HIGH COURT OF CHHATTISGARH AT BILASPUR Coram: Aepellant Respondent Hon' ble Shri T.P. Sharma & Hon' ble Shri R.N. Chandrakar, JJ F.A.(M) No. 6 of 2008 Smt. Bhanumati Janagde, w/o. Shri Madan Lal Janagde, aged about 28 years, resident of village Bagdumar, Post - Ahiwara, Dist. Durg (CG)at present resident D/o. Shri Prahladee Prasad Deshlahara, village Pirda, Thana & Tahsil - Berla, Distt. Durg (CG). Vs. Madan Lal Janagde, s/o. Shri Mehattar Janagde, aged about 30 years, resident of village Bagdumar, Thana-Nandini, Tahsil Dhamdha, Distt. Durg (CG). (First Appeal under Section 19(1) of the Family Courts Act, 1984) Present: Shri R.S. Patel, counsel for the appellant. Shri Praveen Dhurandhar, counsel for the respondent. Oral Order (Passedon 9-2-2010) PerT.P. Sharma,J. This appeal under Section 19(1) ofthe Family Courts Act, 1984 is directed against the judgment and decree dated 28-9-2007 passed by the 3rd Additional Principal Judge, Family Court, Durg, in Civil Suit No. 24- A/2007, whereby the learned Principal Judge, Family Court, allowing the application for restitution of conjugal rites filed on behalf of the respondent/husband has dismissed the petition under Section 10 (2) of t/^' the Hindu Marriage Act, 1955 (for short, "the Act, 1955") for judicial separation filed on behalf of the appellant/wife. 2) The judgment and decree is impugned on the ground thatthe present appellant is living separately from her husband/respondent on reasonable cause and her life is endanger and the Family Court has not considered the proved fact of cruelty, ^desertion and thereby committed illegaljty. 3) Brief facts necessary for the disposal of this appeal are that the parties are Hindu legally wedded spouses and their marriage was _solemnized in the year 1998 and they were residing together and discharging their marital obligations for some time. As per pleadings of the respondent/husband, the appellanVwife left her matrimonial house and failed to discharge her martial obligations. The respondenVhusband has filed the application for restitution of conjugal rites. Inter alia, the appellant/wife denying the allegations made by her husband/respondent has filed the petition for judicial separation on the ground that the respondent/husband has cpmmitted cruelty upon her and she was not in a position to live with her husband. 4) Learned counsel appearing for the appellant vehemently argues that the respondenVhusband has committed cruelty Upon the appellanVwife and has leveled the charges of illicit relation with her maternal uncle, but the court below has not considered the charges leveledand thereby committed illegality. 5) Per contra, learned counsel appearing for the respondent denied the allegations and submits that the appellanVwife is living separately from her husband/respondent without any just and reasonable cause and ^^A^S^ tfttl-u^\. '^&ss^ '^. PSW^,,, '^?£"n-^^,<-s£(^*^ "^^ ^ the court below has rightly dismissed the application for judicial separation filed on behalf of the appellant/wife and allowed the application for restitution of conjugal rites filed on behalf of the respondenVhusband. 6) On the basis of the averments of the parties, issues were framed and after affording opportunity of haring to the parties, learned Judge, Family Court has dismissed the petition for judicial separation filed on behalf of the appellant and allowedthe petition for restitution of conjugal rites filed on behalf of the respondents. 7) We have heard learned counsel for the parties, perused the impugnedjudgment and decree and record ofthe Family Court. 8) The burden to prove the cruelty committed by the respondent/husband was upon the appellanVwife. The appellant examined herself and deposed that the respondent/husband dislikes her and leveled charges against her that she is having illicit relation with her maternal uncle and even the respondent/husband failed to provide meals and used toassault her. She further deposed that in fhis regard a Panchayat meeting was convened where the respondent/husband refused to keep the appeIlanVwife with him. Her witness Lalchand (PW/2) has deposed in his evidence that the respondent/husband has stated that he will not keep the appellant/wife with him. Her evidence is corroborated by PW/3 Basant Kumar Deshlahara. i/:^\ ^asej] 4 •^•—.s^" 9) On the otherhand, the respondent/husband denied theallegations of the appellant and hasspecifically deposed that he was keeping the appellanVwife with him and he is ready and willing to keep the appellant/wife with him, but the appellant/wife does not want to live with him, therefore, he has filed the application for restitution of conjugal rites. His evidence iscorroborated by P,W/2 Ram Prasad, DW/3, Nandlal Pande and DW/4 Mehattar. 10) From perusal of the evidence of the appellant and her pleadings, it reveals that the appellant/wife has tried to depose and plead the fact against the respondent that the respondenVwife has committed cruelty upon the appellanVwife, but from the evidence of her witnesses, it _reveals that the appellanVwife is not ready to live with the respondent/husband and with a view to live separately from her husband, she has made the aforesaid allegations against her husband/respondent. The appellant/wife hasnot adducedany evidence to showthat her life is endanger, therefore, she is living separately from her husband/respondent. The appellant/wife also failed to prove the allegation of cruelty committed by the respondent/husband upon her. After appreciation of the evidence of the parties the court below has dismissed the petition under Section 10(2) of the Act, 1955 for judicial separation filed on behalf of the appellanVwife and allowed the application for restitution of conjugal rites filed on behalf of the i respondenVhusband. •-^^ "-^ii, -•^>>- 11) On close scrutiny of the evidence, we are of the view fhat the court below has not committed any illegality in dismissing the petition for judicial separation and allowing the petition for restitution ofconjugal rites. 12) Consequently, the appeal being devoid of merits is liable to be and is accordingly dismissed. Parties to bear their owncosts. Counsel fee payable as per schedule. 13) Decree be drawn up accordingly. - - Sd/- R.N. Chandrakar Judge Raju Sd/- T.P. Sharma Judge