HIGH COURT OF CHHATTISGARH AT BILASPUR ^ Division Bench: Hon'ble Shri T.P. Sharma, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal (MlNo.99of2008 Appellant Bulakilal Respondent Vs. Smt. Anita @ Nita Tamrakar JUDGMENT FOR CONSIDERATF Hon'ble Shri Rananath Chandrakar. J ^) ' Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Post for pronouncement of judgment on 1 S-2-2010 Sd/- T.P. Sharma Judge ^•" HIGH COURT OF CHHARTTISGARH AT BILASPUR CORAM: HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI RANGNATH CHANDRAKAR, JJ First Appeal (M) No. 99 of 2008 Appellant Bulakilal, aged 53 years, son of late Shri Ramchandra Chauhan, Assistant Grade III, Water Resources Deptt., Resident of Tamerpara, Durg (CG). Versus Respondent Smt. Anita alias Nita Tamrakar, wife of Bulakilal, Assistant Teacher, Mahabir Jain Higher Secondary SchooI,Durg, Resident of Baraipara, Durg (CG). {Appeal under Section 19 (1) ofthe Family CourtAct, 1984) Present: Shri H.B. Agrawal, Sr. Advocate with Shri B.K Chakraborty, counsel for the appellant. Shri S.C. Verma, counsel for the respondent. JUDGMENT (Delivered on ^ day of February, 2010) Per T.P. Sharma. J. By this appeal under Section 19 (1) cf the Family Court Act, 1984, the appellant has challenged the judgment and decree of dissolution of marriage by a decree of divorce dated 5-5-2008 passed by Principal Judge, Family Court, Durg, in civil suit No. 258-A/2007. The decree is impugned on the ground that the court below has not considered the proved fact of cruelty committed by the respondent upon the appellant and thereby committed illegality. ^~^ 1 ^ 2) Brief facts necessary for disposal of this appeal are that as per pteadings of the parties, the parties are legally wedded spouses, their marriage was solemnized according to Hindu Rights and customs on 2-6- 1996 and after marriage they resided together. As per pleadings of the appellant, the respondent was not consented for marriage and under pressure of her brother her marriage was solemnized with the appellant. She is residing at Durg in a rented house and she has refused for cohabitation. The respondent deserted the appellant without any reasonable cause and the marriage was not consummated. The respondent has failed to discharge her marital obligation. On the aforesaid grounds, the appellant has filed this appeal for dissolution of marriage by a decree of divorce. 3) The allegation made in the petition has been denied by the respondent and she never committed any cruelty and she has not consented for her marriage under pressure of her brother and the appellant has committed cruelty and torture upon her. Even the appellant has not mentioned the name of the respondent as nominee in his service record with a view to debar her claim. The appellant has never refused for cohabitation and she has discharged her marital obligation. • 4) On the basis of averments made by the parties, issues were framed and afteraffording an opportunity of hearing to the parties, learned Judge, Family Court has dismissed the petition for dissolution of marriage by a decree of divorce on the ground that the appellant has not proved the cruelty andwillful desertion committed by the respondent. 5) We have heard Shri H.B. Agrawal, learned Sr. Advocate with Shri B.K. Chakraborty, learned counsel for the appellant and Shri S.C.Verma, ^g learned counsel for the respondent, perused the judgment & decree and record of the Family Court 6) Learned counsel appearing for the appellant vehemently argues that the appellant has proved the factum of cruelty and desertion committed by the respondent by adducing cogent and reliable evidence, but thecourt below has not considered the proved case of torture, cruelty and desertion committed by the respondent. 7) On the other hand, learned counsel appearing for the respondent vehemently opposed the appeal and submitted that the respondent has not committed any cruelty and actually cruelty is committed by the appellant whichis proved by appellant himself. Para 11 of his evjdence reveals that the appellant has sent one letter addressed to the respondent to her school address, but at the time the respondent was residing with the appellant which shows thathook or crook the appellant was creating the evidence against the respondent which itself is cruelty. 8) In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. Dissolution of marriage has been claimed on the ground of cruelty and willful desertion on behalf of the respondent. Both the parties have made allegations against each other. Both the parties led their evidence to show that opposite party has deserted, but none of the parties has filed the petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal Rights. In absence of any specific denial or specific legal action, it is difficult to hold that any of the party has deserted willfully the opposite party. As regards the commission of cruelty is concerned, the appellant has specifically pleaded that the respondent has failed to discharge her marital obligation and even marriage has not beencpnsummated. She has not ^-^•%.\ submitted herself for cohabitation. The appellant has deposed in his evidence the aforesaid facts, but has not asked any question to respondent relating to the aforesaid facts. Inter alia, the respondent has specifically pleaded and deposed in her evidence that she has discharged her marital obligation (patidharm). In absence of any suggestion on behalf of the appellant, it is difficult to hold that the marriage has not been consummated or respondent has failed to discharge her marital obligation. This fact itself suffices the allegation that under pressureof her brother, the respondent has consented for marriage. Both the parties have made counter allegations relating to improper andunwanted behaviour. The marital life is a mission, irritate behaviour, some trivial dispute lacking proper behaviour are not only common in marital life, but are very natural, but these are not sufficient for breaking down the matrimonial tie. 9) In the present case, the appellant has not made any specific allegation, except the allegation that the respondent has failed to discharge her marital obligation which is unfounded. In absenceofany substantial evidence of cruelty, the couri: below hasTightly dismissed the petition for dissolution of marriage by a decree of divorce. In our considered view the Court below has not committed any illegality or irregularity in dismissing the petition. 10) For the foregoing reasons, the appeal being devoid of merits is liable to be dismissed and it is hereby dismissed. Parties shall bear their own costs. Advocate fee as per schedule. 11) Decree be drawn up accordingly. Raju Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge