^ \^' HIGH COURT OF CHHATTISGARH AT BtLASPUR ()/ Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal (M) No. 22 of 200S Appellant Anjan Choudhari Respondent Vs. Smt. Nupoor Choudhari JUDGMENT FOR CONSIDERATION Hon'ble Shri Dhirendra Mishra, J. SA'- R.N. Chandrakar Judge Sd/- Dhirendra Mishra Judge POST FOR JUDGMENT ON lS~"-6-2010 Sd^ JUDGE 1^/6/2010 HIGH COURT OF CHHARTTISGARH AT BlllASPUR CORAIVI: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri Rananath Chandrakar, JJ Appellant First Appeal (M) No. 22 of 2006 Anj<in Choudhari, S/o. M.K. Choudhari, aged about 30 years, r/o. Quarter No. 9/A-street No. 29, Sector -7, Bhilai Nagar, Distt. Durg (CG). Versus Respondent Smt. Nupoor Choudhari, w/o. Anjan Choudhari, aged about 28 years, r/o. Plat No. 8/12, near Housing Board, Kalibadi, Bhilai Nagar, Distt. Durg (CG). (Appeal under Section19 of the Family Court Act, 1984) Present: ShriVivek Sharma, counsel for the appellant. None for the respondent. JUDGMENT (Delivered on ^' 'dayofJune, 2010) Per Rangnath Chandrakar, J. By this appeal, the appellant challenges the legality and propriety of the impugned judgment and decree dated 24-8-2006 passed by Ist Additional Principal Judge, Durg, in Civil Suit No. 80-A/2005, whereby the petition filed by the appellant/husband under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 (for short, "the Act") for a decree of dissolution of marriage has been dismissed. 2) Brief facts necessary for disposal of this appeal are that the marriage between the appellant and the respondent was solemnized on 11-12-2000 according to Hindu rites and rituals. It is the allegationof V-'" the appellant/husband that from the beginnirig,^behaviour of the respondent/wife was not co-operative. She caused extreme mental agony to him and his family members within two months ofthe marriage. She was not interested even in preparing food and was so arrogant that whenever she demanded anything she got it fulfilled. Just after two months of the marriage, she left for her maternal house without the knowledge and consent of the appellanVhusband. Anyhow, the appellanVhusband brought her back but there was no improvement in her behaviour and she started abusing the old parents of the appellanVhusband. She not only asked the parents of the appellant to leave the house but also committedmarpit with them which caused intense mental agony to theappellant. All of a sudden, after six months of the marriage, the respondenVwife again left for her maternal house without the knowledge and consent of the appellant and when the appellanVhusband went to bring her back, she pressurized him to live separately from his parents, otherwise, threatened him to implicate in a false case for demand of dowry. The appellant/husband declined the same as he had to support his old parents; therefore, the respondent/wife did not return to her matrimonial house and lodged a false report against the appellant and his family members. The respondenVwtfe also filed a case for maintenance against the appellanVhusband. The appellant was always ready andwilling to lead the conjugal life with the respondenVwife but the respondent/wife did not discharge her martial obligations. The appellanVhusband tried his level best to reconcile the matter but all in vain. The above acts of the respondent/wife lowered down and tarnished the image of the appellant and his family in the society. Thus, the appellanti(tiusband- prayed for grant of decree of.dissolution of marriage on the ground of cruelty and desertion. 3) The respondent/wife filed written statement and denied the allegations made against her. She pleaded that she never visited her maternal house without permission of the appellant. She never pressurized the appellant/husband to live separately from his parents. She specifically pleaded that she never committed any cruelty on the appellant and his family members. She was subjected to cruelty for demand of dowry for which she had lodged a report against the appellant and his family members in Mahila Police Station, Durg and later on, the same was withdrawn on the request of the appellant and his family members. After some time, she was again subjected to cruelty and left to her maternal house; therefore, after waiting for some time, she again lodged a report against the appellant and his family members in Mahila Police Station, Durg, which was pending in the Court. She never filed a case for maintenance. She specifically pleaded that she is ready to live with the appellant if she would not be subjected to cruelty. 4) On the basis of averments made by the parties, issues were framed and after affording an opportunity of hearing to the parties, learned Judge, Family Court dismissed the application for grant of decree of dissolution of marriage holding that the appellant/husband failed to prove the factum of cruelty and desertion. <7 5) Learned counsel appearing for the appellaht^vehemently argues that the learned Family Court has not appreciated the evidence in its proper perspective. The Family Court ought to have held that the appellant proved the factum of cruelty committed by respondnet/wife. Learned counsel for the appellant drawing our attention towards the cross examination of the respondent/wife argued that the factum of cruelty and desertion was well established by the appellant/husband but the Family Court has ignored the same. There is ample evidence on record to show that the respondenVwife has been residing with her mother separately for the last six years without any valid reason and there is no evidence on record to show that the respondent/wife was subjected to cruelty by the appellant. Thus, the impugned judgment and decree passed by learned Family Court is bad in law and the same deserves to be set aside. 6) We have heard Shri Vivek Sharma learned counsel for the appellant, perused the impugned judgment & decree and record of the Family Court. 7) In order to appreciate the arguments advanced on behalf of the appellant, we have examined the evidence available on record. The appellant sought a decree for dissolution of marriage on the ground of cruelty and desertion. 8) From perusal of the evidence on record, it appears that there are allegations and counter allegations made by each other. The deposition of the appellant/husband reveals that right from the beginning; behaviour of the respondent/wife was cruel towards him and the family members. She used to visit her maternal house frequently after behaving with them in cruel manner. She used to pressurize the appellant/husband to live separately from his parents. Many a time she was tried to convince by the neighbours also, but all in vain. Ultimately, she deserted him in the month of December, 2002 and went to her maternal house from where she did not return. He along with his neighbours namely Abdul Salam Khan and Panchu Das tried to bring her back, but she did not return. Thereafter, she lodged a false report under Section 498-A of the IPC against him and his family members. Despite, the counseling took place in Mahila Police Station, she did not return. The case is pending in the Court agginst him and his old parents. His evidence regarding cruel behaviour of the respondenVwife was also corroborated by his witnesses namely Abdul Salam and Panchu Das. 9) The respondent/wife deposed that she was subjected to cruelty for want of dowry by the appellant. Her pregnancy was also terminated due fo marpit committed with her by the appellant and her in laws. She did not want to give divorce to the appellant. She is ready and willing to live with the appellant if she would not be subjected to cruelty by the appellant for demand of dowry. 10) So far as the ground of cruelty is concerned, the respondent/wife denied all the suggestions given to her for proving the factumof cruetty but in para 4 of her cross examination, she admitted that the demand of dowry was made right from the beginning of the marriage, but the report thereof was lodged after two years and a copy thereof has not been filed in thecase. In para 5 of her cross examination she denied to leave her ^ f matrimonial house in the month of December, 2092 but admitted to reside with her mother for the last six years. This fact was also corroborated by her mother Reeta Dutta as she admitted in para 1 of her deposition that her daughter was residing with her for the last 3-4 years. She further admitted thatapplications for reconciliation were filed by the appellanVhusband in Mahila Police Station as well as in Counseling Centre in which she appeared. She further admitted that during proceeding in the instant case for divorce also, attempts for reconciliation were made and her mother sought one week time to settle the dispute and thereafter, the report was lodged against the appellant/husband. This fact was also corroborated by Reeta Dutta, motherof the respondent/wife as admitted by her in para 3 of her cross examination that the attempt for reconciliation was made and the appellant was ready to take back her daughter (respondent/wife). Thus, it is clear that the. parties are living separately since December, 2002 and the attempts for reconciliation were also made. 11) Now the point remains to be considered is that whether the desertion on the part of respondent/wife was justified or not. On careful scrutiny of the evidence adduced by the parties, it is found that the attempt for reconciliation of the dispute was made by the appellanVhusband as admitted by the respondent/wife in para 5 of her cross examination (as mentioned above) as also by her mother Reeta Dutta in para 3 of her cross examination wherein she stated that when the reconciliation between the parties took place, appellant was ready to take back the respondent/wife with him but there is no evidence on record to the effect that any attempt for reconciliation was made by the y t -' \..^-, respondent/wife. Thus, it is clear that a good de'al bf endeavour was made by the appellant/husband to reconcile the dispute but in stead of making attempt for reconciliation or supporting the attempts for reconciliation made by the appellant/husband, the respondent/wife filed a case for grant of maintenance against the appellant/husband as admitted by her in para 3 of her cross examination though she denied in para 7 of the written statement. This fact Was also corroborated by Reeta Dutta, mother of the respondent/wife who admitted the fact in para 2 of her cross examination stating that her daughter (respondenVwife) had filed a case for maintenance. Thus, it cannot be said that the respondent/wife was justified ?in deserting the appellanVhusband as there is no evidence on record that she made any attempt for reconciliation. If for the sake of arguments, it is presumed that the respondenVwife deserted the appellant/husband because she was subjected to cruelty for demand of dowry; even then there is no documentary evidence on record. Moreover, the criminal case for demand of dowry allegedly instituted by the respondent/wife against the appellant/husband is pending in trial Court and without final decision of the same; it cannot be held that the respondent/wife was subjected to cruelty by the appellant. On considering the evidence in its totality it is found that the respondenVwife voluntarily deserted the appellant/husband without any valid and justified reason and they are living apart for more than eight years as on today. 12) On re-appraisal of the entire evidence on record, we are of the considered opinion that the factum of desertion as alleged by the appetlant/husband against the respondent/wife is wellestablished in the v . fl -(:. f^i /t\\ %-Y ^ t ^,'^t f ^^-^^' "'^^y case. The appellant/husband is entitled to get djyorce from the respondent/wife on the sole ground of desertion as there is no likelihood of resumption of normal marital life by the parties despite the attempts for reconciliation were made by the appellant/husband as well as by Court, specifically in view of the fact that the respondent/wife has filed a case for maintenance against the appellant/husband and lodged a report under Section 498-A of the IPC not only against the appellant/husband but also against his old parents. 13) For theaforesaid analysis, we are of the opinion that the appeal deserves to be allowed and is accordingly allowed. The judgment and decree dated 24-8-2006 passed by Ist Additional Principal Judge, Family Court Durg, is hereby set aside. 14) Decree be drawn up accordingly. 15) No order as to costs. Sd/- Dhirendra Mishra Judge SA'- R.N. Chandrakar Judge 0