HIGH COURT OF CHHATTISGARH AT BII..ASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, F.A.dVI) No. 2 of 2006 Appellant s. Smt./Sangeeta Respondent Vs. K.R. Hari JUDGMENT FOR CONSIDERAIIO-N Hon'bleShri Dhirendra Mishra, J. 3 O^U-i SA'- R.N. Chandi Judge Sd/- Dhirendra Mishra Judge Postforpronouncementofjudgmenton |g> -03-2010 Sd/- JUDGE fjL-03-2010 s-'siis%. t.'-a^ HIGHCOURT OF CHHATTISGARH AT Bll-ASPUR ^ First Appeal (Ml No. 2 of 2006 . Coram: Appellant Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri R.N.Chandrakar, JJ Smt. S. Sangeeta, W/o. Shri K.R. Hari, aged about 40 years, occupation Lecturer, resident of K.C.H. Sadak, Quarter No.11 B, Sector 8 Bhilai, Tahsil and District Durg (CG). Vs. Respondent K.R. Hari, S/o. Shri Raghwan Nair, aged about 43 years, Assistant Professor, residentof Sadak No.5, VidyutNagar, Durg, Tahsil and District Durg (CG). (First Appeal under Section 19 (1) ofthe FamilyCourtAct, 1984) Present: Smt. Indira Tripathi, counsel for the appellant. Shri Prafull Bharat, counsel for the respondent. JUDGMENT A (Passed on this |g day of March, 2010) Per Rananath Chandrakar, J. :4 By this appeal, the appellant has challenged the legality and propriety of the judgment and decree dated 2-8-2006 passed by the learned Principal Judge, FamilyCourt, Durg (CG) in Civil Suit No. 512- A/2005, whereby the application filed by the respondent herein under Section 13 (1) ofthe Hindu MarriageAct, 1955 (forshort, theAct, 1955) for dissolution of marriage between the respondent and the appellant was allowed. The decree is impugned on the ground that without any ^/d&. proof of adultery the court below has passed the Gleeree of divorce and ;^\ thereby committed illegality. • 2) The facts of the case, in brief, as projected before the Family Court are that the marriage between the appellant and respondent was solemnized on 21-5-1989 according to Hindu rites and rituals in Kerala. Both the appellant and respondent are government servants. After marriage they resided together at Durg and out oftheir wed-lock two children (son and daughter) were born namely Shreyash and Shruti. The appellant/wife and respondenVhusband were successfully leading the married life but in the year 2002 the respondent/husband received excessive telephone bill and on verification it was found that the most of calls were made from Korba and Bilaspur. On this, the respondent/husband enquired from the appellant who told him that she used to telephone her old friend namely Chandrahash Dewangan. This act of the appellant was objected by the respondent but the appellant did not heed his words which caused the respondent grievous mental agony and taking benefit of the status of mind of the respondent, the appellanVwife took him to one Psychiatrist namely Dr. Pramod Gupta for medical treatment. Thereafter, the appellanVwife in collusion with Dr. Pramod Gupta tried to declare him mental patient by providing improper treatment. On this, the respondent consulted the Psychiatrists at AIMS, New Delhi as also in Sector 9 Hospital, Bhilai, who opined that the respondent was not suffering from any mental disorder. The respondent further pleaded that the appellant/wife was a woman of easy virtue and accustomed to make relations with other persons and to fulfill her desire she used to torture the respondent/husband with a view to live separately. :'^- Jr/"'^ .\ In the year 2004 the appellant developed intimac|/ with one Vinay Dewangan who was called by the appellant in absence of respondent and despite theobjection of respondent she continued her relations with him. All the efforts made by the respondent/husband for making good relation with the appellant went in vain. UItimately, the appellant by giving threats of divorce and implication in a false case of cruelty for dowry, started living separately from the respondent and son. Thereafter, the appellant/wife got issued notices to the respondent and filed a divorce petition (Petition No. 424-A/2004) against the respondent/husband in Family Court, Durg, which was subsequently dismissed on 20-6-2005 as withdrawn. The respondent further pleaded that despite the dismissal of divorce petition, the appellant/wife never made any attempt to reconcile the dispute and to discharge her marital obligations. Thus, the appellant was leading adulterous life avoiding cohabitation with the respondent which led him to file the petition for dissolution of marriage under Section 13(1)oftheAct, 1955. 3) The appellant/wife denied the allegations made by the respondent/husband in her written statement and alleged that the respondent grabbed her income and jewelleries as also the whole amount received by selling out the house which was built from the income of the appellant/wife. She specifically denied the allegation of adultery and stated that she was not having any illicit relation with any one and was discharging her marital obligations. The appellant/wife specifically alleged that the respondent/husband was suffering from mental disorder "paranoid schizophrenia" for which she took him to Doctor Pramod Gupta at Durg for medical treatment. She further pleaded that the :;!.> n fe'.''' '''' '< e. ^ ^^x?^e^a^ ^l l'- '^^^£3^, ^ •<aisSBS--<g g ''^•LS-W--^ respondent/husband used to call her friends to.ei'ijoy wine and share obscene movies and he also used to force the appellarit/wife to apply the techniques of obscene movies in their privatelife, to which she objected. It was further alleged that once in the year 2004 the respondenVhusband tried to kill the appellant by throttling due to which she left the house of the respondent/husband and made complaint against him to Mahila Thana, Durg and started living separately from him. Thereafter, being harassed and tortured by the respondenVhusband, appellant/wife filed a petition for dissolution of marriage in the Family Court, Durg which was subsequently withdrawn by the appellant/wife at the request of the respondent/husband after reconciliation for welfare of their children. She specifically pleaded that the respondenVhusband published the advertisement through internet for his secQnd marriage and he also took away the daughter Shruti with him from appellant/wife. 4) On the basis of averments made by the parties, issues were framed and after affording an opportunity of hearing to the parties, the marriage between the appellant and respondent was dissolved by a decree of divorce on the ground of adultery by the court below. 5) We have heard Smt. Indira Tripathi, learned counsel for the appellant and Shri Prafull Bharat, learned counsel for the respondent, perused thejudgment & decree and record ofthe Family Court. 6) 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. Learned counsel further submits that the burden to prove thg factum of adultery was solely on the respondent but the respondent has not discharged the burden although he was required to prove the same by preponderance of probabilities. Learned counsel further submits that the Family Court committed grave error in passing the impugned decree of divorce merely on the basis of the evidence adduced by child witness Ku. Shruti (PW/5) who was the student of Class 5 and her statement ought to have been scrutinized cautiously while placing reliance upon her evidence. Therefore, the ground of adultery has not been proved on the basis of the evidence available on record. She further submits that the evidence of Ku. Shruti has not been corroborated by other witnegses. In view of the above submission it cannot be held that the appellant/wife treated the respondent with cruelty but it was the respondent/husband who was not willing to live with the appellant/wife and therefore, the respondent is not entitled to obtain a decree of divorce. The next submission of learned counsel for the appellant is that the family court reached to a wrong conclusion by mis-appreciating the material evidence available on record. The findings recorded by the family court are perverse and bad in the eyes of law. In absence of any proof of adultery the decree of divorce is not sustainable under the law. Therefore, the impugned judgment and decree dated 2-8-2006 passed by the Family Court be set aside. 7) On the other hand, learned counsel appearing for the respondent vehemently opposed the appeal and submitted that the respondent has established his case. His evidence is duly corroborated by his daughter Ku. Shruti. Learned counsel further submits that the Family Court after considering all the facts and circumstances of the case and the evidence ^fsw^ available on record has rightly allowed the divorce pefition in favour of the ^•\ respondent/husband. Learned counsel further submits that the counter allegations made in the written statement by the appellant and questions to that effect put by her counsel at her instructions in the cross examination also amount to menfal cruelty. 8) ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. On the basis of pleadings of the parties issues were framed and the Family Court allowed the petition of the respondent on the ground of adultery amounting to mental cruelty. The Family Court further held that the respondent was not suffering from any mental disorder. The burden to prove the issue of adultery was solely on the respondent. The respondent examined himself, his daughter, Ku. Shruti, Shriniwas D. Deshmukh, Rajendra Kumar Chaube and Sandeep Ban Sutre whereas the appellant/wife examined herself, Suresh Pillai and Doctor Pramod Gupta and produced the document Ex.D/1 to Ex.D/19 in her support. 9) The respondenVhusband deposed that in the year 2002 one Deputy Collector Dewangan used to visit his house and thereafter he was transferred to Korba from where he used to telephone to his house. Whenever he received the call, Dewangan used to disconnect the same. On verification of STD calls, he found that several calls were made to Deputy Collector, Dewangan from his house and for that there was some altercation between him and his wife. Thereafter, he went to Kerala with his wife wherecounseling took place between them. After returning from there to Borsi (Durg), he was taken to Doctor Pramod Gupta (DW/3) by i.', -..gjF.^, ^. ^ his wife for treatment as he was not getting proper'jsleep for two days. ^,. Doctor Pramod Gupta (DW/3) gave him treatment for two years. He further deposed that in the month of January, 2004 one Vinay Dewangan came to his house and his wife developed intimacy with him for which he objected but his wife did not heed his words. Thereafter, in the month of September, 2004, she started residing with daughter Shruti separately from respondenVhusband and son. Once he met his daughter at the temple, who told him that she did not want to live with her mother. Thus, it is clear that he has not stated a single word about the adultery of the appellant/wife or any illicit relation with anybody. On the contrary, he admitted in his cross examination that the relation between him and the appellant/wife was good for 14 -15 years and they were blessed with two children put of their wedlock. He also admitted in para 4 of his cross examination that the appellanVwife had filed a divorce petition which was subsequently withdrawn. He further admitted that when he went to Kerala he had visited Doctor Ravi, a Psychiatrist, thereafter, he was taken by his wife to Doctor Pramod Gupta at Durg where he continued his treatment for 1 % years. He sfafed that he was forcibly administered injections and given medicines by the appellant/wife in collusion with Doctor Pramod Gupta but he admitted in para 7 that he never made any complaint against Doctor Pramod Gupta before any authority. He admitted Ex.D/1 which is the prescription slip of Doctor Pramod Gupta. In para 9 he admitted the documents Ex.D/2, D/3, D/4 which are proposals for marriage through e-mail received by him in response to his advertisement through internet (Ex.D/5). Apart from this he has neither produced the telephone bill which gave rise to the dispute nor has ^t- ^ examined Deputy Collector Dewagan and Vinay^ Dewangan in his Y '^x support. 10) Ku. Shruti (PW/5) deposed that at present she is residing with her father and when she was living with her mother (appellant), one Vinay Dewangan used to visit the house of the appellant/wife, to which she objected. One day her mother and Vinay Dewangan were in a room bolted from inside. When she went to Cinema with her mother, Vinay Dewangan also used to accompany them. Seeing her mother in the company of Vinay Dewangan she felt bad. Once there was altercation between her mother and Vinay Dewangan also. On going through the evidence of this witness, it does not appear that she stated anything about adultery of her mother or she ever found her mother in objectionable/compromising position with anybody by which it can be held that the appellant/wife was leading adulterous life inany manner. On the contrary, she admitted in para 5 of her cross examination that she was willing to live with her mother and father both and she used to talk with her mother on telephone /mobile while residing with her father. She also admitted the fact that she has told her father and Rajendra Kumar Chaube about the visit of Vinay Dewangan to the house of her mother as also about the altercation took place between her mother and Vinay Dewangan .but this fact is neither corroborated by her father (the respondent) nor by Rajendra Kumar Choube. 11) The other witnesses Shrivas D. Deshmukh, Rajendra Kumar Choube and Sandeep Ban Sutre have also not corroborated the version of Ku. Shruti and respondent/husband and they have not stated a single word about adulterous life of theappellant/wife. From the evidence of '^J Rajendra Kumar Choube, the onty fact reveals that the relation between 11^ ^. the appellant/wife and the respondenVhusband was not good, Thus, on re-appraisal of the evidence adduced by the respondent/husband it is evident that he failed to prove the factum of adultery either by direct or by circumstantiat evidence. 12) So far as the argument advanced by learned counsel for the respondenVhusband regarding counter allegations made in the written statement by the appellant/wife and questions to that effect put by her counsel at her instructions in the cross examination also amount to mental cruelty, is concerned, admittedly the counter allegations against the respondenVhusband were made and questions to that effect were also put by her counsel but it isclearfrom the evidence of Doctor Pramod Gupta (DW/3), Suresh Pillai (DW/2) and the appellant/wife that the counter allegations are not vague. Doctor Pramod Gupta has clearly deposed in his evidence that the respondenVhusband was suffering from 'divisional disorder' in which the patient thinks beyond reality. He further deposed that the person suffering from the aforesaid disease also suspects. about the character of his life partner. He categorically denied the suggestion that he had thrust the disease upon the respondent/husband in collusion with the appellant/wife. 13) The appellanVwife has categorically denied the allegations made by the respondent/husband and deposed that her husband was suffering from paranoid schizophrenia since 2002 for which she took him to Doctor Ravi Prasardi in Kerala and thereafter to Doctor Pramod Gupta at Durg but he was not regular to his treatment and as soon as he gave up the medicine, he started committing marpit with her and once he tried to pour 10 @? hot oil over her. Therefore, she left the house of therpspondent/husband \ ^: and made complaint against her husband in Matiila Thana, which is Ex.D/6. Thereafter, she sent notices Ex.D/7 & D/8 to the respondent/husband through her counsel and filed divorce petition against the respondent which was subsequently withdrawn vide Ex.D/9, looking to the welfare of their children. Thereafter she along with her daughter went to live with the respondent/husband, but he was not willing to live with her wife and threw her out of his house in the night. The other allegation regarding watching obscene movies and enjoying wine by the respondent/husband with his friends is concerned, it is corroborated by Suresh Pillai (DW/2) and their evidence remained unrebutted. Thus, it is clear that the counter allegations made by the appellant/wife are not vague but well founded and the same do not amount to cruelty. 14) For the aforesaid analysis, we are of the opinion that the learned Family Court erred in reaching to the conclusion that the appellant/wife treated the respondent/husband with cruelty by leading adulterous life and granted a decree of dissolution of marriage in favour of the respondent/husband. Accordingly, the appeal is allowed and the judgment and decree for dissolution of marriage between the appellant and respondent is hereby set aside. . 15) Decree be drawn up accordingly. 16) No order as to costs. Sd/- Dhirendra Mishra Judge Sd'- R.N. Chandrakar Judge