Chattisgarh High Court
Smt. Pallavi vs Gajendra Sande on 28 April, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA (M) No. 232 of 2016
• Smt. Pallavi W/o Gajendra Sande, Aged About 26 Years D/o Shankar
Baghor, R/o Railway Colony, Raigarh, Presently Residing At A/24, Near
Post Office, Gumadera, Belpahad, District- Jharsuguda Orrisa
---- Applicant
Versus
• Gajendra Sande S/o Bastam Sande, Aged About 35 Years R/o Railway
Colony, Raigarh, Tehsil And District Raigarh, Chhattisgarh
---Respondent
For Appellant : Shri Pawan Kesharwani, Advocate
For Respondent ` : None present despite repeated pass over
for entire week.
Hon'ble Justice Shri Goutam Bhaduri
Hon'ble Justice Shri N.K. Chandravanshi
Order On Board
Per Goutam Bhaduri, J
28.4.2022.
Heard.
1. Despite repeated calls and intimation have been sent by Court
Master, counsel for the respondent though assured to come, but eventually
did not come to the Court for hearing, which last for more than one hour.
2. We have heard learned counsel for the appellant in the instant
appeal preferred against judgment and decree dated 05.10.2016 passed
by Family Court, Raigarh in Civil Suit No.F-105A/2015, whereby decree of
divorce has been granted to the husband/respondent on the ground of
cruelty and desertion.
3. Brief facts of the case are that marriage in between the parties took
place on 26.02.2008 as per Hindu rites and rituals. Thereafter while they
were living together, two children were born. Divorce petition was preferred
by the husband/respondent on 06.10.2015 on the ground of desertion and
cruelty. The learned Family Court allowed the application on the ground of
both cruelty and desertion.
4. Learned counsel for the appellant would submit that pleading of the
husband at para 21 would reflect that the wife and the husband were living
together till 14.9.2014 and the application for divorce was preferred on
06.10.2015, therefore, he was not qualified to get decree of divorce under
Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (for short 'the Act
1955'). He would further submit that though decree of divorce has been
granted on the basis of cruelty, the entire evidence recorded by the
husband and his witnesses do not disclose the aggravated form of any
cruelty, whereby it would entitled him to get the divorce.
5. We have heard learned counsel for the appellant. As referred above,
despite intimation sent to counsel for the respondent, he did not appear
even on frequent calls on previous day and today also.
6. Perusal of the judgment & decree would show that decree of divorce
has been granted on the ground of desertion. In order to get the decree of
divorce on the ground of desertion, the criteria, provided under Section
13(1)(ib) of the Act 1955, is required to be proved that other party has
deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition. For the sake of
gravity, Section 13(1)(ib)of the Act 1955 reads as under:-
"13. Divorce.- (1) Any marriage solemnised, whether before
or after the commencement of this Act, may, on a petition
presented by either the husband or the wife, be dissolved by a
decree of divorce on the ground that the other party-
(i) xxxx xxxx xxxx
(ia) xxxx xxxx xxxx
(ib) has deserted the petitioner for a continuous period of
not less than two years immediately preceding the presentation
of the petition"
7. Now coming back to the pleadings, para 19 to 21 of the application
for divorce would show that the husband made averments that on
07.9.2014 all of a sudden, the mother and the father of the wife came to
Raigarh. Raigarh is the matrimonial home, wherein the wife was residing
with her husband and then she wanted to go back with her parents to her
parental house at Belpahad, but it was objected by the husband.
Subsequently it was stated that on 14.9.2014 again the mother and the
father of the wife came to Raigarh and thereafter forcefully took her away
to Belpahad, her parental home. In the statement of the husband, in para
20 of examination-in-chief, he further affirmed the said fact that on
14.9.2014 the mother and the father of the wife came to Raigarh, and
thereafter took her away to Belpahad. In between, the petition for divorce
was filed before the Family Court on 06.10.2015, as such, the period when
the wife left, before the presentation of the petition, comes to 01 year 01
month and 27 days. Consequently, by pleading and the evidence of
husband/ respondent, the requirement under Section 13(1)(ib) of the Act
1955 was not proved that the wife has deserted her husband before 2
years of the presentation of the petition. So the finding of the learned
Family court that the wife has deserted the husband is factually wrong and
it cannot be sustained.
8. Now coming back to the cruelty, the pleadings and examination-in-
chief of the husband (PW-1), Riya Sen Gupta (PW-2) and Rajesh Kaleth
(PW-3) under Order 18 Rule 4 of CPC runs parallel. The statements would
show that the allegation have been attributed that the wife used to quarrel
with the husband but initially their life was smooth. Subsequently he got a
job at Gujarat but it was objected by the wife, therefore, he did not join and
left the job. In December 2011, the wife went to Belpahad, her parental
home, for her medical check up, but she did not return. Thereafter when
he went to get back the wife from Belpahad, she refused to come. This
similar line statements have been continued and it is stated that after the
birth of second child, the wife was at Raigarh and was staying separately.
In the month of September 2012, they went to attend some function at
Belpahad in the family of the wife. After coming back from there, she
again insisted to go back to Belpahad, however, despite having objected,
she went back. He further stated that an application was filed for restitution
of conjugal rights wherein compromise was effected on 26.3.2013,
thereafter the wife came back and started living along with the husband,
but it only lasted for one month and again she went back. Subsequently, in
the month of September 2014, while the wife was with him, the father and
the mother of the wife came and the wife wanted to go back with them,
which was objected by the husband and she did not go, and having
objected she became aggressive. On 14.9.2014 again the parents of the
wife came and she went back along with her parents to Belpahad without
consent of her husband. The husband further stated that at certain point of
time, he became ill, though the information was sent to wife, but she did not
come back.
9. Statement of Riya Sengupta (PW-2) also do not disclose anything
about the cruelty as in cross examination statement also she deposed that
she has no knowledge about the dispute between the husband and wife.
Rajesh Kaleth (PW-3) has deposed that some dispute arose at certain
point of time between the husband and wife, but it was settled and
thereafter wife was at parental home and with the intervention of the
society, it was settled. As against this evidence, the wife in her deposition
stated that she was being subjected to cruelty by the husband for want of
dowry and even she was physically assaulted by her sister-in-law,
eventually she fell sick. Reading of the evidence laid by the husband and
the wife together, only trivial disputes and complaints have been projected.
It is settled proposition that no uniform standard can be laid down to
evaluate the cruelty. It is not a case that for long and continuous
separation the husband and the wife were living separately. In the
statement of witnesses, nothing has come up to hold that the wife at any
point of time behaved in such manner due to which it was not possible for
the husband to continue to live with her. Instead she has stated in her
deposition further that she wants to resume the matrimonial life with the
husband. After overall evaluation of the evidence, we do not find any
factum of cruelty to grant decree of divorce to the husband on the ground
of cruelty by the wife.
10. Accordingly, the appeal is allowed and the judgment and decree of
the learned Family court is set aside.
Sd/- Sd/-
(Goutam Bhaduri) (NK Chandravanshi)
Judge Judge
Bini
