HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, FirstAppeal (M) No. 100 of 2008 Appellant Defendant Smt. Rajeshwari Bai Respondent Plaintiff Vs. Dani Prakash IVIjshra JUDGMENT FOR CONSIDERATION Hon'ble Shri Dhirendra Mishra, J. Sd/- R.N. Chandrakar Judge Sd/- DhirendraMishra Judge Post for pronouncement of judgment on | $"-9-2009 Sd/- @ HIGH COURT OF CHHATTISGARH AT BILASPUR FirstAppeal (M) No. 100 of 2008 Coram: Appellant Defendant Hon'bleShri Dhirendra Mishra, & Hon'ble Shri R.N. Chandrakar, JJ Smt. Rajeshwsari Bai, aged about 24 (22) years wife of Shri Dani Prakash Mishra, resident of Sahaspur Lohara, presently residing at Salik Jhitiya Police Station and Tahsil Dongargaon, District Rajnandgaon Vs. Respondent Plaintiff Dani Prakash Mishra, aged about 27 (25) years son of Shri Govind Prasad Mishra, resident of Sahaspur Lohara, Police Station Sahaspur Lohara, Tahsil and District Kabirdham (CG). (FirstAppeal under Section 19 (1) ofthe Family CourtAct, 1984) 1 Present: Shri P.K.C. Tiwari, Sr. counsel with Shri Sumit Verma, counsel for the appellant. Shri Alok Nigam, counsel forthe respondent. JUDGMENT (Passed on this J$' day of September, 2009) Per Rangnath Chandrakar. J. Thisappealis directed against the judgment and decree dated 24- 7-2008 (Annexure A/1) passed by the learned Judge, Family Court, Rajnandgaon (CG) in Civil Suit No. 26-A/2007, whereby the application filed by the respondent herein Under Section 13ofthe Hindu Marriage Act, 1955 (for short, the Act, 1955) for dissolution of marriage between the respondent and the appellant was allowed. 2) The facts of the case, in brief, as projected before the Family Court are that the marriage between the appeltant/respondent and the respondent/plaintiff r ,^•5^^%^^ /^, '^ y'isfssm^ B '^S^^ ^:^ ^^y^ "%^^':"^:^ ^^^^- was solemnized on 12-5-2003 according to Hinducustoms and rites at vjllage Salik Jhitiya, Police Station, Dongargaon. The respondenVhusband filed an application for dissolution of marriage under Section 13 of the Act, 1955 alleging that just after marriage, the appellant/wife started teasing him repeatedly saying that she never liked him and the marriage was performed against her will and consent. Even she did not allow the respondent to consummate the marriage and she used to visit her maternal house frequently. As and when the appellant visited her maternal house, her parents used to send her back to her husband through their son Rajesh Pathak. The appellant had expressed before her parents and in-laws that she was not willing to live with her husband. It was also alleged that since the day of marriage, she was giving threats to the respondent that if she was pressurized against her will to live with her husband, she would commit suicide either by consuming poison orbyhanging herself.. 3) The respondent herein further alleged that the father of the appellant herein was intimated about the act of the appellant by writing letters as also to the Police Station as and when the appellant was brought back to her parents. Thus, on the allegation of cruelty and desertion the respondent filed the instant application for dissolution of marriage. 4) The appellant/wife denied the allegations in her written statement and stated that she never denied to discharge her marital obligations and prevented ^ the respondent to consummate the marriage. The appellant specifically denied the allegation and stated that the respondent filed the application for dissolution of marriage before the Family Court on the basis of concocted and fabricated story. She never threatened the respondent or his relatives to commit suicide. Actually, she was subjected to physical and mental cruelty for demanding dowry. She further stated that she visited her maternat house onlyon the occasion of some festivals and that too was with the prior permission and \ direction of her in-laws. , She never refused to live withthe respondent. She -^ further stated that on 8-9-2006 the respondent and his relatives after committing "Marpit" with her, left her to her maternal house, report of which was lodged in Dongargaon Police Station. The appellant specifically alleged thatRs.51,000/-wasgiven tothe respondent by her father on the occasion of "Teeka". On 8-9-2006 she was not allowed by the respondent to enter into the house on the pretext that the demand of dowry was not fulfilled and her brother was insutted by calling him "Begga". She furtheralleged that the respondent and his family members did not want to keep her with them for want of dowry. 5) On the basis of the pleadings of the parties, the learned Judge of the Family Court framed issues as under: 1) 2) 3) Whether the appellant treated the respondent with cruelty? Whether the respondent is entitled to obtain a decree for dissolution of marriage? Cost and other reliefs? ^ 6) The appellant examined herself and two other witnesses whereas the respondent/husband examined himself and three other witnesses. 7) The respondent sought decree of divorce on two grounds; firstly, the consummation of marriage was deliberately avoided by the appellant/wife and secondly, the appellanVwife treated him with mental cruelty. It was held by the learned Family Court that the respondent faited to prove that there was no consummation of marriage but he succeeded to prove that the appellanVwife treated him with mental cruelty. After hearing learned counsel for the parties, the learned Judge, Family Court, granted a decree of divorce in favour of the respondenVhusband with a finding that the respondent/husband proved that the appellanVwife treated him with mental cruelty. Thereagainst, the appellant/wife preferred this appeal. T— ^ ^ 8) 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 and also failed to appreciate that the respondent and his famity members treated the appellant with cruelty for demand of dowry. He further argued that it was rightly held by the Family Court in para 34 of its judgment that there was no evidence on record except the evidence of respondent/husband to show that the appellant/wife ever denied to discharge marital obligations towards the respondent/husband. He vehemently argued that the respondent/husband himself was not ready to lead happy married life with the appellanVwife, therefore, he was more interested in 1 ^... ! creating evidence Ex.P/1 to P/7 for dissolution of marriage rather than attempting to reconcile the matter right from the beginning. In view of the above submission it cannot be said that the appellant/wife treated the respondent with cruelty but it was the respondent/husband who was not willing tolive with the appellant/wife and, therefore, the respondent is not entitled to obtain a decree of divorce. The next submission of learnedcounsel for the appellant is that the family court reached to wrong conclusion by mis- appreciating the material evidence available on record. The findings recorded by the family court are perverse and bad in the eye of law. The family court committed grave error in allowing the application of the respondent/husband. Therefore, the impugned judgment and decree dated 24-7-2008 passed by the family court be set aside. 9) Per contra, learned counsel appearing for the respondent supporting the impugned judgment and decree passed by the family court submits that it was highly improbable that the respondent/husband or his family members would have subjected the appellant/wife for demand of dowry as clearly held by the trial court of its judgment that no complaint regarding harassment for demand '' " \ ..^ ^ I ®^' •wy ^ hN^ of dowry was ever made by the appellant/wife to her parents. The respondent/husband was successful in establishing the ingredients of cruelty before the family court. Learned counsel furthersubmits that the family court, after meticulous examination ofthe evidence available on record, came to the conclusion that the respondent/husband was successful in establishing the ingredients of cruelty and desertion and thus allowed the application of the respondent/husband for dissolution of his marriage with appellanVwife. Learned counsel further submits that the instant appeal is filed on flimsy grounds and lacks merit, therefore, the same is liable to be dismissed. 10) We have heard learned counsel for the parties, perused the record, pleadings and documents appended thereto. 11) Learned Family Court has passed the impugned decree of dissolution of marriage solemnized between the parties on 12-5-2003 on the ground of cruelty . Learned counsel for the appellant assailed the above finding on the ground that the respondent/husband has failed to prove the ingredients of cruelty necessary for passing of decree on that ground. For the purpose of granting decree of divorce on the ground of desertion the respondent/husband isalso required toprove animus desrendi, which is missing in the instant case. 12) It is well settled law that to constitute cruelty, the conduct complained of should be grave and weighty so as to come to the conclusion that'the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear-of married life". The conduct has to be considered in thebackground of several factors such as social status of parties, their education, physical and mentalconditions, customs and traditions. However, it is very difficult to lay down a precise definition or to give exhaustive description to satisfy the conscience of the court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live 6 ^t) s, together without mental agony, torture or distress, to entitle the complaining- spouse to secyre divorce. 13) Ifwe examine the evidence adduced by the respective parties, in the light of settled principles of law, we find that the respondent/husband has alleged in his application as well as in his deposition before the family court that since the day of marriage, the appellant/wife was teasing him saying that she never liked him and the marriage was performed against her will and consent. She used to threaten the respondent and his family members to commit suicide if she was pressurized to live with her husband. Even she denied to discharge her marital obligations and avoided consummation of Y marriage. But on perusal of the finding given by the family court in para 34 of its judgment, itappears that the avoidance of consummation of marriage was not proved by the respondent/husband in the light of evidence. The trial Court rightly held that it is a serious quesfion to decide whether the marriage was consummated. There is no evidence on record except the deposition of the respondent/husband. So far as the ground of cruelty is concerned, the respondent/husband failed to prove that the appellant/wife deliberately deserted the respondenVhusband without any reason as deposed by the appellant/wife that she never deserted him and as and when she visited her maternal house that too was with due permission of her husband on some occasions. She also deposed that she was always ready to live with her husband. She /.— categorically and specifically denied the allegations made by the respondenVhusband and stated that it was the husband who treated him with cruelty for demand of dowry and despite the fact she attempted to reconcile the matter by going to her matrimonial house with her brother but she was thrown out and even not allowed to enter into the house. It is admitted fact that the attempt of reconciliation was madeeven by the Police and SDM but due to arrogance ofthe respondent/husband, it was of no result. The version ofthe \ appellant/wife is also supported by the independent witnesses. For the sake ^ i'' IIWV9^' ll. of argument, if it is admitted that the appellanVwife ever gave threatening to the respondenVhusband fo commit suicide that too is not amounting to cruelty. 14) After carefullyexamining the pleadings of the respective parties, oral and documentary evidence adduced by them during the course oftrial and reasons assigned by the learned family court for grant of decree of divorce on the ground of cruelty and desertion, relying upon the evidence of the respondent/husband and disbelieving the version of the appellant herein, we are of the opinion that the family court wrongly held that the ground of cruelty was established by the respondent/husband. 15) Apart from the ground of cruelty, from the evidence available on record, 't also appears that the appellant and respondent were residing together for some time. The appellant alleged that she was willing to reside with her husband. However, the respondent/husband did not make any efforts to bring her back. The respondent has pleaded and deposed that the appellanV wife wentto her maternal house just after few days of the marriage and did not return to her matrimonial house for about a year. However, he did not file any petition for restitution of conjugal rights which was available to him before filing the instant application for dissolution of marriage. Thus, the conduct of respondenVhusband goes to show that he himself was not willing to live with his wife and he never made attempt for reconciliation. 16) 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 and granted a decree of dissolution of marriage in favour of the respondent/husband. Accordingly, the appeal is allowed and the judgment and decree passed by the family court is set aside. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge ^J