HIGH COlWtT OF CHHATTISGARH. BILASPUR APPELLANT/: (Non-applicant) RESPONDENT/: (Applicant) First Appeal (M) No.85 of 2008 Smt. Geeta Bai W/o Keshav Prasad Dansena aged 25 years, R/o Sant Vlnoba Nagar, behind Kodl Hospital (In the house of Mahendra Yadav P.S. Kotwali, Tehsil & Distt. Raigarh Versus Keshav Prasad Dansena, S/o Khirsagar Dansena, aged 28 years, R/o Sonmuda Bajrangpara, P.S. Kotwati, Tehsil & Distt. Raigarh {Appeal under Section 19 ofthe Family Courts Act, 1954 read with Section 28 of the Hindu Marriage Act, 1955} Present: Miss Sharmila Singhai, counsel for the appellant. Mr. Manoj Jaiswal, counsel for the respondent. Division Bench: - Hon'ble Mr.T.P. Sharma& Hon'ble Mr. R.N. Chandrakar. JJ ORALJUDGMENT (5-2-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment & decree dated 21-9-2006 passed by the Judge, Family Court, Raigarh in Civil Suit No.17A/2006, whereby marriage between the parties has been dissolved by a decree ofdivorce under Section 13 ofthe Hindu MarriageAct, 1^5. 2. Judgment is impugnedon the ground that without any evidence of cruelty committed by the appellant, the Court below has dissolved marriage between the parties by a decreeof divorce. 3. Brief facts necessary for the disposal of this appeal, as per the pleadings of the parties, are that parties are Hindu legally wedded spouses, their \ marriage took place on 17-4-98 and they are having two children. The i appellant has discharged her matrimonial obligations up to six years of f8"^ \^/ her marriage and after six years of her marriage, she started love affairs and jllidt relation with one Laxmikant Dansena and started cruelty upon the respondent, even she went to Jammu & Kashmir along with Laxmikant where she stayed with Laxmikant. Relatives of the respondent advised the appellant, then flnally the appellant became ready to live with the respondent and one document was executed on 16-3-2004 to thateffect. Again the appellant came in contact of one Mahendra Yadavand started adulterous lifewith Mahendra Yadav, even she married Mahendra Yadav in a temple and started residing with Mahendra Yadav. On the aforesaid grounds of cruelty, petition for dissolution of marriage by a decree of divorce was filed by the respondent. 4. The appellant has denied the allegationsand specjficallyalleged that she was not having any illicit relations with Laxmikant Dansena & Mahendra Yadav, she is not residing with Mahendra Yadav and she has never committed cruelty or torture upon therespondent, the respondent is willing toperform second marriage, therefore, he has tevelled false allegationsagainst her. 5. On the basis of pleadings, issues were framed and after affording opportunity of hearing to the parties, learned Judge, Family Court, has dissolved marriage between the parties by the decree of divorce impugned. 6. We have heard learned counsel for the parties, perused the judgment & decree impugned and record ofthe Family Court. 7. Learned counsel for the appellant/defendant vehemently argued that decree of divorce is based on the alleged cruelty committed by the appellant, but the respondent has not adducedany evidence relating to '^?..... cruelty committed by the appellantand without any proof of cruelty the Court below has dissolved the marriage by a decree of divorce. 8. On the other hand, learned counsel for the respondent/ptaintiff opposed the appeal and submitted that the respondent has adduced suffteient evidence to show that the appellant was living inadultery and has committed cruelty upon the respondent and same are sufficient for dissolution of marriage bya decree of divorce. 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe parties. lO.Burden to prove adultery/cohabitation of the appellant with a person other than the respondent was on the respondent. 11.1n order to prove the aforesatd fact, the respondent has examtned himself and has deposed in hisevidence that the appellant was having illicit relations with one Laxmikant Dansena, again she came into contact with Mahendra Yadav, both were having illteit relations and they married in a temple. The appellant is still residing with Mahendra Yadav. The respondent has filed one tetter Ex.P-2 & police report Ex.P-3. 12.The respondent has examined Usat Ram (PW-2), matemal uncte of the appellant, who has deposed that the appeltant is not residing with the respondent, but Ss residing with another husband Mahendra. The respondent has also examined one Suresh (RA/-3) who has also deposed in his evidence that the appellant was married with another person. 13.The appellant has examined herself and has deposed that she has never married Mahendra, she is not residingwith Mahendraand she was not \ having any relation with any person other than the respondent. She has ,^':^."""%, •^ ^\\ 4 examined Radha Baj & Shobhadas Mahant who have deposed that the appellant is residing jn the house of Radha Bai. 14.1n his cross-examination, the respondent hasadmitted that he has not seen physical relation between Mahendra Yadav or any person and the appellant. Usat Ram (PW-2), alleged matemal uncle of the appellant, has admitted in para 2 of his cross-@(amfnation that he has never seen theappellant with Mahendra. Suresh (PW-3) hasalso depc^ed in para 1 of his evidence that there was a rumour ttiat the appellant was having relations with Laxmikant. He has ateo admitted in para 2 of his evidence that he has not seen the appellant with any other person. 15.Burden to prove the fact of cohabitation between the appellant and person other than the respondent was heavily on the respondent, but the respondent has not adduced any evidence to prove the aforesaid fact. The evidence adduced on behalf of the responderrt cteariy shows that the respondent was not having any personal knowledge of the factum of cohabitation. Learned Judge, Family Court has passed decree on the sole ground of cohabitation. 16.The evidence adduced on behalf of the appellant ctearly reveals that the respondent has not discharged his burden to prove the aforesaid fact and in absence of any evidence, positive finding on the issues relating to cohabitatjon is unfounded and not sustainabie undier the law. 17.For the foregoing reasons, the appeat is allowed. Judgment & decree of dissolution of marriage by a decree of divorce between the parties are hereby set aside. Partjesshall bear their costs. la.Advocatesfees as per schedule. 19.Decree be drawn up accordingly. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge