HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal No. 264 of 2005 Appellant Mahendra Kumar Nagesh Respondent Vs. Smt. Sangeeta JUDGNIENT FOR CONSIDERATIQ! Sd/- ^ngnattaCtandratar Hon'ble Shri Dhirendra Mishra, J. Sd/- Dhirendra Mishra Judge Postforpronouncementofjudgmenton S -04-2010 Sd/- ^--0^.2010 > \ HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal No. 264 of 2005 Coram: Appellant Petitioner Respondent Non-Applicant Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri R.N. Chandrakar, JJ Mahendra Kumar Nagesh, S/o. Phoolchand Nagesh, aged 32 years, R/o. Street No. 26, Qr. No. 12/D, Sector-4, Bhilai Nagar, Tahsil and District Durg, C.G. Vs. Smt. Sangeeta, w/o. Mahendra Kumar Nagesh, aged 28 years, r/o. c/o. Tulsiram Rakesia, Qr. No. 303, Hathi Tal, Laxmi Colony, Gorakhpur, Tahsil and Distt. Jabalpyr, M.P. (' (First Appeal under Section 19 (1) ofthe Family CourtAct, 1984) Present: Ms. Sunita Jain, counsel for the appellant. Mr. Sunil Sahu, counsel forthe respondent. JUDGMENT I'fft (Delivered on this g> day of April, 2010) Per Rananath Chandrakar, J. By this appeal, the appellant/husband has challenged the legality and propriety of the judgment and decree dated 18-11-2005 passed by the Ist Additional Principal Judge, Family Court, Durg (CG) in Civil Suit No. 60-A/2005, whereby the application filed by the appellant/husband herein under Section 13 ofthe Hindu Marriage Act, 1955 (for short, the Act, 1955) for dissolution of marriage between the appellant and respondent was dismissed. /.^- '*%. -;-;'...;&r^-" "^ ': ••-^&^ "iv-'y'. .5y 2) Thefacts of the case, in brief, as projected before the Family Court are that the appellant and respondent both are residents of Jabalpur. The marriage between the parties was solemnized on 4-5- 1998 according to Hindu rites and customs at Jabalpur. After marriage they resided together at Jabalpur with the parents of the appellant for some time and thereafter they came to Bhilai as the appellant is an employee of Bhilai Steel Plant. On 4-9-1998 the parents of the respondent/wife took her to Jabalpur without consent of the appellant and she was brought back by the appellant to Bhilai on 22-9-1998. During this period the family members of the appellant/husband were also residing at Bhilai. The respondent started quarrelling with in-laws in petty matters and she used to misbehave and insult them. The respondent used to say that she was not willing to live with her in-laws and pressurized the appellant to live separately; otherwise she would implicate the entire family of the appellant in a false case of cruelty for demand of dowry. Ultimately, the respondent left her marital home on 8.3.99 and went to her parental house at Jabalpur without consent of the appellant. The appellant tried his level best to settle the dispute and bring her back but all in vain. On 5.9.98 the respondent gave birth to a female child which too was not intimated to the appellant or his family members. On receiving the information by his mother-in-law belatedly when he went to see his wife and child at Jabalpur, he was not even allowed to see his child. Thereafter the appellant filed a case in the Court of 3rd ADJ Durg against the respondent for restitution of conjugal rights in which she denied to live with the appellant on the ground that her life would be in danger, if she .^^••'-•^-^^ lives with the appellant. The case for restitution of conjugal rights was dismissed holding tTiat there was sufficient reason for the respondent to live separately. The respondent filed a case for maintenance of herself and her child against the appellant which was allowed and she is getting Rs.1500/- & 500/- respectively. Thus, the appellant sought a decree of divorce on the ground of willful desertion. 3) The respondenVwife contested the case and stated in her written statement that she never misbehaved with the in-laws or raised any dispute with them but the appellant subjected her to mental cruelty. She specifically denied the allegation that she ever threatened the appellant and his family members to implicate in a false case for demand of dowry and stated that she was subjected to mental and physical cruelty even during pregnancy by not providing her proper medical treatment and nutritious food. She used to be locked in a room for two days and even her signatures were obtained in blank papers for getting divorce. Therefore, being compelled she had to go to her parental house at Jabalpur where she gave birth to a female child by undergoing major surgery. The appellant was informed but nobody came to see her instead the appellant asked her to undergo blood test for determination of paternity of the child. She admitted that the case for restitution of conjugal rights filed by the appellant was decided in her favour. She further stated that the case under Section 9 of the Act filed by the appellant was defended by her and it was dismissed by the Court holding that the appellant treated the respondent with cruelty. She further stated that the appellant and his g ii ^&,ii/''"<l 8 %, ~s^y j s ^'~!SBy °<J ^r 4 parents regularly made demand of dowry and subjected her to cruelty. She admitted to get maintenance from the appellant as ordered by the Court at Jabalpur. She never denied discharging her marital obligations. The appellant used to visit her at Jabalpurand is having marital relations with her. The respondent is still ready and willing to live with the appellant, if proper care and respect would be given to them. 4) On the basis of the pleadings made by the parties, issues were framed and after affording an opportunity of hearing to the parties, the court below dismissed the suit of the appellant for grant of decree of dissolution of marriage. 5) The appellant examined himself and three other witnesses whereas the respondent examined herself and two other witnesses. 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 Couri: failed to appreciate the fact that the respondent is getting Rs.2000/- per month towards maintenance and living separately from the appellant for about 11 years and the marriage between the parties has been irretrievably broken down. Learned counsel further submits that the Family Court committed grave error of law in not appreciating the fact that the appeltant made several attempts to reconcile the matter and filed a case for restitution of conjugal rights which also became futile. The next submission of learned counsel for the appellant is that the family couri: reached to a wrong conclusion that the desertion of the appellant vst^ 1 by the respondent has not been proved. The findings recorded by the family court are perverse and bad in the eyes of law. Therefore, the impugned judgment and decree dated 18-11-2005 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 learned family Court has rightly held that the desertion is not proved by the appellant. The application for restitution of conjugal rights filed by the appellant/husband was dismissed on the ground that there was sufficient reason for the respondent/wife to live separately. The Family Court after considering all the facts and circumstances of the case and the evidence available on record has rightly dismissed the divorce petition ofthe appellanVhusband. 8) We have heard Ms. Sunita Jain, learned counsel for the appellant and Shri Sunil Sahu, learned counsel for the respondent, perused the judgment & decree and record of the Family Court. 9) In order to appreciate the arguments advanced on behalf of the parties, we have examined theevidence available on record. On the basis of pleadings of the parties issues were framed and the Family Court dismissed the petition for dissolution of marriage on the ground that the desertion is not proved. 1X1) The appellant/husband deposed that after marriage on 4-5- 1998, the respondent/wife lived with him at his parental house at Jabalpur for a week; thereafter, she went to her parental house. In June 1998, he brought the respondent/wife to Bhilai and she again {j siuejed eq) o) -/OOO'OZ'sy 3Ae6 sq }eq} peiB}s 94 9 ejBd u| -Aiiuenbsjj esnoL) |e}U9jed jei) ps^isiA 945 poysd siq} 6uunp pue sqiuoiu uaAOS JQJ aiiq qijM p9Ai| }U9puods8J 341 'a6eujBLU jeye leqi psie}s A||eouo68ieo 9i| uoiteuiLuexe SSOJQ siy u| 'Ajmop jo puELuep jo^ Aiianjo ^o eseo 9S|e^ e ui 8}eo!|diu! 0} AIILUBJ ejjiuo 941 pue Luiq uateejqt 01 pesn luapuodsej 9L11 'siqejasiu aujoosq seij ejii siq pue 6661.-C-9 souis luepuodssj eqi LUOJJ A|8iejed3S BUIAII si ei-) 'qiuoLU jsd -/QOOZ'sy BuiuaB si 9qs AqejeqM jnd|Eqer ie p|iqo pue jeq 0} eoueueiuiBLU ^o }uej6 jo^ eseo E paiy eijM/iuepuodsej eqi ieqi pesodep jeqynj 8|-| 'J86uep uj sq p[noM 8^1 jaq ley) poiejd aq) uo pueqsnq/iueiiadde 94} qiim 9AII 01 peiuep luapuodsoj eq} uiajaqM py 341 i° 6 uoifoes jspun 6jnQ }B ijnoo ei)t ui siq6u |E6nfuoo jo uoifntiisej jo^ eseo B pa|y eq 'ejo^ajeyi 'plii^o si4 ses 01 p9MO||e USAB iou SBM eq }nq e^Mfluspuodssj aqi toetuoo o} isaq |9A9| siq peui 8|-| •jnd|eqer IE siusjed siy ot psAeAuoo jou uiiq 0} peLUJOjui jeqiieu SEM pej SIL)} tnq6661.-fr-9 uo jnd|eqer te pjiqo 3|BLU9i e o) qpiq eAe6 sjiM/iuepuodsej 3L|} (eqi pssodep OS|B a|-| -peeoons }ou p|noo fnq )|OEq jeq 6uuq 0} stduueue IEJSAQS apeuj 3|-| 'spjoM siq peeq }ou pip sqs inq jeiiqg }B eiqeiiBAB 9J3M AjaAi|8p JQI seitiiioe^ leoipsiu jeueq }BU^ )X3}9jd aqt uo jeq BOUIAUOO 01 peui iue||adde eqi -ujniej tou pip sqs ejaqm LUOJJ jndieqep te ssnoq |EtU9jed jsi) 0} (U8M pue 6661. '43-iB|/\| 01 pueqsnq/iue||3dde eqi psijesap sqs 'A|e}ELU!tin -siusjed siq LUOJ^ A|siejedas eAii o\ }ue||eddB eq} ezunsssjd 0} pssn 943 'pueqsnq/iuE||9dde aq»jos^uajed aqi ^IIM BuiAeqeqsiuj pefjeis ejiM/iuspuodsej SL)} 'ieiiqg 0} jndieqep LUOJ^ Cuiujn^j jsyv 'stuajed siq q}iM BUO|E leiiqg 0} ejiM 514 tq6nojq 9i| ejaqM luoj^ 9661 'isn6nvjo qiuou eq} ui luasuoo siq ino^iM jndieqer 01 (USM ' .-r"°a%. -Si ,v ' „\ ^l ^'ft^"^'^^ ^ ^ •^ of the respondent towards medical expenses for delivery and denied the suggestion that he did not bear the expenses of delivery. In para 10 he specifically stated that there was no marital relation with the respondent/wife for the last five years in existence. The respondent also did not make any effort to contact the appellant. He further stated that he is sole bread earner of his family. He has to maintain his parents, unmarried brothers and sisters. He categorically denied the suggestion that he was not taking proper care of his wife and he used to commit "marpit" with her. In para 12 of his cross examination he denied the suggestion that he used to stay with the respondent in the night at Jabalpur. 11) The respondenVwife deposed that after marriage when she came to Bhilai with her in-laws to live withthe appellant, the behaviour of the in-laws was good, but after some time they used to quarrel with her on petty matters. She was abused by using filthy language. She was made to undergo urine test and ultra sound. She was not provided proper food and asked to undergo abortion. Therefore, she called her parents and went to Jabalpur with them where she gave birth to a female child by undergoing major surgery but nobody came from the family of the appellant to see her or the child despite they were informed.. Right from the beginning of their marriage, the appellant forced her to give divorce and for that she was made to sign certain blank papers. She further deposed that though the child became sixyears old, the appellant never came to see her. It was also deposed that the appellant used to harass her and no change appeared in him. The appellant would kill her. In her cross- 'v W.i-!S'P"i% •. examination, she admitted to leave her matrimonial home on 8-3-1999 and no report about commission of marpit with her was lodged at Bhilai. She also admitted the fact that a case to bring her back was filed by the appellant at Durg in which she denied to live with the appellant on the pretext that her life would be in danger. She also admitted that she filed a case for grant of maintenance at Jabalpur against the appellant in the year 2002. She further admitted that she is still ready to live with the appellant. She herself made the categorical statement that if the appellant comes to see her and the child, she would think about the compromise and further that if the appellant gives her in writing that if anything happens, the appellant would be responsible for the same. Further more, that if the appellant lives with his parents and unemployed brothers, she would not be ready to lead conjugal life with the appellant. It was also stated that the fact that she was asked by the appellant to undergo abortion, was not disclosed to her parents. 12) On re-appraisal of the evidence of the parties led before the Family Court, we find that the only dispute between the parties was insistence of the respondent/wife to live separately from her in-laws which was declined by the appellant/husband. It is also apparent that the appellanVhusband made several attempts to reconcile the dispute and tried to bring the respondent /wife back which is evident from the J fact that he filed a case for restitution of conjugal rights before 3' Additional District Judge, Durg but all his efforts went in vain and instead the respondent/wife filed a case for grant of maintenance in the ^•'•^ court at Jabalpur whereby she is getting Rs.2000/- per month. It is further evident that the respondent made some vague allegations of cruelty against the appellant and his parents as no report of the same was lodged in any Police Station. The aforesaid conduct of the respondenVwife also amounts to cruelty against the appellant. Thus, it isclear that despite a good deal of endeavor to effect a reconciliation of the dispute could not be effected because of the insistence of the respondent to remain separately from her in-laws which was totally an impracticable solution. 1\ 13) Considering all the facts and circumstanceg of the case we are of the opinion that 1 1 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband in certain terms and conditions as deposed in her cross examination. On a close scrutiny of the evidence on record and having observed the demeanor of the respondent, it is clear that the appellant has proved that the respondent has not only willfully deserted him for about a period of11 years but also committed cruelty on him as no attempt was made on her part for reunion or resumption of happy married life, instead she filed a case for maintenance and contested the case for restitution of conjugal rights which goes to show that she is neither willing nor ready to live with the appellant/husband. •'•t. ilS&, • 10 14) For the foregoing discussion, appeal is allowed and the judgment and decree passed by the Family Court is hereby set aside. Parties shall bear their own costs. 15) Decree be drawn up accordingly. Sd/- Dhirendra Mishra Judge Sd/- Ranenath Cuandrakar Judge