Sanjay vs Smt. Sukvariya
2022 Latest Caselaw 7590 Chatt

                                    1

                                                                   NAFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                    F.A. (M) No. 41 of 2017

             Judgment Reserved on : 23.11.2022

             Judgment Delivered on : 15.12.2022

Sanjay son of Ran Sai, Caste Harijan, aged about 33 years, R/o.
Village Cherhapara, Charcha, P.S. Charcha, District Koria (C.G.)

                                                           ---Appellant

                               Versus

Smt. Sukvariya, wife of Sanjay, D/o. Patinarayan, aged about 25
years, Caste Harijan, R/o. Village Dodhibahara, P.S. and Tahsil
Baikunthpur, District Koria (C.G.)

                                                       ---- Respondent



For Appellant             : Mr. Syed Majid Ali, Advocate.
For Respondent            : Mr. Vaibhav A. Goverdhan, Advocate.


            Hon'ble Shri Justice Goutam Bhaduri
           Hon'ble Shri Justice N.K. Chandravanshi

                       CAV JUDGMENT

Per N.K. Chandravanshi, J.

1. Present appeal has been preferred by the

appellant/husband against the judgment & decree dated

27.01.2017 passed by Family Court, Baikunthpur, District Koria in

Civil Suit No. 40-A/15 (CIS No. 55/16), wherein application under

Sections 13 (1)(ia) & (ib) of the Hindu Marriage Act, 1955

(henceforth "Act, 1955") preferred by appellant/husband seeking

decree of divorce on the ground of cruelty and desertion was

dismissed by learned Family Court.

2. Essential facts leading to filing of this appeal, as projected by

the appellant/husband, are that his marriage was solemnized with

respondent/wife in the month of May, 2009 as per Hindu rituals and

customs, thereafter, they were living together, but wife used to live

with him only for some time, after which she again and again go to

her parental home by making false excuse of illness and sometimes

by making quarrel. Her parents, instead of suggesting her not to do

so, instigated her to continue with her such conduct. When the

husband went to bring her back, she and her family members

abused & insulted him and did not send her with him. Even when

she delivered their child at her parental home, the same was not

informed to the husband and his family members. It is further alleged

that respondent/wife has totally broken up their marital relation and

thus causing physical and mental cruelty with the husband. The wife

has deserted him five years prior to filing of such application. Thus,

his marital life has completely broken down. Hence, the

appellant/husband has sought decree of divorce in his favour on the

ground of cruelty and desertion by wife

3. Respondent/wife denied all the allegations levelled against her

stating that, after their marriage one year went well between them,

thereafter, when she got pregnant, then husband starting harrassing

her by saying that the child to be born is not his child, hence, he

insisted her to abort the child, otherwise, he will not keep her with

him and would get second marriage. Husband assaulted her and

threatened her regularly and ultimately ousted her from matrimonial

home, thereafter, she is residing along with her parents. It is further

alleged that since after marriage, the husband has got job in the

Health Department to the post of Malaria Link Worker and getting

salary of Rs.18,000/- per month, thereafter, his behaviour towards

wife and child has become cruel / harder and he never take care of

them, therefore, in a maintenance proceeding initiated by her,

maintenance of Rs. 1,700/- per month was ordered to be paid to

the wife. When they used to come to attend the court in

maintenance proceedings, then the husband never talked with wife

and their son. Thus, she has neither misbehaved with husband or

his family members nor deserted him on her own will, rather she is

ready to live with the husband, but he has never taken any interest

in this regard.

4. Learned Family Court, on the basis of pleadings of the parties,

framed issues relating to cruelty and desertion and after considering

the evidence adduced by the parties, recorded negative finding in

respect of those issues. Therefore, being aggrieved and dissatisfied

with such finding, appellant/husband has preferred the instant appeal

challenging the same.

5. Learned counsel for the appellant/husband would submit that

after marriage, wife resided with the husband for about few months,

that too, in between she used to go her parental home without

informing husband or his parents and her attitude towards husband

and his family members was very much adamant and inflexible. He

further submits that she was not taking care of ailing mother-in-law,

who was suffering from mental ailment. When husband had gone to

bring her back, she did not come with him and his family members

insulted and abused him. Their child was born in the parental home

of wife, but this fact was not informed to the husband and his family

members. Respondent/wife has deserted husband/appellant about

five year prior to filing instant application. It is further submitted that

the wife has made various false and serious allegations against

husband and his family members in her deposition, which shows her

arrogant attitude and bitterness towards the husband and his family

members, which has also been proved by adducing evidence by the

husband, despite that learned Family Court has dismissed the

application filed by the appellant/husband without appreciating the

evidence adduced by the husband. Therefore, it is prayed that the

appeal may be allowed by granting decree of divorce in favour of

appellant/husband. He placed reliance upon the judgment of the

Bombay High Court in the matter of Shailendra Madhukar

Bhalerao v. Suruchi Shailendra Bhalerao 1 in support of his

submission.

6. Per contra, learned counsel for the respondent/wife would

submit that except oral version which itself is false & baseless,

appellant/husband has not adduced any legal evidence to prove his

stand/ case, therefore, the impugned judgment & decree, being well

merited, does not call for any interference of this Court.

1 (2019) 2 AIRBomR 478

7. We have heard learned counsel for the parties and perused

the impugned judgment, record of Family Court and other material

available on record with utmost circumspection.

8. It is not in dispute between the parties that their marriage

was solemnized in the month of May, 2009 and since Holi festival

of 2010, respondent/wife left company of appellant and, thereafter,

she is residing in her parental home alongwith their child.

8.1 With regard to reason for the same, appellant/husband

Sanjay Kumar (PW-1) has alleged in his statement that their

marital life went well only for 2 - 3 months, thereafter,

respondent/wife did not do the household work and even she did

not give food to her ailing mother, who was mentally sick and on

being asked, she used to quarrel with him by saying that, she has

come to live with him and not to do the work of his mother. He has

further stated in his deposition that at the time of Holi festival, she

went alongwith her mother to her parental home, where she

delivered a child but neither they informed him about the same nor

she returned to her matrimonial home, despite various efforts

made by him.

9. Kamta Prasad (PW-2), who is brother-in-law of

appellant/husband, has supported the version of husband.

10. On the contrary, respondent/wife - Sukwariya (DW-1) has

deposed that she was subjected to cruelty on various counts, not

only by her husband but by his other family members also. She

tried a lot to live there, but appellant/husband beat her and send

her to her parental home. She has further stated that when

appellant was informed by her brother about the delivery of their

child, then appellant and his brothers refused to attend ritual

(Chhatti) of child by saying that he is not his child. She has also

stated in her deposition that her father had gone with other

members of their Society to meet her husband, but they refused to

bring her back. Even, in their social meeting held in January, 2016

and June, 2016, she was ready to go with appellant but he refused

to take her and asked that she looks like male not like female.

11. Hari Singh (DW-2) has stated about social meeting of the

parties but he has admitted that since he is not a person of their

Society, therefore, he did not attend the said meeting.

12. Thus, evidence adduced by both the parties shows that they

are alleging each other with regard to not joining company of the

husband by the wife.

13. In this regard, husband and his witnesses have made only

trivial type of allegations against wife, even the husband has not

proved any sequence of events in respect of alleged quarrelsome

& arrogant attitude of wife. Although he and his brother-in-law

have deposed that they had gone to bring her back and social

meeting was also organized but respondent/wife refused to come

back with him. This fact has been rebutted by husband / appellant

himself in his cross-examination (paragraph 12) that in their Social

Meeting, he himself had refused to keep her (wife) with him.

Whereas, wife has categorically stated in her deposition that not

only her father had tried to send her at her matrimonial home,

which was refused by the husband, but in Social Meeting also,

which was held in January, 2016 and June 2016, she had stated

that she is ready to go / live with husband but husband himself

refused to keep her. Hence, statement of husband and his

witnesses that they had tried to bring her back is not found

trustworthy.

14. From pleadings and statement of wife, it is evident that the

husband doubted her character; and when she delivered a child in

her parental home, then husband refused to attend the rituals

(Chhatti) by saying that he is not his child. Saying to wife in the

meeting that she looks like male, not like female by

appellant/husband also proves arrogant attitude and misbehavior

by appellant/husband towards the respondent/wife.

15. The Supreme Court in a series of judgment has explained

what is meant by cruelty as envisaged under the Act, 1955. In case

of A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22,

their Lordships of the Supreme Court has held as under :-

"12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It

must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party."

16. The Supreme Court in the case of Samar Ghosh Versus Jaya Ghosh (2007) 4 SCC 511 has indicated the illustrative cases wherein the inference of mental cruelty can be drawn. Para 101 is relevant and quoted below:

"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some

instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive :

(I) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appriasal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger

or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. 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."

17. Applying the above legal propositions, if we see the

pleadings & evidence of the instant case, then it is apparent that

husband has not proved any such conduct or behaviour of wife,

which could prove his cruelty towards husband to the extent to

grant decree of divorce, except some trivial type of allegations,

which have also not been proved. Although, learned counsel for

the petitioner while arguing referred to Exs. P-1 & P-2, which are

the copies of statements of wife given in other cases i.e. in

Domestic Violence Act and Maintenance Case, in which, it has

been stated by the wife that she herself is not ready to go with

husband, but in the instant case, while cross-examination, she has

rebutted those facts. Rather in this case, she has stated that

various efforts had been made by her father to settle their dispute

and in Social Meeting also, she had stated that she is ready to go

with husband but he did not agree to bring her back. Therefore,

only on the basis of Exs.P-1 & P-2, it cannot be held that wife

herself is not ready to live with husband. Ex.P-3 is a memo written

by Secretary of Society, but the Secretary has not been examined

by the appellant/husband to prove the same.

18. In the instant case, except some isolated facts, husband has

not proved any of the conduct or behavour, which could be

extended for assuming act of cruelty by wife to the husband for

grant of decree of divorce. Whereas, from the perusal of statement

of wife, it is apparent that appellant/husband not only doubted her

character but he also insulted her by saying in a Social meeting

that she looks like male, not like female and he also refused to

bring her back, which he himself has admitted in his cross-

examination. Thus, neither cruelty has been proved by the

husband nor wife herself has left company of the husband.

Rather, it is evident from the record that due to misbehaviour and

offensive attitude by husband towards wife, she has been

compelled to live separately.

19. In view of the aforesaid discussion, we find that impugned

judgment passed by learned Family Court is based on proper

appreciation of facts & evidence, which does not call for any

interference of this Court.

20. Judgment i.e. Shailendra Madhukar Bhalerao v. Suruchi

Shailendra Bhalerao (supra) cited by learned counsel for the

appellant is of no help to him, as the facts of that case are different

from that of the present case, as in that case spouses were living

separately for about 20 years; and in that case the behaviour of

the husband towards the wife is not found to be similar to the

present case.

21. As a fallout and consequence of the aforesaid discussion,

the first appeal (M), being devoid of substance, is liable to be and

is hereby dismissed.

22. A decree be drawn-up accordingly.

               Sd/-                                         Sd/-
         (Goutam Bhaduri)                         (N.K. Chandravanshi)
            Judge                                       Judge

Amit