respondent and has commiti'ed cruelty wsth a view to harass him. The appel!ant has bdged a f<ilse report of commsssion of offence in which the respondent and his reiatjyes were finally acqujtted- The present appeliant has dragged the respondent and his •i^ rebtives in the Court without fhere being any reasonable cause. Contjnuous of moritai rebtion between 1+ie parties would not be possibte and the on!y recourse jeft to the parties is dissoiution of marriage by a decree of dlvorce, Learned counsel further submits that the appelbnt has fiiedan oppJscation for maintenance, but the same has been dismissed by 1+ie Judicial Magsstrate First Cbss, Ba!od on the ground that the appe!!ant Is not resicling separately from the respondent under reasonable cause. 9- In order to cypreciate the contentions of the parties/ we have examined the eyidence available on record. Respondent Smt.Kamieshwari has exdmined herself and has deposed that she had marned with the respohdent and out of the wedbck betyyeen the parties, two children were born, one is Qged about 13 and second is aged about 11 years. Both are residing with the respondent. She herseSf is reslding in viliage Mohara. The present re^pondent has remorried with Sumitra Bai and was resEdln9 with her/butat prcsent the respondent has left Sumitra. She has also deposed that the respondent used to beat-her She has conyened viHage meetin9 where viiiogers advised both the parties to !ive Jointiy. She has specifically deposed that nurse Sumitra is presently leaving with her husband, thereforc, she is ready to liye with the responden+ Appeilant witness binesh Kumor Sahu has deposed that before two years, the respondent has convened vjijage meeting in which he wos present Persons from both the parties were also present. The respondent was h— residing with nurse Sumitra and was i!!icit relation with Sumitra, at that time nurse Sumitra was reslding in the house of the resptfndent and the appellant was also residing in the house of the respondent, After sometime/ the respondent refused to> live with Sumitra Bai and at present Sumitra is residjn9 with her husbdnd at TgJigundra. iO<The present respondent has abo exGmin^d himself and has deposed that behavior of the GppeEiont was not nor(mal. She refused to work in the fieJd. She was in habit to 30 frequently to her parenta! house and wheneyer the respondent went to the parental hbusB of the QppeISant for taking her back, she refused to come back. She has bdged a false report before 1tie poilce and has dragged the respondent and his relatiyes in the Court where they were finally acqustt-ed. She has a!so fited an c^plication for mointenance, but the same vhas been dismissed- She has leveiied false charge of illicit relation with Sumitra Bai. Smt.Keshar Bai (mother of the respondent) has corroborated the statement of the respondent, ll.^ieQppeSbnthas admJtted in her cross-examination that she is residing in her parental house since year 2000 ond has visited the yillage of the respondent for 7 to 8 times to see her children, She did not know after JeQving the house of the respondent that the respondent is reslding with any woman or not. She has admttted iodging of report and fiiing an appiication for mointenance/which has been djsmissed. She has deposed that the respondent used to commit torture, therefore, she has !eft his house. The appellant wjtness Dinesh Kumar Sahu has a!so admitt'ed in his cross-examination that the appeHant is residsng in her parental house ssnce 7 years. The respondent has admitted in para-7 of his cross-examination that he has not filed any petition for restitution of conjugal rights. The respondent has deposed in his evidence that whenever he directed the appeilant to work jn the field/she refu^^d. The respondent has 6 ^ denied the suggestion of crueltY and torture and has^ specsficqlly admitted that even if the appetiant wiiE ready to liye with .hirn/ he is not ready to keep her. Mother of the respondent has aiso admitted in her cross-examination that eyen if the appe^llant wi!! ready to !iye with hls son, -S+ien they are not ready to keep her She has denied the allegation of remarrs^e of her son with nurse Sumitra Bai.The respondent has oJso denied Qny relation wi+h Sumitra Bai. 12.The eyidence adduc^d on behatf of the parties reveals that the present appeJlant has lodged a report against the respondent and his rebtiyes <md prosecutlon has been launched at the instance of the appeilant. While dealing with the question of crue!ty by institution of crlmina! proceedlngs by wife, the High Court of Delhs m the matter of Krlshdn (syprcs) has he!d lfe<rt instttution of crwinal proceedings by wife wouEd not by itself constltute cmelty and even the acquittal in criminal proceedsngs by itseif wouid not CQnstitute crueity. 13.1nvokingof tegaS remedy by the parties cannot be termed as crueity unless the same Is buhched maiafideJy and with a view to harass and torture the opposite porty. 14.In the present CQSC, the respondent and his witness have not adduced any evidence to show that the appellant has intentionally or malafidely launched the prosecufion with a view to harass and torture the respondent. In absence of such evsdence, we are unable to accept such launching of prosecution as a ground of cruelt^. 15.The eyjdence adduced on behaif of both the parties reveQls that financial status of the respondent and his famsly is low in comparison to the fsnancial status of the appellanfs parents. In such a situation, 1+»ere may be some dispute, but 1+tis type of dispute does not constitute 'srretrievable breakdown of marriage and trifle dispute may be resolyed by the parties with the help of senior members of ^r ^' the community and societ/, but the eyidence adduced on behaif of 1+ie respondent reyea!s that he has not tried for conyenjng caste ^eeting or society meeting to resolve the problem The present cypeliQnt has leyelled the ollegation upon ttie respondent that hewas residing with one nurse Sumitra Bai/ but presently he has !eft Sumitra Bai which the present respondent and his witness have denied. 16.The presentcypeJtanthas not examined Sumitra Bal The eyidence adduced on behaif of the appelfant reyeals that Sumitra Bas was iiving with the present respondent for sometime, but at present she is liyinn yyith her husband. In these circumstQLnces/it is djfficult for the appeilant to examine Sumitra Bai in support of her cbim/ but non- examination of nurse Sumitra Bai stself is not crueit/.-su^ficient for dissolution of marriage by a decree of divorce. On the bi^er hand, the present respondent has not taken thss ground m phint/petition fordissolution of marrsage by a decree of divorce, 1+ierefor€/sn the absence ofany pleading and issue, this ground is a!so not ayaibble to the respondent- A IZBoth the parties haye admitted that they are residing separately since 2000. According to cbim of the appeibnt, she is resjding separately on the ground of crueity and tortyre. The evidence adduced on behalf of the parties is not sufficjent to prove the fact that the present appellant is residing separateSy from her husband and has deserted her husband for a continuous period not less than two years without Ifiiere being any reasonable and cogent reason^ The present appel'ant has not fi!ed any petition for restitution of conjugal rights» IS.The Hindu marriage is sacrament and not a contract and may be dissoiyed by a decree of diyorce on the ground GvailabSe under ^ ^ B/- Section 13 of the Act, 1955 and m the absence of such ground, any marriage between Hindu cannot bedissolved by decree of diyorce. 19. For the foregoing reasons, the respondent has not estabiished the ground of crueity or desertjon for dissolution of marriage. The Court below has not considered t4ie evidence adduced on behalf of the parties and reached into wrong conclusion that 1+ie appellont has committ'ed cruelt/ upon the respondent. The Court below has a!so not considered the material fact that in absence of pjeading and evidence, ground of cruejty on the basis of allegation of illjcit retation with Sumitra Bai was not ayaitable to the respondent. 20.As Q result, the Judgment <& decree for dissoJution of marriage by decree of divorce is not sustainable under the !aw and fa liabSe to be set aside. Accordingjy, the appea! is albwed. The judgment & decree impugned is hereby set aside. Parties shai! bear theirk own costs. Advocate fee as per scheduje. Decree be drawn up accordsngly. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge