HIGHCOURT OFCHHATTISGARH : BILASPUR ^T - f ^f DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ, APPELLANT NON-APPLICANT RESPONDENT F.A.(M)No.40of2009 Smt. Sushila Patel, aged about 25 years, wife of Shri Sundarlal Patel, Occupation-Dependent, Presently residing at Village-Nandeli, Thana- Pusaur, Tahsil & District-Raigarh (Chhattisgarh) VERSUS Sundarlal Patel, aged about 30 years, Son of Shri Tejram Patel, Occupation - Serviee, Permanent residentat village - Latesara, thana - Chandrapur, Tahsil - Dabhara, District Janjgeer-ehampa (Chhattisgarh), Presently residing at Village Khairpur Purani Basti, Thana- Kotara Road, Raigarh, Tahsil & District Raigarh(Chhattisgarh) APPEAL U/S19 (1)0F THE FAMILY COURTS ACT.1984 Appearance: Shri Roop Naik, counsel for the appellant. Shri Anil Gulati, counsel for the respondent. ORAL JUDGMENT (Passedon 17.06.2010) The following oral judgment of the Court was delivered by T.P.Sharma, J. Challenge in this appeal is to the judgment and. decree dated 13.Q5.2009 passed by the Judge, Family Court, Raigarh whereby the Family Court has decreed the Civil Suit No. 37A/20Q8 for dissolutionof marriage by a deeree of divorce between the parties on the ground of sexual intercourse of the appellant with the person other than the respondent, available under Section 13(1)(i) ofthe Hindu Marriage Act (for short'theAct') c'N »^£S?% y%i\ ^s}'^..^ ' "S '"^^^^ t- ! 9'f SB N 2. The impugned judgment and decree is challenged on the ground that without any reliable evidence, the Family court has decreed the suit and thereby committed illegality. 3. Brief facts leading to disposal of this appeal are that parties are governed by Hindu law andare legally weddedspouses. Their marriage was solemnized in the year 1998. On 19.02.2006 theappellant had left the house of the respondent with. the friend of the respondent namely Bajranglal Kalar and she was caught red handed while she was going in a motorcycle with another person in asuspicious condition by the police. Matter was reported. 4. On the ground of sexual intercourse by the appellant with another person, the respondent filed a petition for dissolution of marriage. The present appellant denied the allegations levelled against her. She stated that she had neither gone with Bajranglal nor had maintained any relation with him. In rebuttal, the respondent has not adduced any evidence to prove the aforesaid fact. 5. On the basis of averments and evidence adduced on behalf of the parties, learned Family Court has decreed the suit for dissolution of marnage.' 6. Learned counsel for both the parties heard. Record of the Court below including impugned judgment and decree perused. 7. Learned counsel for the appellant vehemently argued thatdecree for dissolution of marriage by decree of divorce has been granted by the Family Court solely on the ground of intercourse eommitted by the appellant with another person other than respondent/husband, under Section 13(1) (i) ofthe Act but in the present case the resppndent has not adduced anyreliable andadmissible evidence in support of the aforesaid allegation. Therefore, the decree is not sustainable underlaw. A, • , 8. On theother hand, learned counsel for the respondent vehemently opposed the ^ppeal and submitted thatthe evidence adduced on behalfof the respondent is especially the Rojnamchasanah which is sufficient for drawing inference that the appellant-wife was livihg in adulterous life after her marriage and she has been maintaining physical relation with one s.*^. • - .^ .-?:^^s^'^;:;;^' ^' ^'L ^:-..^^ ^"•^/ '^^•^^••s^'- ir-c Ifl"" X ••-:»1 Bajranglal after her marriage and had voluntarily involved in sexual intercourse with him. The Court below has rightly decreed the suit for dissolution of marriage between the parties on the said ground. 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidenceavailable on record. 10. In the present case, the Family Court relied on the document Ex. P.1 Rojnamchasanha without examining its author. The absenceof examination pf any person who has prepared or written the document Ex.P.1 is not admissible in evidence. The Family Court is required to examine the person concerned who has prepared or written the document. The respondent (A.W.8) himself has deposed that the appellant wife fled away with one Bajranglal and she was caught red haoded by the police. A.W.2 GovindSidar has also corroborated the evidence ofA.W.8 Sundarlal Patel. Although there is discrepancy relating to such evidence, but these facts that she had left the house of respondent without permission of the respondent; she had illicit relation with one Bajranglal; she was going to some village by motor cycle where she was caught red handed and she had voluntarily involved in sexual intercourse with Bajranglal or fhe person other than her husband are not sufficient in evidence as there was no cogent and strong evidence available on record. 11. While decreeing the suit, the learned Family Court has not considered the evidentiary value of Rojnamchasana and the evidence adduced on behalf of the appellant wife and thereby committed illegality. 12. • Fpr the foregoing reasons, the judgment and decree of dissolution of marriage by decree ofdivorce is not sustainable under law. 13. Consequently, the appeal is allowed and the judgment and decree of dissolution of marriage by decree of divorce is hereby set aside. Parties shalf bear their own cost. Advo'cate fee, as per schedule, be paid. 14.^ A decree be drawn accordingly. Sd/- T.P. Sharma Judge SdA R.L. Jhaiiwar Judge ----•a^. -s'.