FHC—78 ^ 3i^^'mft:;iw WK3IRn®t»!W %• '^'.WM<i,, ®t)ty'!S,^SRTCTy -fA-^ \^\ -^ "^ an^t'ffsR; (••^f^et?) ^^ ^^ cn ^ici^ d<r<^i HQH'b!s £hrl Chsncirsksf. JJ (ffi Appellant 'ifr'w. i'j—--' Arijn Tembhurkar. S/o Amru Te.tibhLirkar, aged about 42 yesrs, R/c| Street No.2," H.No.3/70, C/o Hotise of K.R. Sat-iu, Shanti Nagar, Bhliai, Tahsl! & Didtrict Durg (CG) Fti^!?<<lsnlf' lr'?••*•""—•- Snf. Sujata Tembhurkar, W/o Arun Te^.bhurkar, aged about 35 years, R/(l Behind nindustan wlarbie, RaSendra Chowk. Kohka Road. Bhfai, Tahsi! & Distriot Durg (CG) Family.Courts Act, 1984 rtw ^<(%^4ir»rt^^ ^f flf(»Mi^rlti ^orrissc'Ka a^ <io8;<; Shri S.S. Raiout, counse! foiithe apDellant. Shri N.S. Dhurandhar, coun^el for the respondent. This first appeal under Sei|;tion 19 of the Family Courts Act, 1984 read with Section 28 ofthe Hjndu Marriaae Act, 1955 is directed aaainst the iudament and decree d&ted 10.08.2Q06 passed in civil suit No,16-A/2006. whereby the suit fijed by the appellant herein under Sectiqn 13(1) (ia) & (ib) of the Hihdu Marriage Act, 1955 has been dismissed by the First Additional Prjncipai Judge, Family Court, Durg ^ ., • „„..,-„.,,^«» i— H'GH COURT OF CHHAR1 1SGARHAT BILASPUR Coram:- Hon'bte Shr DhirendrELMjshra & \y3 //' \ V-,j ^ 3(l^?'^(fTiW TOT 3)1^1 WW '3^ ';2irar?ra, ®fl1y<!e,f5F?TOg?'°;, f^^ 1-fc ai^!1ra?7(^3r<^) .1.1.-. / •V^100b ^- rOTaa? (21 Brieflv stated. the facts b'F the case are that the apoeliant and the resDondent were married customs and rites. Eariier, the d on 30.08.1987 as oer the Buddhist poellant had filed similar application for divorce, which was registered ^s civil suit No.75/2001 and the same 1 was dlsmissed as withdrawn op 10.07.2001 as the parties agreed to live together peacefully. i f3) An aDDlication for divorite under the' aforesaid orovisions was filed bv the aDplicant with averfrients that the respondent deliberatelv ianored the appellant, did not tfeke interest iri the domestic work and also dld not take due care of tljie two childreh and she used to make false imputation reaardina chsiracter of the appellant. It was also alleged that the appeliant andjthe respondent did not have physicai reiationship since October, 19^7 thou.gh both of them were residing under the same roof snd' finallvj the appeltant was compelled to live in rental premises with effect froijn April, 2002. When all attempts to resolve the disoute failed, tte instant apDlication was filed on 07.10.2005 on the around of cn-feltv and desertion. (4) The respondent/wife dfenied the allegations in her writtsn i statement and stated that the fepDellant took a house on rent in the vicinitv of his own house iust to treate a .qround for divorce. (5) She further averred thatjthe aDDeliant and the resDOndent both of them visited each other arp lived together and the appeilant is maintaining her and the childr^n. The allegations of the i!l-treatment and the cruetfr/ with the appell^it have been specifically denied. She also denied that she suspectedlthat her husband had illicjt relationship v;'^^^^ -78 an^fqiTf^te ^w3n^?%>te 'ysf '^w\vm, °® -pA-t-l l^ !^ TCTtW: ;8ft8 W^I -3 ^sfRistsn^i with another iadv. On the contrferv. she has claimed that even todav, she is residina with the aDDellantipeacefutlv along with the children. f61 On the basis of the pieacjinas of the resDective oarties, the trial Court framed issues as under:- 1. 2. 3. whether the resoifindent treated the appeilant with orueltv? whether the appe' leadina matrimoni llant and the respondent are al life? whether the app^lant is entitled for decree of dissolution of matiaae and 4. cost and other re! (7) The appeliant examinecj examined herself and teo other S liefs? himself whereas the respondent/wife witnesses. (8) The trial Court dismis^d the application for divorce of the aDoellant with a findina that tht aDpellant has failed to prove that the respondent/wife treated him wifi cruelty. It was he!d that they are stil leading peaceful married life anfl therefore, the ground of desertion was also reiected. It was further 1-jeld that the appellant's own behaviour was not proper towards the r^sDondent/wife and therefore. he is not entitled for a decree of divorce. (9) Learned counsel for th^ appe!lant vehemently argued that the t'nere is unrebutted evidence a/ailable on record of the apoeliant that they did not have physical (elationship since October, 1997, the respondent stopped cook'ng m$als for the appellant as a resu't, he vvas •-HG—78 sn^fwf?;fe mTM^[iCTW '3 F '^TPfRT?, tf-ttl'y'is, 'fsfaRTip; ^': -fM-^ rfc- ^l ^ "k W^I •q^? (^pf^^; T 'redW^iftasn^! i-Ll- ffin an^i cookina his own msals since! 1997. The above conduct of the resoondent amounts to cruelt-/. The evidence in this reaard has not been challenaed in the cross-dxamination of the appellant and thus there is evidence of cruelty of ^uch a nature on. the basis of which, leamed Familv Court ouaht to h^ve passed a decree of divorce, 1 (10) He further argued that inj the light of admitted evidence that the appeilant had taken a house oi|i rent, residjng there since April, 2002 and the application for divorce ^as filed in October, 2005 and thus the appellant has also establishedjthat his wife tias: deseri:ed him for a period of more than two years slid he was alsa' entitled for a decree of s divorce on the ground of deserti^in. It was further argued that looking to the overall evidence avai!ab!e cjn record and considering the fact that there is no cohabitation betweeji the husband and the wife since 1997 and their marriaae has broken ilTetrievablv. the apDelIant is entitled for decree of divorce. (111 On the other hand. Shrl N.S. Dhurandhar, learned counsel for the resoondent argued that the aDpellant has miserablv failed to establish the arounds taken by Ihim for obtainina decree of divoree. The Family Court has rightlv held jthat it was the appeliant who was ill treating his wife by residing se|arately and in view of the evidence of the independent witnesses ava lable on record, the Family Court has rightly held that both the spou^es are leading happy married life and none ofthe arounds mentionedfn the apDlication for divorce have been established. i % y ^- 17»" ' f V w-^'-HG—78 sn^^ifriw ?[SIT sn^i WIWK ~5^1 '^FIRTq, -»'al-8)i<o,'f^?iray y.^-t^ )4| fl 2) We have heard learned counsfci for the Darties and oerused the pleadinas ofthe resDective Darties as^i/ell as the evidence adduced bv them in support oftheir Dieadings. j (13) Learned Famiiy Court while d^iding issue No.1 has considered D'eadinas or' the resoective oarties anU referrina the evidenoe adduced by them in detail, has categoricalivl held that the evidence of the appellant regarding cruel behaviour b^ the respondent is unreliable and not trust'.worthv in view of the fact th^t the appellant himself hired the house in the same vicinity and he al^s gave advertis'ement for second marriage before obtaining decree of di^orce. • (14) The learned Family Court, orl the basis of admitted evidence available on record, held that the resp{)ndent vi/ent to attend marriage of brother of her husband to Nagpur anjl stayed there for a month. The marriage was attended by the appell^it also. Further relying upon the evidence adduced bv the respondent/wife. it has been heid that she resided with the appellant/husband atjKasdol for 6 days and thus they are ieading peaceful married life. n5"l We are not able to aoceDt aDDearing for the apDe'lant that stoDt 1997 amounts to cruelty towards the he was entitled for a decree of di' deoosed that they had no physical refc alleaation that the resoondent was r< affair and therefore, according to our as cruelty by the respondent towards ie araument of leamed counsel aae of Dhysical relationshiD since jppellant and on this ground alone f'orce. The appetlant had only itionship since 1997. There is no teponsible for the above state of ipinion this may not be considered the appellant. So farasthe other ,'3K!~-'^ ^^~\ ^ ^s-k g \'i. r'j !' !l yj^w^-is '3^ -iil<.!icl^l, eitily'Ko, 'fsrareg^^ . r^^L^ 11 *tm?T( <»>~*nw ^w-6 aii^isilfiaw wit 3n^9T tp«^tti .^•''lt 1 Priya tBiiw; ^ft? 3»i4?i »wtrt<ipTvitmi-^TvST!w?r< I—6— ^T SiftH 311^(1 ground is concerned, the findinG of t and th.e respondent were leading Deepeful marltal life even after fillng of the divorce petition. it is based on piboer appreciation of evidence and therefore, the quesSion ofdivorce on] or on the groLind that the marriage h^ been established in the present case.| he Familv Court that the appellant the ground of cruelty or desertion is broken irretrievably has also not (16) Fqr the aforesald reasons, v/^ find pa^uhgtance in this appeal which is accordincih/ dlsmissed. Sd/- Dhirendra Mishra Judge •J .- r . .j- ' Sd'- R.N. Chandrakar Judge