HIGH COURTOF CHHATTISGARH AT BILASPUR w Division Bench: Hon'ble Shri T.P. Sharma, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal (Ml No. 95 of 2008 Appellant Respondent Versa Rani Nag. Vs. Sri Herold Vinay Nandan JUDGMENT FORCONSIDERATION_ Hon'ble Shri Rananath Chandrakar. J ^) Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Post for pronouncement of judgment on | S^-2-2010 Sd/- ^^ HIGH COURT OFCHHARTTISGARH AT BILASPUR CORAM: Hon'ble Shri T.P. Sharma & Hon'ble Shri Rananath Chandrakar, JJ ^ ApDlicant Appellant First Appeal (M) No. 95 of 2008 Versa Rani Nag, aged about 30 years, Daughter of Shri T.S. Nag, Administrative Officer by profession resident of a House at Civil Lines Kotra Talab, Raipur City, Tahsil and District Raipur, Chhattisgarh. Versus NonOapDlicant/ Respondent Sri Herold Vinay Nandan, aged 30 years, Private Serviceman by profession, son of late Dharamnath Nadan, resident of a House at Faizalpur, Shanti Para Ward, Jagadalpur, DistrictBastar, Chhattisgarh. {Appeal under Section 19 (1) ofthe Family CourtAct, 1984) Present: Shri Sanjay K. Agrawal with Shri Sourabh Sharma, counsel for the appellant. Shri Atul Pandey, counsel for the respondent. JUDGMENT: (Delivered on |S'dayofFebruary, 2010) Per T.P. Sharma. J. Challenge in this appeal is to thejudgment and decree dated 24-12- 2007 passed by learned Ist Additional Principal Judge, Family Court, Raipur, in civil suit No. 141-A/2007, whereby the learned Judge, Family Court dismissed the application for restitution of conjugal rights under Section 32 ofthe Indian Divorce Act, 1869 filed on behalf ofthe appellant. 2) The decree is impugnedon the ground that the respondent is residing separately from the appellant without any just and reasonable ^ !'\ 's^ss.^-1' cause, but the court below has not considered the aforesaid fact and thereby committed illegality. 3) Brief facts necessary for disposal of this appeal are that as per the pleadings of the parties, the parties are legally wedded spouses, their marriage was performed according to Christian Rights and customs on 6-6-2003 at C.N.I. Church, Takhatpur, District Bilaspur, Chhattisgarh and after marriage they resided together at Jagdalpur. When they went to Kullu Manali to celebrate their Honeymoon, the respondent quarreled with appellant and misbehaved with her. They came back to Jagdalpur and resided together, but the respondent started committing cruelty upon the appellant. The relatives of the respondent also committed cruelty upon the appellant on account ofdemand ofdowry and they ousted the appellant from her matrimonial house. On 30-10-2005 when the appellant went to the house of the respondent, the respondent along with his relatives misbehaved with appellant and refused her to keep with the respondent. She went to Police Station, Jagdalpur and lodged report against her husband/respondent and the matterwas reconciled by intervention of the Police. Thereafter, the appellant stayed with the respondent in his house. The respondent maintained cordial relation with the appellant, but on 17-11- 2005respondent threatened her for withdrawing the report lodged by her against him and also compelled her to resign from her service. On the aforesaid grounds, petition for restitution of conjugal rights has been filed on behalf of the appellant. 4) The respondent has denied the allegations made in the petition and has specifically pleaded that the respondent never misbehaved with the appellant. The appellant/wife has refused for her transfer to Jagdalpur where the respondent/husband is residing. The appellant is in habit of insulting the respondent and his family members. The respondent has not deserted the appellant willfully. The respondent is residing at Jagdalpur whereas appellant is residing at Raipur. Appellant herself has deserted the respondent/husband. 5) 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 has dismissed the application for restitution of conjugal rights on the ground that the respondent is residing separately under just and reasonable cause. 6) We have heard Shri Sanjay K. Agrawal with Shri Sourabh Sharma learned counsel for theappellant and Shri Atul Pandey, learned counsel for the respondent, perused the impugned judgment & decree and record of the Family Court. 7) Learned counsel appearing for the appellant vehemently argues that the respondent/husband is under obligation to keep the appellanVwife with him and discharge his marital obligation', but instead of discharging his marital obligation, the respondenVhusband has willfully deserted the appellanVwife and the appellant is entitled for residing together with the respondent and entitled for decree of restitution of conjugal rights. 8) On the other hand, learned counsel appearing for the respondent vehemently opposed the appeal and submitted that the respondent is residing at Jagdalpur and he has tried for transfer of the appellant to Jagdalpur, but after completing necessary formalities by him, the appellanVwife hasdenied for her transfer. The appellant is in habit of misbehaving with the respondent and his family members. The respondent is not residing separately without any just and reasonable cause. The respondent/husband requested his wife/appellant several times for her 1 .AX.. ^ ^%r^^^^^"'%^' ^ •%si^ ^^ '"%te^"" transfer and to live with him at Jagdalpur. Learned counsel further submits that with a view to create the evidence against the respondent, the appellant who is an Administrative Officer has visited the house of the respondent and stayed with him for few days and thereafter lodged report against the respondent which shows that the appellant is not ready and willing to discharge her marital obligation and only with a view to save herself for any act, willful desertion, she visited the house of the respondent and stayed there for few days and thereafter she has lodged report against the respondent. 9) In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidenceadduced on behalf of theparties. Marital status of the parties is not in dispute. The appellarit isYesiding at Raipur whereas the respondent is residing at Jagdalpur far away from Raipur. Both the parties led evidence in support of their pleadings. The appellant/wife has leveled charge of demand of dowry on the respondent/husband. Para 29 of her evidence reveals that after marriage she used to visit Jagdalpur from Raipur. She has further deposed in her evidence that the respondent has refused her to enter into his house, thereafter, she stopped to visit Jagdalpur. She has examined her mother PW/2 Smt. P.L. Nag, who has specifically deposed in para 12 of her cross examination that at the time of marriage, she has made clear to the mother of the respondent thatafter marriage her daughter i.e., appellant will not resign from service but she will use to go to Jagdalpur. She has specifically deposed in her evidehce that there was no point for transfer of her daughter from Raipur to Jagdalpur. 10) Per contra, learned counsel appearing for the respondent has specifically deposed that it was agreed by the parties that after marriage ^ r^ ^ s; '^. ^^^ i^^^ •yf 1(111,1 llllll illllllli i:'""W- F either the appellant/wife will get transferred from Raipur to Jagdalpur or will resign from her service. The respondent/husband has tried all necessary formalities for her transfer, but the appellant/wife has refused for her transfer and even the appellant suggested the respondent that before marriage, there was no point for her transfer. Both parties have leveled charges against each other, but substantial evidence of both the parties reveals that living together of the parties is not possible on account of their separate jobs and appellant/wife is not ready for her transfer or resign from her service. In these circumstances, living together would not be possible. The respondent has specifically deposed in his evidence that the appellant has been served notice (Ex. P/7) in which it has been specifically mentioned that if the appellant does not comply with the notice for restitution of her marital life, then the respondent will file the petition for judicial separation. After receipt of the notice, the present appellant has filed the suit for restitution of conjugal rights. 11) After appreciating the evidence available on record, learned Judge, Family Court, Raipur, has dismissed the petition for restitution of conjugal Rights on the ground that respondent is residing separately from the appellant under just and reasonable cause. The evidence adduced on behalf of the parties clearlyreveals that the respondent is not residing separately without any just and reasonable cause. Therefore, the appellant is not entitled for decree for restitution of conjugal rights. The court below has rightlydismissed the petition. We do not find any illegality or irregularity in the judgment impugned. 12) For the foregoing reasons, the appeal is without substanceand is liable to be dismissed and it is hereby dismissed. Parties shallbear their own costs. Advocate fee as per schedule. ^i&..,: ^^ '•^v. 13) Decree be drawn up accordingly. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge raJU-.