Chattisgarh High Court
Priyanka Gupta vs Pravesh Gupta on 15 December, 2022
1
FAM No.129 of 2019
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 129 of 2019
Priyanka Gupta, W/o Shri Pravesh Gupta, aged about 33 years, R/o
Behind Balram Talkies, Gandhi Nagar Bilaspur, Police Station - Civil
Line, Tahsil & District - Bilaspur (C.G.)
---- Appellant
Versus
Pravesh Gupta, aged about 36 years, W/o Shri Anant Gupta, R/o
Ward No. 8, Turkaripara Khairagarh, Post - Khairagarh, Police
Station & Tahsil - Khairagarh, District - Rajnandgaon (C.G)
wrongly mentioned as District Bilaspur (C.G.)
---- Respondent
For Appellant : Ms. Priyanka Gupta, appears in person
For Respondent : Mr. Abhishek Sharma, Advocate.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
Judgment on Board
Per Goutam Bhaduri, J.
15-12-2022
1. Heard.
2. Instant appeal is by the wife against the judgment & decree
dated 04.04.2019 passed by Additional Principal Judge,
Family Court, Bilaspur (C.G.) in Civil Suit No. 132-A/2017,
whereby the suit filed by the husband seeking decree of
divorce was allowed.
3. Facts of this case are that the parties were married on
FAM No.129 of 2019
22.02.2014 as per Hindu rituals & customs at Khairagarh.
Thereafter, it is alleged that after one month, the brother of the
wife took her to the parental home at Bilaspur, again when she
re-joined the company of husband, thereafter, within 4-5 days
on the pretext that she is not well, she again came back to her
parental home. It is alleged by the husband that he tried to
bring her back but on some pretext or the other, she refused
to come. It is further pleaded that during her short stay in her
matrimonial home, she used to stay aloof in her room and did
not discharge any matrimonial obligation and even did not
have any conversation with the family members. It is further
alleged that on trivial issues, the wife used to quarrel with the
family members and on 28.10.2014, with the pregnancy of
wife, in a ceremony named "xksnHkjkbZ", she surreptitiously came
back with the parents from Khiragarh to Bilaspur leaving the
ceremony. It is contended by such conduct of wife, the family
of the husband suffered an enormous insult in front of the
Society. Husband further alleged that he tried to bring her
back, but she did not come back and even the notices were
served to the wife, but she never joined back the company of
the appellant/husband. Husband also alleged that wife
clamped allegation of illicit relation with the sister-in-law of the
husband, so it caused a mental cruelty to the husband and on
these various grounds, divorce was sought for.
FAM No.129 of 2019
4. Wife, in her reply, had stated that for the first time when she
came back to her parental home, at that time, she was
pregnant, subsequently, while she was at her matrimonial
home, she had infection of chicken-pox, but instead of treating
her, the husband left her in her parental home in the month of
April, 2014, thereafter alone, she was treated. Subsequently, it
is stated that the parents of the wife also requested the
husband to take her back and brought her to Rajnandgaon,
while she was pregnant and in continuation thereof on
28.10.2014, on a programme of "xksnHkjkbZ", there was a
demand of dowry, and family members including the wife was
tortured and she was thrown out of her matrimonial home.
Consequently, she had to come back to her parental home at
Bilaspur. She further contended that even after the marriage,
demand of dowry for a Car was made and the sister-in-law
was instrumental to such demand and extended threat that if
she is kept at Khairagarh in her matrimonial home, she
(appellant) would be in difficulty. Wife further stated that after
28.10.2014, the husband never tried or showed any effort to
bring her back, despite the fact, she gave birth to a child, but
no responsibility was shouldered by the husband. She stated
in her reply that she is ready and willing to go back with the
husband and on false pretext, the petition was preferred by
the husband seeking divorce.
FAM No.129 of 2019
5. Learned Family Court framed the issue that whether the wife
has treated the husband with cruelty and it was held in
affirmative and accordingly decreed the suit in favour of the
husband.
6. Being aggrieved & dissatisfied with such order, instant appeal
is by the wife.
7. The appellant, appearing in person, would submit that though
the Family Court only framed issued on the cruelty but while
the case was decreed, desertion was attached, which was not
an issue before the trial Court. She would further submit that
according to the respondent/husband, they got separated on
28.10.2014 and the case was filed on 13.01.2016 before the
expiry of two years. Consequently, there cannot be a ground
for desertion as enumerated under Section 13(1)(ib) of the
Hindu Marriage Act, 1955. She would further submit that
despite the fact that she was subjected to torture for demand
of dowry, she was ready and willing to go with the husband.
She would further submit that certain conversation report of
screen shots, which were placed by the husband, have no
authenticity and were created and it was not proved that, that
phone number belonged to wife. Instead, the learned Family
Court believed to it and failed to appreciate the same. It is
stated only transcript of phone in absence of any certificate
under Section 65 - B of the Indian Evidence Act, cannot be
FAM No.129 of 2019
accepted. She would further submit that statement of
independent witness specially Sandeep Bhosle (DW-2) was
not at all considered and on the pleadings, which were
subsequently amended by the husband, after the defence was
disclosed by the wife, and allegation of illicit relation was
passed on to the wife, which is not correct. She would further
submit that learned court below failed to appreciate the entire
facts and came to a wrong finding against the evidence
available on record. It is also contended that husband
committed cruelty on the wife, instead, filed a petition for
cruelty levelling allegation on the wife, which is completely
incorrect and has not been proved. Therefore, decree of
divorce granted by the Family Court in favour of the husband
is required to be set aside.
8. Per contra, Mr. Abhishek Sharma, learned counsel appearing
for the respondent/husband would submit that wife committed
cruelty immediately after the marriage and the evidence is on
record to show that she stayed with husband or in the
matrimonial home only for few months and deliberately left the
house of the appellant without information to her parental
home. He would further submit that statement of husband
would show that on particular date on 28.10.2014, she left the
company of her husband without any information and failed to
discharge her matrimonial obligation, which lowered down the
FAM No.129 of 2019
repute of the family of the husband. Referring to the
conversation, he would submit that reading of those
conversations would show that she alleged false allegation of
illicit relation of husband with his sister-in-law, which amounts
to cruelty, consequently, parties parted their way. It is stated
there cannot be any chance to cohibitation or reunion. Under
these circumstances, the learned Family Court has passed
the order of divorce, which is being well merited, does not call
for any interference.
9. We have heard the appellant in person, as also counsel for
the respondent and perused the record of the Court below.
10. Perusal of the impugned judgment dated 04.04.2019 passed
by the Family Court would show that the decree was passed
on the ground of cruelty under Section 13(1)(ia) of the Act,
1955 and also coupled with desertion under Section 13(1)(ib)
of the Act, 1955. The issue framed was only with respect to
cruelty and issue of desertion was not there. Even perusal of
averments of petition shows that on a particular date on
28.10.2014, in a ceremony named " xksnHkjkbZ" , it was alleged
by husband that wife surreptitiously went away without
informing the husband or his family members, which led to
insult of the entire family before the Society members.
11. Perusal of the original petition filed by the husband would
show that it was filed on 13.01.2016. Section 13(1)(ib) of the
FAM No.129 of 2019
Act, 1955 purports that divorce can be claimed when a party
has deserted another for a continuous period of not less than
two years immediately preceding the presentation of the
petition. Admittedly, in this case according to the evidence of
husband/respondent and the pleadings, the allegation was
that the wife has left the matrimonial home on 28.10.2014 and
on 13.01.2016 when the petition was presented, two years of
passage, which is required under Section 13(1)(ib) of the Act,
1955 had not matured. More so, the issue with respect to the
desertion was not framed, however, learned Family Court, has
passed a decree of divorce on the ground of desertion, prima
facie, without much going into the merits on the ground of
desertion, we are of the view, that such ground of desertion
cannot be sustained in facts of the case.
12. Now turning back to the point of cruelty, Pravesh Gupta (PW-
1) had stated that after marriage in the year 2014,
appellant/wife has stayed with him at Khairagarh for one
month, thereafter, she came back to her parental home, then
again joined the company of husband/respondent. Learned
Family Court has observed that after her (appellant) stay for
one month at her matrimonial home, she again went back to
her parental home. Whereas statement of Pravesh Gupta
(PW-1) would show that in the month of April, 2014, he came
to leave his wife at Bilaspur and in continuation, he stated that
FAM No.129 of 2019
appellant/wife came to her parental home two times. As an
explanation to these, the wife has stated that in the month of
March, 2014, she was not well, as such, with the permission
of the husband, she came along with his brother to her
parental home. The suggestion was given that thereafter she
went back to her matrimonial home after stay of 10 days and
she was left by her husband at her parental home. Therefore,
there is inconsistency in such facts.
13. Wife further stated that she was subjected to torture for
demand of various dowry and during such time, when she
became pregnant, she also got infected with Chicken-Pox.
The medical prescription / documents of 28.04.2014 (Ex.D-2)
are placed on record of the Doctor from Bilaspur to fortify the
same. She also admits the fact that on 8.9.2014, after
recovery / cure, she went back to her matrimonial home. So
the conduct of the parties till such date, do not show the
degree of cruelty on part of wife till that point of time.
Subsequently, on 28.10.2014, husband alleged that in a
programme of "xksnHkjkbZ", she went away without informing
husband or his family members and came back at Bilaspur
with her parents. The wife, on the other hand, stated that on
the particular date, in a programme of "xksnHkjkbZ", dispute
occurred for the reason of demands of dowry coupled with the
facts that the husband & family stated that that they are not
FAM No.129 of 2019
going to take care of the delivery. The wife has stated, in
those circumstances, she was not allowed to stay at her in-
laws place, as apprehension was also made that she may
have the question of survival, therefore, she had to come back
with her parents. So with the subsequent even of birth of child
at Bilaspur, the statement of wife appears to be more
acceptable by conduct of parties.
14. Sandeep Bhosle (DW-2), who is said to be a witness of
incident of 28.10.2014, has averred that because of certain
demand by the family of husband, dispute arose in between
the family members of the wife and that of the husband, so
much so, the wife was not allowed to stay at her matrimonial
home. Though the submission is made that Sandep Bhosle
(DW-2) was not the witness to the incident, but reading cross-
examination, factum of his presence in the scene on
28.10.2014 is not rebutted.
15. The wife has also filed a compliant case against the husband
& others which is marked as Ex.D-1, under Section 498-A
read with Section 34 of the Indian Penal Code. The
documents have been placed by the respondent that in the
said complaint, the court has taken cognizance and the same
is still pending. If such complaint is still pending before the
Court, then, at this stage we shall refrain ourselves to pass
any observation about the correctness of it, as it may see
FAM No.129 of 2019
another bout of litigation between the parties.
16. Prima facie, the statement made by the wife that she was
made to leave the house of husband because of the demand
of dowry, is corroborated by the cognizance taken by the
Magistrate and this fact, will hold the way in favour of the
appellant/wife that she was forced to leave her matrimonial
home with her parents.
17. Another ground, which has been raised by the husband, would
show that after reply was filed by the wife to the main
application seeking divorce in the month of February, 2017;
issues were framed on 8.8.2017 and on same day,
amendment was incorporated in the petition by the husband
that wife has alleged illicit relation of husband with the sister-
in-law. Husband, in order to prove certain messages
conversation, has placed transcripts from Exs. P-1 to P-7,
which are said to be of Mobile No. 7024594698. The wife, in
her statement, has categorically denied the fact that said
mobile number belonged to her. Another document (Ex.D-8),
wherein photographs, of the appellant with a child appears,
has been exhibited as Ex.P-8. During the cross-examination
of the wife (DW-1), she though admitted the photographs but
has denied the rest of the part of such Ex.P-8. On perusal of
the said documents i.e. Ex. P-1 to P-8, nothing can be inferred
that the said messages were scripted by the appellant/wife, as
FAM No.129 of 2019
no evidence is on record to bridge / prove the same with the
wife. Apart from that, authenticity - qua - admissibility of such
script is in doubt for want of certificate under Section 65-B of
the Indian Evidence Act. Simple production of any scripted
documents will not ipso facto will bind a party or to draw a
presumption that those phone numbers and scripts were
made on the particular number and in absence of evidence, it
can be held to be that of appellants.
18. The conduct of the appellant/husband whereby the allegation
was attributed to wife of clamping allegation of illicit relation
with sister-in-law does not inspire confidence, as for the first
time the allegations were levelled by way of amendment by
husband after disclosure of defence by wife. The entire reply,
notice, pleadings and evidence of the wife, she has not
whispered any word of such allegations and in case of like
nature, it may be brain child of the husband and appears to be
an afterthought inasmuch as such serious grounds may not be
left over when the parties are logger-heads.
19. So the nature of allegations, therefore, do not substantiate a
ground of cruelty, which can be inflated for consideration of a
grant of divorce. The allegation made by husband appears to
be trivial in nature, more so, when the wife contended that she
is ready and willing to go back to join the company of the
husband.
FAM No.129 of 2019
20. In a result, we are of the view that judgment & decree dated
04.04.2019 passed by the Family Court in Civil Suit No. 132-
A/2017 is liable to be and is hereby set aside.
The first appeal (M) is allowed.
A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
Amit
