HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAMS HON'BLE MR. T.P. SHARMA 8& HON'BLE MR. R.N. CHANDRAKAR, JJ, APPBLLANT NON-APPLICANT F.A.(M$ No. 98 OF 2008 Smt. Chhaya Gorakh RE^PONDBNT APPLICANT VERSUS Dinesh Gorakh JUDGEMENT FQR CONSIDERATION Hon'ble Mr. R.N. Chandrakar. Sd/- T.P. Sharma Judge f) QL.C Sd/- R.^. Chandrakar Judge Post for Judgment on: -2-3 / 10/2009 Sd/- T.P. Sharma Judge HIQH COURT OF CHHATTISGARH AT BILA DIVISION BENCH CORAM'. HON'BLB MR. T.P. SHARMA & HON'BLE MR. R.N. CHANDRAKAR. JJ. F.A.tMl No. 98 OF 2008 APPELLANT NON-APPLICANT VERSUS RESPONDENT APPLZCANT Smt. Chhaya Gorakh W/o Dinesh Gorakh, D/o Jashwant hansraj, aged about 22 years, R/o Tikrapai'a^ Mannu Chowk, Bilaspur. Dinesh Qorakh S/o Raja Munna Gorakh, aged about 28 years, Caste Khatik, R/o Railway Traction Colony, Sonkarpara, Raigarh, District Raigarh (C.G.). APPEAL UNDER SECTION 19 OF THE FAMILY COURTS ACT, 1984. Present:- Shri Malay Kumar Bhaduri, Advocate for the appellant. Shri Sontosh Kumar Tiwari, Advocate for the respondent. JUDGEMENT (Passedon ^3/10/2009) The following order of flie Court was passed bv T.P. Sharsiia, J^ 1. This appeal under Section 19 of the Family Courts Act, 1984 is directed against the judgment and decree dated 14/8/08 passed by the Judge, FamUy Court, Raigarh in civil suit No. 31-A/07 whereby and where under leamed Judge Faaiily Court, Raigarh has decreed the petition for judicial separation filed under Section 10 of the Hindu MaiTiage Act,. 1955 on behalf of the respondent. ^-- The judgment and decree is chaUenged on the gi'ound that without any reasonable cause learned Judge, Fainily Court has decreed the suit for judicial separation and thereby comniitted an illegality. Facts giving rise to this appeal, accordmg to the pleadtng of tlie parties, parties are legaUy wedded Hindu spouses, marriage took place on 11th May-2005. Accordmg to ttie case of the respondent behavior of fhe appellant was not proper and appellant used to misbehave with fhe respondent. On 31st January-2006 at night she left the house of fhe respondent and went to fhe Bilaspur from Raigarh. After 8 monfhs she went back to her matemal house on the request of the respondent. Again she used to misbehave wifti the respondent and his relatives and on the festival of Dhanterash she left fhe house of the respondent along with her father and lodged the report for demand of dowry. Accordtng to fhe respondent appellant is not ready to live with the respondent and contmuance of marital relation with her would not be possible. In the aforesaid ground respondent filed ttie petition forjudicial separation. Present appellant has denied the allegation and speciaUy alleged that the present respondent used to demand ttie dowry and used to commit cruelty upon her. In the January-2006 respondent and their relatives forcefuUy -J r1> boarded her in the train aiid sent her to her parents house. On the festival of Dhanterash respondent called the mottier of the appeUant and demanded Rs. 1 Lakh and forcefully sent the appeUant with her mother. 6. On the basis of averments of the parties learned Judge, Family Court framed the issues and after affording an opportunity of hearing to the parties decreed the suit for judicial separation. 7. Leamed comisel for tiie parties are heard. Judgment aiid order impugned and record of Courts below perused. 8. Leamed comisel for the appellant vehemently argued tiiat present appellant have never misbehaved or left flie house of tlie respondent but respondent has compelled her to left the house and has fhrown Irom their house respondent demanded dowry. 9. On the other hand, learned counsel for the respondent vehemently ai'gued that aft.er few monUis- of mai'riage on 31st of March-2006 appellant left the house of tiie respondent at 2 A.M. at night aiid escaped from the house of flie respondent and went to her parental house at Bilaspur, jomt liviiig with fhe respondent is not possible for appeUant she has also lodged the report against fhe respondent after filing of fhe petition for judicial separation. .iy- ^ 10. In order to appreciate the contention of the parties we have examined the evidence adduced on behalf of fhe parties. Respondent has filed fhe petition for judicial separation as per pleading of the respondent present appeUant left the house of fhe respondent on 31st Jaiiuary 2006 witliout intimatu^g to him and after long request she came back after 8 months and finally on the festival of Dhanterash she left the house of respondent along with her moftier and father and also lodged the report against the respondent but m his evidence respondent has deposed that the appeUant resided witli him in his house only for 4 to 6 months. On 31st of March-2006 at about 2 A.M. at night the appellant escaped from his house therefore, he is not ready to keep the appeliant witli him, version of the respondent has been supported by his witness Rajesh Kumar Sharma who has deposed tliat after 1 or 1 y^ niontli of the marriage the appellant left the house of the respondent at midnight. The allegation is denied by the appellant and has. deposed that ttie respondent and their relatives committed cruelty and demanded dowry and sent forcefully to her matemal house. 11, According to the statement of the respondent appeUant 1 escaped from the house of fhe respondent at 2 A.M. night j on 31st March 2006 therefore, he is having no confidence 1 ^ -^- 12. upon the appellant and he is not ready to keep the appellant hun but according to liis pleading the appeUant left fhe house of respondent on 31st Jaiiuary-2006, and after regTilar request made by him she again came back in the month of September-2006 and again went to her parents house on the Dhanterash festival. His pleading and evidence are contradictory if it is considered that there may be a mistake of the month when she left the house then even after leaving the house of fhe respondent, respondent has tried to resolve the problem and finally succeeded to call back the appellant in the montli of September-2006 but again the appellant left the house of the appellant on the festival of Dhanterash, ttiis pleading has not been supported by fhe respondent and according to his evidence only on the single uistaiice of leavmg tlie house of the respondent on 31st of March- 2006 he has lost his confidence upon the appeUant and be is not ready to keep the appellant witfa her. The evidence of the respondent suffices the contrary pleading of tlie respondent relatiiig to fhe behavior of ttie appeUant. In accordance wifli Section 13 of tfae Faniily Courts Act, 1984 the counsel are not permitted to represent the parties without previous pemiission of the Coui-t and Family Court is under obligation to m.ake every endeavor to settle the dispute between the parties in accordance .-.. ^- &) with Section 9 of the Family Courts Act, 1984. In the present case, the Court has not permitted the legal practitioner to assist tlie parties. In absence of fhe assistance by legal practitioner ttie heavy duty to secure the right and obligation of the parties was on the FamUy Court ttie parties has not led evidence in accordance with their pleaduig may be on the grouiid of lack of knowledge of procedure, the entire evidence reveals that virtually the petition for judicial separation is based on single instance of 31st March 2006. Iii our considered view the single instance even it be believed as a truth is not sufiicient t.o close the matemal relation between the parties and for decree of judicial separation which is vtrtually tlie first step of dissolution of marriage by decree of divorce. Without any substantial evidence the parties to live separately from each other the decree of judicial separation is not just and proper, The judgraent aiid decree passed by Judge Fainily Court is not sustainable under the law. 13. For tlie foregomg reason the judgment and decree impugned relating to the judicial separation between fhe parties is deserves to be set aside. Consequently, ttie appeal is allowed. Judgment aiid decree tmpugned is hereby set aside. 14. Parties shall bear fheir own cost. :^'-yi^ /"€.....1 • \..'^-// -^- 15. Advocate fee as per schedule. 16. Decree be drawn up accordmgly. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge T ^