i»,»—*^n^B" HIGH COURT OF CHHATTESSARH AT BILASPUR First Appeal No. 173 of 2004 Appellant Somesh Shukla Respondent Versus Smt.Seeta Shukla th Post for pronouncement of order on 14T" May, 2009 T.P. Sharma "'n. HI6H COURT OF CHHATTIS6ARH AT BILASPUR First AppealNo. 173 of 2004 SB : Hon'ble Mr. T.P. Sharma, J. Appellant Somesh Shukla aged about 26 years, S/o Sajadhar Prasad Shukla, R/o Adhbhar, Thana and Tahsil Malkharoda, Distt.Janjgir Champa (C.6.) Versus Respondent G Smt. Seeta Shukla w/o Somesh Shukla aged about 23 years, R/o Akaltara, Distt. Janjgir Champa C/o Suresh Kumar Tiwari, Pan Bhandar, Near Railway Station, Akaltara, Distt.Jangjir Champa (FIRST APPEAL UNbER SECTCON 28 OF THE HINDU MARRIAGE ACT, 1955) Present : Mr. Parag Kotecha, counsel for the appellant. Mr.Harsh Vardhan Sharma, counsel for the respondent. Judgment (Delivered on 14th May, 2009) This appeal is directed against the judgment i& decree dated 21.9.2004 passed by the Additional District Judge, Sakti, in Civil Suit No.lOA/2004 whereby learned Additional Distnct Judge has dismissed the suit for dissolution of marriage by a decree of divorce filed on behalf of the present applicant i.e. husband of the respondent on the ground of mental torture. 2. Judgement & decree is challenged on the ground that the Court below has not considered the evidence adduced on behalf of the ^y) appellant relating to mental cruelty committed by the respondent by not discharging her marital obligation i.e. cohabitation. 3. I have heard learned counsel appearing for the parties and perused the record of the Court below. 4. According to case of the parties, the appellant and the respondent are husband and wife governed by Hindu Law. Suit for dissolution of marriage by a decree of divorce was filed by the appellant against the respondent/wife on the ground that after solemnizing the marriage, the respondent has refused to cohabit and faited to discharge her marital obligation and the respondent is also not in a position to discharge the marital obligation on the ground of disability. Allegation of complaint is denied by the respondent and specifically alleged that she has discharged her marital obligation and submitted herself for cohabitation and she is not suffering frorn any sexual disease or disability, but the appellant has committed unnatural sexual act and has committed cruelty upon her. The respondent is fully competent for physical relation and sexual relation. The appellant has also committed cruelty in connection with demand of dowry. 5. Issues on the basis of pleadings have been framed and after affording an opportunity of adducing evidence and arguments, suit for dissolution of marriage by a decree of divorce was dismissed. 6. Learned counsel appearing for the appellant argued that the respondent i.e. wife of the appellant has utterly failed to discharge her marital obligation. She has failed to surrender herself for cohabitation and even she is not fit for cohabitation. She is suffering from intemal disability. She is not living with the appellant since 2003 and has deserted the appellant. Learned counsel further submits that .•»8 .-^T the act of the respondent falls within the purview of mental cruelt/ and therefore, the appellant is entitled for dissolution of marriage by a decree of divorce on the ground of mental torture. 7. Learned counsel appearing for the appellant placed reliance on the decision of the Apex Court in the matter of Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi in which the Apex Court while dealing with the question of desertion has held that neglection by the spouse would amount a legal desertion. Leamed counsel further placed reliance on the decision of the Apex Court in the matter of Parveen Mehta v. Inderjit Mehta in which the Apex Court while dealing with the question of mental cruelty has held that mental cruelty is a state of mind and feelings and is therefore necessarily a matter of inference to be drawn from the facts and circumstances of the case. Mental cruelty could be the result of an extremely stubborn attitude, and/or inexplicable and unreasonable conduct on the part of a spouse. Refusal of normal cohabitation by spouse is also mental cruelty. Learned counsel also placed reliance on the decision of the Apex Court in the matter of Naveen Kohli v. Neelu Lohli in which the Apex Court while dealing with the question of mental cruelty has held that a cruelty means conduct complained of should be grave and weighty, not ordinary war and tear of married life. Conduct should be such that no reasonable person would tolerate it. 8. On the other hand, learned counsel appearing for the respondent supported the impugned judgment & decree and argued that the appellant has committed cruelty and is committing cruelty upon the respondent. The appellant has also deserted the respondent. The respondent has surrendered herself for cohabitation. Parties '(2002) 1 SCC 308 2(2002) 5 SCC 706 3AIR 2006 SC 1675 v\ "t have consumed the marriage, but the appellant has compelled the respondent for unnatural sexual relation and committed mental cruelty. The appellant has filed a suit for divorce within 2 years of the marriage on the ground of desertion. Same is premature in terms of clause (ib) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955. 9. Parties have adduced their evidence. Divorce was claimed by the appellant on the ground of mental cruelty i.e. refusal for cohabitation and physicat disability of the respondent. The appellant has examined himself as a witness in which he has deposed that first day of marriage the respondent has refused for cohabitation and she is suffering from infental uterus. She is not competent to discharge her man'tal obligation. The appellant has also deposed that from 3.4.2004 she has deserted him. The appellant has proved the medical certificate Ex.P/1. The respondent has also examined herself who has deposed that she has discharged her man'tal obligation and submitted herself for cohabitation but the appellant is in habit of committing unnatural sexual relation. But on the ground of newly mam'age, she has not informed unnatural behave and unnatural activity of the appellant to her relatives. She is not suffering from any disability. The doctor has examined her and filed report i.e. Ex.D/1. Even she has stated that there is no future of widow and divorce wife in the Hindu Brahmin Family. 10. The appellant has admitted in para-10 of his cross-examination that it is wrong that the non-applicant/respondent is not competent for cohabitation. He himself has admitted in para-13 of his cross-examination that his wife is suffering from only of excessive sleepness (recline). On the other hand, the respondent has specifically stated in para-7 of her cross-examination that she was ,tlli" ready for cohabitation and the appellant has consumed his marriage with the respondent by cohabitation, but when the appellant has tried for unnatural cohabitation/sexual relation, she used to oppose. Both the parties have filed medical reports i.e. Ex.P/1 and Ex.D/1. Ex.P/1 is report of br.Rajnala in which nothing has been written to show the disability of the respondent. Ex.D/1 shows normal feature of the internal organ of the respondent. 11. The present appellant has not adduced any evidence to the effect that the respondent is having any abnormality especially relating to internal organ enabling her for cohabitation. The appellant himself has admitted in his cross-examination that except the excessive sleepness, the respondent is having no any disease. 12. Admittedly, suit for divorce has been filed on 18.6.2004 and marriage was solemnized on 5.5.2003 i.e. within two years of their marriage in terms of clause (ib) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955. The parties are not entitled for divorce on the ground of desertion within two years of their marital life. 13. As regards the question of mental cruelty is concerned, the appellant has not adduced any evidence to show that the respondent has committed any mental torture or has not surrendered himself for cohabitation or even she is not fit for cohabitation. The appellant has left the respondent within 8 or 9 months of their marriage. 14. The order dated 22.8.2004 of the Additional District Judge, Sakti reveals that the Court has tried for reconciliation and the respondent was ready to go with the appellant for discharging her marital obligation as wife without any condition, but the present appellant has refused for reconciliation, which shows that the riss'p^?^ ;:SS5Ss: ii -:L'?-^^H ^' 's^ g' "^•^s^;" ^ appellant is committing mental cruelty upon the respondent. The appellant is interested only for dissolution of marriage by a decree of divorce. 15. On the basis of evidence adduced on behalf of the parties, the learned Additional District Judge has rightly dismissed the suit for dissolution of marriage by a decree of divorce. Leamed Additional District Judge has not committed any illegality in the judgment & decree impugned. I do not find any substance in the appeal. 16. Consequently, the appeal being devoid of merit is liable to be dismissed and it hereby dismissed with cost. Decree be drawn accordingly. Sd/- T.P. Sharma B/-