.-•»'<-- R, HIGH COURT OF CHHARTTISGARH AT BILASPUR Hon'bie Mr. T.P. Sharma & Hon'ble Mr. R.N. Chandrakar, JJ FirstAooea! (W No.61/2009 Smt. Neeiam Singh Thakur, aged about 37 year, W/o Shri Dhanpal Singh Thakyr, R/o Station Para Ward, Dhamtari, District-Dhamtari Versus Dhanpal Singh Thakur, aged about 40 years, S/o Shri Gokul Singh Thakur, R/o Viltege-Sambalpur, Post-Sambalpur, District Dhamtari (CG) Fjrst app.ea! under Sectjon 19lllof the Familv Courts Act Present: Ms. Sunita Jain, counsel for the appeliant. Shri R.S. Patel, counsel for the respondent. Orai Order (Passed on 9tn0f February, 2010) Per T.P. Sharma, J Challenge in this appea! is to the judgment and decree dated 12.08.2009, whereby the marriage between the parties has been dissoived by a decr'ee of divorce by the 1 Additional Prindpal Judge, Famlly Court, Raipur (CG) in civil suit No.237-A/2008. The decree is impugned on the ground of proved fact of crueity. Learned Court beiov/ has dissolved the marriage by a decree of divoree and thereby committed illegality. Y (2) Brief facts necessafy for disposal of this appea! are that the parties are Hindu legaily wedded spouses, marriage between the parties was solemnized on 22.06.1998. The appellant/wife lived with the.,respondent/husband for 10 years. Thereafter, she was subjected to crueltycommifted by the respondent and finailyshe ieft the house of .th^ respondenVhusband and started living separateiy from her husband. The respondenVhusband tried his level best to resolve the •'">'. ^-' 1^' problem and he filed a petition for dissolution of marriage by a decree of divoree. (3) The respondent/husband has denied the allegations and has specifically pieaded that he has not committed torture or cruelty upon the appeliant/wife. She is residing separately on account of agreement betn/een the parties that too in the house of the respondent. (4) On the basis of the averments of the parties, issues were framed and after affording opportunity of hearing to the parties, learned Additional Principal Judge, Family Court has decreed the suit. (5) We have heard. learned coynsel for the parties, perused the impugned judgment & decree and record of the Family Court. Ii?- t'Y (6) Learned counse! for the respondent vehemently argued that the burden to prove the cruelty committed by the respondent was on the appeliant, but the appeliant has not proved it. In the absence of cruelty, the judgment and decree of divorce is not sustainable. He placed reliance on Samar Ghosh vs. Java Ghosh reported in (2007)4 lUprems Court Cases 511, wherein it was held that if there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. (7) In order to appreciate the arguments advanced by iearned counsel for the parties, we have examined the evidence adduced on hehalf of the parties. In the present case, factum of cruelty has been aileged on behalf of the respondent, but has been denied by the appeliant. The respondent has examined himseif along wifri DW-2 and DW-3 and the record of the Court beiow aiso shows that the respondent has not asked these witnesses anything. The evidence adduced by the appeliant specifically shows that she is residins separately underthe agreement executed by the respondent. Inter- alia', the respondent has committed cruelty upon her and she has lodged the report against the respondent under Section 198-A of the Family Courts Act. The record of the Court below revealed that the parties have not been supported by iegal assistance. \ yK '^- y-, <-7 (8) The case was pending before the Famiiy Court. This is dispute between the husband andwife.andthe 1 Additionai Principal Judge, Family Court is under obligation to try to resoive the dispute and provide opportunity of complete hearing to the parties, especiaily considering the evidence and material available on record and in accordance with law. (9) In. our considered opinion, the decree impugned is not sustainable under the !aw and is liable to be set aside. Consequentiy, the appeal is allowed. Judgment and decree impugned are hereby set aside. The case is remitted back to the Court of 1 Additional Principai Judge, Family Court, Raipur for providing opportunity of hearing to the parties and for adducing evidence in their support and deciding the case afresh. The Court below is directed to conclude the trial within a period of 6 months from the date of receipt of this order. Parties are directed to present before the Court of 1 Additional Principal Judge, Family Court, Raipur on 25.03.2010. T,-:' ^ (10) Record of the Family Court and copy of this judgment be sent to t'ne Court concerned, immediately. No order as to costs. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge ^s. Y fA';