Chattisgarh High Court
Anil Kumar Banjare vs Smt. Hemlata Banjare on 26 August, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 9 of 2018
Anil Kumar Banjare, S/o Late Budhe Lal Banjare, aged about 31
Years, R/o Satnami Para Telibandha, Post Ravigram, P.S. Telibandha,
Raipur, Tahsil and District Raipur, Chhattisgarh.
---- Appellant
Versus
Smt. Hemlata Banjare, W/o Anil Kumar Banjare, aged about 26 Years,
C/o Father Amrit Lal Dhritlahare, R/o Beside of Police Station, Near
Pond, Abhanpur, P.S. Abhanpur, District Raipur, Chhattisgarh.
---- Respondent
For Appellant Mr. A. D. Kuldeep, Advocate on behalf of Mr.
C.R. Sahu, Advocate.
For Respondent Mr. Shivendu Pandya, Advocate.
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
Per Goutam Bhaduri, J.
26/08/2022
1. Heard.
2. The present appeal is against the judgment and decree dated
22.11.2017 passed by the Principal Judge, Family Court Raipur, C.G.
in Civil Suit No.715/2016 whereby the petition filed by the husband for
decree of divorce was dismissed. The present appeal is by the
husband.
3. The facts, in brief, are that the appellant was married to the
respondent on 12.04.2011 at Abhanpur, District Raipur, C.G. Out of
such wedlock, three children were born namely Ku. Poonam on
10.05.2012, Ku. Piyusha on 08.09.2013 and Ku. Taniya on
28.03.2016. An application initially was filed by the husband under
Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act, 1955'),
however, the same was dismissed in default. When the petition for
divorce was filed till then the parties were living separately. It is
alleged that after birth of the first child, the wife used to abuse the
mother-in-law and the family members and on the trivial issue used to
quarrel. Thereafter, the said dispute aggravated many a times and so
much so the family members had to intervene. It was stated that at
one point of time, while the settlement talks were going on, brother of
the respondent/wife hurled abuses but somehow or other the matter
was settled. It was further alleged that on 10.09.2016, the respondent
tried to throttle her own daughter and was behaving in an insane
manner. Eventually, on 13.09.2016, after leaving two daughters, she
went away with one child of seven months to her maternal place.
Subsequently, she came back and extended threat that she would
inculpate the in-laws in a criminal case and again she left. Thereafter,
the husband filed an application for restitution of conjugal rights before
the Family Court. The counselling took place, but eventually it failed.
The husband alleged that the respondent/wife used to hurl abuses to
the in-laws and, therefore, it amounts to extending threat to commit
suicide, as such the same amounts to cruelty. Since the behaviour of
the respondent/wife did not improve and as such the petition was filed
for decree of divorce.
4. In reply, the wife contended that all the three children born to her by
way of a Caesarian process. On the contrary, it is alleged that
husband after consuming the liquor used to abuse and assault the
wife. She further alleged that the family members also joined hand
while such misbehaviour was meted out to her. She further stated that
the brother of the husband also after consuming liquor used to abuse
and assault. The wife denied the allegation that she used to abuse her
in-laws. She further stated that she was thrown out of the house and
while the restitution of conjugal rights petition was filed, the wife
expressed to join the company of the husband but husband refused to
take her. She stated that the husband may take care of his mother,
brother and sister and for which she has no objection, however, the
behaviour towards her by the husband and the family members should
be cordial and she may not be tortured and she was ready and willing
to join the company of the husband. She further stated that the
husband has filed the petition for divorce on false grounds and,
therefore, the same is liable to be dismissed.
5. The learned Family Court framed the issue as to whether the wife has
treated the husband with cruelty and the finding was in negative and
dismissed the suit seeking divorce. Hence, this appeal.
6. Learned counsel for the appellant would submit that in the restitution
of the conjugal rights, the wife refused to go along with the husband
and the evidence of the husband would show that the wife used to hurl
abuses to the entire family of the husband. He would submit that the
learned Family Court has failed to take into account the said facts and
eventually came to a wrong finding and hence the judgment and
decree of the Court below is liable to be set aside and divorce be
granted.
7. Per contra, learned counsel for the respondent would submit that the
impugned judgment and decree passed by the Court below is well
merited which do not call for any interference.
8. We have heard learned counsel for the parties at length, perused the
pleadings and the evidence.
9. PW-1 Anil Kumar Banjare / husband in examination-in-chief has
stated that the wife used to abuse the family members filthily. He
further stated that at times she tried to throttle one of the child. Hence,
certain efforts for conciliation with the intervention of the society
members though was carried out but failed. He further stated that wife
has filed a false report before the Mahila Thana against them as such
false accusation was made. In the cross-examination of the husband,
he admitted the fact that the proceeding under Section 9 of the Act,
1955 for restitution of conjugal rights was filed by the husband wherein
counselling took place and he refused the suggestion that in the
counselling, the wife wanted to join the company of the husband but
he refused to take it. The copy of the order sheet of Section 9
application filed by the husband is marked as Ex.D-1. The order sheet
of 23.11.2016 shows that after the counselling the wife expressed her
desire to join the company as she was ready to go with husband. The
endorsement of both husband and the wife with an undertaking of the
wife and in the margin side of the order sheet also recorded & written
by hand that she is ready to go with him ( मम ससथ मम जसनस चसहतत हह ह). The
order sheet of 23.11.2016 further would show that next date was given
to 13.12.2016. On 13.12.2016, the husband who filed the application
under Section 9 was absent but wife remained present. Subsequently,
on 21.12.2016 again husband did not appear then the case adjourned
to 12.01.2017 and thereafter to 17.02.2017. On 17.02.2017 also, the
husband did not appear and in his absence, the application for
restitution of conjugal rights filed under Section 9 was dismissed.
Therefore, as against this statement made by the husband that he
never refused to take the wife back with him is negated by his
conduct. Further, in the cross-examination, the husband deposed that
even in the proceeding of divorce when the suggestion was given that
if wife joins him whether he is ready to take back the wife and he
refused to take wife with him.
10. In the statement of the respondent/wife she has denied the allegation
that she used to abuse. A suggestion was made by the husband in the
cross-examination that she made false allegation of illicit relation with
her sister-in-law was denied. The reply of the wife, no such allegation
was made but such suggestion in the cross-examination certainly would
have been made at the instance of the husband. On the contrary, it
would show that the husband made frivolous allegation assassinating
the character of the wife that she used to make allegation of illicit
relation on her husband. The reply and the statement of the wife further
would show that sarcastic comments were made after three girl children
were born. The statement of the wife further would show that the
husband is working in a Government Department which is also not
denied that he was appointed on a compassionate appointment after
the death of the father of the husband. On the contrary, wife has stated
that she was thrown out of the house which has been corroborated by
the witnesses. The overall assessment of the evidence, therefore,
would show that the husband has failed to prove the cruelty to get a
decree of divorce as envisaged under Section 13 of the Hindu Marriage
Act, 1955.
11. Consequently, we hold that no perversity can be attached with the
impugned judgment and decree passed by the learned Family Court
and as such we decline to interfere with the same.
12. It has been stated that the husband is working in a Government
Department (Public Health Engineering) and he was appointed on a
compassionate appointment after the death of his father in 2005.
Considering the fact that he has already been appointed and no
alimony has been paid and the wife do not have any source of income,
we deem it appropriate to grant Rs.7,500/- (Rupees Seven Thousand
Five Hundred Only) per month towards maintenance of the wife, which
would be deducted from the source of income of the husband.
13. A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Akhilesh
