HIGH COURTOFCHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal (M) No. 20 of 2009 ADpellant . Dinesh Kumar Thakur Vs. Respondent Smt. Khushbu @ Manogya Thakur JUDGMENT FORCONSIDERATIO' R.N. Chandrakar Judge Hon'ble Shri Dhirendra Mishra. J. ^ OJiAut.-. .^^d—-— Post for pronouncementofjudgment on Sd/- Dhirendra Mishra Judge ^ -04-2010 Sd/- Dhu-endraMishra Judge y te X ./' • <-- HIGH COURTOF CHHARTTISGARH AT BILASPUR CORAM: Hon'bleShri Dhirendra Mishra & Hon'ble Shri Rananath Chandrakar, JJ AppeIIant Petitioner Respondent Non-Applicant ~A First Appeal (Ml No. 20 of 2009 Dinesh Kumar Thakur, son of late Mohan Singh Thakur; aged about 38 years, r/o. Piparhatta, Police Station Mandir Hasaud, P.0. Godhi, Tahsil Arang, Dist. Raipur (CG). Versus Smt. Khushbu @ Manogya Thakur, wife of Dinesh Kumar Thakur, through Smt. Nirupama Thakur, r/o. in front of Rawan Putla, Ring Road, beside Sharab Bhatti, village Mathpuraina, P.0. Sunder Nagar, Tahsil and District Raipur (CG). (Appeal underSection 19 ofthe FamilyCourtAct, 1984) Present: Shri M.D. Dhote, counsel for theappellant. None for the respondent though served. JUDGMENT (Delivered on oj -04-2010) Per Rananath Chandrakar, J. 6y this appeal, the appellant challenges the legality and propriety of the judgment and decree dated 20-01-2009 passed by Ist Additional Principal Judge, Family Court, Raipur; in civil suit No. 62-A/2008, whereby the petition filed by the appellanVhusband under Section 13 of theHindu MarriageAct, 1955 (for short, "theAct, 1955")for dissolution of marriage, has been dismissed. fc '^ . ~ \k UII i'te- 2) Admittedly, the appellantand respondent are legally wedded spouses and their marriage was solemnized at Rawanbhata, Raipur, according to Hindu rites and customs on 11-6-2003. After marriage they resided together for some time peacefully in village Piparhatta and two children were born from their wedlock. As per pleadings of the appellant/husband, it was alleged that from the beginning of their marriage, the mother-in-law of the appellant/husbandstarted pressuring hirn to live with her in village Mathpuraina, Raipur as "Gharjamai" for which the appellant/husband was not ready. The respondent/wife also wanted to live with her mother and for this she started picking up quarrels with the appellant/husband at the instance of her mother. The respondent in collusion with her motherlodged a false report against the appellant on 24-5-2007 and 7-7-2007 and he was kept in Police Station for 3 hours. Affer enquiry and investigation, that reports were found false and no .case was made out against the appellant/husband. The respondent used to visit her mother frequently andstay there for about 2 — 4 months which affected the maintenance and education of the children. It was also alleged that the respondent/wife established relationship with many persons in her maternal village and on objection by the. appellant, she used to abuse, quarrel and threaten the appellanVhusband to put him behind the bar. On the basis of aforesaid allegations, the appellanVhusband had filed a divorce petition No. 198- A/2007 which was disposed of on 20-.11-2007 as per the compromise entered into between the parties. After four days of the disposal of aforesaid petition for divorce, the respondent/wife againstarted the same actsof cruelty by hurling filthy abuses and left for her maternal house.The s~-. appellanVhusband tried to bring her back but she did not return to her — matrimonial home. Being aggrieved by the behaviour and conduct, the appellant/husband preferred the instant petition for dissolution of marriage which was dismissed by the Principal Judge, Family Court, Raipur on the ground that the appellant/husband failed to prove the factum of cruelty committed by the respondent/wife. Thereagainst, the appellant/husband has filed this appeal. 3) The respondent appeared before the learned Family Court and after filing the written statement she was proceeded ex parte and on the basis ofaverments made by the appellanVhusband, issues were framed and after affording an opportunity of hearing to the appellant, learned Judge, Family Court has dismissed the petition for divorce. 4) We have heard Shri M.D. Dhote, learned counsel for the appellant and perused the judgment & decree and record of the Family Court. 5) Learned counsel appearing for the appellant vehemently argues —thatthe Family Court passed an ex parte decree since the ..-^ ! ' . ' respondent/wife remained absent after filing her written statement. The appellant/husband submitted the depositionsof himself and hiswitnesses byway ofaffidavits under Order 18 Rule 4 ofttie Code of Civil Procedure and they were not cross examined, therefore, their evidence became absolute andought to have been considered and accepted about the cruelty committed by the respondent/wife upon him. The Family court illegally accepted the facts and contents of the written statement though no evidencewas led by the respondent/wife since she remained ex parte till the impugned judgment and decree was passed. It is further " fc': ". —'~. • ! ' / :.' .. sSi^mitted 'that the Family Court has not appreciated the evidence on ..^v^^-—.- ^ ^s^s&^^ ^/ record in its proper perspective and has not considered the factum of cruelty committed by the respondenVwife. Therefore, the impugned judgment and decree be set aside. , In support of his contentions, learned counsel appearing for the appellant placed his reliance on Shobha Rani vs. Madhukar Reddi1 and Naveen Kohli vs. Neelu Kohli2. 6) In order to appreciate the arguments advanced on behalf of the appellant, we have examined the evidence on record. On going through the pleadings and the ex parte evidence adduced by the appellant by way ofaffidavit under Order 18 Rule 4 of the C.P.C., it is found thatthe earlier petition for divorce filed by the appellant/husband was disposed of on 20- 11-2007 on the ground of compromise entered into between the parties and the respondent/wife again deserted the appellant just after four days of the disposal of the earlier petition for divorce. The appellant/husband filed-the instantpetitionon 31-12-2007 on the same ground ofcruelty.but no reason whatsoever was assigned about the said desertion of the appellant/husband by the respondent/wife either in the petition for divorce or in the ex parfe evidence adduced by the appellanVhusband by way of affidavit under Order 18 Rule 4 of the C.P.C. It is also pertinent to mention h6re ,that the said affidavit of the appellant goes to show re- productfon of the same set off facts and allegation of cruelty as alleged in the earlier petition for divorce. In the said affidavit theappellant has neither mentioned anything about desertion by the respondent/wife nor the date on which he was deserted. From the contents of the affidavit, it appears that the appellant has only stated about the past conductand '^88)jsccro5 2Alfe20b6 SC 1675 \~ behaviour of the respondent/wife and no new allegation about any sort of cruelty has been mentioned. tt is also evident that the appellant/husband gave no justification either in divorce petition or inhis affidavit about filing the instant petition for divorce within a very short span of time after disposal oftheearlier petition. 7) On re-appraisalof the evidenee and the pleadings of theappellant, — it is clear that the appellant/husband has failed to prove the factum of '< cruelty committed on him by the respondent/wife, Thus.the above case ^laws relied upon by the counsel for the appellant are not applicable to the facts and circumstances of the present case. 8) The learned Family Court has rightly dismissed the petition for divorce filed by the appellant/husband but the grounds mentioned for dismissal of the divorce petition are erroneous. Firstly, the question of _ waiver of cruelty does not arise as there was re-union of the parties and they decided to livetogether at the moment when the earlier petition for divorce was disposed of on the ground of compromise entered into -^. ' : between them. Anyincident anterior to the reunion deserves no v consideration and as such there was no cause of action for the appellant/husband in filing the subsequent petition (instant petition) for divorce. None of the grounds mentioned in the earlier petitjon ean be a basis of the instant petition and also none of the grounds mentioned in Section 13 (1)(i-a), (i-b), (ii) and (iii) of the Act, .1955 is pleadednor could be pleaded in the instant petition. 9) y^ It fS true that the respondent/wife did not care to place her defence despite service of notice which shows that she is not interested in fe - ' \. - •' matrimSRial-relationsor even in resumption thereof. Her intentions apart, c-11 Raju the affidavit which the appellant filed by way of ex parte evidence does not discloseany of the grounds as enumerated above to grant a decree of divorce. 10) In view of the aforesaid discussion, we are of the opinion that the appeal being devoid of merit is liable to be dismissed and is accbrdingly dismissed. Parties shall beartheirown costs. Sd/- Dhirendra Mishra Judge -/• Sd/- R.N. Chandrakar Judge ft fc.; ^•< s^ '..A1 ^s^S^sSSs'S^^^ •S^^^^^S'S'sS'S^^^^^^&S^^^^^S^^ ^^^^^^^S^SSS^^S^^^jSs^^!.