-^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.') V^K..^^ ^^ First Appea^o. ^ /2008 Parmendra Malhotra aged about 38 years S/0 Late Sri Harvansh Malhotra R/o—OppositeBunkar Sangh Station. Road, District Durg Chhattisgarh VERSUS n^ APPELLANT: .---"..(; ^%--*'..\,. «,^" 'fa^»9 ^ w~ ^^f^~ RESPONDENT: , Jyoti Malhotra ^espondent/Non-applicant) ' Aged about 32 years R/o:--C/o Sri Rajendra Chhabra Opposite Police Station Bemetara, District Durg Chhattisgarh FIRST APPEAL UNDER SECTION"19 OF THE FAMILY COURTS ACT, 1984 Af^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE DR. I.IVI. QUDDUSI, & HON'BLE MR. G. MINHAJUDDIN, JJ. First Appeal (M) No. 57 of 2008 Appellant Parmendra Malhotra Vs Respondent Jyoti Malhotra v JUDGMENT FOR CONSIDERATION ^dln ^lttV " ^ iud^ HON'BLE DR. I.M. QUDDUSI. J ^y POST FOR JUDGMENT ON I? Sd/- I. M. Quddusi Judge JANUARY.2012 Sd/- n^'m ^^SSSSiSSS^e—- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE DR. I.M. QUDDUSI, & HON'BLE MR. G. MINHAJUDDIN, JJ. Appellant Respondent First Appeal (Ml No. 57 of 2008 Parmendra Malhotra Vs Jyoti Malhotra ^ Present: Mr. Jitendra Pali, counsel for the appellant. Mr. Vivek Rathore, counsel for the respondent. JUDGMENT (Deliveredon \Y January, 2012) Per G. Minhaiuddin. J 01. This appeal has been filed by the appellant/plaintiff under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 5.1.2008 passed by the Principal Judge, Family Court, Durg, in Civil Suit No.204-A/06, whereby the application filed by the appellant/plaintiff for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 has been rejected. 02. Facts not in dispute are that marriage between the parties was solemnized on 21st May, 2004 at Bemetara, Distt. Durg as per the Hindu rites and ceremonies and after living for about four days together at Station Road, Durg i.e. at the respondent's matrimonial home, that the appellant/plaintiff and the respondenVdefendant proceeded on honeymoon on 26th May, 2004 to Darjling alongwith two other couples and ^^^^E^. //-^ /€.....' "I •%^t^^ liK %. '^ :^ i; '^- ^.,,:^"^f ...^^ ^ returned back to Durg after 10-12 days. This is also not in dispute that till June, 2005, the appellant and the respondent resided together at the matrimonial home and after that the respondenVdefendant is residing at her maternal home at Bemetara, Distt. Durg. However, rest of the facts are disputed. 03. The appellanVplaintifTs case, in brief, is that after solemnization of the marriage on 21 May, 2004, that the respondenVdefendant resided with him at her matrimonial home till 25th May, 2004 and on 26th May, 2004 they proceeded for honeymoon to Darjling alongwith two other couples. The appellant realized that after marriage and before proceeding for honeymoon as well as during their stay at Darjling and Calcutta, attitude of the respondent towards the appellant was indifferent and whenever he used to express his desire to have sexual intercourse with her, she, on one pretext or the other, used to refuse to have physical relations with him. On way back from Darjling when the appellant, respondent and two other couples, who had gone with them, stayed at Calcutta for 2-3 days, the respondent used to go outside alongwith friends of the appellant, who were accompanying them during their honeymoon trip, without intimating the appellant. The appellant and the respondent returned back to Durg after about 10-11 days and thereafter, the respondent resided with the appellant for about 15 days before being taken to her maternal home by her parents. During this period also, the attitude of the respondenVwife ltstiI~IS^ ,.<"I'^^ f wy'mM\' ~::\ ^ ^wj .' ^, "•,.^<^/ 04. t^' towards the appellant/husband had been indifferent and she used to refuse to establish physical relations with him. During this period, the appellant learnt from his family members that the respondent/wife is an addict of Manikchand gutkha, on which the appellant as well as his family members asked her not to take gutkha, whereupon she used to start quarreling with them saying that as she has become an addict of it, therefore, now it is not possible for her to give it up. During this period, the appellant also learnt that she is in the habit of talking continuously on telephone and on being asked, she used to say that she was talking to her family members at her maternal home. On asking the respondent not to have long talks on telephone, that she used to quarrel with the appellant and his family members. In the last week of June, 2004, as per the customs prevailing in the community, that the maternal relations of the respondent came and took her back with them to her maternal home. Thereafter, the appellant had gone in the first week of July, 2004 and brought her back with him to her matrimonial home. Even after return in the first week of July, 2004, her attitudeand behaviour towards the appellant and his family members remained the same as neither she had given up taking gutkha nor had she stopped talking on telephone for a long time. The continuous long talking on the telephone by her aroused suspicion in the mind of the appellant and thereafter, after getting a parallel connection installed, when he heard the respondenVwife's talks on f phone, he was taken aback as she was not talking to her maternal relations, but to her elder sister's brother-in-law (Dewar) namely Sanjay in an obscene manner. After this, when the appellant enquired about Sanjay from the respondenVwife, she replied that she was not willing to marry the appellant, but under compulsion she has married him and is residing with him. After this, there was an altercation between the appellant and the respondent, and thereafter, the respondent had stopped talking with the appellant for a considerable long tjme. 05. The respondent resided with the appellant from July, 2004 to February, 2005 at appellant's residence at Station Road, Durg, and after that with a view to avoid confrontation in the house, that in February, 2005 the appellant took a rented house at Deepak Nagar, Durg and shifted there alongwith his wife. Even after residing separately at Deepak Nagar, Durg, thatattitude and behaviour ofthe respondent/wife towards the appellant/husband did not change and in his absence, she, after locking the house, used to go to STC/PCO for the purpose of talking with her maternal relations at Bemetara and with Sanjay at Raipur. During their separate stay at Deepak Nagar, Durg also, that she used to repeat that she does not want to reside with the appellant and he should either give her divorce or drop her at her elder sister's residence at Raipur. However, somehow or the other, the respondent resided with the appellant separately at Deepak Nagar, Durg from February, 2005 to June, 2005 and after ^^"w%, , ^ ^ that, she went to her maternal home at Bemetara on the pretext that her mother has sustained fracture in her leg. The appellant tried his level best to bring her back to her matrimonial home, but she refused to come back alongwith him and as such, she is living at her maternal home at Bemetara since June, 2005 and without any reasonable and sufficient cause had withdrawn herself from the company of the appellant/husband and had thereby deserted him and has also treated him with cruelty. On this ground, the application for divorce under Section 13 (1)(ia) ofthe Hindu Marriage Act, 1955 was filed by the appellanVhusband. 06. The respondent/wife filed her written statement and refuted all the allegations made against her in the application for divorce by the appellanVhusband. She has stated that the appellant/husband is an addict of liquor and while on honeymoon trip, during their stay at Darjling and Calcutta, he used to pressurize her to take liquor and on her refusal, he used to treat her with cruelty. She has denied that she used to take gutkha or used to talk on telephone with her elder sister's brother-in-law (Dewar) Sanjay. She has averred in her written statement that immediately after her marriage, she was taunted and harassed in connection with demand of dowry. She had never refused the appellant to have physical relations with him. She has specifically stated that the appellant/husband as well as his mother and sisters used to torture the respondent badly and also used to beat her sometimes. Once they had even tried to burn her with the __1Y__—_- "''^'SiiBSSJSiiS-SM'". Ml^^iiSSiii^i-'1'^1^^'^^^^ ^y^ y ••/' t . " "'^ ^:y %, ^.- J? .^; '%-.. ^^"..^' :^s^^' \^ 07. help of gas cylinder by dragging her to the kitchen. However, she was tolerating all this just to save her married life, with the hope that their relations would be normal with the passage of time. She was harassed and tortured for bringing inadequate dowry and articles of inferior quality and was asked to bring Rs.50,000/- from her maternal home, otherwise she will be ousted from her matrimonial home. When she intimated about the said illegal demand to her brother Jogender, then somehow he managed Rs.30,000/- and gave it to her in-laws. However, her husband (appellant) and in-laws were not satisfied with this amount and started harassing and torturing her for bringing Rs.20,000/- more. Therefore, having been fed up with the cruel treatment of the appellant and his family members, uttimately on 10.7.2006 she lodged a written report in Police Station - Bemetara and when no action was taken on her report by the police, she filed a complaint case before the Additional Chief Judicial Magistrate, Bemetara for the offence punishable under Sections 498A read with Section 34 of the IPC against the appellant and his family members. The respondent is still ready and willing to live with the appellant peacefully and she is not in favour of divorce, therefore, she prayed for rejecting the application of the appellanVhusband for divorce. Learned Family Court, after affording due opportunity of hearing and of adducing evidence to the respective parties, by the impugned judgment and decree rejected the application of the appellai^/husband under Section 13(1 )(ia) ,.;.^ •:^....., ;'L ''^ 1 :'m'% J; ^A • ^. y. ^: I -A.. t—-',^' ^' \H19SM9SUS»^ w. of the Hindu Marriage Act, 1955 holding that the appellanVhusband has failed to establish that the respondent/wife has treated him with mental and physical cruelty. 08. Heard learned counsel for the parties, perused the LCR as also the impugned judgment and decree. 09. To substantiate the averments made in the application for divorce, the appellanVhusband, in addition to himself as PW-1, has examined his friends Mukesh Kumar, Raju Sahu and Sandeep Kadpe as PW-2, PW-3 and PW-4 respectively. On the other hand, the respondent/wife, in addition to herself as DW-1, has examined her elder brother Jogendra Chhabda and Golu Manikpuri, friend of brother of the respondent as DW-2 and DW-3 respectively. 10. So far as the allegation of committing mental and physical cruelty by the respondent/wife towards the appellanVhusband is concerned, as per statement of the appellanVplaintiff Pramendra Malhotra (PW-1), the respondenVwife, during her stay at her matrimonial home as well as during the period they were on honeymoon trip to Darjling and Calcutta, on one pretext or the other, had refused to have sexual intercourse with him. The appellant has also stated that she is an addict of taking Manikchand gutkha and used to talk on telephone for a pretty long time and on being asked not to do so, that she used to quarrel with the appellant and his family members. He has further stated that in fact, on the pretext of talking with her maternal relations at Bemetara, she used to '± 11. talk with her elder sister's brother-in-law Sanjay at Raipur in an obscene manner, which was heard by the appellant through a parallel connection. On being asked about her relations with Sanjay, she had replied that she was not willing to marry theappellant, but on account of compulsion she has married him and is residing with him. The appellant has also stated that when in order to.avoid day to day confrontation in the family, he shifted alongwith his wife (respondent) to a rented house at Deepak Nagar, Durg, there also her attitude and behaviour towards the appellant remained the same and she was not willing to establishphysical relations with him and used to talk with Sanjay through STD/PCO in his absence. To substantiate his allegations, the appellanVhusband has examined his friends Mukesh Kumar, Raju Sahu and Sandeep Kadpe as PW-2, PW-3 and PW-4 respectively. So far as taking of Manikchand gutkha by the respondent/wife is concerned, Mukesh Kumar (PW-2), who alongwith his wife had accompanied the appellant and the respondent during their honeymoon trip to Darjling and Calcutta, has stated that during their stay at Darjling and Calcutta, he had not seen the respondent/wife taking gutkha. It is an admitted that the appellant and the respondent alongwith two other couples i.e. Mukesh Kumar and his wife as well as Pranayram Teke and his wife, had gone to Darjling and Calcutta and returned after 10-11 days to Durg. It has been alleged by the appellanVhusband that his wife (respondent) used to bring _L r; 9 @ gutkha from the shop of one Raju Sahu (PW-3). However, this witness Raju Sahu has admitted in para-4 of his statement that he had never seen the respondent/wife taking gutkha. 12. It has been alleged by the appellanVhusband that in his absence, his wife (respondent) used to talk with Sanjay at Raipur through STD/PCO-and to prove this, he has examined Sandeep Kadpe as PW-4. This witness has admitted in para- 2 of his statement that owner of the STD/PCO was Anand Goyal, who had closed the said STD/PCO since last five years and had gone to Champa. The statement of this witness was recorded on 18.4.2007 and as such, the STD/PCO of Anand Goyal must have been closed some time in the year 2002, as per statement of this witness,whereas marriage between the parties was solemnized on 21 May, 2004. Though this witness has further stated that after Anand Goyal had proceeded for Champa, brother of Anand namely Anil was running the said STD, however, register/record of the STD/PCO has not been proved to substantiate the allegation of the appellanVhusband that the respondenVwife used to talk to her elder sister's brother-in-law Sanjay from that STD/PCO. 13. Thus, in view of the statements of Raju Sahu (PW-3), Sandeep Kadpe (PW-4) and non-production of STD/PCO record, in the facts and circumstances of the case, an adverse inference deserves to be drawn against the appellanVhusband that had the register of the said STD/PCO ^'y$'^^ /y^ "^ f€. 10 14. been produced, the same would not have supported the case of the appellanVhusband. The appellant/husband has also stated that through parallel connection, he had heard the obscene talks of his wife (respondent) with Sanjay and on being asked about the same, the respondent had replied that she was not willing to marry him, she is residing with him under compulsion, and therefore, he should either give her divorce or drop her at her elder sister's house at Raipur. However, even after all this, the appellant/husband continued to live with her. When on suspicion the appellanVhusband had got parallel telephone connection installed and heard the obscene talks of his wife (respondent) with Sanjay through that parallel connection, then he could have got the obscene conversation of his wife with Sanjay recorded through a tape recorder, which would have been a very strong piece of evidence against the respondenVwife about her promiscuous conduct. The appellanVhusband could also have procured call details of the telephone, by which the respondenVwife used to call Sanjay at Raipur. However, no such evidence has been adduced by the appellant/husband, except making oral statement. Thus, in the absence of any proof or evidence substantiating the allegation of adultery against the respondent/wife, the allegation of the appellanVhusband against the respondenVwife of promiscuous conduct itself amounts to cruelty towards the respondent/wife. Moreover, the appellant/husband has himself admitted in his statement that during their honeymoon trip, when the ^^^.^ /Y^ "I II ^m^^^ ^ ^^'<y 11 @ Jl ^ respondent would go outside alongwith his friend, at that time the wife of his friend accompanied them and he (appellant) never complained of it either to his friends or their wives. He has admitted in para-12 of his statement that his wife (respondent) used to be busy in household chores round the clock and she had gone outside only with him, that too, on two occasions. She did not go out of the house, except for taking some articles etc. 15. The respondent/wife has specifically stated in her written statement that she was harassed, tortured and even beaten for demand of dowry and once the appellant, his mother and sisters had even tried to burn her in the kitchen. She has further stated that her brother Jogendra had given Rs.30,000/- to her in-laws, but even thereafter the appellant and his family members used to harass and torture her for bringing Rs.20,000/- more. While she was residing at her maternal home at Bemetara, the appellant and his family members used to behave in a derogatory manner and harass her for dowry on telephone, and when the respondent and her brother used to try to talk to them on telephone, they did not receive their phones. 16. However, the appellanVhusband has not specifically replied the aforesaid averments of the respondenVwife regarding demand of dowry by way of making amendment in the plaint or filing a rejoinder etc. As per provisions of Order 6 Rule 2 of CPC, no amount of evidence can be looked into on a point, in respect of whiclijthereis no ^pl^ading in the plaint or written I-' 1 ^ ''^^"^^^Ss ^/~""""' '. \^^J/' '^s&''' 12 ^ninl<l> statement. As such, in the present case, the appellant/husband has not been able to successfully rebut the contention of the respondenVwife that she was harassed and tortured for demand of dowry by the appellant and his family members. 17. Thus, on close scrutiny of the evidence available on record, we are of the opinion that tbe appellant/husband has not been able to make out his case that after the solemnization of marriage, the respondenVwife has treated him with cruelty by refusing him to have sexual intercourse with him as well as by her promiscuous conduct. The learned Family Court has rightly rejected the application of the appellanVhusband under Section 19(1)(ia) ofthe Hindu Marriage Act, 1955 and we find no illegality or infirmity in it warranting interference. 18. In the result, the appeal fails and is hereby dismissed. No order as to costs. 19. The Additional Registrar (Judicial) shall draw up a decree accordingly. f Sd/- Dr. I.M. Quddusi Judge Sd/- G. Minhajuddin Judge ^/