HIGH COURT OF CHHAWISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE‘MR. T.P. SHARMA & HQN’BLE MR. R.L. JHANWAR, JJ. F. A. (Ml NO. 04(2007 AgplicantlAgpellant Mohanlal Sonkar Versus Non~AEglicantlResgondents Smt. Rekha Sonkar M JUDGEMENT FOR CONSIDERATION Sd/— T.P. Sharma Judge Hon’ble M}. R.L. JHANWAR, J. Sd/- R.L. Jhanwar ‘ Judge i!‘ 4/12/2009 x» Post for Judgment on: Sd/- JUDGEO n £7 / 12/2009 HIGH COURT 9F GHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR T.P. SHARMA & HON’BLE MR. R.L. JHANWAR JJ. F. A. (M) No. 04/2007 ApplicantLAppellant Mohanlal Sonkar, aged about 33 years, S/o Shri Babulal Sonkar R/o Lehar Chowk, Purani Basu‘, Raipur, Distt. Raipur (C.G.) Versus Non-Applicant] Respondents Smt. Rekha Sonkar aged about 34 years, W/o Mohanlal Sonkar R/o Sonkar Para, Purani Basti, Raipur, Distt. Raipur (C.G.) APPEAL UNDER SECTION 19‘ 1! OF FAMILY COURTS ACT. Present:— Shn' GD, Waswani, Advocate for the appellant. Shri Anjl Singh Rajput, Advdcate for the respondent. JUDGEMENT (Passed on 4/ 12/2009) The following judgement of the Court was_gassed bv T.P. Shanna, J:- 1. By this appeal under Section 19(1) of the Family Courts Act appellant has Challenged the judgment and decree dated 10. l 1.06 passed by the Second Additional Principal Judge Family Court, Raipur in Civil Suit No. 149A/2005 dismissing the petition for dissolution of maniage by a decree of divorce. 2. Decree is impugned on the ground that learned court below had not considered the proved case of cruelty and committed an illegality. 3. As per pleading of the parties, parties are Hindu legally wedded spouse, their marriage solemnized on 27.04.99. They live together for some time then respondent went to ‘her parental house. Dispute arose between the parties specially relating to service of the respondent and frequent visit of the respondent to her parental house without consent/permission of the appellant. Meeting V was convened and dispute was resolved but respondent refused‘to live with the appellant then nnally petition for dissolution of marriage by a decree of divorce was med on behalf of the appellant. 4. Respondent had denied the allegation and specially pleaded that she has discharged her marital obligation, she has visited her parental house only after permission of the appellant, she has not deserted the appellant, appellant and their relative committed cruelty upon her even her during period of pregnancy. On the basis of averments of the parties, court below has h‘amed the issue. After wording, an opportunity of hearing court below has dismissed the petition for dissolution of marriage by a decree of divorce. ‘ 5. Learned counsel for the parties are heard. 6. Judgment and decree impugned and record of courts below perused. 7 . Learned counsel for the appellant vehemently argued that respondent is not ready and willing to reside with the appellant, she has deserted the appellant and there is no chance of reconciliation, appellant has tried his level best to reconciliation the problem but respondent has not willing and ready to reside with the appellant, several Panchayat has been convened but respondent has not ready to live with the appellant. 8. Learned counsel for the appellant placed reliance in the matter of Smt. Bhavna Adwani, Apppellant v. Manohar Adwani, Respondent reported in AIR 1992 M.P. 105 in which High Court of Madhya Pradesh has held that wife guilty of willful neglect of husband is sufficient to constitute desertion. 9. On the other hand, learned counsel for the respondent vehemently opposed the petition and submits that respondent has not deserted the appellant willfully before her marriage. She was working in Janshatabdi Press after her marriage appellant advised her to leave the job then she told her husband that iirst appellant must establishes himself then she will leave the job but till today appellant has not established himself therefore she has not left the service only with a view to save her family. 10.) Learned counsel for the respondent further argued that she has not willfully neglected the appellant and she is still ready to live with the appellant. 11. In order to appreciate the argument of the parties we have examined the evidence available on record the parties are Hindu legally wedded spouse, their marriage solemnized on 27/4/99. Presently both are residing separately is not disputed. Panchayat meeting was convened is also not disputed. PWI Mohan Lal has deposed in his evidence that after the marriage respondent went her maternal house and since 14/ 10/99, She did not come back to his house. Present appellant went so many times to the house of the respondent but she refused to come with him.. On 30/6/99 the brother of the respondent sent her to the house of the appellant then respondent who is teacher continued her service and she has not left the service. PWI Mohan Lal further has deposed that respondent used to visit her father’s house frequently without consent or permission of the appellant. He also deposed that he has tried his level best for calling the respondent back in his house he had convened the meeting he has requested to Pariwar Sulah Kendra but respondent is not ready to live with the appellant. PW2 Kailash Sonkar member of the community has supported the evidence of appellant. 12. Respondent has denied the allegation and has specifxcally deposed that she was in service before her marriage. She had never told to the appellant that she will left the service after marriage she attained Pariwar Sulah Kendra and community meeting and speciilcally informed that she is ready to live with the appellant. Daughter is also living with her. Appellant never cme to take her she has further depsed that ppellant used to quarrel with her and used to compel her for leaving the service. She had’told to the appellant that first he establishes himself then she will resign the service, she has also deposed that only with a View to save her faly she has not resigned the service. Her statements is corroborated by the statement of the PW2 Shy Lal and PW3 Babulal Sonkar. Appellant has admitted in Para‘ of his cross examination that some tie he was sitting in the betel shop of his brother. He has denied that h is Hawker and used to realize the money but he hs shown his job of paper distributor. In Para —7, he has admitted and when respondent went her maternal house at that time the mother of the respondent was admitted in hospital and on 30th of June respondent came to her house alng with s maternal Aunt. In Para -8 he has also admitted that school opens on lst of July therefore respondent went to the school on 15‘ of July and o o a mi am 6 m e a o hi in the month of Bhado daughters/married woman used to go their parental house. 13. On close scrutiny of the evidence of the appellant and respondent reveals that there is solitary dispute relating to the service of the respondent. Presently respondent is in regular service but appellant used to distribute the paper means appellant is Hawker his job is not certain, evidence of the respondent reveals that respondent Will leave the service after establishment of her husband i.e. appellant but appellant is not ready for continuing on service of the respondent, this is not the case of established husband where service of Wife may be for additional income or would not be for necessity for the family. The job of appellant is uncertain, both are residing same ward and they may reside under same roof as husband and wife but only on the ground that respondent is in service they are not residing with each other. In the present case appellant has not filed any suit for restitution of conjugal right under Section 9 of the Hindu Marriage Act, 1955. The statement of the appellant reveals that first time respondent went to her parent’s house when mother was admitted in hospital then she came back on 30th June, she went to the school because same was necessary these all evidence reveals that respondent has not willfully deserted the appellant. Case of Smt. Bhavan Adwani (Supra) is distinguishable from thc ground and facts. 14. After appreciating the evidence available on record and in absence of any willful desertion on the part of the respondent learned Judge Family Court, Raipur has dismissed the petition for dissolution of marriage by a decree of divorce. The finding of the court below is based on legal evidence. 15. On close scrutiny, we do not find any illegality or intirmity in the judgment and decree impugned. Consequently, the appeal is liable to be dismissed and it is hereby dismissed. 16. No order as to costs. 17. Decree be drawn up accordingly. Sd/- .4 w W i . sw— T_p. Sharma A R.L. Jhanwar Judge 7 Judge N 12/2009 c7 ¢ / 12/2009