^ © ^ ^ IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR M First Appeal^No. T^ of2010 '<L APPELLANT [Defendant) ^SMT. VERSHA RANI NAG .ftA-c ^""^ Aged about 33 years, [^ ^G^v^1 /0 shri Herold vinay Nadan. ,?^'..^e ^ Versiis Women 85 Child development Officer, R/o near the Katora Talab Raipur, Tahsil 85 District Raipur (C.G.) i RESPONDENT : ^ Herold Vinay Nadan ^ (Plaintiff) aged S/o 33 years, S/o Late Shri D.N.Nadan R/o Shanti Nagar ward Jagadalpur, Tahsil 8s District Jagadalpur [Baster] (C.G.) ^M^FJW§^L^Ll^(Jl30F'm£FP<NLN[^w^cr (3^ L r- AFP^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.IVI.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant Defendant Respondent PLamtiff First Appeal (M) No. 53 of 2010 Smt. Versha Rani Nag Vs Herold Vinay Nadan \^~ '^ Judament For Consideration Sd/- G. Minhajuddin Judge o ^ .12.2011 HON'BLE SHRI I.M. QUDDUSI. J '^-€^ Sd/- LM.Quddusi Judge Post For Judament On O^ December. 2011 -^T' Sd/- G. Minhajuddin Judge ^SSS!;^^^ /cs^ ,y-^ ^ ila-x^ 1 ^sia^^ j ft^. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ Appellant Defendant Respondent Plaintiff First Appeal (M} No. 53 of 2010 Smt. Versha Rani Nag Vs Herold Vinay Nadan ^ Present: Mr. Vijay K. Deshmukh, counsel for the appellanVwife. Mr. Atul Pandey, counsel for the respondent/husband. »rf JUDGMENT (Deliveredon ^- | 2.-,2011) PerG.Minhaiuddin.J 1. This appeal has been filed under Section 19(1) ofthe Family Courts Act, 1984 against the judgment and decree dated 8 April, 2010 passed by 1 Additional Principal Judge, Family Court, Raipur in Civil Suit No.189-A/07, whereby and whereunder the application for divorce filed by the respondenVhusband under Section 10 of the Indian Divorce Act, 1869, has been allowed and a decree for dissolution of marriage solemnized between the appellant and the respondent on 6.6.2003, has been passed. 2. The facts, which are not in dispute, are that marriage between the parties was solemnized on 6.6.2003 at CNI Church, Takhatpur, Distt. Bilaspur, in accordance with Christian rites and eustoms. Since prior to solemnization of marriage, the appellanVwife is in government service on the post of Project Officer in the Department of Woman and Child Development, Govt. of Chhattisgarh, Raipur. 3. The facts, in brief, as unfolded in the divorce petition, are that marriage between the parties was solemnized as per Christian rites and customs on 6.6.2003 at CNI Church, Takhatpur, Distt. Bilaspur. After Bidai, the appellant/wife resided at her matrimonial home at Jagdalpur from 7.6.2003 till 11.6.2003 and thereafter, on 12.6.2003 "ff:s^^^ ^ r %^^. i '^.-sSffi'\ 1 •^.^^^ 'fi ^^^ 7/Y the newly married couple proceeded to Kullu-Manali and other places for honeymoon, from where they returned back to Jagdalpur on or about 22nd June, 2003. After that, the appellanVwife resided till 27.6.2003 at her matrimonial home at Jagdalpur and thereafter, on 28.6.2003 she proceeded alongwith the respondenVhusband to Raipur for joining her duties. The respondent/husband, after making arrangement for his wife's (appellant) residence, returned back to Jagdalpur. The respondent/husband asked the appellant/wife to come to attend Rafi Night function, which was organized on 31st July, 2003 at Jagdalpur in the memory of respondent's father, on which the appellanVwife visited Jagdalpur and after attending the said function, stayed there for about 3-4 days and then again returned back to Raipur for discharging her duties. 4. As per averments made in the divorce petition filed by the respondenVhusband, from day one, the attitude of the appellant/wife was indifferent and harsh towards the respondent/husband and his family members and she always used to dominate them on account of her post, which she was and is holding. Before marriage, as per respondent/husband, it was agreed upon between the parties that after marriage, the appellanVwife will get herself transferred to Jagdalpur and in case, she is unsuccessful in doing so, then she will resign from the government service and lead a married life with the respondent/husband at Jagdalpur. However, after marriage, the appellant/wife never tried for her transfer to Jagdalpur and when respondent/husband tried to make efforts for getting her (appellant) transferred to Jagdalpur, that she bluntly refused and asked her husband (respondent) not to make any efforts for her transfer to Jagdalpur. Further, after attending Rafi Night function, which was organized on 31st July, 2003, that the appellanVwife had never tried to live with him. He had made all possible efforts to persuade her (appellant) to come and lead a married life with him at Jagdalpur, but had failed on account of her adamant attitude. As such, the appellanVwife had deprived him of her company and had deserted him. The mother of the respondenVhusband also tried her level best by writing letters and requesting her daughter-in-law (appellant) to patch up their (appellant & respondent's) differences, if any, and to •^^ start a married life with the respondenVhusband at Jagdalpur, but had failed. 5. The respondent/husband, through his counsel, had sent two notices dated 4.2.2004 and 26.9.2005 to the appellanVwife requesting her to come within 15 days and start living with him at Jagdalpur. Before sending these notices, he alongwith his family members had gone to Raipur to persuade the appellanVwife to reside and lead a happy married life with him at Jagdalpur, but theappellant/wife and her relatives misbehaved with them and asked them to go away. In reply to the letters sent by mother of the respondent/husband to the appellant/wife, she, in her defence, leveled false aliegations of demand of dowry against the respondent and his family members on 6.10.2005. On 6.10.2005 the appellant/wife alongwith her relatives had come to respondent/husband's residence at Jagdalpur after lodging a false FIR against the respondent/husband and his family members at Police Station - Bodhghat, on account of which she and her relatives were not permitted to enter the house by the respondent/husband. Subsequently, on 30.10.2005 also, the appellant/wife alongwith some persons had again visited the house of the respondent/husband and this time also, she was not permitted to enter the house by the respondent/husband because of lodging of false FIR relating to demand of dowry against the respondenVhusband and his family members. On the basis of said FIR, for no rhyme or reason, the respondent/husband and his family members were arrested by the police and after investigation, a charge sheet was filed, on the basis of which a criminal case is pending against them, which resulted in their humiliation and they have been lowered down in the eyes of the community. As such, apart from deserting the company of the respondent/husband, the appellant/wife has treated him and his family members with extreme degree of cruelty by lodging a totally false FIR against them, resulting , in their arrest and consequential humiliation and harassment. On these grounds, the respondent/husband filed a divorce petition under Section 10 of the Indian Divorce Act, 1869 before the Family Court, Raipur. ^:^-^,_^ ^ "^N* //'^- ^ ^ 1 ^ w^y\ & ^'"^" -y -^ 6. The appellant/wife filed her written statement and denied all the adverse averments made in the divorce petition. She has averred that in her marriage, her parents had given household articles and ornaments beyond their financial capacity. Despite that, the respondent/husband and his family members were not satisfied and had expressed their displeasure that TV and car have not been given. It was not agreed upon between the parties that after marriage, the appellant/wife will either get herself transferred to Jagdalpur or will resign from her job and lead a married life with the respondent/husband at Jagdalpur. On the contrary, it was agreed upon that the appellanVwife, who was and is still a Project Officer in the Department of Woman and Child Development, will continue in her service even after marriage and the husband and wife will strike a balance and will be visiting each other at their convenience. However, on account of non-giving of TV and car, that the respondent/husband and his family members started harassing her and adopted an indifferent attitude towards her. The respondent/husband, even during their honeymoon trip, had treated her negligently and adopted an indifferent attitude, besides complaining about non-giving of TV and car in marriage, on account of which, simply to avoid the unpleasant situation, that they had cut short their honeymoon trip and returned back to Jagdalpur on 22nd June, 2003 and after residing for about 5-6 days, she alongwith her husband (respondent) had returned back to Raipur on 28 June, 2003 for joining her duties. After that, the respondent/husband had not enquired about her welfare, whereas on his asking her to attend Rafi Night function on 31 July, 2003 at Jagdalpur, that she, as an obedient wife, had attended the function at Jagdalpur and after that, had returned to Raipur for joining her duties. The respondent/husband and his family members did not care to enquire about the welfare of the appellant/wife and had ignored her and on account of not satisfying their demand of TV and car, that they had started insisting her to resign from her service and start leading a married life with the respondent/husband at Jagdalpur. Even after this, the appellanVwife had tried for six times to live with the respondenVhusband by going to Jagdalpur, but all the time, she was not permitted to enter the house and was driven away by the /•; •ft^r" -• «A/- \,^y";tLi" ^' '.^•:^^-"-~ •^ ,^ respondent/husband and his family members. Such conduct of the respondenVhusband and his family members compelled the appellant/wife to lodge an FIR against them at the police station. The appellant/wife was always and is still ready and willing to lead a married life with the respondent/husband, in addition to discharging her official duties as Project Officer in the Department of Woman and Child Development at Raipur, but had failed on account of adamant attitude of the respondenVhusband and his family members. The appellant/wife has neither deserted the company of the respondenVhusband, nor had treated him and his family members with cruelty, but on the contrary, the respondenVhusband has deserted the appellant/wife. With these averments in her written statement, the appellant/wife had prayed for dismissal of the divorce petition. 7. After hearing counsel for the respective parties and affording opportunity of adducing evidence to them, that the learned Family Court decreed the respondent/husband's suit for divorce by the impugned judgment and decree, against which the appellant/wife has preferred the instant appeal. 8. We have heard learned counsel for the parties, perused the Lower Court Record (LCR) as also the impugned judgment and decree. 9. In addition to oral arguments, learned counsel for the parties have also submitted their written arguments alongwith case laws in support of their contentions. 10.The main question to be decided in this appeal is - whether the appellant/wife/defendant has deserted the company of the respondenVhusband/plaintiff without just and reasonable cause, and has treated the respondent and his family members with cruelty? 11. To substantiatethe averments made in the divorce petition filed under Section 10 of the Indian Divorce Act, 1869, that the respondent/husband, in addition to himself as PW-1, has examined his mother Smt. Sushila Nadan and Smt. Vula John as PW-2 & PW-3 respectively. On the other hand, to substantiate the averments made in the written statement, that the appellanVwife, in addition to herself as DW-1, has examined priest Ravindra Masih as DW-2. f.-:^-. ^v\ 12. As per statements of the respondent/husband and his mother Smt. Sushila Nadan (PW-2), the attitude of the appellant was indifferent and harsh right from the day one after marriage and as she was project officer in the Department of Woman and Child Development, she was treating her husband (respondent) and his relatives as her subordinates. The respondent/husband (PW-1) has stated in para-2 of his affidavit filed under Order 18 Rule 4 of the CPC that on the date of reception, he was sitting alongwith his wife (appellant) on the stage and when, after greeting them, the relatives of the appellanVwife were departing, that the appellant/wife had, against all prevailing practice and norms, compelled him (respondent) to leave thestage and to go for seeing off her relatives. The respondent's mother Smt. Sushila Nadan (PW-2) has stated that they had taken golden ornaments for the bride (appellant) and on seeing which the appellant/wife had sarcastically remarked that they are not of gold but are of silver with golden polish or of the bentex company. The statement ofthese two witnesses i.e. PW-1 and PW-2, have not been challenged in the cross-examination by the appellanVwife. As per statements of these witnesses, before marriage, it was agreed upon that after marriage either the appellant/wife will get herself transferred to Jagdalpur or will resign from her job and lead a married life with the respondent/husband at Jagdalpur, but after marriage, neither the appellanVwife tried to get herself transferred to Jagdalpur, nor permitted her husband (respondent) to make efforts for her transfer to Jagdalpur. This is not in dispute that the appellanVwife (DW-1) is in service as project officer in the Department of Woman and Child Development, even before her marriage with the respondent. 13.The appellanVwife has denied that at the time of marriage, it was agreed upon that either she will get herself transferred to Jagdalpur or will resign from her job. On the contrary, she has stated that it was r agreed upon that even after marriage, the appellant will continue in her service and the parties will strike a balance and they will be visiting each other at their convenience. 14.The job of the appellanVwife is permanent. The respondent/husband (PW-1) has himself admitted in his cross-examination that he is ^.^ ^1®?-\ H \v CA" having a computer institute at Jagdalpur, which is presently running in loss and his present monthly income is Rs.1,000/- from the institute and he is dependent on the pension of his mother.In such a state of affairs, the demand of the respondenVhusband and his family members that either the appellanVwife should get herself transferred to Jagdalpur or resign from her job, appears to be unreasonable and cannot be accepted. Even otherwise, it is not within the control of the government servant to get himself/herself transferred to a particular place and the prerogative in this regard is with the State Government. 15. On perusing the evidence adduced by both the parties, especially the statements of the respondent/husband, his mother Smt. Sushila Nadan (PW-2) and the appellant/wife, it is clear that the appellanVwife, after solemnization of her marriage on 6.6.2003, had lived at her matrimonial home at Jagdalpur from 7.6.2003 to 11.6.2003 and then went ona honeymoon trip to Kullu-Manali and other places from 12 June to 22 June, 2003 and again resided at her matrimonial home from 22 June to 27 June, 2003, before returning on 28th June, 2003 to Raipur for joining her duties. This is not in dispute that on the asking of the respondent/husband, that the appellant/wife had attended the function of Rafi Night at Jagdalpur, which was held on 31 July, 2003 by the respondent's family in the memory of his late father, and after attending the said function, the appellanVwife had returned back on or about 3rd August, 2003 to Raipur for joining her duties. After that, as per statements of the respondent/husband and his mother Smt. Sushila Nadan (PW-2), the appellant/wife did not return back to Jagdalpur to live with her husband (respondent), whereas as per version of the appellant/wife, she had tried six times to live with her husband (respondent) at Jagdalpur but she was not allowed to enter the house and was driven away. 16. As per averments made by the appellant/wife in her written statement and her statement before the Family Court, the respondent/husband and his family members, right after the marriage, had expressed their displeasure that car and TV have not been given to the appellant/wife by her parents and when she was on ,^^'K^''-.... '^ '^ ff c-.,,.-—^. 8 '^.y.\ fcr vA ^ ^-'.? /y ^ '>:..^./ / '^ ^^AS^" /y^ ^'..., '^'" ..^/' "'^s^s^y ^l- honeymoon trip with the respondent/husband, he had complained about non-giving of car and TV and had also stated that they (respondent's family) had given a piece of land to his sister Manisha at the time of marriage and therefore, the appellanVwife has also to make arrangement for a plot. However, on account of non-fulfillment of the said demand, that they werenot treating the appellant properly and had raised an issue, which was not agreed upon at the time of marriage, that either the appellant/wife should get herself transferred to Jagdalpur or otherwise resign from her job. 17. So far as demand of plot by the respondenVhusband during honeymoon trip is concerned, there is no averment in the written statement filed by the appellant/wife. Regarding demand of car and TV in dowry, except the oral statement of the appellant/wife, there is no other evidence to substantiate it. The fact that the respondent's mother had written two letters to her daughter-in-law (appellant), has been admitted by the appellanVwife and the appellanVwife has also sent replies to those letters. Although those letters and their replies have not been filed by the parties, but from the statements of the witnesses and the pleadings of the parties, it is clear that through those letters, the respondent's mother Smt. Sushila Nadan (PW-2) had advised her daughter-in-law (appellant) to patch up the differences between theappellant and the respondent and to start living together. It is also clear that through the replies sent by the appellanVwife to the letters of the respondent's mother, that for the first time allegations of demand of dowry were leveled against the respondenVhusband and his family members. The appellant/wife has admitted in her cross-examination that no demand of car and TV was made at the time of marriage and the same was made after marriage. In view of this, there is no cogent and reliable evidence to hold that there was ever any demand of dowry made from the side of the respondenVhusband and his family members. 18. So far the question of desertion is concerned, from the evidence adduced, it is clear that after attending Rafi Night function held at Jagdalpur on 31st July, 2003 and after her return on 3rd August, 2003 to Raipur, that the appellanVwife had not resided with the respondenVhusband. She has admitted that on 2 February, 2004, .<"' ^' 9 ^ -J^ ^— the respondenVhusband alongwith his mother and other relatives had come to Raipur for resolving the dispute, however, the dispute could not be resolved. It is also not in dispute that after this, the respondent/husband (PW-1) had sent two notices by registered post through his counsel on 4.2.2004 and 26.9.2005, asking the appellanVwife to come back to him within a fortnight and resume conjugal life, but the appellant/wife had not responded. The appellant/wife has admitted that she had lodged an FIR at Police Station - Bodhghat at Jagdalpur on 6.10.2005 against the respondent/husband and his family members regarding harassment in connection with demand of dowry. It is also not in dispute that on the basis of said FIR, the respondent and his family members i.e. his mother, brother, sister-in-law, sister and brother-in-law were arrested and a criminal case is pending before the competent criminal Court against them. After lodging ofthe FIR against the respondent and his family members, that the appellant/wife had again on 6.10.2005 and after that on 30.10.2005 visited the respondent's house at Jagdalpur and she was not allowed to enter the house, as has been admitted by the respondent/husband himself and his mother Smt. Sushila Nadan (PW-2), on account of the fact that the appellant/wife had lodged a totally false FIR against them. 19.The appellant/wife has not stated anywhere in her statement that before 6.10.2005, she was ever not permitted to enter the house or was driven away by the respondent or his family members. It was only after lodging of the FIR on 6.10.2005, that the respondent and his family members had not allowed her to enter the house and had driven her away. The fact that the demand of dowry was ever made by the respondent or his family members has not been established. The appellanVwife has admitted in her cross-examination that she lodged the FIR against the respondent and his family members in her defence because time and again they were not permitting her to enter the house and had driven her away. However, on the contrary, from the statements of respondent/husband (PW-1), his mother Smt. Sushila Nadan (PW-2) and Ravindra Masih (DW-2), it is clear that the respondent/husband had written a letter to priest Ravindra Masih (DW-2), requesting him to intervene and resolve their family dispute. tv'^<i3-r v"^s^- ^L ^h. ':1:^^,. 10 From the statement of Ravindra Masih (DW-2) also it stands established that he alongwith other persons had gone to Jagdalpur to resolve the dispute, but the dispute could not be resolved. 20.The appellant/wife has admitted that she had filed an application for restitution of conjugal rights before the Family Court, Raipur and the same was dismissed in favour of the respondenVhusband and against that judgment and decree, she had filed a first appeal i.e. FA(M) No.95/08 before this Court, which was dismissed vide judgment dated 15.2.2010. 21. Thus, from the pleadings ofthe parties and the evidence adduced, it stands proved that after returning back from Jagdalpur to Raipur on 3rd August, 2003, that the appellant/wife (DW-1) has deserted the company of the respondent/husband without just and reasonable cause. From perusal of the material available on record, it appears that just to exert pressure on the respondent/husband and his family, in her defence, the appellant/wife filed an FIR in connection with demand of dowry against them and thereby, has treated them with cruelty. 22. Thus, on the basis of aforesaid discussions, we are of the opinion that there is no illegality, infirmity or perversity in the impugned judgment and decree and the same deserves to be affirmed. Accordingly, the appeal being without any substance is hereby dismissed. Thejudgment and decree dated 8 April, 2010 passed by 1 Additional Principal Judge, Family Court, Raipur in Civil Suit N0.189-A/07 is affirmed. 23. No order as to costs. 24. Additional Registrar (Judicial) is directed to draw up a decree accordingly. Sd/- LM.Quddusi Judge Sd/- G. Miuhajuddin Judge ^