‘r‘k‘ ‘4 £ . APPELLANT/: (Non-applicant) Silochana Bai, ged 26 years, W/o Sheo Sahu, R/o (resent address village Khaltukri), Tah. -andariya, Distt. Kawardha. Versus Sheo Sahu, aged 28 years, S/o ashrath Applicant) Shu, R/o Nagpura, Tah. Beetara, Distt. D urg. {Appeal under Section 28 f the ndu Marria Act read with Section 96 of the Code of Civil rocedure} Present: Mr. H.V. Sharma, counsel for the appellant. None present for the respondent, though served. (12—2009) 1. he appllat has challenged th udgment decree dad 1-11-2003 passed b the Additial itrict Jud, Bemtara i Civil uit No.1/03, whreby lerned Adtional District Judge hs pased a decree for dissolution of marriage by a decree of dirce on the ground of clty ommitted by the appellant, who is wife of the rpondent. 2. The judgment & dere are hallened by te apell e ground tha without ay evidence to prove cruelty committd by the appellant, t Court below hs passed the decree fo dissoution of mrriage by a decree divore and committed irregularity. 3. i av herd leard counsel or the appellant, peruse the mpugned ‘ udgment & decree and recd o the ourt bel. 4. It reveals from t record that the appllant & the responent are wie & . husban and governed by the Hindu law. The petition for divorce was filed on behalf of the respondent on the ground of cruelty committed by the app‘ellant in which as been specincally lleged that the appellant was havng illicit relation with oe Kamdev Nishad an the rspondent has seen the appellant with amdev Nishad in compromising position and also the appellant was in possession of obectioable hotographs with Kamdev Nishad. Allegation of the respondent was denied by the present appellant and i has also been alleged by the appellant that the s 3 HIGH COURT OF CHHATTISGARH, BILASPUR First Appeal No.15 of 2004 a P P RESPONDENT/: D ( a m o Hi ge P Single Bench: Honble Mr. T.P. Sharma. J ’ ORAL JUDGMENT 5— T en e j & te y on Ds ge e n S A20 e a di a s vo rue c es ce cg h pant on th t n e he a r l a of c he a ne f d i j or f C ow he e d f d it h a i n d e K jn p t @ alleged relation of the appellant with Kamdev Nishad is false and the respondent has committed cruelty in connection with demand of dowry and has deserted the appellant. After affording opportunity of adducing evidence and hearing the arguments, the Court below has dissolved the marriage by a decree of divorce. 5. Learned counsel for the appellant submits that the Court below has 2 framed following three issues and gave the following findings: - Issues Findings 1. wwzrfaawafmmmmmw Woe—sf Eli’a‘ a W W a W it?! W s ? Learned counsel for the appellant further submits that the respondent has not proved the fact of illicit relation of the appellant with Kamdev NiShad and commission of sexual intercourse, but the Court has decided the issue of cruelty as positive which has not been supported by the evidence adduced on behalf of the parties. Learned counsel also submits that even according to the statements of the witnesses, after the alleged incident committed at Agra, parties have entered into compromise in a community meeting and thereby the respondent has waived the ground of cruelty committed at Agra. . The respondent has examined himself in which he has specifically deposed that he has seen the appellant with Kamdev Nishad in compromising position, Kamdev Nishad was committing sexual intercourse with the appellant and he has beaten Kamdev Nishad. The respondent has also deposed that he has searched the box of the appellant and found Exs.P-1 to P—6 photographs of the appellant along with Kamdev Nishad in different poses. He left the appellant in her maternal house, but after the advise of responsible persons of the community, he took her with him on the condition athat she will not continue any relation with Kamdev Nishad. Ashok Kumar Sahu (AW—2), photographer, has proved the photographs Exs.P-1 to P-6 and has dépOsed that the photographsbelong to the appellant and another person whom the appellant has introduced as her husband. He has also . 2. mWWéWWwgaww Wms? sf 3. mam? arias—cow 30 2km ”"”roved the negatives of photographs Exs.P—7 to P-9. Factum of sexual intercourse by Kamdev Nishad with the appeltant is supported by Netram (AW-3). 8. The appellant herself has examined as a witness and deposed that the respondent has committed crueity upon her, but when counsei for the respondent has tried to show the photographs to the appellant, she refused to see the photographs and has stated that she does not know whether she has taken photographs with Kamdev Nishad or not and she has refused her photographs Exs.P-1 to P-6. Sahotri (NAW—2), mother- in-law of the respondent & mother of the appellant, has corroborated the version of the appellant, but when the photographs were shown to her, she has stated that the photographs do not belong to the appellant and she has also stated that the photographs are artificial. Arvind Shukla (NAW3) has also corroborated the statement of the appellant, but when the photographs were shown to him, he answered that same are beyond his knowledge. Dinesh Kumar Mishra (NAW4) has also corroborated the version of the appellant, but when the photographs were shoWn to him he has deposed that it is doubtful that as to whether the said. photographs belong to the appellant or not. Moujiram Sahu (NAW5) has deposed on behalf of the appellant and has stated that he is not in a position to say about the lady in the photographs Exs.P-1 to P-6. 9. Statements of all the witnesses aduced on behalf of the appellant including the appellant relating to photographs show that they are concealing and denying the truth. Statements of the respondent, Ashok Kumar Sahu (AW—2), who has taken the photographs, & Netram (AW-3) appear to be more reasonable than the statements of the appellant & her W witnesses. In fact, the appellant & her witnesses have tried to deny the photographs of the appellant. The photographs Exs.P-1 to P-6 are the photographs of a male & a female, especially the photographs Exs.P-1 & P-2 are in objectionable position. Ex.P-1 shows that one male is kissing .‘one female and Ex.P—2 shows that a male is sleeping over the lap of a female. According to the statements of the witnesses, Exs.P-1 to P-6 contain the photographs of the appellant. 1o. During subsistence of marriage, objectionable photographs of this nature shows cruelty committed by the lady/appellant upon her husband which is a' ground for divorce under clau‘se (ia) of sub-section (1) of Section 13 of the Hindu Marriage Act, 1955. After appreciating the evidence \ \ ,..§¢ ‘”§‘p d \