HIGH COURT OF CHHATTISGARH AT BILASPUR ^ Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal (M) No. 55 of2007 Appellant Pyarelal Resppndent Vs. Smt. Rukmat Bai JUDGMENT FOR CONSIDERATION Sd/- Rangnath Chandrakar Judge Hon'ble Shri Dhirendra Mishra, J. } T^ Sd/- Dhirendra Mishra Judge POST FOR JUDGMENT ON 1^6-2010 ?"f^ ••vf^ , ...Sd/- JUDGE /*^/6/2010 H1GH COURT OF CHHARTTISGARH AT BILASPUR CORAM: Hon'ble Shri Dhirendra IVIishra & Hon'ble Shrl Rananath Chandrakar, JJ Appellant First AppeaKM) No. 55 of 2007 Pyarelal s/o Malikram, aged 52 years, Caste Chauhan occupation: Service r/o. Jayaprakash Colony, S.E.C.L, Korba, Tahsil & District Korba (CG). Versus Respondent Rukmatbai d/o. Santram, aged 45 years, Caste: Gada, Occupation Labour works, r/o. Mudapar Jhopdi, Korba, Tahsil and DistrictKorba (CG). (Appeal under Section 19 (1) ofthe Family CourtAct, 1984) Present: Shri Vijay Kumar Mishra, counsel for the appellant. Smt. Hamida Siddiqui, counsel for the respondent. JUDGIU1ENT (Delivered on |$" 'dayofJune, 2010) Per Rangnath ChandrakaL J. This appeal is directed against the judgment and decree dated 27-4-2007 passed by the learned Judge, Family Court, Korba, in Civil Suit No. 50-A of 2006, whereby the application filed by the appellant/husband under Section 25 of the Hindu MamageaAct, 1355 (for short, "the Act") for rescinding the order of maintenance granted to the respondenVwife while granting a,.decree of divorce vide judgment andorder dated 24-10-1997 passed by Additional District Judge, Korba, in CivilSuit No. 11-A/1996. 2) Brief facts necessary for disposal of this appeal are that the respondent/wife had filed a suif bearing Civil Suit No. 11-A/1996 under ^^^ "*s /'^ -'3ssa& «, •*>.li Section 13 of the Act, 1955 for grant of a decree of divorce against the appellanVhusband which was allowed by the Additional District Judge, Korba vide judgment and decree dated 24-10-1997 on the ground of desertion and cruelty committed by the appellanVhusband upon the respondent/wife. The appellanVhusband was directed to pay a sum of Rs.1000/- per month to the respondent/wife as maintenance till the end of her life. 3) The appellant/husband filed an application under Section 25 of the Act, 1955 before the Family Court, Korba, on 27-10-2006 for rescinding the order of maintenance granted to the respondent/wife on the ground that after dissolution ofthe marriage between the parties, the respondent/wife resided with the appellant/husband for three days, had sexual intercourse with him and thereafter remarried to one Surit Ram by way of "Churi Shadi" prevailing in their society. The respondent/wife contested the case and denied the allegations made against her. Learned Family Court dismissed the application of the appellanVhusband holding that the appellant/husband failed to establish the cohabitation of the respondent/wife with him after dissolution of marriage as also remarriage of the respondent/wife with Surit Ram. 4) Learned counsel appearing for the appellant vehemently argued that the learned Family Court did not consider the evidence of the appellant/husband in its proper perspective. There was ample evidence on record by which theappellanVhusband proved the cohabitation of the respondent/wife with him after dissolution of marriage and thereafter, she remarried to one Surit Ram. Thus, the impugned judgment and t^ ^ 1 ^o decree passed by learned Family Court is bad in law and the same deservesto be set aside. 5) On the other hand, learned counsel appearing for the respondent argued the matter in support of the impugned judgment and submitted that the findings of learned Family Court are well founded. The learned Family Court has committed no illegality or irregularity in passing the impugned judgment and decree. 6) We have heard Shri Vijay Kumar Mishra, learned counsel for the appellant and Ms. Hamida Siddiqui, learned counsel for the respondent, perused the impugned judgment & deeree and record of the Family Court. 7) Inorder to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. The appellant examined himself, Balaram, Kari Bai and Sanjay Singh in support of his case whereas the respondent/wife examined herself, Sukhmat Bai and Duja Bai. 8) The appellanVhusband examined himself and his witnesses by way of affidavit under Order 18 Rule 4 of the C.P.C. He stated in his affidavit that from 6-11-2005 to 8-11-2005 the respondent/wife cohabitated with him despite his refusal and left the house. in the morning of 9-11-2005, thereafter, she remarried to one Surit Ram by way of Churi Shadi prevailing in their society and since then she was residing with him. He further stated that at the time of second marriage of respondent/wife, Kari Bai, Sanjay Singh and Balaram were present BT •"•'iSSft^-f.-^ ^ there. In his cross examination he admitted that Surit Ram is the husband of Sukhmat Bai, the sister of the respondent. He further admitted that at the time of Churi Shadi, some documents to that effect are executed before the Caste Panchayat and after obtaining signatures of the parties including the members of the Panchayat, copies thereof are supplied to both the parties of Churi Shadi. 9) The respondent/wife Rukmat Bai denied all the allegations made against her in her written statement as well as in deposition. She stated in her deposition that in the month of November, 2005 though she went to the house of appellant/husband to see her child, neither she stayed in his house nor had physical relation with him. At present she resides separately in Mudapar with her son Sanjay and does domestic works in the house of her sister Sukhmatbai for which she is given food by Sukhmatbai. She categorically denied living with Surit Ram as his wife by way of Churi Shadi. In her cross examination also she categorically denied all the allegations made against her and the suggestions given by the appellant/husband. 10) So far as the question of cohabitation after divorce is concerned, there is no evidence on record, except the evidence of the i appellanVhusband but the same has been specifically denied by the respondent/wife in her written statement as well as in her deposition. The appellanVhusband, in his cross examination in para 9 admitted the suggestion that he has not read the contents of his affidavit under Order 18 Rule 4 ofthe C.P.C., but only read the names etc. He himself stated that all the facts were narrated to his counsel that the respondent/wife was residing with Surit Ram at Mudapar as his wife after Churi Shadi. In VSSf9 ^'^v "'•telfl^ ^- his explanation also, he did not state a single word regarding cohabitation. Moreover, it is a serious question to decide whether there was cohabitation of the parties. Thus, his statement regarding cohabitation of respondent/wife after divorce on the dates mentioned in his affidavit does not inspire confidence. So far as the evidence of other witnesses on this point is concerned, they cannot be expected to be the witnesses for cohabitation. 11) The other witnesses of the appellant/husband Balaram, Kari Bai and Sanjay Singh have made parrot-like statements in their affidavits but in their cross examination, they could not remain consistent. There are material contradictions which have not been corroborated by each other. In their affidavits, all of them have stated to be present during Churi Shadi of the respondent/wife with Surit Ram but on perusal of cross examination para 7 of Balaram and para 4 of Sanjay Singh go to show that they were not present at the time of alleged Churi Shadi of respondent/wife with Surit Ram though in their affidavits they have mentioned to be present at that time. Thus, their statements find no corroboration with each other and the same appear to be unreliable. On the contrary, the respondent/wife examined her elder sister Sukhmat Bai, the wife of Surit Ram who categorically stated in her deposition that no Churi Shadi took place between the respondent/wife and her husband Surit Ram. She admitted that Rukmat Bai (respondent/wife) along with her son Sanjay resides in her house for the last 1 - 1 % years. She maintains Rukmat Bai for the work done by her in the house. Her statement is also corroborated by Smt. Duja Bai who is cousin of the appellant and sister-in-law of the respondent/wife. The only *?s?is3^ t*'^CT^l'"% I ^^1 \]^ ^^ witness who tried to support the case of the appellant is Kari Bai but her statement is also not reliable as in para 1 of her affidavit she mentioned herself to be the aunt of appellant and stated to be present along with Balaram and Sanjay at the time of alleged Churi Shadi of the respondenVwife whereas the other witnesses namely Balaram and Sanjay have denied their presence at the time of alleged Churi Shadi in their cross examination. Apart from this, Balaram has clearly admitted in para 6 & 7 of his cross examination that Surit Ram and Sukmat Bai are husband and wife and they reside together in Mudapar. The respondent/wife also resides with them for the last two years. He denied the suggestion that in the society of Pyarelal (appellant) a person may re-marry by way of Churi Shadi without giving divorce to his first wife. 12) Apart from this, it is also pertinent to mention here that the appellant/husband neither examined Surit Ram with whom the respondent/wife said to have been re-married nor produced any document regarding second marriage of the respondent/wife with Surit Ram, despite his admission in para 13 that at the time of Churi Shadi documents to that effect are executed and copies thereof are sypplied to the parties. On the other hand, the respondent/wife examined her elder sister Sukhmat Bai, wife of Surit Ram who specifically denied the alleged Churi Shadi of respondent/wife with her husband Surit Ram. Thus, on re-appraisal of the evidence available on record, it is found that the appellant/husband failed to establish the factum of cohabitation after divorce as also the second marriage of the respondent/wife with Surit Ram. , ,<? .'•^' ^s^. .\.. ../r' 'K^.- s^ 13) For the foregoing reasons, we are of the opinion that the Family Couri: has rightly dismissed the application filed under Section 25 of the Act for rescinding the order of maintenance granted to the respondnet/wife. We do not find any illegality or irregularity in the impugned judgment. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. 14) No order as to costs. Sd/- Dhirendra Mishra Judge Sd/- Ranenath Chandrakar Raj'u