^- HIGH COURT OF CHHATTISGARH AT BILASPUR DWISION BBNCH CORAM: HON'BLE MR. T.P. SHARMA fi& HON'BLB MR. R. L. JHANWAR. JJ. FIRST APPBAL (Ml N0, 62/2008 APPELLANT VERSUS RE^PONDENT Dr. Vimal Sahu, S/o Neel Kant, aged about 35 years^ Professiou private Doctor^ resident of Vinial Chikitsalaya, Panch Rastha Supela, BhUai, Tehsil and Distt Durg (C.G.) Smt. Suwama, W/o Dr. Vimal Sahu, aged about 30 years, Resident of Behind Aijuni Police Colony, JaU Road Bathana, Distt. Dhamtari (C.G.) Through Sr. T.R. Sahu Behind Aijuni, Police Colony, Jail Road, Bathaiia, Distt. Dhaintari (C.G.) APPEAL UNDER SECTION 19 OF FAMILY COURTS ACT. Present:- Shri S.K. Kushwaha, Advocate for the appellant. None for the respondent, -although served. ORAL-JUDGEMBNT (Passedoa 06/11/2009) The followins order of the Court was passed bv T.P. Sharma, J:- 1. This appeal under section 19 of Family Courts Act, 1984 is directed agaitist the judgment and decree dated 25.03.2008 passed by Principal Judge, Family Courts, Durg m cMl suit No. 236-A/2007 whereby learned Prmcipal Judge, Family Courts, Durg has dismissed the suit for dissolution of marriage by decree of divorce filed on behalf of the appenant. ^ 2. Judgment and decree is challenged on ftie ground that leamed Principal Judge, Family Courts has not considered the evidence adduced on behalf of the appellant sufficient for cruelty committed by the respondent and ttiereby committed an iUegality. 3. Brief facts necessary for this appeal as per pleadings of the parUes, is parties are Hindu legally wedded spouses, marriage between fhe parties soleinnized on 9/12/99 till 2001, behave of respondent was nonnal but all of a sudden in the year-2001 she changed her behavior and started committing mental tortiire upon the appellant. AppeUant who is doctor by profession and runniag clinic respondent used to visit clinic and used to misbehave witti ftie female patient and even used to blame upon her husband relating to his character and illicit relation with nurse working in his clinic finally appellant flled petition for dissolution of marriage by a decree of divorce same wa,s dismissed vide judgment and decree dated 20/3/06. Respondent lodged report for the commission of offence under Section 498-A of the Indian Penal Code against the appellant and appellant is facing trial. Respondent. is residing separately from fhe appellant and fhere is no possibility of living together as husband and wife on the ground of subsequent event, agatn petition for dissolution of marriage by a decree of divorce was filed by the appeUant. 4. Respondent has denied the allegation of cruelty and adverse allegation made by the appellant and has spectficaUy pleaded that present appellant has married wifti one Neha Wankhede aiid with a view to harass and compel to leave the appellant present appeUant filed the petition. 5. Leamed counsel for fhe appellant are heard. 6. Judgment and decree impugned and record of courts below perused. 7. Leamed counsel for the appeUant vehemently argued that earlier appellant has filed ftie petition for divorce which was dismissed but respondent again started committing cruelty and has lodged the report against flie appellant and his staif nurse Neha Wankhede. Both were arrested in fhe aforesaid offence. Respondent used to abuse the appeUant and his staff and patient in clirdc. His witnesses PW2 Saraswati Morya and PW3 Dhirendra Tiwari, staff nurse working in fhe clinjic of the appeUant has corroborated .the evidence of appellant. 8. On fhe other hand, respondent has examined hersetf and her father Tenu Ram Sahu, one Vinod Kumar and Apama, respondent has spectFicatly deposed fhat she has never committed tortm'e or cruelty upon the appellant one Neha Wankhede was working m the clinic of fhe appellant and after some time appeUant told her fhat she wiU marry with the Neha Wankhede and tried to obtain signature over an '^.^ agreement which she refused then the appellant filed fhe petition for divorce which was finally dismissed. Again they were living together Neha Wankhede was also residtng witti the appeUant and appeUant compelled with her to recognize the Neha Wankhede as a wife of fhe appellant otherwise she may create problem, fhe statement of ttie respondent has corroborated by her witnesses. 9. In order to appreciate the contention of fhe parties and real controversy we have examined the evidence adduced on behatf of fhe parties PW 1 Vimal Kumar Sahu has deposed in his statement that earUer he has filed one petition for divorce same was dismissed and finally ftiey entered into compromise before the High Court again he has filed the petition for divorce he has also deposed that respondent was suspecting upon the appellant that he is having iUicit relation wifh one staff nurse Neha Wankhede working in the clinic. Respondent has lodged fhe report agatnst fhe present appellant and Neha Wankhede and criminal prosecution is pending against both the persons. He has also deposed that on the ground of aforesaid suspicion respondent used to commit cruelty and torfriire upon him he has examined staff nurse PW2 Saraswati Morya and PW3 Dhirendra Tiwari, Componuder. 10. Respondent has deposed in her statement that appellant told her he wants to many with staff nurse Neha Wankhede r ^ "1^:. •m £ .7 ^^""""' .-<..-'" and tried to obtain signature over some agreement which she refused, first divorce petition was dismissed. 11. According to the case of the appeUant respondent has labeled ftie charge fhat he has married with one staff nurse Neha WanKtiede and he is having Ulicit relation with Neha Wankhede who is working in his cltnic. It appears that respondent has committed cruelty on ttie ground that appellant has married with and he is having relation wifti Neha Wankhede. She has also lodged the report against the appellant and Neha Wankhede and ttiey are facing trial. 12. In the present case according to the case of fhe appellaat alleged staff nurse Neha Wankhede was only substantial witness to unfold the story of cruelty and torture who is working in the clinic of the appellant but reasons best known to the appellant he has not examined her who was material witness. According to fhe statement in para-2 his first petition for dissolution of marriage by a decree of divorce has been dismissed on the ground ttiat no witness was available to the appeUant It shows ftiat appellant is eager for divorce by hocks and crooks and second time he has tried for dissolution of marriage by a decree of divorce and has withhold the material witness staff nurse Neha Wankhede. 13. The leamed Prmcipal Judge, Faaiily Coiirts after appreciatmg the evidence adduced on behalf of the parties •/ ' ^ x Ar ^•••.. ' \':, i '":;.^;. i has dismissed the petition for dissolution of marriage by decree of divorce. The judgment and decree impugned is based on substantial evidence adduced on behatf of fhe parties and is sustainable under the law. 14. After careful exainination, we do not lind any illegality or infirmity in the judgment and decree impugned warranting any mterference in appeal. Consequently, this appeal is liable to be dismissed and it.is hereby dismissed with cost. 15. Appellant shall bear his cost and also the cost of respondent. 16. Advocate fee as per schedule. 17. Decree be drawn up accordingly. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge 'A.