^^ID 1 ^ll!,l. W HIGH COURT OF CHHATTISGARH AT BILASPUR Coram: Appellant Hon' ble Shri T.P. Sharma & Hon' ble Shri R.N. Chandrakar, JJ F.A.(M)No.127of2008 Hublal Chandrakar, S/o. Antulal Chandrakar, aged about 29 years, R/o. Sichal Colony, Abhanpur, District Raipur (CG). Vs. Respondent Smt. Kumari Bai Chandrakar, w/o. Hublal Chandrakar, aged about 34 years, R/o. at present Vindhyavasini Ward, near Naila Bazar, Dhamtari, Tahsil and District Dhamtari (CG). (FirstAppeal under Section 19(1) ofthe Family Courts Act) Present: Shri Raghavendra Pradhan, counsel for the appellant. Shri P.P. Sahu, counsei for the respondent. Oral Order (Passedon 3-2-2010) Per T.P. Sharma, J. By this appeal the appellant has challenged the judgment and decree of dismissal of petition for dissolution of marriage by a decree of divorce under Section 13 ofthe Hindu Marriage Act,. 1955 (for short, "the Act") dated 6-9-2008 passed by the First Additional Principal judge, Family Court, Raipur, in Civil Suit No. 56-A/2Q08. 2) The decree is impugned on the ground that the Family Court has not considered the cruelty committed by the respondent upon the appellant. $o "^ J i "^',^@^^g; @ l&. '""""'-• ~y i %.. ^.:^/Y .f ^^s-^ c 3) The facts of the case, in brief, are that both the appellant and respondent are Hindus and before their marriage both had fallen in love with each other and their marriage was solemnized according to Hindu customs and rites on 31-05-2002 at Arya Samaj, Baijnathpara, Raipur. It has been pleaded by the appellant that the respondenVwife used to reside in her brother-in-law's house at Abhanpur and she is unable to reside with the appellant after solemnizing their marriage. After one month of their marriage, the respondent/wife was posted in Forest Department as Wireless Operator as daily wage employee at Mainpur where she worked for three years. The appellant went to Mainpur where his wife Was working and tried to bring her to her matrimonial house where she refused to live with him and she was living there alone. Even after the appellant was posted as Constable at Bijapur, in July, 2005 the respondent has denied to discharge her matrimonial obligations and she is not residing with the appellant since 2002 without any reasonable cause. Learned counsel for the appellant further submitted that the respondent/wife had deserted the appellanVhusband for a continuous period of more four years immediately preceding the presentation of the petition for dissolution of marriage. 4) On the other hand, the allegations leveled against the respondent are denied by the respondent and it is alleged that after solemnizing of marriage she resided with the appellant for a long time and her husband committed cruelty upon her. She is ready to discharge her matrimonial obligations. On the basis of averments made by both the parties, issues were framed by the court below and after affording an opportunity of ^ ^;:;';-^'-^. ^. >•• 4 ^ hearing and to adduce their evidence and after considering all the facts and circumstances of the case, learned First Additional Principal Judge, Family Court, has dismissed the suit for dissolution of marriage by a decree of divorce. 5) We have heard learned counsel for both the parties and perused the impugned judgment and decree of the court below. 6) Learned counsel appearing for the appellant vehemently argued that the allegation made under Order18 Rule 4 of the C.P.C., has not been contradicted by the respondent in her evidence and in absence of denial, unchallenged evidence of the appellant is sufficient for drawing inference that the respondent/wife has willfully deserted the appellant/husband and she committed cruelty upon her husband. 7) Per contra, learned counsel appearing for the respondent vehemently argued that the appellant has committed cruelty upon the respondent and the respondent is ready and willing to live with the appellant and she is also ready to discharge her matrimonialobljgations. She also went to the place where appellant was posted but the appellant after assaulting ousted herfrom his house. 8) After hearing the arguments advanced by both the parties, we have examined the evidence and pleadings of both the parties. Both the parties examined themselves. 9) The appellant has specifically deposed that the marriage was solemnized on 31-5-2002 in Arya Samaj, Raipur and at that time the respondent was residing at Abhanpur and after one month of their ^ lf:- •;.-'t- •^- ^l^ marriage she was posted in Forest Department as Wireless Operatorat Mainpur. From the evidence of the appellant, it reveals that the respondent has never resided with the appellant and never discharged her matrimonial obligations. She was having itlicit relation with other person as a result thereof she conceived pregnancy and thereafter she herself got aborted. He has also deposed thateven after marriage the respondent compelled the appellant to enter her name in the service record of the appellant as nominee. The respondent has denied the allegations leveled against her by her husband. According to evidence of the appellant, this is a case of love marriage and even after their marriage, they have not resided together even for a day. This part of evidence is unnatural and is not acceptable. The appellant is unable to prove the allegation of adultery leveled upon the respondent which itself is cruelty committed by the appellant upon the respondent. After appreciating the evidence available on record, the court below has dismissed the suit for dissolution of marriage by a decree of divorce. The evidence of the appellant is unreliable and unnatural. The appellant failed to prove the cruelty committed by the respondenVwife. 10) For the purpose of granting decree of divorce on the ground of desertion the appellant is also required to prove animus desrendi, which is missing in the instant case. 11) In view of the foregoing and for the aforesaid reasons, we are of the considered opinion that the learned Family Court, on the basis of evidence available on record, has rightly dismissed the petition for dissolution of marriage by a decree of divorce and we do not findany ^ raju illegality or infirmity in the judgment and decree and the same does not call for any interference of this court. 12) In the result, the appeal being devoid of merits is liable to beand is accordingly dismissed with costs. Counsel fee payable as per schedule. 13) Decree be drawn up accordingly. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge ^