HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA & HON»BLESHRI RAJESHWAR LAL JHANWAR. JJ. F.A. (Mt No. 55/2010 APPELLANT Defendant RESPONDENT Plaintiff Smt. Rajshree Reddy. Versus Ajay Reddy. Judenaent for consideration Hon»bleShri T.B SHARMA. J. Sd/- R.L. Jhanwar Judge ^JWp2QTQ Sd/- T.P. Sharma Judge gj^/8/20T0 Post for pronouncement of Order ^ .8.2010 Sd/- R.L. Jhanwar Judge f^'- -:\ ^ ^ ^^ ^,. HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ. APPELLANT Defendant RESPONDENT Plaintiff F.A.(MlNo.55of2010 Smt. Rajshree Reddy, W/o Shri Ajay Kumar Reddy, Aged about 35 years, Resident of Qrt. No. 1A, Street 36, Sector - 8, Bhilai Tahsil & Distt. Durg (C.G.) C/o Office of the Principal Ghanshyam Araya Kanya Mahavidyalaya, Durg (C.G.) VERSUS Ajay Reddy, S/o Shri Parmanand Shriniwas Reddy, Aged about 38 R/o Sreet 36, Block 1A sector 8, Bhilai Tahsil & Distt. Durg (C.G.) Tahsil & Distt. Durg (C.G.) Presently resident at D-19, Sector 1, Devendar Nagar, Raipur (C.G.) FIRST APPEAL UNDER SECTION 19 (1) OF THE FAMILY COURTS ACT, 1984 Appearance: Shri Shashank Thakur, Advocate with Shri Ashutosh Shrivastava, Advocate for the appellant. Shri B.P.Sharma, Advocatefor the respondent. JUDGMENT (Passedon 2-£.08.2010) Per R.L.Jhanwar.J. This appeal is directed against the judgment and decree dated 15.04.2010 passed by the 2nd Additional Principal Judge, Family Court, Durg in Civil Suit No. 31 A/2008 whereby the Family Court has allowed the suit for dissolution of marriage by a decree of divorce filed on behalf of the respondent/plaintiff i.e. husband. 2. Brief facts necessary for disposal of this appeal are that the parties are governed by Hindu. The respondent/plaintiff filed a Civil Suit for dissolution of marriage solemnized between the respondent and the /^tf/-v^ ,<^'x... ." \ ^.^, • ^.^ i: .^. 'A \,'^^-,\ H .' ./• '•c^'-f appellant on 25.06.1994 according to Hindu rites and customs. Out of wedlock, the parties have been blessed with two children. After their marriage, the behaviour of his wife, appellant herein, has become abnormal, as a result of which, she used to quarrel frequently with the family members of the respondent - husband so that she could live separately with the respondent in Bhilai as the appellant is working in Bhilai. Being a woman of arbitrary nature, she was reckless for his parents and used to torture the respondent mentally. She left her in-laws at Raipur without intimating anybody and was residing in Durg and put a condition that if the respondent - husband would allow her to live at Bhilai, then only she would come with her husband to Raipur. In order to pacify the dispute between them, a meeting was called in which both husband and wife were allowed to live at Bhilai. It was also pleaded that at Bhilai also, the behavior of the appellant / wife has not been changed and as usual at Raipur she is unusual and atypical due to which the respondent / husband was often subjected to physically and mentally by the appellant. After giving birth to a baby and during the presence of mother-in-law at Bhilai, she used tostart petty disputes and thereafter she left Bhilai for Durg. It was further pleaded that respondent / husband once tried to bring her back to her matrimonial home but she refused on the ground that her in-laws and brother should not be with him at Bhilai. The appellant subjected the respondent / husband to financially and used to pressurize him to purchase expensive things. The respondent / husband even tried to bring his wife back through an advocate's notice and inspite of that she did not come to him. Therefore, he filed an application under Section 9 ofthe Hindu Marriage Act before the competent court and later on it was withdrawn by him as he did not agree with the conditions of the appellant/wife. More over, the appellant threatened him to drag his family members to the Court. It was also pleaded that due to unusual acts of the respondent suffered complaint of migraine and in his absence she took away important documents and valuable goods and on demand by the respondent she refused to return the same and application under Section 406 of the I.P.C. has been filed. The appellant levelled allegations against him that her husband tried to strangulate her, kidnapped her children and wandering at mid night at 2 O' clock. Since ultimately relations between them are strained, the respondent filed a Civil Suit for dissolution of marriage. yy'-. ^ :f(.^v —^ 3. Present appellant has filed a written statement and denied the allegation made in plaint and alleged that the respondent in turn used to beat her and drove her out of the house and for that she lodged a report at police station, Sector 6, Bhilai. On 12.08.2006 the respondent forcibly beat her, hurled abuses and was put forcibly in a room. She, however, manage to escape and reside in another house. The respondent even tried to strangulate her by cable wire and by the intervention of neighbours he left the place. She further alleged that the respondent and his parents forcibly took away complete Stridhan and was committing harassment, cruelty and torture upon her. 4. On the basis of pleadings of the parties, issues were framed after affording an opportunity of hearing to the parties, the Family Court, has decree the suit for dissolution of marriage by a decree of divorce. It is this judgment and decree, the appellant is challenging on the ground that without appreciating any evidence of cruelty, the Family Court has passed the decree and thereby committed illegality. 5. We have heard Shri Shashank Thakur, learned cdounsel for the appellant Shri B.P.Sharma, learned counsel for the respondent, perused the judgment and decree and record ofthe Family Court. 6. Learned counsel for the appellant argued that in the present case, the appellant/wife has not committed any torture and cruelty upon the respondent but the respondent in turn has committed torture and cruelty upon the appellant. The behaviour of respondent is not such good that he with the help of his parents used to beat her and insult her before his relatives. He is a spendthrift and is not a man of good character. He further argued. that Court below has not properly appreciated the evidence adduced by the appellant and thereby committed an illegality. 7. On the other hand, learned counsel appearing for the respondent opposed the appeal and submitted that the appellant has after solemnization of marriage started committing cruelty and torture upon respondent and the abnormal and unusual acts compelled the respondent to fite a Civil Suit for dissolution of mam'age by a divorcedecree. There is no manifest error in the judgment and decree of the Family Court and the Family Court has rightly allowed the Suit. ~— ./^..'. '^ 8. In order to appreciate the argurinents advanced on behalf of the parties, we have examined the evidence adduced on behatf of the parties. In the present case, lawful marriage between the parties and the fact that they were Hindu and legally wedded spouses are not in dispute. 9. As regards the act of cruelty of the appellant, the respondent has cleposed that his family is joint family where the respondent / wife, after marriage,was often advised to live an^ adjust with joint family. But the respondent felt it to be awful. The appellant's intention was to separate him from his joint family and to live with her separately and upon refusal the appellant started quarrelling with him. Her behave towards his parents was reckless and careless. She ofteh used to leave her matrimonial house without intimating anybody. He further deposed that she used to go to her maternal houseupon petty squabbles. Durihg the birth time of his daughter also, the appellant was present in her Bhilai house. In order to fulfill her demands he used to borrow money from here and there. Taking two children, she has left the house and kept remain. On 10,11.2005 he has lodged report relating to missing person at P.S. Sector - 6 upon which his father-in-law on 11.11.2005 made a fabricated and false report at P.S. Bhilai against the respondent and his parents so also the appellant has lodged a written complaint against the respondent. Upon such report, an amicable settlementwas arrived at between the parties on 14.11.2005 and pressurized him to live in her maternal home. When the respondent sent a notice to get her back, she refused to come back. On this, he filed an application under Section 9 of H.M.Act in the Family Court to get her back but the appellant reiterated that the respondent should not 90 to meet his parents and was insisting to reside with her Bhilai otherwise she would implicate the respondent and his parents in a false case, due to which the respondent has withdrawn his application. In support of his pleadings and evidence, the respondent filed documents Ex.P.1 to Ex.P.17 relating to various complaints, reports and proceedings against the respondent etc. sent by the appellant herein. After perusal of evidence of respondent and documents produced by him, the learned Family Judge has heavily relied upon them because the statement of the respondent was fully supported by the evidence of Smt. Nirmala Bhata and Suchitra Sharma asalso Raj Kumar Mishra. 10. Percontra, appellant has examined herself wherein she has stated that after marriage she was restricted to be under strict rulesof family, due to ^.^ • •^H- . ' \. "-»'-'"•'fCr-.:' -^- ' T:\ which she was pressurized and insulted often and was subjected to ill- treatment. She has further deposed that in her statement that she never gone to Durg without taking permission and never put any condition. She has also specifically deposed that because of studies of her son at Bhilai, she did not want to come back to her matrimonial house at Raipur. On 07.11.2005 the respondent assaulted her and her children and drove them out of the house, therefore, she went toher house and reported the matter at Sector -6 Police Station. Subsequent thereto, the appellant asked pardon and come back to his house. It was also deposed that the respondent is an irritating and annoying person since his teenage. He has complaint of migrajne from childhood. Despite this, the appellant was always ready to live with him and due to ill-treatment by husband and his parents she has compelled to lodge a report before the Ma/?//a Commission under Section 498A ofthe I.P.C. In support of her pleadings and evidence, she examined Dr. Smt. Vibha Singh and Smt. N.Rashmi Chouhan. Dr. Smt. Vibha Singh has stated that upon hearing from the appellant about the incident, she has deposed here. Smt. N. RashmiChouhan, who is the neighbour of the appellant, has deposed that the respondent is in the habit of getting annoyed upon the appellant and used to create unnecessary expenses, used to beat the appellant and her children. She also deposed that the appellant used to tell her that she was subjected to ill-treat by her husband and in-laws. 11. In Hindu MarriageAct, 1955cruelty has not been defined. It defers from cases to case and cruelty may relate to mental or physical, intentional or unintentional. In caseof mental cruelty there must be some deliberate allegatiQn or action which adversely affects the status of other party. The respondent herein fairlyadmitted that offehce under Section 498 ofthe I.P.C. wasregistered against him and his parents and the saidoffence is still pending but denied the suggestion that his wife did misbehave with him and on the basis of false pretexts he would like to separate from her. He also denied the suggestions that prior to marriage he sufferedfrom migraine; he used to beat the appellant frequently upon petty squabblesand he tried to -strangulate her with cable wire. The evidence of witnesses produced by the respondent also supported the evidence of the respondent. More over, the documents Ex.P.1 to Ex.P.17 produced bythe respondent are sufficient for drawing an inference that the respondent was subjected to cruelty mentally and physically. The evidence ofappellant can easily be discarded sinceher 'r evidence is not supported by the evidence of Dr.Smt. Vibha Singh and Smt. N. Rashmi, who are merely hearsay witnesses. More over, the appellant herein in support of her pleadings and evidence did not produce any document so that we could easily discard the evidence of the respondent herein. There must be some documentary evidence on record by the appellant herein to prove the allegations levelled by her against the respondenVhusband but the appellant did not produce even single document. In the absence of documentary evidence, it is not possible for this Court to come to conclusion that the appellant was subjected to cruelty by her husband and his parents. In sum and substance, we found that the evidence of respondent and his witnesses is fully reliable and trustworthiness since ithas not come anything, either in examination or in cross-examination, against the respondent so that we could believe the allegations levelled against the respondent and are attributable to him. 12. After appreciating the evidence available on record, the Family Court has decreed the suit for dissolution of marriage by a decree of divorce in the absence of documentary evidence by the appellant. The allegations levelled* against the respondent by the appellant/wife would itself constitute mental cruelty and on the ground of mental cruelty committed by the appellant, the respondent is entitled for dissolution of marriage by a decree of divorce. 13. For the foregoing reasons, we are of the view that the learned Family Judge has not committed any illegality or irregularity in decreeing the suit for dissolution of marriage by a decree of divorce. Consequently, the appeal being devoid of merit is liable to be and is hereby dismissed. Parties shall bear their own costs. Advocate fee as per schedule. 14. A decree be drawn up accordingly. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge