HIGH COURT OF CHHATTISGARH AT BILASPUR Firsf Aggeal No. 187 l 2003 Digvijaydas Vaishncv Vs. Sm'r. Shmddha Vaishnov Pas? for Order: 02.04.2007 x xx 8w. 1 EDilip Raosaheb Deshmukln f \ 4"* Judge”""i ‘ 3 z l J ‘ , , HIGH COURT OF CHHATTISGARH AT BILASPUR - Shri P. Diwakar, ieamed Sr. Counsel with Kunai Das, aoun3el for the appellant. Shri R. S. Bahel, Caunsel for e resondent. g th p (Delivered on th “”‘day of April, 27) is 01 00 This appeal is directeri against the judgment dated 9.9.2003 delivered by Additianal District Judge, Khairagarh, istt. Rajnandgaon in Civil Sdit No. 6-A/2001 whreby the application under Sectione13 of the Hindu Marriage Act led by the appellant/husba was dismissed. 2. The appellant herein had med n application under Section 13 of the Hindu Marriage Act on tw grounds namely- (a) that after the solemnization of the marriage, the non-appiicant had voluntary sexual intercourse with one Riturai and (b) that after soiemnization of the marriage, the non-applicant had treated the appellant with cruelty. 3. I it is not disputed that on 19.5.1991, marriage was. solemnized according to Hindu customs between the appeiiant and the respondenti’non-applicant and two sons were born out of their marital wedlock. The hrst son was born on 5.8.1992 and the second son on 8.4.1995. Thereafter, the respondent had undergone (steriiization} famiiy Present: JUDGMENT D e fi nd a o First Appeal No. 18712003 Sin 1e Bench: Hon’bleShriDili Raosaheb Deshmukh J. AppeHant Digvijaydas Vaishnav, S/o Late Gangadas (Applicant in the Vaishnav, Aged about 35 years, R/o Court below) Viilage Kanhlatcla. RS. 8: Tehsii2Chhuikhadan, District-Rajnandgaon (C.G.) VERSUS Respondent Smt. Shraddha Vaishnav, Wa’o Digvijaydas (Non-applicant in Vaishnav, Aged about 29 years, RIO court below) Viuage-Biranpur (khurd), RS. Mandai, Tehsil-Chhuikhadan. DiQrict-Rajnandgaon, (C.G.) 2 planning apeaatien. In 1998 the appeHant, a teacher. was transferred to village Saradhi, Tahsi! Chhuikhadan, District Rajnandgaon and the respondent iived in her matrimonia! house, viHage Kamaiela, with her methe{.€n-!aw and brother‘in-iaw. 4. AppellantJapplicant contended before the tower Court that on 23.4.2000, First Information Report was lodged by the Resoondenb’non- apptieant that on 22.4.2000 at 2.00 PM, one Rituraj had forcibly entered into the house and committed rape on hef. On the basis of the said report, criminai prosecution $.T. No. 20612000 was lodged against Rituraj under Section-376 of l.P.C. The prosecutrix i.e. the respondent/non- applicant herein was not examined by the prosecution in the aforesaid Session Trial which resulted in acquittai. Reliance was placed by the appeltant on some ietters alleged to have been written by Ritura} to the respondent and the admission made by the respondentlnon-applicant before the panchas about having illicit relationship with Rituraj. This was borne out from the teetimony of AW-z, AW-3 and AW—4. it was also contended that at the behest of Rituraj the respondent/non~applicant administered certain medicines to the appellant to eliminate him and in this manner acted with cruelty. \. 5. The respondentinon —applicant refuted the above aliegations in toto and contended that she was continuously harassed by the appellant/applicant and his brother Bharat Das Vaishnav who was an Advocate. Bharat Das Vaishnav used to threaten to sexually assault her. She never had any iliioit relationship with Rituraj and she was forced to sign the F.l.R. which was aiso lodged by the appellant herein. lt was aiso denied that she ever received any ietters or obtained any medicines from Rituraj and administered it to the appellant to cause harm to his health. it was also specifically denied that the respondent herein ever admitted her illicit sexual relationship with Rituraj in the Baithka. 6. Besides examining himself, the appellant herein examined Chandrasekhar Das Vaishnav (A.W.2) a close relative, Raghav Das Vaishnav (A.W.3) a member of his community and'one Bhagelram o @ (A.W.4). The respondent examined herself in rebuttal and was crass- examiried by Bharat Das Vaishnav, Advocate against whom the respondent had levelted allegations of threatening lo sexually assault her. 7. The learned Additional Distriet Judge, Khairagarh; on the basis 0f a well reasoned order, recorded a finding that the appellant herein had failed te establish that the respondent-wife had voluntarily indulged in sexual relationship with Rituraj. it also held that the possibility that the letter Ex.P.16 was got written from the respondent per force, could not bzruied I out. in the absence of any evidence to prove that the letters Ex.P.14 and P.15 were written by Rituraj, it recorded a finding that the appellant herein had failed to prove any act of cruelty on the part of the respondent-wife. Consequentiy, it dismissed the application under Section 13 of the Hindu Marriage Act. 8r Shri Kunal Das, learned counsel for the appellant, at the very threshold conceded that the appellant had faiied to establish the ground under Section 13(1)(i) of the Hindu Marriage Act, 1955. He assailed the impugned order only on the ground that the letters written by Rituraj Ex.P.14 and P.15 and the admissions made by the respondent-wife before the witnesses examined by the appellant herein clearly established that the respondent-wife used to administer some medicine in the food to her husband to cause harm to his iife. lt was also argued that the letters Ex.P.14 and P.15 clearly proved an act of crueity towards the husband by the respondent-wife. On the other hand, Shri R.$.Baghei, learned counsel for the respondent argued in support of the impugned order. 9. Having heard the rival contentions, l have perused the record of Civil Suit No.6—A of 2001. ln view of the fact that the ground under Section 13 (1) G) of the Hindu Marriage Act has been given up by the learned counsel for the appellant in this appeal, the only question that requires i consideration is whether the appellant has established that he was treated with cruelty by the respondent-wife after solemnization of the marriage. />i Ww; vas /,, @ 10. It is not disputed that the marriage was soiemnizad between the twc spouses on 19.5.1991 and the first son was bom on 05.08.1992 and the secand on 08.04.1995 and thereafter the respondent-wife ‘had undergone a steriiization opefation. It would thus appear that after their marriage the two spouses were iiving happily. The testimony of Chandraeekhar Das Vaishnav (A.W.2) dearly goes to show that no conflict ever arose between the two spouses. it is therefore difficult to comprehend that the respondent herein would administer any medioine to her husband to cause harm to his life. From the facts and oircumstances, it is clearly seen that the trouble started when the appellant left Kohiatola on transfer and lived alone at Sarodhi, his place of posting. 11. lt is pertinent to note that in his testimony, the appellant Digvijay Des has not stated anywhere that the respondent-wife had administered some medicine to him in the food which had shown its ill~effects on his health. The testimony of Chandrasekhar Das Vaishnav (AM/.2). Raghav Das Vaishnav (A.W.3) and Bhagelram (A.W.4) is also silent on this point. All these witnesses state that Shradclha Vaishnav had admitted in the Baithka that the letters Ex.P.14 and P.15 were written by Rituraj in which it was written that she should administer some medicine to her husband so that he becomes mad. However, there is absolutely noevidenoe to prove that the letters Ex.P.f4 and P.15 were written by Rituraj. Digviiay Das has neither examined a hand-writing expert nor produced any undisputed hand-writings of Rituraj so as to establish that letters Ex.P.14 and P.15 are written by Rituraj. in the absence of any evidence to show that even in the Baithka , the appellant had alleged that his wife Shraddha Vaishnav had administered some medicine to him in the food which had caused any harm to his health, the allegation levelled by the appellant is .f r rendered completely false. 12. A perusal of the judgment of the Sessions Court Ex.p.19 shows that Shraddha Vaishnav was neither examined by the prosecution nor any serious efforts made to produce her before the Court. The possibility that the F.l.R. was concocted could also not be ruled out. in the facts and circumstances of this case. it is difficult to believe that a wife, who has a happy marfied {ife for eight years and has two sens out of their marital wediock and is (Wing peacefuuy with her husband, wouid induige in a sexua! reiation$hip with a stranger in fuH day light inside her own house where her mother-in-iaw and brother-in—iaw are also staying. The learned lower Court has given cogent reasons for reaching a conclusion that the possibility that the F.l.R. was got forcibly signed from shraddha Vaishnav could not be ruled out. l fully concur with the reasonings and nndings recorded by the learned Additional District Judge, Khairagarh that the appellant herein has failed to establish any act of cruelty by his wife Shradhha Vaishnav after the solemnization of his marriage. 13. Learned counsel for the appellant argued that there has been an irretrievable breakdown of marriage between the two spouses, and therefore, the dissolution of marriage was not only in the intereet of the parties but also in the interest of the society. Reliance was placed on Naveen Kholr‘ vs, Neelu Kohli (2006) 4 scc 558. However. the facts of the case do not show that there has been an irretrievable breakdown of marriage. The respondent-wife has clearly asserted in paragraph 22 ef her written statement that she wanted to live with the appellant and her sons to lead a happy family life. Rightly so because it is undisputed that the appellant and the respondent had a very happy family life after their marriage in the year 1991 till 1999. This is also borne out from the testimony of Raghav Das Vaishnav (A.W.2) and also from the fact that two sons were born out of their marital wedlock. lt appears that under the influence of Bharat Das Vaishnav, the F.l.R. was concocted and the present petition under section 13 of the Hindu Marriage Act is also an off- shoot of the same. The manner in which the respondent asserted that Bharat Vaishnav came and slept beside her and also the manner in which Bharat Vaishnav, an advocate, cross—examined the respondent at length on behalf of the appellant does not rule out the possibility that the respondent used to feel unsafe in her matrimonial home in the absence of her husband who was living and serving outside at village Sarodhi. Tahsil Chhuikhadan. District Rajnandgaon. Therefore, in the facts and circumstances, it cannot be said that there has been an irretrievable breakdown of marriage between the two spouses. \l‘ l l l . l Q9 14. In the fez-“Am, the we“ reasoned frndings recorded by the learned Additiona! District Judge, Khairagarh are afftrmed. The appeai being devoid of any merit is dismissed. d/ Sd/~ i g ‘EDilip Raosaheb Deshmukh; j i r i Judge i ya 1 i ] i i i i