Rajesh Kumar Mishra vs Smt. Madhhuri Mishra
2022 Latest Caselaw 7493 Chatt

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                                                                  NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
               JUDGMENT RESERVED ON 12.09.2022
              JUDGMENT DELIVERED ON 13.12.2022
                          FAM No. 82 of 2017
     • Rajesh Kumar Mishra S/o Late Chandrika Prasad Mishra, Aged
       About 41 Years Caste Bramhan, R/o Janjgir, Tahsil Janjgir,
       District Janjgir-Champa, Chhattisgarh, Chhattisgarh
                                                           ---- Appellant
                                Versus
     • Smt. Madhhuri Mishra W/o Rajesh Mishra, Aged About 35 Years
       Caste Bramhan, D/o Jawahar Lal Pandey, R/o Champa, Near
       Manjhli Talab, Tahsil Champa, District Janjgir-Champa,
       Chhattisgarh, Chhattisgarh
                                                       ---- Respondent




For Appellant                  : Shri Bharat Rajput, Advocate
For Respondent                 : Shri Malay Shrivastava, Advocate



              Hon'ble Shri Justice Goutam Bhaduri &
             Hon'ble Shri Justice Radhakishan Agrawal


                           C A V Judgment
Per Radhakishan Agrawal, J.

1. Present appeal is by the appellant/husband under Section 19 of

the Family Court Act, 1984 challenging the judgment and decree dated

23.01.2017 passed by the Family Court, Janjgir, district Champa (CG)

in Civil suit No. 51-A/2008 whereby the divorce petition filed by the

appellant/husband has been dismissed.

2. Case of the plaintiff/appellant in brief is that the parties got

married on 11.06.1991 as per Hindu rites and rituals. After marriage,

respondent/wife came to her matrimonial home and started residing

there and out of their wedlock one baby girl was born on 13.02.1993

who, unfortunately died in a motor accident on 06.09.1995. Further

case of the plaintiff is that after marriage on some petty matters,

quarrel arose between them and the respondent/wife left her

matrimonial house on 18.08.1995 and went to her parental house. It is

stated that the child died due to negligency in taking care by the

appellant resulted in her death and the funeral rites were performed in

the house of one B.L.Mishra. Thereafter the respondent/wife left along

with her brother to her parental house and when the

appellant/husband asked her to come back, she refused to accompany

him. The respondent/wife left her matrimonial house without informing

the appellant/husband and on trivial issues she used to pick quarrels

with the husband. Further contention of the appellant/husband is that

his wife is living adulterous life as it is revealed that though there was

no cohabitation since the year 1996 but she became pregnant and

gave birth to a child. It is further contended that the wife has deserted

him and started living apart since the year 1995. It is also stated that

efforts for compromise in the meeting of members of the society have

failed and she refused to accompany him to his matrimonial house.

3. Respondent/wife denied all adverse pleadings. She has further

pleaded that after the birth of daughter, appellant/husband used to

harass her for demand of dowry and had also assaulted her. She has

stated that she was forcefully left in her parental house by the husband

and after mutual consent before the family members, an agreement

was made on 22.01.1996 wherein it was stated that their relations

became cordial and on 16.04.1997 she gave birth to a baby boy. It is

further stated that on 28.08.1996, husband again started assaulting

her due to which on 18.09.1996, a written report was lodged by her at

Mahila Thana Bilaspur wherein on 04.10.1996, husband was called for

conciliation but he was not present and the Mahila Thana Bilaspur

thereafter she has lodged a case for demand of dowry and torture

against him at PS Janjgir. She has also filed application for

maintenance on 20.01.97 before the Judicial Magistrate First Class,

Janjgir by which Rs. 1750/- was granted as maintenance vide order

15.10.2021. In her evidence she has stated that a false allegation has

been made against her that she used to go to the office of the

appellant/husband and abused him and created a scene. The plaintiff

has filed a false and fabricated case to harass which deserves to be

dismissed.

4. Counsel for the appellant submits that the Family Court has

failed to appreciate that there is long desertion between the parties

and there is no chance of the appellant and respondent to live

together. He has contended that the respondent/wife has deserted the

appellant from 19i96 and since last 25 years the wife has deprived the

husband from enjoying matrimonial obligations. He has further

contended that the respondent/wife is living in adultery and that he has

falsely implicated the appellant/husband in a criminal case under

Section 498-A IPC however, he has been acquitted which amounts to

cruelty by wife.

5. Per contra, it has been submitted by the respondent/wife that the

trial court has properly appreciated the evidence on record and there

was no adultery and the wife has not deserted the husband. She has

stated that the appellant used to demand scooter and home

appliances and abused and assaulted her. It is stated that the wife

was taken to her matrimonial village by the husband where she was

forced to file a written report at police station eventually the case was

registered for dowry harassment. She has stated that the trial court

has rightly appreciated the evidence on record and rightly dismissed

the case of the appellant.

6. Heard counsel for the parties and perused the material available

on record.

7. To substantiate their respective cases, the parties adduced both

oral and documentary evidence. Husband Rajesh Mishra PW-1 has

stated in his evidence that the respondent/wife has left the company

of the appellant of her own since 1995 without any reason. He has

stated that on several occasions, the respondent/wife has come to the

office of the husband and create a scene with abusive language.

Appellant/husband has also stated that the wife had lodged a written

complaint against him for harassing her for demand of dowry. He has

denied that wife was living her matrimonial home due to the

harassment meted out to her by the husband.

9. The expression 'cruelty' has not been defined in the Hindu

Marriage Act. Cruelty for the purpose of Section 13 (1) (i-a) is to be

taken as a behaviour by one spouse towards the other, which causes

a reasonable apprehension in the mind of the latter that it is not safe

for him or her to continue the matrimonial relationship with the other.

Cruelty can be physical or mental. It is settled law that the instances of

cruelty are not to be taken in isolation but to take the cumulative effect

of the facts and circumstances emerging from the evidence on record

and then draw a fair inference whether the plaintiff has been subjected

to mental cruelty due to conduct of the other spouse.

10. Opposing the statement of appellant/husband, the respondent/

wife DW-1 has stated that she has lodged a criminal case against the

appellant alleging harassment by him for demand of dowry and her

statement has been recorded in the court wherein she has alleged

general and omnibus allegations against the appellant for demand of

dowry. She has further denied the allegation of dowry harassment

against the appellant and has stated that it is only a household dispute

between them. She has stated that on 22.01.1996 there was an

agreement between them and she went along with the appellant to her

matrimonial house. She has also stated that she is obtaining Rs. 200/-

per month from the Municipal Office on the basis of deserted woman.

10. Appellant/husband has filed a criminal revision before the High

Court of CG vide Cr. Rev. No. 102 of 2004, order dated 27.03.2014

whereby the husband has been acquitted. In the said order in para 10,

which has been reproduced as under:

"While examining the totality of evidence, I am of the view that

the finding regarding the sentence under Section 498-A should not be

maintained on account of evidence of the complainant in para 11 and

12 of cross-examination, because in this para she herself washed

away the allegation which she levelled in the report and in her

examination-in-chief. I am of the view that on the basis of this piece of

evidence, conviction under Section 498-A IPC could not be affirmed as

the trial court and the appellate court had not appreciated this piece of

evidence and hence committed illegality."

11. The present appeal is brought on the grounds, that a claim

petition has been filed by the respondent/wife for compensation before

the Additional Motor Accident Claims Tribunal, Janjgir on 26.02.1996

wherein she has mentioned herself as destitute (Nirashrit). It is further

stated that she is obtaining Rs. 200/- per month from the Municipal

Office on the basis of desertion.

12. In so far as the allegation raised by the appellant/husband

regarding desertion is concerned, evidence on record appears that the

husband and wife are living separately since 1997 i.e. more than 25

years at present and thus, it appears that the alleged marriage

solemnized on 11.06.1991 has irretrievably broken down and

therefore, it came to be ended for all purposes and cannot be revived

as held by the Supreme Court in the matter of K.Srinivasa Rao Vs.

D.A. Deepa reported in (2013) 5 SCC 226 wherein it has been held at

paragraphs 30 and 31, which read as under:

"30.It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, if we refuse to sever the tie, it may lead to mental cruelty.

31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have

always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree."

13. From the overall assessment of the evidence, After perusal of

the judgment, it is noted that the parties are not cohabiting together for

almost 25 years. Since there has been a long period of continuous

separation, it may fairly be concluded that in the facts and

circumstances of this case that the matrimonial bond is beyond repair

and the marriage has become a fiction as has been held by the Apex

Court in (2007) 4 SCC-511, Samar Ghosh Vs. Jaya Ghosh. The

Court in that case held that-

" The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. In present case, trial Court had rightly concluded that the various instances in their matrimonial life, and led to grave mental cruelty to the appellant husband. Further, the High Court failed to take into consideration the most important aspect of the case that the parties had admittedly been living separately for more than 16-1/2 years. The entire

substratum of marriage had already disappeared."

14. Thus, it is clear that the parties are living apart from a long

period and they are unwilling to live together as husband and wife and

no useful purpose would be served by making the parties await except

to prolong their agony. Further it has been held by the Apex Court in

the matter of Raj Talreja Vs. Kavita Talreja (Civil Appeal No. 10719 of

2013, decided on 24.04.2017), that a false complaint was registered against

the husband by the wife and in criminal proceedings, the husband had been

acquitted. On this account, the husband was held entitled to decree of

divorce, on the ground of cruelty. Further, in the matter of Rani Narsmiha

Sastry Vs. Rani Suneela Rani ( Civil Appeal No. 8871 of 2019) it has

been held by the Apex Court that :

"when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after partis having been married on 14.08.2005, they lived together only for 18 months and thereafter they are separately living for more than a decade now.

In view of the foregoing discussion, we conclude that appellant has made a ground for grant of decree of dissuolution of maariage ont he ground as mentioned in Section 13 (i)(i-a) of the Hindu Marriage Act, 1955.

15. The law laid down by the Apex Court in the aforesaid cases

squarely applies to the facts and circumstances of this case where the

parties (spouses) are living apart since long It appears that their bond

of marriage can not be repaired which has been extensively damaged

by passage of separation. The marriage in the instant case cannot

continue.

16. Taking into overall evidence, it appears that both the parties are

living apart but It also seems that their bond of marriage can not be

repaired which has been extensively damaged by passage of separation.

Moreover, a false criminal case was lodged by the respondent/wife against

the husband which has also caused mental cruelty to him. Thus, in our

considered view the appellant/husband has proved that the respondent/wife,

was committing mental cruelty of such nature, which furnishes a ground for

dissolution of marriage. The trial Court has committed an error in not

appreciating the evidence in its true perspective and has recorded a

perverse finding that mental cruelty within the meaning of Section 13(1)(i-a)

is not proved.

17. At this stage, it is submitted that the appellant/husband is a

government employee working as AG-1 in the Veterinary Department,

Janjgir drawing gross salary of Rs. 67,235/- per month and the wife is a

homemaker, is getting Rs. 3000/- per month as maintenance awarded as

per the order of the Family Court and Rs. 350 per month towards Sukhad

Sahara Pension Yojana and is completely dependent on the husband who is

employed, therefore a permanent alimony may be fixed in terms of Section

25 of the Hindu Marriage Act so as to enable her to live safely with dignity of

womanhood. Normally, the wife should not be left destitute for her livelihood

therefore looking to the status of the parties we are inclined to enhance the

monthly maintenance to Rs. 12,000/- which the wife is entitled to receive

from the appellant/husband. Taking into the quantum of income and the fact

that Rs. 3,000/- is already being apid under Section 125 Cr.P.C. to the wife

as maintenance we hereby direct that an amount of Rs. 12,000/- per month

would be payable to the wife and would be deducted at source from salary.

18. For the reasons stated hereinabove, the impugned judgment and

decree is set aside. We allow the application of the appellant/husband under

Section 13(1)(ia)(ib)of the Act and the marriage solemnized between the

appellant and respondent on 11.06.1991 is declared dissolved by a decree

of divorce.

19. In the result, the instant appeal is allowed to the extend indicating

above, leaving the parties to bear their own cost(s).

20. A decree be drawn accordingly.

                    Sd/-                                      Sd/-

             (Goutam Bhaduri)                    (Radhakishan Agrawal)
                    Judge                                     Judge

s/-