y HIGH COURT OF CHHATTISGARH AT BILASPUR ^*n Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, First Appeal (Ml No. 70 of2008 Appellant Noharlal Yede -~^.Respondent Vs. Smt. Kiran Yede JUDGMENTFORCONSIDERATIQN ^w^w <-1" T»dge Hon'ble Shri Dhirendra Mishia. J. S af^-_ r-^- PQSTFORJUDGMENTON /r-6-2010 Sd/- jminiUHiinBr^ ^' HIGH COURT OF CHHARTTISGARH AT BILASPUR CORAM: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri Rananath Chandrakar, JJ Appellant ApDlicant Respondent Non-applicant First Appeal (Ml No. 70 of 2008 Noharlal Yede, S/o. Late Roopchand Yade, aged about 40 years, R/o. Quarter No. 207-E, Risali Sector, Bhilai, Police Station Newai, Tahsil & District Durg Versus Smt. Kiran Yede, wife of Shri Noharlal Yade, aged about 33 years, resident of New Laxmi Nagar, Near Bramhakumari Ahsram, Gondia, Police Station, Tahsil & Distt. Gondia (Maharashtra). (Appeal under Section 19 ofthe Family CourtAct, 1984) Present: Shri M.D. Dhote, counsel forthe appellant. Shri Rakesh Dubey counsel for the respondent. JUDGMENT (Delivered on /^''day of June, 2010) Per Rananath Chandrakar. J. This is husband's appeal directed against the judgment and decree dated 9-4-2008 passed by the learned Principal Judge, Family Court, Durg, in Civil Suit No. 228-A of 2007, whereby the petition filed by the appellanVhusband under Section 13(1)(i-a) ofthe Hindu Marriage Act, 1955 (for short, "the Act") for a decree of dissolution of marriage has been dismissed. 2) Brief facts necessary for disposal of this appeal are that the marriage between the parties took place on 2-6-1996 at New Laxmi Nagar, Gondia, Maharashtra, accordingto Hindu rites and rituals and 1 4 thereafter they were living together at BhJlai from 9-6-1996 as the { appellanVhusband is an employee of Bhilai Steel Plant. Two children were born out of their wedlopk. After three months of their marriage, the respondenVwife started torturing and insulting the appellanVhusband by saying that he was T.B. patient. She was comp611ed to marry with the rustic family of the appellant/husbahd. She also used to insult her husband before his friends. The respondent/wife started visiting her maternal house even vvithout knowledge and permission of the appellant/husband. On 28-12-2001, she along with two children went to { her maternal house in absence of the appellant/husband from where notice for maintenance was sent to the appellant on 25-2-2002 on false and baseless grounds. The appellant sent the reply of the same and also applied for reconciliation on 23-3-2002 before the Famrly Counseling Centre, Durg, thereafter, the respondenVwife returnec^to the appellant on 26-4-2002, but there was no change in the behaviour ofthe rOspondenVwife towards appellant and. she became more aggressive. Even the respondent/wife did not allow the appellant to establish the physical relationship with her. She used to pressurize him to settle down at Gondia leaving his service at Bhilai. Ultimately, on 22-6-2007 i " • ? without permission of the appellant/husband, the respondent/wife along with two children leaving her matrimonial house went to her maternal house at Gondia where ?he got admitted the children in school and she did not return. On 3-7-2007, the appellant again moved an application for conciliation before the Family Counseling Centre, Durg. After moving this application by the appellant, the respondent/wife again sent legal notice for maintenance on 9-7-2007 on false and baseless ground. |^WTwr rn ^ Pursuance to the application of the appellant dated 3-7-2007, respondenVwife appeared before the Family Counseling Centre, Durg on 16-7-2007 and expressed that she neither wanted any action to be taken against the appellanVhusband nor wanted to give divorce to him, but she wanted to live separately with her children. She further expressed that she wanted to move an application for maintenance before Personnel Department, Conciliation Section, Bhilai Steel Plant and get decided the same. The aforesaid conduct and behaviour of the respondent/wife caused intense mental agony and torture to the appellant which amounts to cruelty. Thus, the appellanVhusband prayed for grant of decree of dissolution of marriage on the ground of cruelty and desertion. 3) The respondent/wife filed written statement and denied the allegations made against her. She pleaded that the appellanVhusband suspecting about her character subjected her to cruelty from the beginning of their marriage. She never visited her maternal house without permission of the appellant. She never pressurized the appellanVhusband to settle down at Gondia. She further pleaded that on 20-6-2007 she did not go to Gondia at her own accord, but it was the appellant who brought the appellant with the children to railway station for sending her to her maternal house for few days, purchased train ticket and sent them to Gondia. After some days he did not come to Gondia for taking her back and on receiving notice from Family Counseling Centre, Durg, she came to know the appellant had lodged a report against her. She specifically pleaded that the appellant is a very angry, proud and quarrelsome person. She was not even allowed by ^<^-' the appellant to attend the funeral of her close relatives. She also filed a counter claim under Section 23-A of the Act for maintenance and return of her Stridhan. She specifically pleaded that she never committed cruelty on the appellant. 4) On the basis of averments made by the parties, issues were framed and after affording an opportunity of hearing to the parties, learned Judge, Family Court dismissed the application for grant of decree of dissolution of marriage holding that the appellant failed to prove the factum of cruelty and desertion and granted maintenance to the respondent and children under Section 25 of the Act as well as passed order for return of Stridhan under Section 27 of the Act. 5) Learned counsel appearing for the appellant vehemently argues that the learned Family Court mis-appreciated the evidence. The Family Court ought to have held that according to pleadings the appellant proved the factum of cruelty committed by wife as the respondent/wife refused the physical relation with him. There is no evidence on record that the respondent/wife was subjected to cruelty. On the contrary, the appellant filed complaints before Mahila Police Station, Durg, which were Ex.P/1, P/2 & P/3. It is also evident that during conciliation/counseling before Mahila Police Station on 16-7-2007 the respondenVwife refused to live with the appellant. It is further submitted that the respondenVwife deserted the appellant/husband and is living separately along with two children at Gondia (Maharashtra) without consent of the appellanVhusband which amounts to cruelty. Thus, the impugned judgment and decree passed by learned Family Court is bad in law and the same be set aside. ^ "^ SJ ^ 6) On the other hand, learned counsel appearing f^the respondent argued in support of the impugned judgment and submitted that the findings of learned Family Court are well founded. The learned Family Court has committed no illegality or irregularity in reaching to the conclusion as mentioned in paras 31 & 34 of the impugned judgment and the same are based on the clinching evidence available on record. He referred to the cross-examination of the appellant (p^ras 20&21) as / also the deposition ofthe respondent (para 8, 21 & 25). 7) We have heard Shri M.D. Dhote, learned counsel for the appellant and Shri Rakesh Dubey, learned counsel for the respondent, perused the impugned judgment & decree and record of the Family Court. 8) In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. The appellant sought a decree for dissolution of marriage on the ground of cruelty and desertion. There are allegations and counter allegations made by each other. In matrimonial relations, there may be some complaints like ordinary. wear and tear which must be' avoided or tolerated by every one. Thus, we are not concerned to each and every allegation made by the parties in peculiar circumstances of the case as they are having two children. 9) So far as the question of cruelty is concerned, it must be specifically proved by the cogent evidence. The appellant/husband has mainly stated in his deposition that he was insulted by the respondenVwife. She was not interested even in physical relationship ^ with him and whenever he tried to have physical relation, he was physically assaulted by her. But, in his cross examination, the appellanVhusband himself has contradicted his own statement. In para 20 of his cross examination he denied the suggestion that in Mahila Police Station, he had stated that his wife did not co-operate him in physical relation but on perusal of Ex.P/2, the application filed by the appellanVhusband in Mahila Police Station, Durg, it is clear that he has made clear and categorical allegation against the respondent/wife that she was not interested in physical relation with him. Further, he denied that he was advised by the Mahila Police Station to take medical treatment as he was having two children. It was also denied that he used to establish physical relation with his wife in presen.ee of the children. It was further denied that his wife never co-operated him during physical relationship. Thus, the evidence of the appellanVhusband appears to be unreliable and fabricated which ultimately supports the statement of the respondenVwife made in para 8 of her deposition wherein she stated that she was subjected to cruelty by the appellant/husband for want of physical relation which she used to avoid in presence of the children as also her statement in para 25 of her cross examination wherein she denied the suggestion given about avoidance of physical relation by her. The other grounds taken by the appellant for establishing the factum of cruelty have not been proved. 10) So far as the other allegation that the respondent/wife deserted the appellant on 22-6-2007 without sufficient reason as pleaded in para 14 of the application under Section 13(1) of the Act, is concerned, it is clear from the written statement and deposition of the respondent/wife -./' that she did not desert the appellant/husband at her own accord. She categorically stated in para 14 of her written statement and in para 21 of hercross examination that she was sent to her maternal house along with the children by her husband/appellant after bringing them to railway station and purchasing the train ticket. Her statement was also corroborated by her father Khileshwar Goran Lal Patle. The appellanVhusband stated that on 28-12-2001 also the respondenVwife had gone to her maternal house without his knowledge and permission with the help of neighbour but his statement is not corroborated by the other witnesses and he has not examined the neighbour before the court with the help of whom the respondent/wife said to have gone to her maternal house. Apart from this, they resided together after the incident dated 28-12-2001 till 22-6-2007 i.e., the alleged date of permanent desertion. It is also pertinent to mention here that the appellant/husband filed the petition specifically under Section 13(1) (i-a) of the Act which is meant for a decree.of divorce on the ground of cruelty and the ground ofdesertion is availabTe under Section 13(1) (i-b). Thus, the ground of desertion was/is nof available to the appellant. If the desertion is presumed to be covered under the ground of cruelty then also it is not available to him as the Act, 1955 provides that the desertion shall not be less than for a continuous period of two years, immediately preceding the presentation of the petition. On perusal of the record, it is evident that the incident of alleged desertion took place on 22-6-2007 and the petition was presented on 13-8-2007 which goes to show that the petition was presented within two months from the date f -t' k""—., ^ of alleged desertion. Thus, the petition was not tenable on the ground of desertion. 11) It is also pertinent to mention here that both the parties have produced some documents in support of their case. On perusal of the documents, there are allegations and counter allegations against each other which are part and parcel in the ordinary course of matrimonial life as has already been discussed in para 8 of this judgment, specifically looking to the future and welfare of their children. The alleged date of incident for causeof action is 22-6-2007 and the appellant filed the petition for divorce on 13-8-2007 rather than filing a petition for restitution of conjugal rights which also goes to show that despite the willingness of the respondenVwife to lead happy married Mfe with the appellant as deposed by her in para 15 of her examination-in-chief and para 28 of her cross examination, the appellant/husband is not interested to lead conjugal life with the respondenVwife. Thus, from the aforesaid, it is found that the appellanVhusband was not treated with cruelty by the respondent/wife, but he himself subjected the respondenVwife to cruelty and there was sufficient reason for the respondenVwife to live separately with children from the appellant/husband. 12) On re-appraisal of the entire evidence on record, we are of the considered opinion that the factum of cruelty as alleged by the appellanVhusband against the respondent/wife by way of non- cooperation in physical relationship and desertion is not proved in the case. '^ Raju 1 ^ 13) For the foregoing reasons, we are of the opinion that the Family Court has rightly dismissed the petition. We do not find any illegality or irregularity in the impugned judgment. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed. Parties shall bear their own costs. 14) Decree be drawn up accordingly. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge