HIGH COURT OF CHHATTISGARH AT BILASPUR FIRST APPEAL N0.173 OF 2005 Division Bench: Hon'ble Shri Dhirendra Mishra & Hon7ble Shri R.L. Jhanwar JJ APPELLANT DEFENDANT Smt. Anjushri Kothari VERSUS RESPONDENT PLAINTIFF Murli Kothari JUDGMENT JUDGMENT FOR CONSIDERATION °)<^^ POST ON /3/APRIL, 2009 JUDGE 9. 4.2009 8d/- R.L. Jlianwalr Judge Sd/- Dhirendra Mishra Judge /f,4.2009 \i/- ---- '! - ^»NN^ '^ HIGH COURT OF CHHATTISGARH AT BILASPUR FIRST APPEAL N0.173 OF 2005 Division Bench: Honyble Shri Dhirendra Mishra_& Hon'ble Shri R.L. Jhanwar, J3 APPELLANT DEFENDANT VERSUS RESPONDENT PLAINTIFF Smt. Anjushri Kothari, Aged about 32 years, W/o Murli Kothari, D/o Shri Ratan Bagdi, R/o Tagore Nagar, Raipur (CG) Murli Kothari, Aged about 35 yrs, S/o Late Shri Gopal Das Kothari, R/o Sadar Bazar, Raipur (CG) Now residing at B- 14, Indralok Society, Behind DAV College, Bandup M-42, Bombay (Maharashtra) Or Enarbee Marketing, 51 Ultimate Business Centre, Opposite Bombay University, 111 M.G. Road Fort, Bombay. Present: Mr. Pawan Kesharwani, learned counsel for the appellant. Mr. HB Agrawal, learned Sr. Advocate with Ms. Rinki Tamrakar, Advocate for the respondent. 3UDGMENT (Delivered on j3"^pril, 2009) The following judgment of the Court was delivered by Dhirendra Mishra, J:- 01. This appeal is filed against the judgmenf dated 27th July, 2005 passed in Civil Suit No.29A/05, whereby the learned Family Court, Durg has allowed the application of the respondent/applicant under Section 13 of the Hindu Mam'age Act, 1955 and granted a decree of dissolution of marriage solemnized between the parties on 6th May, 1999. (Parties shall hereinafter be referred to as per their description before the Family Court.) 02. Short facts of the case are that, the non-applicant was married to the applicant as per Hindu rites on 6th May, 1999 at Raipur. At that time, the applicant was employed at Bombay. After marriage, the non-applicant accompanied the applicant and started residing with him at Bombay. However, the applicant filed an application for divorce on 15th April, 2004 alleging that the non-applicant by her various abnormal acts subjected him to mental cruelty. Detailing various instances of cruelty, it has been averred in the petition that because of the cruel treatment of the non-applicant, he is entitled for a decree of divorce. 03. The, non-applicant, in her reply, specifically denied all the allegations against her in the petition, and averred that at the time of fixation of marriage, the applicant had given false information that he was employed as an officer in a private organization in Bombay and is drawing Rs.25/000/- per month as salary and other allowances, and he is also having his personal flat in Bombay, though, later on, it revealed that he does not have any flat. The applicant's behaviour towards her was cruel, he used to insult her as well as her family members and also harass her physically and mentally. She was ill treated even during her pregnancy and was sent to her parents' home, where she gave birth to a male child on 27.11.2003 and since then, she is residing with her parents and the applicant has not taken care of the child or the non- applicant. Her request for taking her to Mumbai was ignored by the applicant and during her stay at Mumbai, the applicant treated her with cruelty. 04. On the basis of pleadings of the respective parties, learned Family Court framed following issues: l(a) Whether non-applicant, after her mamage with the applicant, mentally harassed him by her irrelevant talk and abnormal behaviour, and thereby treated him with cruelty? (b) If yes, whether in the light of said cruelty the applicant is entitled to have a decree of dissolution of marriage from the non-applicant? @ 2. Whether the application for divorce is based on untrue grounds with a purpose to just harass the non-applicant? If yes, then effect? 3. Relief and cost? 05. The applicant examined himself and his sister-in-law Chandramani in support of his case, whereas, the non- applicant examined herself and her father Ratan Bagdi. 06. Learned family Court, relying upon the oral testimony of the applicant and his witness Chandramani, has held that the non-applicant treated him and his family members with cruelty and accordingly, decided the issue No.l(a) in. affirmative, and further held that the applicant is entitled for a decree of divorce as the non-applicant has failed to prove the issue No.2 and accordingly, passed the impugned decree. 07. Learned counsel for the appellant/non-applicant submitted that the learned family Court has passed the impugned decree by placing implicit reliance upon the oral testimony of the applicant without considering the evidence of the non-applicant and her father. The decree has been passed by one-sided and partisan appreciation of the evidence available on record. The Court below has ignored the fact that the onus of proving cruelty was upon the applicant, and he'did not examine any independent witness to establish the charge of cruelty. Chandramani, who is applicant's real sister-in-law, has also not stated any specific instance of cruel behaviour of the non-applicant, and she has made omnibus allegations that the non- applicant's behaviour towards her husband (applicant) was not proper. 08. On the other hand, Mr. HB Agrawal, learned Sr. Advocate with Ms. Rinki Tamrakar, Advocate appearing for the applicant, vehemently argued that the learned family Court on proper appreciation of evidence available on record has drawn the conclusion that the version given by the applicant is comparatively reliable. The conclusion recorded by the learned family Court based on oral evidence should not normally be disturbed as the family Court had an advantage and opportunity of seeing the demeanour of the witnesses. 09. Reliance is placed on the judgment in the matters of Jagdfsh Singh Vs. Madhuri Devl, reported in (2008) 10 SCC 497. 10. We have heard learned counsel for the parties and perused the material available on record as also the impugned judgment. 11. . In the matters of Jagdish Singh (supra), it has been held that though the High Court while exercising power as the first appellate Court can enter into not only the questions of law but questions of fact as well, as appeal is a continuation of suit. An appeal thus is a rehearing of a main matter and the appellate Court can reappraise, reappreciate and review the entire evidence - oral as well as documentary, however, the appellate Court is bound to bear in mind that the conclusion recorded by the trial Court on the basis oforal evidence shouldnot normally be disturbed as the trial Court had an advantage and opportunity of seeing the demeanour of witnesses. Three requisites should normally be present before an appellate Court reverses a finding of the trial Court: (i) it applies its mind to reasons given by the trial Court; (ii) it has no advantage of seeing and hearing the witnesses; and (iii) it records cogent and convincing reasons for disagreeing with the trial Court. ^ 12. We propose to examine the impugned judgment in the light of the above principles of taw laid down by the Hon'ble Supreme Court. 13. From perusal of the averments ln the apptication for divorce, we find that the applicant has made various specific allegations of cruel treatment and abnormal behaviour of the non-applicant while she was residing with him in Mumbai. Alt the allegations of the applicant have been specifically denied by the non-applicant in her reply. We also find that the alleged cruel treatment was given by the non-applicant in the presence of friends of the applicant in Mumbai. It has also been alleged that she tried to cut her nerves by blade; she attempted to strangulate herself by her scarf, and misbehaved in the presence of his friends in Mumbai as well as before his family members at Raipur. It has been further alleged that she misbehaved in a marriage ceremony in the presence of elders of the society. We also find reference of some meeting held at Raipur attended by Sushila Daga (sister), HL Daga, Kamla Jhawanr (sister), applicant, non- appticant and her parents and maternal uncle. In the said meeting, the non-applicant misbehaved and declined to live with the applicant. Though, the applicant, in his evidence, has reiterated the allegations made in the application and further denied the suggestions in the cross-examination that the allegations are untrue and fatse, but none of the persons mentioned in the application has been examined. 14. AW-2 Chandramani, sister-in-law of the applicant, is a witness of the fact that after mamage of the applicant, she had gone to Mumbai and stayed with them for eight days and in that period, behaviour of the applicant towards the non-applicant was good, however, non- applicant's behaviour towards the applicant was not proper and she used to get enraged on seeing the applicant. At the time of Teej Tyohar the non-applicant t'^^^»;.->s^^ ^3 came to her home and went back with the ornaments and clothing. 15. On the other hand, the non-applicant, in her deposition, has reiterated the contents of her averments in the reply and deniedall the allegations made by the applicant in his application. All the suggestions of cruel treatment by the applicant have been denied. 16. Ratan Bagdi, father of the non-applicant, has also supported the allegations of his daughter and stated that he started receiving telephone calls from her daughter about the ill treatment meted out to her by her husband, one to two months after she went to Bombay. 17. After careful examination of the evidence adduced by the respective parties, we find that they have stuck to their pleadings and denied the suggestions given to them by the other side. The learned family Court while appredating the evidence of the applicant and his witness, has only referred to their examination-in-chief and did not care to refer their cross-examinations. The Court below, after appreciating the evidenceavailable on record, has simply observed that behaviour of the non-applicant towards the applicant and his family members was cruel, an.d the evidence adduced by the applicant is comparatively more firm and reliable than the evidence adduced by the non- applicant, without assigning any reason for the same. 18. On careful examination of the evidence available on record, we're of the opjnion that there was no valid ground for placing implicit reliance on the oral testimony of the applicant and ignoring the evidence of the non- applicant as both the parties have stated on oath against each other. The applicant has not cared to examine the other independent witnesses before whom the non- applicant allegedly misbehaved with him and his family members. The burden of proving cruelty of the non- applicant was upon the applicant. He was further required to prove that the cruelty was of such a nature that he could not, under the circumstances, lead a peaceful marital life. Thus, in these circumstances, we're of the considered opinion that it was not proper on the part: of the learned family Court to annul the marriage between the parties through decree of dissolution of marriage, solely on the basis of evidence of the applicant in the absence of any supporting evidence. 19. In the result, the appeal is allowed. Impugned judgment and decree of dissolution of marriage is set aside. 20. No order as to costs. Sd/- Dhirendra Mishra Judge Sd/- R.L. Jhanwar Judge ?<3.4.2009