HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri T.P. Sharma, & Hon'ble Shri Rangnath Chandrakar, JJ, Appellant Respondent First Appeal (M) No. 58 of2009 Smt. Varsha Sharma Vs. Shri Rajesh Sharma JUDGIVIENT FOR CONSIDERATION Hon'bleShri Rangnafh Chandrakar, J a) o{_y^.e-e— Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Post for pronouncement of judgment on 15'-2-2010 Sd/- T.P. Sharma Judge r,jf;g;-!ita«.-a2BiSE3SIB%e?RB^EBI^: BIIT<».J;,-./;'.~:^-.,- c^Stf^^Sas^^s^ fr"^1 HIGH COURT OF CHHARTTISGARH AT BILASPUR CORAM: Hon'ble Shri T.P. Sharma. & Hon'ble Shri Rangnath Chandrakar.JJ Appellant Respondent First Appeal (IVI) No. 58 of 2009 Smt. Varsha Sharma, wife of Rajesh Sharma, aged about 33 years, r/o. Ram Krishnayan "Dalda Factory Road" Senio (MP). Versus Shri Rajesh Sharma, S/o.. Shri S.N. Sharma, age 35 years, r/o. H.No. 773, Radhika Kunj, New Changora Bhata, Sunder Nagar, Raipur, Dist. Raipur. {Appeal under Section 19 (1) ofthe Family CourtAct, 1984) Present: Mrs. Anju Ahuja, counsel for the appellant. Mr. Malay Kumar Bhaduri, counsel for the respondent. JUDGMENT (Delivered on 1^ dayofFebruary, 2010) PerT.P. Sharma.J. Challenge in this appeal under Section 19 (1) of the Family Court Arit, 1984 is to the judgment and decree dated 19-8-2009 passed by Ist Additional Principal Judge, Family Court, Raipur, in civil suit No. 26-A/2008 whereby the marriage between the parties has been dissolved by a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (for short, "theAct, 1955") on the ground ofcruelty. 2) The decree is impugned on the ground that without any proof of cruelty, the court below has decreed the suit filed on behalf of the respondent and thereby committed illegality. x 3) Brief facts necessary for disposal of this appealare that as per the pleadings of the parties, the parties are legally wedded spouses, their marriage was solemnized according to Hindu rites and customs on 29-1- 2000 at Seoni and after marriage they resided together and one son namely Raj Sharma was born out of their wedlock. According to the pleadings of the respondent the appellant is mentally abnormal and her behaviour was not normal. The respondent was not informed by the parents of the appellant about her behaviourbefore their marriage. She was in habit of visiting her maternal house frequently without his permission. The appellant/wife condemned the respondent before society. Her behaviour was abnormal. She deserted the appellantfor last two years. She herself has filed the petition for divorce on the ground of consent and secondly she left her matrimonial house. On the aforesaid grounds, the petition for dissolution of marriage by a decree of divorce was filed on behalf of the appellant. 4) The appellant has denied the allegations made in the petition and has specifically pleaded that she is not mentally abnormal and her behaviour is not abnormal and she never committed cruelty upon the respondent/husband. Respondent himself gave torture and committed cruelty upon the appellanVwife and he has tried to take her signatures on different papers. 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 Courjt dissolved the marriage by a decree of divorce between the parties. \v 6) We have heard Mrs. Anju Ahuja, learned counsel for the appellant and Mr. Malay Kumar Bhaduri, learned counsel for the respondent, perused thejudgment & decree and record ofthe Family Court.. 7) Learned counsel appearing for the appellant vehemently argues that the decree has beengranted on the groundof cruelty that the appellant has leveled the charge of illicit relation on the respondent which itself constituted cruelty, but the appellant has not leveled such charge upon the respondent. Learned counsel for the appellant has further argued that the appellant has not pleaded in her written statement relating to any illicit relation by mistake which has come in her evidence under affidavit in a casual manner that itself does not amount to cruelty. She has further argued that marriage between Hindus is sacrament and not contract and normal disturbance between husband and wife is natural in marital life, but that cannot be a ground for divorce. Learned counsel for the appellant in support of her arguments has placed reliance on Vijay Kumar Ramchandra Bhate vs. Neela Vijaya Kumar Bhate, repori:ed in 2003 SC 2462 in which it has been held that if false allegation relating to extra marital relation is leveled extensively in the written statement, such allegation itself is mental cruelty. 8) "On the other hand, learned counsel appearing for the respondent vehemently opposed the appeal and submitted that the court below has decreed the suit on theground of mental cruelty and further argued that the appellant/wife herself deposed in her evidenceunder affidavit in para8 that the respondent is having illicit relation with other woman which itself is mental cruelty, therefore, the court below has rightly decreed the suit on the ground of mental cruelty. 1^ f-^-wi ^.I* J ferftis 1 9) In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. Decree of divorce has been granted by the court below on the ground of making false allegation of illicit relation by the appellant/wife. As regards other evidence is concerned, both the parties led evidence, examined themselves and deposed against each other which shows their norma] marital behaviour. The appellant has filed the written statement. In para 3 of additional allegation in her statement, appellant has pleaded that the respondent/husband used to talk with other women by telephone and on being asked her husband/respondent used to beat her and after leveling the charge of suspicion, the respondent used to say that the appellant has made allegation which reads as follows: "Ifg fSf; 3f|c|cicb cb^jcb 1 SIcRR f^ft frf^IT ^ Vf^ TR cTRT ^CTT cT TjBi^ TR cR Wf!\ cp^t ^pT SINfT qPT?T ?P5-T1" 10) The appellant has given in her evidence under affidavit in para 8 which reads as follows" "II? -f^ ^ q^T fWt ST^ ^cTT ^ SltET W[ET ?t-t ^ 'gSTFT ulsl'i'l ddlch 'ETTgT tt^lT Tf^ff cblijcll^ q?T 11 ^H ^I^T v? craici? ig •yiRi*i SPITRT ^ ^ri 11) On the basis of aforesaid allegations, the Court below has granted a decree of divorce on the ground of mental cruelty. If we read para 3 of additional allegations, then it would show that the husband used to say that the appellant made the allegations on the basis that she suspected the respondent i.e., husband, but on the basis ofthe aforesaid allegations, it is difficultto hold that the appellant has leveled charge of illicit relation on the respondent. I^^J \^y 12) The allegation relating to para 8 of her evidence in affidavit reveals that the appellant has stated that on the basis of relation with any woman of her husband, her husband has filed the petition for divorce and has committed forgery. She has not made any extensive allegation or even she has not mentioned the name of any woman. The respondent has examined this witness at length. In para 17 of her cross examination she has stated that she came to know the factum of second wife from her mother-in-law who has not toldthe name or age ofthat woman. She personally did not know her and specifically stated that she has never seen the respondent with any woman. She has also specified that as the respondent has filed the petition for divorce, therefore, she has stated the aforesaid fact. 13) On perusal of the evidence and pleadings of the respondent/plaintiff, it is clear that the respondent has made allegation of insanity (mental imbalance) upon the appellant and has condemned her activity which the appellant denied in para 17 of her cross examination. Para 8 of her evidence on affidavit reveals that she has made allegation after her condemnation by the respondent, but this is not a willful allegation, evidence or extensive allegation. This allegation is made in a very casual manner when she has been condemned by the respondent. In absence of anysuch extensive and clear allegation or evidence or charge of illicit relation, we are of the view that the aforesaid allegation does not come under purview of mental cruelty sufficient for destroying the relation of Hindu family. The family courts are required to consider the allegations in evidence in its letter and spirit in 'its context and while considering the allegation, the Court below is required to examine the fact where allegation has been made intentionally or in a casual manner or under condemnation or under any compelling circumstances. These allegations are not ^^ ^iik sufficient to prove the ground of cruelty committed by the respondent. In absence of such proof, a decree impugned for dissolution of marriage by a decree of divorce is not sustainable under the law. 14) For the foregoing reasons, the appeal is allowed and the judgment and decree of dissolution of marriage by a decree of divorce between the parties is herpby set aside. Parties shall bear their own costs. Advocate fee as per schedule. Raju 15) Decree be drawnup accordingly. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge t-. •\