HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal No. 85 of 2006 \^-r—r-- o-^/ Coram: HonbleShri Dhirendra Mishra, & Horible Shri R.N. ChandraRar, JJ Appellant Defendant Akhilesh Swaroop Sharma. Resoondent Plaintiff Vs. Rashmi. ^' JUDGMENT FOR CONSmERATION HONBLE SHRI JUSTICE DHIRENDRAMISHRA Sd/- R.N. Chandrakar Judge ^7/4/2009 Sd/- JUDGE °?^4/2009 POST FOR JUDGMENT en ^S' ft?^L 2^o^ Sd/- Dhirendra Mishra Judge "N'if l^,^ NN<' HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal No. 85 of 2006 Coram: Appellant Defendant Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri R.N. Chandrakar, JJ Akhilesh Swaroop Sharma, S/o. late Shri Sugriv Prasad Sharma, aged about 33 years, r/o. Shop No. 735 C, Market Bhilai Sector6, Tahsil and Distt. Durg (CG). Vs. Respondent Plaintiff Rashmi W/o. Akhilesh Swaroop Sharma, aged about 27 years, R/o. Ptot No.14, Vidya Vihar Colony, Nehru Nagar (East) Bhilai, Tahsil and Distt. D,urg (CG) at present R/o. Kalyan Mahavidyalaya, Bhilai Nagar, Sector 7, Police Station Kotwali, Bhilai Department of Electronics, Distt. Durg (CG). (FirstAppeal under Section 19 (1) ofthe Family CourtAct, 1984) Present: Shri Jitendra Gupta, learned counsel for the appellant. Shri S.K. Pandey, learned counsel forthe respondent. JUDGMENT (Passed on thisc32... day ofApril, 2009) Per Rananath Chandrakar. J. Challenge in this appeal is to the judgment and decree dated 30-3-2006 passed by the Principal Judge, Family Court, Durg (CG) in Civil Suit No.519- A/2005, whereby the application filed by the respondent/wife under Section 13 (1), (1a) & (1b) of the Hindu Marriage Act, 1955 (for short, the Act, 1955) for grant of dissolution of marriage between the respondent/wife and the appellanVhusband, was atlowed. 2) The facts of the case, in brief, as unfolded before the Family Court are that even before mgrriage appellant/defendant and the respondent/plaintiff were residing in the same locality at Bhilai and they knew each other. The respondent/wife herein was a student of a college at Nagpur. The appellant/defendant Akhilesh Swaroop Sharma came into contact with the respondenVplaintiff and latter they fell in love with each other. However, in the year 1999 respondent/plaintiff was admitted in a college at Nagpur forstudying the Computer Management. In the month of November, 1999 the appellant/defendant went to Nagpur to meet respondent/wife and returned to Bhilai. In the month of February 2002 he again wentto Nagpur to meet her and expressed his desire to marry her. Thereafter, the marriage between the appellant and the respondent was solemnized according to HinduRites on 16- 2-2000 in Arya Samaj Mandir, Nagpur. After marriage, i.e., on 16-2-2000 the appellant/defendant removed vermilion from her forehead and also removed the ornaments worn by her and returned to Bhilai. On 17-2-2000 the respondent/plaintiff came to Bhilai to meet her husband, but the husband refused to meet her. Thereafter, she came back to Nagpur. She did not disclose about her marriage to her parents. In the year 2002 respondent/plaintiff Rashmi was residing in the Girls Hostel in Nagpur. Although, the appellant/defendant Akhilesh Swaroop Sharma neither met nor contacted her over telephone, the respondenVplaintiff informed her husband over telephone that she was residing in the Girls Hostel in Nagpur. Thereafter, appellant/defendant Akhilesh went to Nagpur and met her. He told his wife that he was residing in a hotel and pressurized her to come to the hotelalong with him. She came along with her husband to hotel where the friends of her husband were already there. When she refused to enter into the room along with her husband, he threatened her and pressurized her to enter into the room but she refused and came back to the hostel. Thus, the appellanVdefendant was behaving with his wife cruelly. Thereafter, they were not maintaining marital status. On 23-9-2000 the father of the respondent/plaintiff came to Nagpur and took his daughter to her mother-in-law's house in Agra. Thereafter, appellant/defendant lodged first information report in Police Station Kotwali, Sector 6, Bhilai Nagar against the parents of the respondent/plaintiff and falsely implicated them. Thereafter, appellant-defendant threatened his wife, brother- in-law, and her parents to kill them. The respondent/plaintiff on 15-11-2000 lodged first information report in the Police Station Kotwali, Bhilainagar, against her husband about the incident. After their marriage i.e., 16-2-2000 they never lived together and were living separately since then. The appellanVdefendant threatened his wife over telephone and sent some scandalous letters to his wife through his brother and his sister-in-law. Being aggrieved by such act of cruelty and desertion by the husband, the respondent/plaintiff had filed a civil suit for dissolution of mam'age before the Family Court, Durg. The Family Court, Durg, vide judgment and decree dated 30-3-2006 allowed the civil suit filed by the respondent-plaintiff and granted the decree of divorce between the parties. Thereagainst, the appellanVdefendant has preferred this appeal. 3) Learned counsel appearing for the appellant submits that the impugned judgment and decree passed by family court is contrary to law and material available on record. The family court failed to appreciate that the respondent failed to establish the ingredients of cruelty and also failed to appreciate that the respondent herself avoided to reside with appellant's family. Learned counsel further submits that the appellanVdefendant has not been allowed to cross examine the witnesses of the respondent and opportunity was not afforded to him to adduce the evidence of his witnesses. The family court further erred gravely in holding that the appellant and respondent were residing separately for five years. The family court has wrongly appreciated the FIR lodged by the appellant because the fact is that the appellant lodged the FIR with an object to resume conjugal life. Learned counsel further submits that the Family Court wrongly held that the behaviour of the appellant with the respondent was cruel as there is no such evidence to prove that the appellant behaved cruelly with his wife. The next submission of learned counsel for the appellant is that the family ^ ^,.^~-y '-^s^ court reached to wrong conclusion by mis-appreciating the material evidence available on record. The findings recorded by the family court are perverse and bad in eye of law. The family court committed grave error in allowing the application of the respondent. Therefore, the impugned judgmentand decree dated 30-3-2006 be set aside. 4) Per contra, learned counsel appearing for the respondent supporting the impugned judgment and decree passed by the family court submits that the repeated efforts made by the family Court for reconciliation between the parties had failed which is also reflected from the record. It was further urged that in view of the admission of the appellant that cordial relationship prevailed between the two spouses for a period of 5 years after marriage, it was highly improbable that the respondenVwife or herfamily members would have subjected the appellant/husband to cruelty. It was also argued that mental cruelty was inflicted by the appellant on the respondent by lodging a false report against her parents and he had deserted his wife without any reasonable cause. The respondent/plaintiff was successful in establishing the ingredients of cruelty before the family court. Learned counsel for the respondent submits that family court granted sufficient and reasonable opportunity to the appellant/defendant to produce witness on 3-2-2006, 13-2-2006, 2-3-2006 and 21-3-2006 and the evidence of the appellanVdefendant was closed on 21-3-2006. The appellant/defendant had neither produced any oral witness except himself nor any documentary evidence in support of his case. The appellant/defendant lodged a false complaint against the parents of the respondent/plaintiff who were not aware of the marriage of the appellant and the respondent. Learned counsel further submits that the appellant/defendant never took any step to keep her wife with him rather he always showed an indifferent attitude towards her which is not expected from a husband. It is also clear from the fact that the appellant/defendant since his marriage with the respondenVplaintiff never paid WI: any maintenance to her. He has accepted the same in his cross examination. At the time of the marriage the respondent/applicant was a student of Master Degree in Computer management course and was studying at Nagpur. The appellant/defendant never helped her even to pay the fees for the course. The appellanVdefendant was reluctant to reveal the factum of the marriage solemnized between the appellant and the respondent to his parents and the society. The next submission of the learned counsel for the respondent is that the respondenVplaintiff has adduced both oral and documentary evidence in her favour which were proved to be trustworthy and free from blemish. Learned counsel further submits that the family court, after meticulous examination of the evidence available on record, came to the conclusion that the respondent/plaintiff was successful in establishing the ingredients of cruelty and desertion and thus allowed the application of the respondenVplaintiff for dissolution of her marriage with appellant/defendant. Learned counsel further submits that the instant appeal is filed on flimsy grounds and lacks merit, therefore, the same is liable to be dismissed. 5) We have heard learned counsel for the parties, perused the record, pleadings and documents appended thereto. 6) Learned Family Court has passed the impugned decree of dissolution of marriage solemnized between the parties on 16-2-2000 on the ground of cruelty and desertion. Learned counsel for the appellant assailed the above finding on the ground that the respondent/applicant has failed to prove the ingredients of cruelty necessary for passing of decree on that ground. For the purpose of granting decree of divorce on the ground of desertion the applicantis also required to prove animus desrendi, which is missing in the instant case. To substantiate his arguments, reliance has been placed on various judgments of the Supreme Court and the'High Courts. ^4f~ "^ J v^s^^y 1 7) It is well settled law that to constitute cruelty, the conduct complained of should be grave and weighty so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct has to be considered in the background of seyeral factors such as social status of parties, their education, physical and mental conditions, customs and traditions. However, it is very difficult to lay down a precise definjtion or to give exhaustive description satisfy the conscience of the court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining-spouse to secure divorce. 8) If we examine the evidence adduced by the respective parties, in the light of settled principles of law, we find that the respondent/wife has alleged in her application as well as in her deposition before the family court that they were in love with each other before their marriage as they were residing in same locality. The marriage was solemnized on 16-2-2000 and immediately after marriage husband had asked her to go to her aunt's house after wiping out vermilion from her forehead and taking out Mangal Sutra and other ornaments. She has further alleged that on return to Bhilai, non-applicant/husband ousted her to stay with her parents in Bhilai and thereafter, he did not meet her while staying in Bhilai. There are allegations that the husband insisted that she should accompany him to a room in the hotel where the friends of non-applicant/husband were also present. Non-applicant/husband lodged a false report against the parents of wife that they have forcibly taken her to Agra though their parents were not aware of the marriage. Non-applicant/husband had also refrained his wife not to disclose her marriage with him to her parents. Applicant/wife has been cross-examined by the non'-applicant/husband through his next friend. However, the allegations 7 'i ^ made by her in examination-in-chief have not been rebutted in her cross examination. Her version is also corroborated from the evidence of Satyendra Kudesiya, her maternal uncle, Himansu, her brother and Vinayak Bansoor, her father and there is nothing in the cross examination of these witnesses which discredits allegations of cruelty made by them against the appellant. 9) The appellant in his deposition before the court has admitted that after marriage the respondent went to reside with her aunt, whereas he returned to Bhilai. He has further stated that he used to meet his wife in intervals one or two months at Nagpur where they used to stay one or two days in hotel. She regularly telephoned him. However, when she did not telephone for three days, he made enquiries and learnt that she has gone to Bhilai with her parents, as she fell sick. Thereafter, he went to her house at Bhilai and found that she was alright. He tried to talk to her brother, but failed. However, later on, he was informed by his brother-in-law that father of Rashmi was ready and prepared to send her after some time. When they did not send her as promised, he lodged report in the Police Station. However, Rashmi stated before the Police that she wanted to reside with her parents. After completion of her education, Rashmi went to Agra with her aunt. Attempts were made to obtain his signature on divorce papers through mediators and certain amount was also offered for divorce, however, he declined the same. He denied allegations of mental and physical cruelty and he has alleged in the cross examination that Rashmi's parents did not approve the marriage due to difference of status. He denied the allegation that he compelled Rashmi to marry him and further stated that Rashmi herself took out Mangal Sutra and other ornaments as she wanted to go to her aunt's house and denied that he wiped out vermilion from her forehead. He has further stated that he lodged a report against her parents as he apprehended that they had taken her forcibly. However, he has admitted that he did not pay any m .^K^, amount to Rashmi for her studies or maintenance and he also admitted that he has not filed any petitionbefore the court for restitution of conjugal rights. 10) Learned family court, considering variance in the averments in the written statement and deposition of the non-applicant on oath before the court, has held his statement unreliable. Further considering the allegations of the applicant that the appellant wiped out vermilion from her forehead, took out Mangal Sutra and other ornaments and also considering that he persuaded his wife to accompany her in the hotel; did not disclose about his marriage to her parents or other relatives and asked his wife to keep the same secrete, did not take her to his home as his wife and lodged false report against her parents in the Police Station, held that the same constitutes mental cruelty of such a nature that it cannot be expected that they can live together under the same roof as husband and wife cordially. 11) Relying upon the statement of Rashmi, which is also corroborated by the statement of her father Vinayak Bansoor and her brother Himansu that she asked the appellant to take her to his home, however, the appellant never came to take her to his home, it has been held that the appellant willfully deserted his wife Rashmi for a period of more than two years. The version of the appellant, in this regard, disbelieved on the ground that he has exaggerated while making allegations against the parents of Rashmi, which does not find place in his written statement. 12) After carefully examining the pleadings of the respective parties, oral and documentary evidence adduced by them during the course of trial and reasons assigned by the learned family court for grant of decree of divorce on the ground of cruelty and desertion, relying upon the evidence of the respondent and her witnesses and disbelieving the version of the appellant herein, we are of the opinion that looking to the social background of the parties to the proceedings, the act of the appellant in keeping the factum of their love marriage secrete from thesociety, wiping out vermilion and taking out Mangal Sutra of newly wedded wife in order to maintain his secrecy, asking her to live with her relatives and not making any attempts to bring her to his home and not giving her status of wife before his parents society, constitutes mental cruelty to such an extent that is sufficient to grant decree of divorce on the ground of cruelty. 13) Apart from the ground of cruelty, from the evidence available on record, it also appears that the appellant and respondent were residing separately for more than five years. The appellant alleged that she was not willing to reside with her husband. However, he did not make any efforts to bring her back. hle also did not file any petition for restitution of conjugal rights. In these circumstances, we are of the opinion that the learned family court has rightly held that the ground of desertion is also availabte to the wife for seeking decree of divorce. 14) For the aforesaid reasons, we are of the opinion that the learned Family Court, on the basis of evidence available on record, has rightly passed the impugned decree of divorce and the same does not call for any interference. 15) In view of the foregoing, the appeal has no merit and the same deserves to be dismissed and is accordingly dismissed. No order as to costs. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ^ !u H Raju