~ ISd/- DliirendraMishra Judge Sd/- Dilip Raosaheb Deshmuidi Judge ^iil^i^Mi •g'"is""srsi3 ,i! i!;ilS.I'!?i;l \^. '^ HIGH COURT OF CHHATTISG^ARH AT BIIASPUR F.A.iMl No. 04/2QQ6 Rajendra Singh Thakur, son of APPBLLANT Shiv liv Sagar Singh, aged about AT years, resident ofDurga. Mandir, in front of Ooswami Kirana Store, Lakhe Nagar, Raipi-ir, Tahsil aad Distnct Ralpur (CG) Versus RESPONDBNT Smt. Krishna Thakur, wife of Shri Rajcndra Singh, agcd about 42 years, Resident of Shanti Vihar Colony, Danganiya, in front of Gyan Sarita Vidya Mandu-, Raipur, TahsU and District Raipur (CO) Present: Shri H.B. Agrawal, Sr. Adv. wifh Ku. Rinky Tamrakar, Advocatc, Advocatc for thc appcllant. Shri A.K. Prasad, Advocate, for fhe respondent. A^^L UNDBR SECTION 19 OP FAMILY COURTS ACT. 1984 JUDGMBNT (22-8-2008) PER DHIRENDRA MISHRA. J. Appellant has preferred this appeal under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 26-7-2006 passed in Civil Smt No. 61A/2006 whereby leamed First Additional Principal Judge, Fainily Court, Raipur has dissolved the marriage dated 18th April, 1990 by a decree of dissolution of mamage. 2. The respondent-wife filed application under Section 27 of the Special Marriage Act, 1954 against appellant-husband for dissolution of mamage dated 18tfa April, 1990 solemnized under the Special Marriage Act on the groimd that only a monfh after fheir marriage, the non-applicant/husband conta'acted second marriage on 20-5-1990, since then he is 2 DS residing in a separate house and they have given birth to children. After second mamage, fhe non-appUcant started treatir^ fhe applicant with cruelty. She is residing separately in her own house with her two children bom from non- appUcant and one daughter bom from her former husband. The non-applicant mtentionally married her to grab the property of her daughter Ku. Neelu Devangan, which she inherited from her father and former husband Deepak Ram Devangan. The non-applicant started threatening her. She had lodged report with fhe police on 3-7-2000 and 13-4-2006. On her report, offence was registered against fhe non- applicant and he has been released on bail by the Court. On account of cruel behavior of the non-applicant, it has become impossible to Uve wifh him and, therefore, the mamage be annulled by decree ofdissolution. 3. The respondent admitted his msrriage dated 18-4-1990 under the Special Marriage Act. He also admitted fhat he has contracted second marri^e on 20-5- 1990 with Premlata alias Pumima. However, it has been avenred fhat the second marriage was solemiuzed wifh tfae consent of the applicant and he is leading matrimomal life happify and peacefully with both of his wives. The ofher allegations of ill-c'eatment and cruelty have been denied. He has also denied that he purposely niarried the applicant to grab fhe propeity of her daughter Ku. Neelu Devangan and claimed that he was •; ^, looking after her property on fhe basis 6f power of attomey executed in his favour by fhe applicant and he further clauned fhat he had purchased the house in the name of the applicant. The applicant has filed the above plaint under fhe instigation of soniebody. 4. On the basis of the pleadii^ of the respective parties, the Pamily Court framed foUowing issues on 26-6-2006:- i. Whether the non-appiicant treated the applicant with cruelty aflter her mamage ? ii. Whether the non-applicant after soleinnization of his mamage had voluntary intercourse wifh any person other than his spouse ? iii. Ifyes, then efiect ? t iv. Reliefs and costs ? 5. Orignally fhe applicant had ffled the petition under Section 13 of the Hindu Marriage Act, however on the objection of the non-appUcant that their inarriage was solemiiized under the Special Marriage Act, therefore, the application under Hindu Mamage Act is not maintainable, the applicant filed an application for amending fhe plaint on 13-7-2006 to substitute Section 27 of the Special Marriage Act in place of Section 13 of the Hindu Marriage Act The trial Court allowed the application and accordingly the plaint was amended and the matter was fixed for evidence on 20-7-2006. On 20-7-2006, fhe non-applicant prayed for adjoununent on the ground fhat he has moived an application for tiansfer of the case in the Hi^i Coiirt, however the application was rejected and fhe matter was fixed for evidence at 1.00 pm on the same day. However when the non-applicant did not appear till 4 pm, exparte proceedmgs were drawn against him and evidence of the applicant was recorded, who closed ter evidence after examining herself. Thereafter £he matter was fixed for final ai^ument on 22-7-2006. 6. The trial CoLirt decreed fhe suit by recording a finding that fi'om fhe uncontroverted evidence of fhe applicant wife, it is evident that behavior of the non-applicant towards his wife was never afiectionate. Even though they gave birtli to two children from their matrimonial relationship, the non- appUcant contracted second marriage during the subsistence of the marriage with the appllcant. The applicant objected against his second mamage right from the beginning and she never condoned second marriage of the non-applicant witfa Premlata. From the overall documentary evidence of fhe applicant, cruel treatment of the non-applicant with the applicant is established and there is suGiicient evidence of physical and mental cruelty by the non-applicant ^. 7. Shri H.B. Agrawal, leamed Sr. counsel, app)earing for the appellant, submits fhat from fhe proceedings before the trial CoLirt, it would be evident that the appellant/non- applicant was present on 13-7-2006 as also on 20-7-2006, when he was proceeded exparte at 4.00 pm. and evidence of the respondent/applicant was recorded. After heaiing final argument on 22-7-2006, exparte judgment was delivered on 26-7-2006 and thus tfae appeUant was not afforded proper opportunity to put up his case. He further submits that the respondent has fafled to establish cruelty by adducii^ any legal evidence; fhe respondent has taken a ground of adiiltery, however adiilterer i.e. second wife has not been made a party. The provisions of Indian Divorce Act, 1969 aad fhe fonns and procedure iinder the above Act have been made applicable 'matatis rrvuLtandis' by virtue ofRule 3 ofthe High Court of Chhattisgarh Rules, 2005 fisined under Section 41 of the Special Marriage Act. Since the adi-dterer has not been made a party, fhe application of the respondent is liable to be disinissed as per Rule 9 Order 1 of C.P.C. for non-joinder of necessary party. 8. On the other hand, Shri A.K. Prasad, leamed counsel for the respondent has supported the impugned judgment. 6 ll'\ ^., 9. We have heard leamed counsel for the parties. We have perused the record of the trial Court as also the impugned judgment. 10. FTom order sheets dated 13-7-2006 and 20-7-2006, it is reflected fhat on 13-7-2006, in the earlier part of (he day, fhe appellaat was present before the Family Court and his request for adjourmnent was refused and the matter was fixed for recording of evidence on 20-7-2006. On 20-7-2006, at 1.00 pm. when the appeUant did not tum up, the matter was called again at 4.00 p.m. and because of non-appearance of the appellant, exparte proceeding was drawn against him and evidence ofthe applicant-wife was recorded, who closed her case after examining herself and fhe matter was fixed for fmal arguiaent on 22-7-2006. In the aforesaid cu'cumstances, it cannot be said that the appellant was not afforded proper opportunity by the trial Court, as the matter was fixed for evidence on fhe same day m the presence of the non- applicant and he hunselfchose to remam absent. 11. So far the contention of leamed counsel for the appellant that the suit was liable for dismissal far non-jouider of adulterer- second wife is concemed, fi?om fhe pleading of the applicant in the divorce petition, it is evident fhat tfae divorce petition was filed on the ground of cruelty. Prom perusal of the plaint, it is clear fhat the applicant has alleged that afifcer contracting second marriage, fhe non-appBcant- husband started beating her after consum.u'^ liquor. He resided with his second wtfe and never kept the applicant in his own house. She had complained about cruel treatment with the poEce in fhe year 2000 aswell.as 2006. The-non- appUcant was arrested on her complaint. The non-appMcant married her just to grab the property of her daughter Ku. Neelu. Leamed Family Court has negated the defence of fhe non-applicant that the applicant had condoned his second marriage wifh F'remlata by her conduct as she did not object for 16 years of her marital life and has held that 6-osi the evidence available on record, it would be evident that the applicant was complaining about ill-treatment by the non- applicant and against his second marriage right from the beginning. The reasons assigned by leamed Family Court for reaching to the conclusion fhat fhe appellant treated his wife with mental and physical cruelly is bome from fhe un- rebutted evidence of applicant-respondent. From ttie bare reading of the plaint of the applicant, it would be evidait that adultery was not a ground taken by the wife and fhe F'amify Court has also not decreed fhe divorce petition on the ground of adulteiy. The factum of second marriage has been cited as evidence of cruelty perpetrated by the non-applicant against ms wue. 12. F'or fhe aforesaid reasons, we are of fhe considered opmion that ia view of the un-rebutted evidence of the respondent-wife and fhe admission of the non-appHcant that he contracted second marriage only after a month of his marriage with the respondent-wife, fhe trial Court has righfly reached to the conclusion fhat the applicant-wife has established cruelty by the non-applicant husband and there is no illegality or infirmity in fhe impugned judgment and decree. T'he impugned decree passed by the trial Court for dissolution of marriage is based on pleading of fhe respective parties and evidence available on record. 13. The appeal being devoid of substance, deserves to be dismissed and the same is accordinelv dismissed. Sd/- Dhirendra Mishra Judge Sd/- DiUp Raosaheb Deshmuidi Judge f'L