^ HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal No. 190 of 2005 Appellant Respondent Ram Narayan Mishra Vs. Smt. Premlata Judgment for consideration Hon'bleShri DhirendraMishra. J. ^ A-r- Post for pronouncement of judgment on Sd/- R.N. Chandrakar Judge ^ -05-26f0 Sd/- JUDGE 5" -05-2010 j^-05-2010 Sd/- Dhirendra Mishra Judge ^--05-2010 HIGH COURT OF CHHARTTISGARH AT BILASPUR CORAM: Hon'ble Shri Dhirendra Mlshra & Hon'ble Shri Rananath Chandrakar. JJ Appellant First Appeal No. 190 of 2005 Ram Narayan Mishra, S/o. Late Brij Bhooshan Pd. Mishra, Teacher, R/o. Thanapara, Rajim, Tahsil Rajim, District Raipur (CG). Versus Respohdent Smt. Premlata W/o. Ram Narayan Mishra, Teacher, Shashkiya Prathmlk Shala village Kamta, Vikaskhand/Tahsil Simga, District Raipur (CG). (Appeal under Section19 (1) ofthe Family Court Act, 1984) Present: Shri Arun Kymar Agrawal, counsel for the appellant. Shri G.S. Agrawal, Sr. Advocate with Ms. Veena Nair, counsel forthe respondent. JUDGMENT (Delivered ono^-05-2010) Per Rananath Chandrakar. J. By this appeal, the appellant challenges the legality and propriety of the judgment and decree dated 1-8-2005 passed by the Principal Judge, Family Court, Raipur, jn civil suit No. 69-A/2005, wher^y the petition filed by the appellant/husband und6r Section 13 of the Hindu Marriage Act, 1955 (for short, "the Act, 1955") for dissolution of marriage, has been dismissed. 2) Brief facts for necessary disposal of the case are that the appellant and respondent are legally wedded spouses and their raarriage was solemnized in village Kheeryvahi, District Durg, according to Hindu rites 7 / ^ ^SIS^:^ and customs on 23-6-1994. Both the appellant and respondent are in Government service and are working as Teachers. After marrlage they resided in village Tarri Nawapara, Rajim. After one year of their marriage, the appellant/husband came to know that the respondent/wife was already married to one Doctor Lala Ram Soni and the fact of the first marriage of the respondent/wife was deliberately suppressed by the respondent/wife Smt. Premlata and her mother Smt Seeta Devi. The aforesaid fact came to the knowledge of the appellant when the respondenVwife was served with a nottee in a case for restitution of conjugal rights filed against her by Doctor Lala Ram Soni. Thus, by playing fraud with the appellant, the respondent/wife got re-married to the appellant. After coming to know about the aforesatd fact by the appellant/husband, the respondent/wife voluntarily de^rted him in May/June 1996 and'since then she neither returned nor made any attempt for restitution of conjugal rights. On this, the appellant/husband fjled an application under Sectlon 11 of the Act, 1955 before the competent court for declaration oftheir marriage null and void, which was dismjssed for some technical reason. Thereafter, the appellant filed the petition under Section 13 of the Act, 1955 for a decree of dlssolution of marriage which was also dismissed. Thereagainst, the appellant has filed the instant appeal. 3) The respondent/wife filed written statement and denied the allegations made against by the appeltant She was never married to Doctor Lala Ram Soni prior to her marriage with the appellant/husband. She specjfically pleaded that she never deserted the appellant or misbehaved with him. She was tortured by the appellant for want of ^. t-.' ^^..-... dowry right from the beginning of their marital life and she was thrown out of the matrimonial house in the month of June 1996 by the appellant/husband after committing marpit with her by the appellant and hls family members which was also reported to the Poltee. She admitted in her written statement as well as in her deposition that she had received a notice jn a case under Section 9 of the Act, 1955 for restitution of conjugal rights filed by Doctor Lala Ram Soni against her whfoh was dismissed on 23-8-2001 by the court as the same was found baseless and frivotous. She specificatly pleaded that the application under Section 11 of the Act, 1955 filed by the appellant was not dismissed for any technical reason but the same was got dismissed by the appellant for want of prosecution on 18-11-2002. She specjfically pleaded that the appellant/husband has married to one Rekha daughter of Ram Sharan Sharma, resident of vitlage Loharsi on 6-5-1998 and therefore, he filed the instant petition under Section 13 of the Act, 1955 on false and frivolous grounds just to harass and torture her. 4) On the basis of averments made by the parties, issues were framed and after affording proper opportunity of hearing to the partles, tearned Judge, Family Court dismissed the applteation for grant of decree of dissolution of marriage. 5) Learned counsel appearing for the appellant vehemently argues that the learned Family Court erred in holding that the appellant failed to prove the first marriage of the respondent with Doctor Lala Ram Soni. The Family court ought to have held that there is ample evidence on record to establish that the respondent Smt. Premlata was first mamed to Doctor Lala Ram Soni and aftersuppressjngthisfactthe respondent/wife married to the appellant. The Family Courtshould have held that the marriage of the appellant with the respondent is null and void ab initio. The family court failed to see that an appeal against theorder dated 23«8- 2001 passed by the learned Additional District Judge, Bemetara passed in Civil Suit No. 1-A/95 is pending in this court. Thus, the matter is sub- judice, therefore, the impugned judgment and decree passed by learned Family Court is bad in lawandthe same be set aside. 6) Learned counsel appearing for the respondentargued the matter in support of the impugned judgment. He submitted that the findings of the Family Court are well founded. The learned Famity Court passed the impugned judgment against the appellant/husband after appreciating the entire evjdence available on record and held in para 22 of its judgment that the instant petition was filed by the appellanton false and frivolous grounds justto harass the respondent/wife. J) We have heard Shri Arun Kumar Agrawat, learned counsel for the appellant and Shri G.S. Agrawal, learned Sr. Advocate with Ms. Veena Nair, learned counsel for the respondent, perused the impugned judgment & decree and record ofthe Family Court. 8) In order to appreciate the arguments advanced by the parties, we have examined the evidence available on record. The appellant sought a decree for dissolution of marriage on two grounds: firstly the respondent/wife committed cruelty upon the appellant/husband by suppressing the fact of her first marriage with Doctor Lafa Ram Sonj and secondly she deserted him without showing any sufficient reason. (^( 9) If we examine the evidence adduced by the respective parties, we find that the appellant/husband has alleged in his petition under Section 13 of the Act, 1955 as well as in his deposition that the respondent/wife married to him by suppressing the fact of her first marriage with Doctor Lala Ram Soni and he came to know about the fact when Doctor Lala Ram Soni came and asked him as to how he was keeping the respondent/wife with him since she was his wife. On this, he enquired the respondent/wife about the truth who denied the same. Thereafter, the respondent/wife received a notice in a case for restitution of conjugal rights filed against her by Doctor Lala Ram Soni. On this she left her matrimonial house on 16-5-1996 and since then she did not return and no marital relation existed between them. He further deposed in para 7 of his examjnation-jn-chief that after one year of filing a case for restitution of conjugal rights against the respondent/wife by Doctor Lala Ram Soni, he filed a case for declaration of his marriage with the respondent/wife null and void at Raipur which was subsequently withdrawn on some technical grounds, thereafter, he filed the instant case for divorce. 10) So far as the question of suppressing the fact of her flrst marriage by the respondent/wife with Doctor Lala Ram Soni is concerned, the respondent/wjfe categorically and specifically denied the allegation in her written statement as well as in her deposition and stated that prior to her marriage with the appellant/husband she was never married to Doctor Lala Ram Soni. In para 6 of her cross examlnation she admitted that Doctor Lala Ram Soni had filed a case under Section 494 of the IPC and another case under Section 9 of the Act, 1955 against her which were dismissed as found Talse and baseless by the court and this fact is also ^">^? ^\- wh ^? @t 1 ^T-^^ ^ %. admitted by the appellant/husband in para 8 of his deposition that the case filed by Doctor Lala Ram Soni was dismissed by the Court. It is pertinent to mention here that despite the allegation of bigamy made by the appeliant/husband against the respondent/wife, he could not produce any documentary evidence to prove the same though it was bounden duty of the appellant/husband as rightly held by the learned Family Court in para 16 of its judgment. Thus, the question of the marriage between the parties being void ab initio does not arise. In this connection, record of the F.A.No. 131 of 2001 was called to weigh the truth of the contention of learned counsel for the appellant and on perusal it is found that the case was disposed by this court on 19-1-2010 as abated. Thus, the findings given by the learned Additional Distrtet Judge, Bemetara, in a case for restitution of conjugal rights between Doctor Lala Ram Soni vs. Smt. Premlata Dubey (respondent herein) vide its judgment dated 23-8-2001 attained finality. Therefore, the appellant/husband does not get any benefit of the same and it needs no further discussion/consjderation. 11) So far as the ground of desertion is concerned, the appellant/husband alleged that the respondent/wife voluntarily deserted him after receiving notice from the court in a case for restitution of conjugal rights flled by Doctor Lala Ram Soni and since then she never returned to her matrimonial house to discharge her marital obligations. Thereafter, he filed an application under Section 11 ofthe Act, 1955 for declaration of his marriage with respondent null and void which was withdrawn due to some technical reason and then he filed the instant petition for divorce. The respondent/wife denied in her written statement "^.'- fts- ^^•! •"^ <i-/ '.K as well as in her deposition that she voluntarily deserted the appellant after flling a case for restitution of conjugal rights against her by Doctor Lala Ram Soni and deposed that she was subjected to cruelty for demand of dowry by the appellant and his family members from the beginningof their marriage. She deposed in para 3 of her deposition that she was turned out of the house by the appellant after committing marpit with her and as her in-laws were also not ready to keep her with them, she had to leave the matrimonial house and started living separately in a rented house. She again went to live with the appellant in the month of July, 1996 but she was not allowed and thrown out by the appellant and his family members. She lodged the report against the appellant and in-laws in Police Station but the Police did not take any action against them, therefore, she had to file a complaint case before the competent court which was pending. In para 12 of her cross examination she denied the suggestion that she was not willing to live with the appellant/husband. 12) The other point which needs consideration to weigh the credibility of the evidence adduced by theappellant is that whether the case filed by the appellant/husband under Section 11 of the Act, 1955 was withdrawn due to some technical reason. On perusal of the record and paras 12 to 15 of the impugned judgment, it is clear that none of the parties produced any documentary evidence of the same, therefore, learned Family Court called for the record of the case and on perusal, it was found to be dismjssed for non-prosecution after giving several opportunities to the appellant for adducing his evidence which not onjy fateify the stetement of ..^",-;1 v" ^: the appellant that his application under Section 11 of the Act, 1955 was dismissed on some technical ground but also creates serious doubt on his entire evidence. On the other hand, the evidence adduced by the respondent/wife appears to be more reliable as she remained consistent to her statement during cross examination. In view of the aforesaid, it is nonetheless to say that the respondent/wife did not desert the appellant but it was the appellant who made the respondent/wife to leave his company by subjecting her to cruelty. 13) Considering the entire material available on record and in view of the aforesaid analysis, we are of the opinion that the Family Court has rightly dismissed the petition. We do not find any illegality or irregularity in the judgment impugned. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Parties shall bear their own costs. 14) Decree be drawn up accordingly. Raju Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge