;^';i-^^^M""T^"""?' A-^< HIOH COURT OF CHHATnSGARH AT BH-ASPUR S.B. HON'BLE SHRI JUSTICE VIJAY KUMAR SHRIVASTAVA FIRST APKEAL No^ 167/2004 AcBeUant Plaintiff Santodi Kwnar Tripathl, S/o. lateT.P. Tripathi, aged about 43 years, r/o. Qr. No.13/0, StreetNo.Il, Sector-1, Bhilai Nagar, Dist, Durg(CG). Versaa Respondent Defendant ""'^^^"•y Smt. Saroj TripatU, W/o, Santcah Kumar Tripathi, a^d about 41 years, r/o, C/o, Gaya Prasad Miehra, village. Dhendhar, Tahsil Tyonthar, Dist Rewa (M.P.) Post forjudgment i"> /05/2005 Sd/- V.K.Shrivastava Judge ^y ^.^ 311 K HIOH COXIRT OP CHHATTI8GARH AT BILASPIHI S.B. HON'BLB SHRI JV8TICB VIJAY KXJMAR 8HRIVASTAVA FIRBT APPEAL No. 167/2004 Appellant PlnintiflF Rcspoadent Defendant Saatoah Kunuu Trtpathi, S/o. late T.P. Tripathi, aged about 43 years, r/o. Qr. No.lS/C, StreetNo.ll; Sector-1, Bhilni Nagar, Dist. Duig (CG). yCTSUS Smt. SaroJ TrtpatU, W/o. Santosh Kumar Tripatfai, aged about 41 years, r/o. C/o. Gaya Prasad Mishra, viUagc. Dhcndhar, TahsU lyonfhar, Dist. Rewa (M.P.) PRBSBBT: Mr. SacTiin Siagto. Rajput, Counscl for fbc appcBant. Mr. Saajay S. Agrawal, Counscl for fhc respondcnt. JUDGMBNT i^y" (Delivered on May, 8005) This appeal has been directed agaiast the judgiuent and decree dated 23/06/2004 passed by Vfh Additional District Judge, Dur^ (CG) in CivU Suit No,2A/2003 whereby fhe suit for grant ofdlvorce has bccn disausscd. 2) Appellan.t and respondent belong to Hiadu religion aad are govemed by Hindu rites aad rituals. In fbe illontfa of May 1978 the tuaxriage of appellaat and respondent waa Bolenuuzed, acoording to Hindu ritss , rituals and custonis at viUage Dhendhar, Tahsil Tyoiifhar, 2 District Rcwa (MF^. At prcscnt, appcllant and rcspondcnt arc Uving separate froitt each other. 3) AppeUant fited an. application under Section 13 (1) (ia) and (ib) for graat of divorce on the ground of cruelly aad desertion. Averments made by the plaiatiff/appeUant are fhat for the first tiaie respondent came to her Tnatrimnmal house at Bhilai ia fhe year 1983 to live wifh appeUaat, she remaiaed there for one year and left for her parental house. Agam in (he year 1987 she came back to her matrimomal house to live with appeUant aud lived for arouml one year and agam left for her parental house, She came to ticr matrimoiual house back for fhe last Cuae in fhe montti of Februaiy, 1994 to live with tfae appellant and after staying for about 11 montfas, ia fhe nionfh of' December, 1994 she agam left for her parental home aud since ffaen she is icsiding in hcr parcntal housc aiid is not rcturmng back dcspite appcllaat's sinccre continuous cfForts, In fhc ycar 1992 appcBant received severe injuries ia an accident, but the respondent alfhough iaformed, did aot coiae back. During pendency ofthe petitioii ahe xnade a cotaplaint before the Superintendent of Police, Rewa, aUeging that tfae appeUant and his aaoflier had deinauded dowry and subjected her to cruelty. Police found fhe said. coinplaint false, hence did not prosecute the appeUant. Thfi said coiuplaiut caused mental tortaue to fhe appeUaat. 4) Respondent demed fhe aUegations levcted ^amst her and averted that after mamags she was subjected to cruelty by the appeUaat and the appellaat hunself used to drive her away fi'om her matrunoiual house off and on. The mformation regardtag mishap causing various 3 injurics to fhc appcllant, had aot bccn givcn to hcr, but •whcn shc cainc to kaow the aame fi-oin her relative, she caine to her inatrimonial house and served her husband aad since then she reinauied in her inatrmionial liouse. The appeUant apologized before fhe PoUce and assured her not to treat with cruelty, dem.aading dowiy and alswi assured that lie wffl take her back, but tfae appeUant dld not take the respondent back to ber matriniotiial house. Respondent had ever been ready sad eveii duriag reconcUiation proceediag she was ready to live wifh husbaud/appeUaat. 5) Lcamed trial Court, after due appreciaUon of evidence Iield that it was not proved tbat respondent treated the appeUant with cruelly and deserted lier siace 1994. Accorduigly, vlde impugned judginent and decrce dismissed ftie petltion filed by fhe appeUaat for graut ofdivorce. 6) 7) proved. Both thc partics axc hcard. Rccord oflowcr Court pcruscd. For desertion folloiwuig two conditions are reqilired to be 1) Desertion of the petitioner by tbe opposite party wifhout reasonable cause and wifh.out consent or against the wish. of the petitioner; and 2) Desertion by wiUful iieglect of fbe petitioner should be eslabUshed or to say by deseftion the party desertmg has mtention to end fhe niarital tie. 8) Santosh Kumar Tripathl (AW/1) ia his statement bas deposed ttiat m ttie monfti of December, 1994 respoadent m lus absence ^. and wifhout intunatiag tiiTn lcft for hcr parcntal housc. In rcbuttal, respondent Snat. Saroj Tripathi (NAW/ 1) bas deposed that tlie appeUant hidself in fhe nionth of Septeinber/October, 1994 took her to her parental house and left fhere and since fhen she is living ia. her parental house. In. cross-examinatioii also she was fimi to say the saiue. Adniittedly, icspondent is a resident ofvfflage Dbfindhar, Dist Rewa aad her roatrunoiual house is at Bhilai Nagar, Dist. Dui^. A woniaa of an iaterior viflage without aay assistance traveled such a long distance alone and went to her parental house, caa only be eslablished by subslantial evidence, but the appeUaut did not adduce aay evidence to shcw by wtuch meaas aud how respondent alone was ablc to travel such a long distaace. Therefore, for waat of such evidence, the evidence of respondeat Smt. Saroj Tripafhl (NAW/ 1) is acceptable wtuch shows fhaE ttie appeUant hunself took her to her parental house and left fhere iu ttie m.0nth of Scpteinbcr/ Octobcr, 1994. 9) Santosh Tripafhi (AW/1) although deposed fhat he luade various efforts to bring the respondent back, but she did not coiae back. He failed to disclose the detaBs of those efforts whereas, in rebuttal Snit. Saioj Tripafhi (NAW/1) has stated fhat tbe appeUaut after leaving her ia fhe year 1994, never came to take hjer back. She has also deposed that iu the month ofApril, 1995 she hersetfcaine aking with her brofher and made efforts to live with the appellant, but the appellant did not even talk to her and when she tried to talk , he pushed and drove her away. Agaia she came to her matnmonial house along wifh her brother, but at that time also appellant told her brother that I had not performed the marriage, byt ^ his father did it, fherefore, he shoiild contact hi'm. s"~^ 10) Froai ibe aforesaid evidence it is apparent tfaat the appeUant did not niake any endeavor to keep his wife/respondent where&s respondent hersetf made efiforts to live wifh her husband/respondent. Adtnittedty, in reconciliadon proceeding respondent was ready to liwe with ber husbaad/appellant. Respondent in her written sta.teinent also specificalfy offered to live wifb her husbaad wfaeiieas appeUant Santosh Kumar Tnpafhi (AW/1) iu tus stateineiit deposed fhat he is not ready to keep the rcspoadentwifh him. 11) Prom ttie aforcsaiid discussfon, It is manifcst fhat respondent is residlag ia her parentalhouse since September/October, 1994 at fhe wish of the appellant and sbe bas not deserted her husbaud/appeUaiit with an mtent to termmate th.e marriage whereas she has been left by hcr husbaad/appcUaat without any rcasonablc causc. Thcicforc, lcaracd trial Coiirt aflcr ininutely apprcciatiag thc cvidcncc rightly hcld fhat desertion by respondent has not been proved. 12) Section 23 (1) (b) of the Hiadu Marriage Act is reproduced below; °23 Setaree in proceedUngs - (1) In any proceeding under (his Act, ivhether defended or not, if the Courl is satisfied •that- (b) where the ground of the petition is tke ground spedfied in dccuse (i) of sub-section (1) of Section 13, the petitioner has not in ccny mmwier been cwoessory to or cmvzived al or condoned the ad ar acte aompladned of, or where the ground of the petition is avetty the pelitioner has not in any mcmner condoned the cruelty. 6 a-^, 13) Froin fhc bare rcadiag of thc said provision, it is inaiufcst fhat if decree of divorce has been sought on the ground of cruelty the petitioner niuat not have condoned the cruelty. In. fhat case only the ground of cruelty for divorce is available to the petitioner. 14) In the present case, as per plaiat avermeat itself, appeUant received injuries ia an accident in the inonth of Septeinber, 1992. In the month of Februaiy, 1994 respondent came aad lived witii him for about 11 months as his wife. Apparently, if aay cruelly was caused by the respondent by not comic^ iu time to see her husband, wbo received iajuiy ia au accldent, fhe said cruelty has toeen condoned by ttse appetlant. Therefore, the said ground was not available to hiTn- Apart fl'oin that, tfaerc is no evidence to estabUsh that when the appellant met with aa accident it was cominmucAted to fhe respondent, tfaerefore, it was not cacpccted frora rcspondcnt that without any infonnation shc should havc conic and scrvcd hcr husband. 15) To prove that respondent has leveled aUegation agaiust the appeUant regardiag harassiuent by the appellaat on the deinaad of dowiy, it was necessaiy to prove the said coniplaint or by other speci&c evidence the said aDegation should have been proved. But, the said coinplaint has not been got produced aad proved. Sint. Saroj Tripathi, wife of appeUaat has made false atlegation beforc PoUce agaiast the appellant, m fact to estabUsh the same no evidence is on record. Noti.cc (Ex P/l) issued by Superintendent of Police, Rewa to the appeUaot cacmot prove fhe com.plaiat and allegations made therein by the respondent. / ^ 7 ^ 16) Thcrcforc, appcUant has feilcd to provc (hat aflcr iiiarrie^c respondent treated him with cnielly, Leamed trial Court aJRber nunutely evaliuating the evidence on record holding that cruelly agaiast appeBant lias not been proved, has not conuiutted any iUegality or imegularity. 17) AppeUaut relied on fhe decisions cendered by Hon'ble Apex Court ia Praveen Mehta Vs. Inderjit Mehta, reported fat AIR 2002 SC 2582 aud Adhyatma Bhattfu Alwar Vs. Adhyatma Bhattar Sri Devl. reported in AIR 2002, SC 88, but bofh the cases are distinguishable on facts wlfh the prescnt case. rajiii 18) In Gie result, appeal fails and is dlsaussed accordingly. Sd/- V.K.Shrivastava Judge