.^•:;-'.-'^ .y&"^"^ r*t?^ ^ %. ^a M <pv HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench : Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar, JJ First Appeal fM) No. 113 of 2008 Appellant : Smt. S. Alvelu @ Venu -Versus- Respondent : S.V. NageshwarRao ^ Judament For Consideration Hon'ble Shri R.N. Chandrakar. J 5 ^L^/^-eJl- A Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Post for iudament on ^ Mav. 2010 Sd/- f^. ^1 k ^ ^ "^.;';' L» ••^^ 1 /^/ HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench : Hon'ble Shri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar, JJ © First Aopeal (Ml No. 113 of 2008 Appellant Smt. S. Alvelu @ Venu W/o Shri S.V. Nageshwar Rao, aged about 41 years; C/o N.N. Rao, retired railway driver, near Potato Godown, Devaridih, Tahsil and district Bilaspur (CG) -Versus- Respondent S.V. Nageshwar Rao S/o Shri S.V. Subbarao, aged about 46 years, Gangman-2, South Eastern Railway, Bilaspur, r/o E.W.S. 118 Housing Board Colony, Devarikhurd, Tahsil and district Bilaspur (CG) Present: Shri Bharat Rajput, counsel for the appellant. Shri R.R. Sinha, counsel for the respondent. JUDGMENT (Delivered on7/1Vlay, 2010) PerDhirendra Mishra. J The appellant-wife has preferred this appeal under Section 19(1) ofthe Family Courts Act against the judgment and decree dated 29th April, 2008 passed jn Civil Suit No.309-A/05, whereby learned Family Court, Bilaspur has allowed the application of the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 (in short "the Acf) and granted a decree of divorce in his favour under Section 13(1)(i-a) and (i-b) ofthe Act. 02. IndJsputably, the respondent-husband had frted an application under Section 9 of the Act, which was registered as Civil Suit No.95-A/04 and the learned III Additional District Judge, Bilaspur vide judgment dated 31st August, 2004 passed a decree of restitution of conjugal rights in favour of the husband with a finding that the appellant herein has deserted him without any valid and properreason. 03. Learned Family Court, on the basis of pleadings of the respective parties, framed issues as mentioned in Para-6 of the impugned judgment. The r respondent-husband examined himself in support of his application, whereas appellant-wife examined herself and her witness N.N. Rao. 04. Learned Family Court has passed the impugned decree of divorce with a finding that the husband had met with an accident on 13th February, 1998 and was hospitalized in Railway Hospital for 15 days and thereafter, in Intensive Care Unit of Sector-9 Hospital for one month; in this period, behaviour of the wife was negligent and cruel towards her husband; her behaviour was not normal with the parents of the husband; she was not willmg to reside with hjm and she has 'deserted her husband without any valid reasons. It has also been held that the appellant-wife has failed to prove that the behaviour of her in-laws, brother-in-law & sister-in-law was cruel towards her. 05. Learned counsel for the appellant submitted that the above findings of learned Family Court are based on improper appreciation of evidence available on record. The appeilant's evidence that she was subjected to physical and mental torture and cruelty on account of clemand of dowry has been ignored. She was ready and willing to comply with the decree of restitution of conjugal rights and for that purpose, she visited the place where her husband resided, however, he was notto be found there. 06. On the other hand, learned counsel for the respondent would argue that the impugned judgment is based on proper appreciation of oral evidence available on record. On the application of the respondent-husband, a decree of restitution of conjugal rights was passed in August, 2004, however, when the appellant-wife did not resume her matrimonjal obligations for a period of more than one year, despite a decree of restitution of conjugal rights in favour of the husband, he was compelled to file the instant application for divorce on 1.12.2005. Referring to the deposition of the appellant-wife in her cross- examination, it was argued that the appellant wsls only interested in obtaining maintenance of Rs.2 lac and she was determined not to live with her husband. 07. We have heard learned counsel for the parties and perused the pleadings of the respective parties, including the oral and documentary evidence adduced bythem during divorce proceedings. 08. The appellant has categorically deposed before the Family Court in her deposition that the respondent has obtained a decree of restitution of conjugal rights and even then, she is not willing to reside with him, nor she shall reside with him in future; and she will not leave her parents for living with the husband. She has also admitted that her husband came to take her several times in her maternal home, but she is not ready to live with him at any cost and the husband never beat her. 09. Thus, keeping in view the aforesaid admission of the appellant-wife on oath and the fact that a decree of restitution of conjugal right had been passed in favour of the respondent-husband in August, 2CK)4 with a finding that the appellant-wife has deserted her husband without any valid and justified reasons, we're of the opinion that the learned Famjly Court has not committed any illegality or infirmity in allowing the application for divorce and annulling the marriage between the appellant and the respondent by a decree of divorce under Section 13(1)(i-a) and 13(1)(i-b) ofthe Act. 10. In the result, the instant appeal being without any substance is hereby dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge .1 ^