Dhanesh Kumar Markandey vs Smt. Sheetal Markandey
2022 Latest Caselaw 4411 Chatt

                                   1

                                                                  NAFR



      HIGH COURT OF CHHATTISGARH, BILASPUR

                        FAM No. 152 of 2015

     Smt. Sheetal Markandey W/o Dhanesh Markandey, Aged About
     26 Years D/o Shri Sukhchand Tandan, R/o Village Odka, P.S.
     Arang, Tahsil Arang, District Raipur, Chhattisgarh, at present R/o
     Village Bhoring, P.S. Tumgaon, Tahsil and District Mahasamund,
     Chhattisgarh ..........Defendant
                                                             Appellant

                               Versus

     Dhanesh Kumar Markandey S/o Shri Pusauram Markandey,
     Aged About 36 Years R/o Village Odka, P.S. Arang, Tahsil
     Arang, District Raipur, Chhattisgarh .........Plaintiff, Chhattisgarh
                                                       ---- Respondent

WITH

FAM No. 151 of 2015

Dhanesh Kumar Markandey S/o Shri Pusau Ram Markandey, Aged About 35 Years R/o Village- Odka, Police Station- Arang, Tahsil- Arang, Civil and Revenue District- Raipur, Chhattisgarh,

--- Appellant

Versus

Smt. Sheetal Markandey W/o Dhanesh Markandey, Aged About 25 Years D/o Shri Sukhchand Tandan, R/o Village- Odka, Police Station- Arang, Tahsil- Arang, Civil and Revenue District- Raipur, Chhattisgarh, Present Address- Village- Bhoring, Police Station- Tumgaon, Tahsil and Civil and Revenue District- Mahasamund, Chhattisgarh, --- Respondent

Mr. Sikhar Sharma, Advocate on behalf of Mr. Raghavendra Pradhan, counsel for the appellant in FAM No. 152 of 2015 and respondent in FAM No. 151 of 2015.

Mr. Dharmesh Shrivastava, counsel for the Appellant in FAM No. 151 of 2015 and the respondent in FAM No.152 of 2015.

D.B : Hon'ble Shri Justice Goutam Bhaduri, Judge Hon'ble Shri Justice Deepak Kumar Tiwari, Judge

Judgment/order on Board

Per Goutam Bhaduri, J

12 .07.2022

1. FA(M) No. 152 of 2015 is an appeal preferred by the wife

against the judgment and decree dated 22nd

September, 2014 passed by the Family Court, Raipur

(C.G) whereby the marriage between the parties were

dissolved. The husband has also filed appeal bearing

FAM No.151/2015 against the permanent alimony of

Rs.3000/- per month granted to the wife. Since both the

appeals are arising out of the same judgment, they are

decided by this common order.

2. The husband preferred an application under section 13

of the Hindu Marriage Act, 1955 stating that he was

married to Sheetal Markandey on 06.05.2009 and after

birth of a child named as Naman, the attitude of the wife

got changed and on a trivial issue, she used to pick-up

quarrels with the husband and ultimately on 10th

March , 2011, she left the matrimonial home and went

away to maternal home where she is residing since then.

It is further pleaded that the husband tried to take back

the wife to the matrimonial home but she refused.

Eventually an application was filed by the husband u/s 9

of the Restitution of Conjugal Rights of Hindu Marriage

Act, 1955 wherein a decree was passed on 18.04.2012 in

his favour. When the decree was put to execution, the

wife appeared in such execution and stated that she

does not want to stay with the husband and then they

wanted divorce by mutual consent and on such

premises, the execution petition for restitution of

conjugal rights was dismissed. Therefore, the husband,

apart from the ground of cruelty pleaded that the decree

of divorce be granted u/s 13(1)((1-A)(ii) of the Act, 1955.

3. In the reply, the wife denied the averments and she

stated that she has not at all treated the husband with

cruelty. Further it was stated that she was ready and

willing to join the company of her husband and as such

claimed that the decree for divorce be dismissed.

4. The husband on his behalf examined himself as P.W.1

and one Babulal who is a neighbor was examined as

P.W.2 and Shiv Prasad Satnami as P.W.3. The defendant

wife examined herself as D.W.1 and her relatives Smt.

Tokeshwari and Smt. Janki Bai were examined as D.W.2

and D.W.3 respectively.

5. The learned family Court after evaluating the facts and

evidence decreed the suit primarily on the ground

enumerated in Section 13(1)(1-A)(ii) of the Act, 1955.

therefore, the instant appeal is by the wife against the

decree of divorce and the husband has also preferred

the appeal against the grant of maintenance of

Rs.3000/- per month to the wife.

6. Learned counsel for the appellant wife would submit that

the trial Court failed to appreciate the fact that the wife

was treated with cruelty, as such, she did not join the

company and even when she wanted to join the marital

relations, the husband refused to take her,

consequently the ground on which the decree for divorce

was granted is not justified. He further submits that only

sum of Rs.3000/- per month towards maintenance is

meagre and the husband is working as a Teacher

(Shiksha Karmi) on a permanent post whereby he is

getting the salary of more than Rs.45,000/- per month,

therefore, sufficient amount of maintenance be also

granted.

7. Pert contra, learned counsel for the husband would

submit that the amount of maintenance of Rs.3000/- to

the wife is also illegal for the reason that the wife

herself deserted the company of husband without any

valid reasons. Consequently the decree granting

permanent alimony to the extent of Rs.3000/- deserves

to be set aside.

8. We have heard learned counsel for the parties and have

also perused the record of the trial Court.

9. The evidence of the husband (P.W.1) would show that

the marriage was performed on 06.05.2010 and

thereafter a baby boy was born and later-on he found a

lot of change in her attitude. He has stated that the wife

at the instance of her parents used to quarrel with him

and his family members on trivial reasons. It is stated

that on 10th March, 2011 she left him and went away to

maternal home where she resides permanently.

Thereafter efforts were made through his community

people to bring back her but the wife refused to stay

with him. Consequently, an application under section 9

was filed for restitution of conjugal rights by the

husband, which was decreed in his favour. Subsequent

thereto he waited for one year but the wife still refused

to join the company of the husband. He further stated

that after 10th March, 2011, the relations between the

parties completely came to a stand-still and there has

been irretrievable break down of marriage as the wife

refused to stay with the husband. In his cross

examination, certain suggestions were given on behalf

of the wife but nothing has come on record to negate the

fact that after the judgment and decree of restitution of

conjugal rights, she refused to stay with husband. The

statements of P.W.2 and P.W.3 are also in similar line

wherein they have stated that after the wife left the

husband in March, 2011, they have tried to bring back

the wife to the matrimonial home and requested her to

join the company of her husband but their efforts went in

vain.

10. The wife (D.W.1) in her statement has stated that when

she became pregnant, pressure was exerted to get the

child aborted and during the pregnancy, she was

mentally harassed by her in-laws. She further stated

that the opinion of her relatives was neglected by the

husband and she was abused and subjected to assault

by the husband and his family members thereby she

became scared and she was made to forcibly work the

household duties. She further stated that after a child

was born, the husband never tried to contact with her

and never came to take her back. Though the

statements were made that she was subjected to

torture, but in the cross-examination of the wife the fact

would reveal that these complaints were never made to

any police authority or any officer . The statement of

the wife would further show that in her cross-

examination she admitted the fact that the marriage

was performed on 06.05.2009 and thereafter, since

10.03.2011 she has been residing separately at her

maternal home. She has further admitted the fact that

the husband moved an application for restitution of

conjugal rights wherein a decree was passed against

her on 18.04.2012 and she has further clearly admitted

the fact that the copy of said decree was received by

her. She has denied the fact that an application was

filed on 26.06.2012 for execution of the decree of

restitution of conjugal rights wherein she appeared

before the court below and refused to stay with the

applicant, thereby, the proceedings came to be ended

on 09.10.2012.

11. A perusal of the record would show that the certified

copy of the order dated 09.10.2012 passed in Execution

Case No.5-A/2012 is on record. The order sheet

purports that the non-applicant wife refused to go with

the husband and it is recorded that both the parties

would seek divorce with mutual consent. Consequently

the husband who filed the application for restitution of

conjugal rights u/s 9 of the Hindu Marriage Act did not

press. Copy of the judgment dated 18.04.2012 passed

u/s 9 is also on record which is not in dispute. So, the

execution order arising out of the said judgment and

decree which bears the signature of wife Sheetal

Markendey wherein she made a categorical statement

that she does not want to go with the husband further

fortifies the statement of the husband that in execution,

the wife refused to join the company of husband.

12. Section 13(1)(1-A)(ii) facilitates that either party to a

marriage may apply for decree of divorce on the ground

that there has been no restitution of conjugal rights

between the parties for a period of one year or upwards

after passing of a decree for restitution of conjugal

rights. For the sake of convenience, section 13(1)(1-A)

(ii) is produced here-in-below:

13. Divorce. - (1) ................................

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present petition for the dissolution of the marriage by a decree of divorce on the ground -

(i) ..............................................

(ii) that there has been no restitution of conjugal rights as between the parties to marriage for a period of one year or upwards after the passing of decree for restitution of conjugal rights in a proceeding to which they were parties;

13. In the instant case, the facts emerged from the

pleadings and evidence would show that the wife was in

know of the fact that pursuant to the judgment dated

18.04.2012, a decree was granted in favour of the

petitioner u/s 9 for restitution of conjugal rights. The

order passed by the Executing Court dated 09.10.2012

further reflects the fact that the wife has categorically

refused to join the company of the husband. The petition

for divorce was filed by the husband on 21.06.2013.

Therefore, if the wife is well acquainted with the fact

that a judgment and decree of restitution of conjugal

rights has been passed in favour of the husband and if

she did not join the husband even after one year of

passing of such decree, then in such a case, the

husband was within the right to file the application for

divorce u/s 13(1)(1A)(ii) of the Hindu Marriage Act, 1955.

The right has accrued in favour of the husband in case

the restitution of conjugal rights fails. As a result, we do

not find any merit in the appeal filed by the wife

warranting interference in the impugned judgment and

decree as the findings arrived by the the court below are

based on factual aspects and evidence on record , which

cannot be disturbed. Hence, the appeal of wife is

dismissed.

14. With respect to alimony, the husband has filed an

appeal against the grant of alimony to the wife. Learned

counsel for the respondent wife has also submitted

during the course of hearing that the amount of

Rs.3000/- is too meager. The parties have filed appeal

and counter appeal against each other. They were

directed to place on record their affidavit and source of

income. The wife has filed the affidavit wherein she

stated that as directed by learned Family Court, she is

getting only Rs.3000/- per month towards her

maintenance and Rs.4000/- to her son and except that

she does not have any independent source of income.

The records of the court below would show that the

salary-slip of the husband was filed, which shows the

status of husband as Government Teacher (Shiksha

Karmi) drawing the monthly salary of Rs.34,293/- at that

time. On a query being made, the learned counsel for

the husband, on instructions, would submit that at

present the husband is getting a monthly salary of

Rs.45,000/-. Looking to the present market scenario,

we are of the considered view that Rs.3000/- granted to

the wife is too meagre and she cannot be deprived of

the status had she been in the company of the husband.

Therefore, we are inclined to enhance the maintenance

of wife from Rs.3000/- to Rs.10,000/- per month, which

she is entitled to get from the income source of husband

and the same would be directly payable to the wife. In

the result, the appeal of the husband with respect to

rejection of alimony has no force and is hereby

dismissed. Accordingly, a decree be drawn.

              Sd/-                          Sd/-
      (Goutam Bhaduri)              (Deepak Kumar Tiwari)
           Judge                           Judge



Rao