HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R.L. JHANWAR, JJ. F. A. No. (M) 02/2007 ‘ APPELLANT / Mukesh Kumar Sahu,k Versus RESPONDENT Smt. Tameshwari x ; j/ I \ JUDGEMENT FOR CONSIDERATION Sdl- ‘ \ T.P. Sharma Judge L Hon’ble Mr. R.L. JHANWAR, J. 7, , Sd/- R.L. Jhanwar Judge JUDGE yu/11/2009 L, Post for Judgment on: Z a/ 1 1/2009 Sd/- " i JUDGE 39/11/2009 APL Wr HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA 8a ' HON’BLE MR. R.L. JHANWAR, JJ. F. A. No. (M) 02/2007 APPELLANT Mukesh Kumar Sahu,k aged about 32 years, son of Late Lakhan Lal Sahu, resident of Village Mohlai, Post Chourel, Tah. Gunderdehi, Distt. Durg (C.G.). Versus RESPONDENT Smt. Tameshwari alias Ralneshwari, Wife of Shri Mukesh Kumar' Sahu, aged about 27 years, resident of village Mohlai, Post Chourel, Tah. Gunderdehi, Distt. Durg (C.G.). APPEAL UNDER SECTION 19 OF THE FAMILY COURTS ACT, 1984. Present:— Shri N.S. Dhurandhar, Advocate for the appellant. Shri Shrawan Agrawal, Advocate for the respondent. JUDGEMENT (Passed on 30/ 1 1/2009) The following judgement of the Court was passed by T.P. Sharma, J:- 1. By this appeal under Section 19 of the Family Courts Act, 1984 the appellant had challenged the legality and propriety of the judgment and decree of dismissal of petition for dissolution of marriage by a decree of divorce dated 10/1/06 passed by learned Second Additional @ Principal Judge, Family Court Durg in civil suit No. 5A/o5. 2. The judgment and decree is impugned on the ground that the proved facts of cruelty and adultery of respondent has not been considered by the Additional Principal Judge, Family Court and thereby committed an illegality. 3. The brief facts necessary for decision of appeal is as per the pleading of the parties, the parties are legally wedded Hindu spouse having two children. Petitioneris working as teacher at Dhangaon. Appellant started residing at Dhangaon. Present respondent has taken the benefit of the appellant’s absent from Mohlai, she started residing with another person Bhagavan Singh as a wife then controversy arose between parties, respondent threatened the appellant to implicate falsely in criminal case and used to misbehav and used to commit torture upon the appellant. Appellant has lodged the report, presently respondent is residing with Bhagavan Singh in ancestral house of the appellant and she is living an adultery on the aforesaid ground appellant has filed the petition for dissolution of marriage by a decree of divorce. 4. Respondent has denied the adverse allegation and specifically alleged that respondent is not living an adultery, present appellant has levelled false allegation upon her and appellant is residing separately, appellant himself has outrage the modesty of one woman Village Panchayat had punished him, respondent has not committed torture or cruelty upon the appellant. Present respondent is living in the ancestral house of the appellant and getting her livelihood from the income of ancestral property. On the basis of averments of the parties issues were framed and after affording an opportunity of her to the parties learned Additional Principal JudgehFamily Court dismissed the petition in absence of fact of prove of torture and adultery. Learned counsel for the parties are heard. Judgment impugned and record of Courts below perused. Learned counsel for the appellant vehemently argued that appellant has proved the factum of torture and adultery against the respondent. Respondent is still residing with the Bhagawan Singh in his ancestral house as husband and wife and they are having physical relation but court below is not considered the proved fact of torture and adultery. On the other hand, learned counsel for the respondent opposed the appeal and vehemently argued that present appellant himself is a guilty of commission of offence of outraging the modesty of the woman and Panchayat had punished him, he himself is residing separately at Dhangaon only 4 kms. away from his ancestral house on Qb /\/v the ground that he committed the offence against one woman. He has realized his guilty and therefore he is residing 4 kms. away from the Mohlai. 9. In order to appreciate the contention of the parties he has examined the evidence available on record. PWI appellant Mukesh Sahui has deposed that he is resident of village Mohlai and he is residing at Dhangaon and working as teacher so he has left his ancestral village Mohlai on account of quarrel and dispute committed by the respondent. He has also deposed that even respondent used to come in Dhangaon and. used to dispute with him respondent is having. illicit relation with Bhagawan Singh and she is residing with Bhagawan Singh in his ancestral house at Mohlai. He has also deposed in his evidence that he has lodged the report to police but police has not taken ' any action. The respondent has removed his crop from the field forcefully and is in possession over his ancestral property. She is getting her livelihood from ancestral property and she is residing with his two children. He has also deposed that respondent used to threat her and she has lodged the report several times. PW2 Bhojbai mother of the appellant has also corroborated the version of the appellant and deposed that she is residing with her son i.e. appellant witness Ashok Kumar Sahu has also deposed same thing witnesses Indra Kumar has deposed axf in his evidence on affidavit that once he has seen the respondent sitting with Bhagwan Singh in one cot and their hands were upon the thighs of each other. Another witness Deokumar has deposed that respondent used to commit cruelty and used to assault the appellant. Respondent has denied the allegation and has deposed that she is not having any relation with Bhagan Singh .‘v _ relation with her husband is not cordial, they have lodged the report against each other. His Witnesses Hiram Singh is also corroborated her evidence. Witness of appellant Indra Kumar has deposed he had gone to the house of the appellant at Mohlai with appellant twicely, there he saw that respondent and Bhagawan Singh were sitting in one cot and their hands were upon thighs of each others but these material facts has not been pleaded corroborated or deposed by appellant Mukesh. Indrakumar is a resident of Dangaon and not of Mohlai he has admitted in Para —6 of his cross examination that house of Bhagawan Singh is situated in front of the house of the appellant and has also admitted in Para-7 that he has heard uncordial relation of appellant and respondent. It appears that this witness who is not resident of Mohlai has tried to state that respondent and Bhagawan Singh were sitting in abnormal position and when he went to the house of appellant twicely with the appellant. This fact is a relevant fact in proving the factum of adultery but reasons best known to the appellant, appellant has not deposed this material facts in his evidence which shows that this witness has not seen anything but only to support the case of appellant has deposed in favour of appellant. Next Witness Deokumar has deposed in his evidence on affidavit that p respondent came 3 to 4 times at Dangaon along with Bhagwan Singh and other 3—4 persons were seen. filthy language to Mikesh and scuffle with him. He has also deposed in Para—3 of his evidence that on 28/10/02 respondent and Bhagawan Singh assaulted the Mukesh along with other two persons and caused lacerated wound over the head of the Mukesh. He has also deposed that one time he went with Mukesh to Mohlai village where they saw that respondent and Bhagawan Singh were came out form room which was closed then respondent misbehaved with appellant. The fact that respondent and Bhagawan Singh were came out from one room which was closed is also relevant fact to prove the factum of adultery according to this Witness he has seen this incident when he went to the house of the appellant along with appellant but reasons best known to the appellant, appellant has not stated these material facts in his evidence. According to witness Deokumar the respondent not only misbehaved and torture him to assault and caused grave injury over GT 4 :’ the head of the appellant ( W “5?: W QAT ) but reasons best known has not stated in his evidence which was relevant for proving the issues of cruelty these material facts have neither pleaded by the appellant in his petition nor deposed by the appellant in his evidence. As per Para — 2 of the pleading of the appellant to facilitate himself in his witness he shifted from village Mohlai to Village Dhangaon only 4 kms. away from his ancestral house and ancestral property situated at Mohlai. He has .alsp pleaded that respondent has taken the benefit of his shifting has stated residing with Bhagawan Singh in the house of Bhagawan Singh but in his deposition appellant has specifically deposed that on the ground of quarrel committed by the respondent he had left his ancestral house of Mohlai and stated residing at Dhangaon. He has also deposed in Para-l of his evidence that respondent is residing with Bhagawan Singh in his ancestral house and when he used to go in his ancestral house then she used to quarrel. Paras l 8L 2 the pleading of appellant and Para -1 of his evidence is complete contradictory. The burden to prove the facturn of adultery against the appellant and commission of cruelty by respondent upon the appellant was on the appellant but by pleading the fact of adultery and cruelty, his statement and statement S T'P' Shal‘ma / / , , Sd/- R.L. Jhanwar _ ’ 3 ’fV Judge 'Juége \ ‘1 J ., aw ‘of his Witness Indrakumar and Deokumar, he has not only failed to prove the aforesaid facts but has disproved the aforesaid facts/facts in issue. In absence of any prove and , / 3* disproving the aforesaid facts by appellant the learned Second Additional Principal Judge, Family Court has dismissed the suit for dissolution of marriage by a decree of divorce. In absence of any ground available under Section 13(1) of the Hindu Marriage Act, 1955, learned Second Additional Principal Judge, Family Court, Durg has rightly dismissed the suit for dissolution of marriage j; 10. by a decree of divorce, we are of the considered View that learned Second Additional Principal Judge, Family Court, Durg has not committed any illegality. Consequently, the appeal is Without substance and is H 1‘1. liable to be dismissed and it is hereby dismissed. No order as to costs. \J 12, Decree be drawn up according.