i'^^^^^Utf^ !+-il'*;:; * ^a:^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR FIRST APPEAL(M) N0. 11 /201^> ^^ <07X ' .^-^ FIRST APPEAL UNDER SECTION 19 OF THE FAMILY COURTS ACT, 1984 APPELLANT/ : Smt. Khileshwari Lahre, AffUCfi^iT _^ W/o Shri Suresh Kumar Lahre, Aged about 22 years, R/o Jai Estambh Chowk, Satnami Para, Titurdeeh, Police Station Mohan Nagar, Tahsil and District Durg (CG) VERSUS Suresh Kumar Lahre, S/o Dukhitram Lahre Aged about 32 years, R/o Village : Nardha Mohandi, Police Station : Bhilai 3, Tahsil and Disrict Durg (CG) v /•^x f-^/ o ^"'./'">y o ^<Q"^yr RE^'ONDENT^ iwi^-wpucM^r ^^..-y^/ ^\ ^—i-^^'' ^' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE SHRI I.M. QUDDUSI, & HON'BLE MR. G. MINHAJUDDIN, JJ Appellant Applicant Respondent Non^Applicant FiretAppeal (M) No. 13 of 2011 Smt. Khileshwari Lahre Vs Suresh Kumar Lahre JUDGMENT FOR CONSIDERATION Sd/- G- Minhajuddin . Judge HON'BLE SHRI I.M. QUDDUSI, J J^' Sd/- I.M.Quddusi Judge y POST FOR JUDGMENT ON 1 ' NOVEMBER, 2011 Sd/- G. Minhajuddin Judge llilss'iU^^fc^^^i^^&^i^^s-^^:., ^g^j ^^. '•':^'^ "-^^.3^' HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE SHRI I.M. QUDDUSI, & HON'BLE MR. G. MINHAJUDDIN, JJ, FirstADpeaKMlNo. 13 of 2011 h; Appellant Applicant Respondent Non-Applicant Vs Smt. Khileshwari Lahre Suresh Kumar Lahre Present: Mr. RK Pali, counsel for the appellant. None for the respondent, though served. JUDGMENT (Delivered on \? November, 2011) Per G. Minhaiuddin. J 01. This appeal has been filed under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 10.11.2010 passed by Principal Judge, Family Court, Durg, in Civil Suit No.225-A/10, whereby and whereunder application filed by the appellanVplaintiff under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion has been rejected and a decree under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights on the basis of counter claim made by the respondent/defendant has been granted. 02. Facts not in dispute are that marriage between the parties was solemnized on 22.5.2002 at Titurdeeh, Durg and after that, till 9.10.20(53, the appellanVwife had lived in her matrimonial home at Village - Mohandi, Distt. Durg. It is also not in dispute that on 9.10.2003 the respondent/husband had left his wife (appellant) at his Phool Ma's residence at Village - 'Umda, who, in turn, had dropped the appellant at her parents' tiouse and since then the appellant is residing there. "% 1>S, .,...-..ri62^±s^^? r r 03. Brief facts of the case, as projected by the appellant, are that marriage was solemnized between the appellant and the respondent on 22.5.2002 and after that, she had come to reside at her matrimonial home at Village - Mohandi. For the first 15 days, they had lived peacefully and during that period their marriage was consummated. But after expiry of the said period, attitude ofthe respondent and his family members, all of a sudden, changed substantially and they started harassing and torturing her in connection with demand of dowry of Rs.15,000/-, which she refused to bring from her parents' house. On her refusal, the respondent and his family members became annoyed and started addressing her in a derogatory manner. In addition to this, they started beating her and the respondent/husband used to burn her from burning scented sticks and once even had tried to push her into the well. 04. On 9.10.2003, when the appellant was ill, the respondent, against her wishes, took her to the house of his Phool Ma and dropped her there. Subsequently, the respondent's Phool Ma dropped the appellant at her parents' house. Her parents got her admitted in Gayatri Hospital, Durg on 10.10.2003 and after treatment, she was discharged on 13.10.2003. The respondent as well as his family members did not care to enquire about the appellant's welfare and after dropping her on 9.10.2003 at his Phool Ma's residence, the respondent had threatened her that she will be taken back only on brining a cash amount of Rs.15,000/- from her parents. After this, the respondent and his family members did not enquire about the appellant, on which the appellant lodged a report at the police station against the respondent and his family members for the offence under Section 498A/34 of the Indian Penal • Code and Sections 3 & 4 of the Dowry Prohibition Act, 1961. Sihce 9.10.2003, the respondent has, after committing cruelty towards the appellant_in connection with demand of dowry, "'•^' r- 05. deserted the appellant and has contracted second marriage and has a child through his second wife. As such, the marriage between the appellant and the respondent has irretrievably broken down. Therefore, the appellant on the ground of cruelty and desertion as well as irretrievable break down of marriage filed an application under Section 13 of the Hindu Marriage Act, 1955 for dissolutioh of marriage by a decree of divorce. The respondent/husband filed his written statement and except admitting the solemnjzation of marriage on 22.5.2002, had denied all the averments made in the plaint as false and baseless. The respondent has averred that the appellant is working as Assistant in Aanganbadi at Durg and does not want to live with the respondent at Village - Mohandi. The appellant, after marriage had resided for 1 % years at her matrimonial home and during this period, neither she was treated by the respondent or his family members with cruelty nor any demand of dowry was ever made. As the appellant was ill, the respondent had got her treated, first at Sector-3, Bhilai and thereafter, on the advice of doctor to get her treated by a city doctor, that he had dropped the appellant at his Phool Ma's residence and was, at all times, enquiring about the welfare of the appellant. After being discharged from Gayatri Hospital, Durg, the respondent tried to bring the appellant back to her matrimonial home, J3ut she refused and lodged a false report at the police station against the respondent and his family members, on the basis of which a frivolous case for the offence under Section 498/34 of the IPC a'nd Sections 3 & 4 of the Dowry Prohibition Act is pending against them. The appellant had also filed an application under Section 125 of CrPC for grant of maintenance. In both the proceedings, counseling was done, during which the respondent was always ready and willing to take his wife (appellapt) back and is still ready to take her back, but every time the appellant had refused to live with the respondent. f^-SS^. saar '%.. 06. As per the averments made in the written statement, the respondent and his family members had neither treated the appellant with cruelty in connection with demand of dowry nor had deserted her. In addition to filing written statement, the respondent had filed a counter claim and had prayed for a decree under Section 9 of the Hindu Marriage Act, 1 955 for restitution of conjugal rights. 07. After trial, the application of the appellant for divorce under Section 13 of the Hindu Marriage Act, 1955 was rejected and on the basis of respondent's counter claim, a decree under Section 9 of the Hindd Marriage Act, 1955 was granted. It is against this judgment and decree that the present appeal has been filed. 08. Heard learned counsel for the appellant, perused the material available on record, including the impugned judgment and decree. 09. Learned counsel for the appellant has contended that the respondent and his family members had treated the appellant with extreme degree of cruelty and deserted her. He has further contended that since October, 2003,the appellant is residing at her parents' house at Titurdeeh, Distt. Durg and the respondent and his family members had not enquired about her welfare and had laid a condition that she will be taken back only if she brings cash amount of Rs.15,000/- from her parents. As such, marriage between the parties has irretrievably broken down and deserves to be dissolved by granting a decree of divorce. 10.' The core question to be decided in this appeal is - whether the respondent and his family members had treated the appellant with cruelty in connection with demand of dowry and had deserted her, and also whether the respondent had contracted second marriage and is having a child through se6ond wife? -—~\ :;—£sffi^SlSA.: t-t^SSSSZT.^tos, ?B:?®s's''l"?tas@< •jeq Aq epELU jsAe SBM sjaqiusuj A|!LUEJ. 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Z-MQ se LUBJi!L|)|na pue e|)|nqs Mssfey peuiuexe seq '^esLuiq 0} uoiiippe ui 'iuepuejep/iuepuodsej 941 '(C-AAd) |3in4>| |E|iUBS pue (z-AAd) edLUBLio •»LUSJSLIIOIU jail pauiLuexs seq '^ssjeq o^ uoiiippe ui 'yiiuieid/iueiiedde sqi 'iuie|d eqi ui apeiu siueuujaAe eqi etenueisqns 01 •£l Zl •u "?— ^ ifl 1:1 y-j II K9 n \.~:':'-^^^ n '^••s-y'^ ^ •:!li.i.-X»"ity ' ^ftS" .:*r' .-/-L'^ ../ -y ^^f^r"^^ *.'.-' . .-.j-.',. ^ '^^^^y--''"^'. 14. The appellant has admitted that she had filed an application under'Section 125 of CrPC for grant of maintenance and the same had been rejected. The appellant Smt. Khileshwari Lahre (PW-1) and her mother Smt. Champa (PW-2) have admitted that counseling for bringing about reconciliation between the parties was done, both before the police as well as before the Family Court, but the appellant/wife had refused to go back with her husband (respondent), although respondent was ready to take her back. 15. The appellant/wife ap.d her mother Smt. Champa (PW-2) have stated that the respondenVhusband had expressed his desire during counseling to take his wife (appellant) back with him, but the appellant had refused to go back to her matrimonial home because the respondent had contracted second marriage with his maternal aunt and his having a child from her. To substantiate this allegation, Santram Khutel has been examined as PW-3, who has stated that the respondent has kept his maternal aunt as his wife and is having a son named Rajkumar from her. This witness has also stated in his cross-examination that in their community (appellant and respondent's community), if a person marries his maternal aunt, then in addition to ousting from the community, the person is also punished by the community. However, this witness Santram Khutel has nowhere stated that the respondent on account of keeping his maternal aunt as his wife has ever been ousted from the community or punished for his misdeed. As such, the statement of Santram Khutel (PW-3) on this point is not worthy of reliance. Moreover, there is not even an iota of pleading on the point that the respondent has contracted second marriage and is having a son from his second wife. As per provisions of Order 6 Rule 2 of CPC, no amount of evidence can be looked into on a point, in respect of which there is no pleading in the plaint or written-statement. As such, the fact of contracting second marriage by the respondent has not been established. < •! ^-. -^ S S**'g'*'"TO%. S I %-fe111 \ "••^. ....-•* ^.: >^"~' .•>' \ 16. As per admission of the appellant and her mother Smt. Champa (PW-2), the respondent/husband during counseling proceedings was ready to take his wife (appellant) back with him but the appellant had herself refused to go back because the respondent had contracted second marriage. The appellant had been unsuccessful in proving the fact of contracting second marriage by the respondent. In addition to this, from the evidence adduced, the appellant has also been unsuccessful in establishing that the respondent and his family members had treated her with cruelty in connection with demand of flowry and deserted her. On the contrary, on the basis of evidence adduced and the preponderance of probabilities, it stands established that the appellant without any reasonable cause is residing at her parents' house and despite efforts being made by the respondent to take her back, she had refused to go back to her matrimonial home and thereby, she had deserted the respondent. It is not in dispute that the appellant is living at her parents' house since 9.10.2003. 17. So far as grant of decree of divorce on the ground of irretrievable break down of marriage is concerned, irretrievable break down of marriage is not up till now one of the grounds under Section 13 of the Hindu Marriage Act, 1955 for grant of decree of divorce and unless the same is incorporated in Section 13 as one of the grounds, a decree of divorce on the said ground cannot be granted, at least by this Court. It is true that in some of the cases, the Hon'ble Supreme Court has granted decree of divorce on the ground of irretrievable break down of marriage, but the same has been grante'9 in exercise of powers under Article 142 of the Constitution of India, 1950. However, the said power is not possessed by any other Court, except the Hon'ble Apex Court. 18. For the reasons stated above, we are of the opinion that the appellant/wife has notjseen able to make out her case for e 19. grant of decree of divorce on the ground of cruelty and desertion by the respondent. The appeal is without any substance, the same deserves to be and is, accordingly, dismissed. The impugned judgment and decree dated 10.11.2010 passed by Principal Judge, Family Court, Durg, in Civil Suit No.225-A10 is hereby affirmed. No order as to costs. The Additional, Registrar (Judicial) shall draw a decree accordingly. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge i-n^^.^u^..^.-^' L;:^.;^; -:?*-c .•s;_rf'iSK u.;.feSS£LS1:'^., ..^e^s^^