Chattisgarh High Court
Rahul Singh vs Smt. Pratibha Singh on 23 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 201 of 2016
Rahul Singh S/o. Kanti Kumar Singh, aged about 37 years, R/o.
Vill- Taroud, P. S. & Tah. Akaltara, District Janjgir-Champa (C.G.)
---- Appellant
Versus
Smt. Pratibha Singh, W/o. Rahul Singh, aged about 33 years, R/o.
Vill.-Taroud, P. S. & Tah. Akaltara, District Janjgir-Champa (C.G.)
Present Addresss- Jagmahant, P.S. & Tah. navagarh, District
Janjgir-Champa (C.G.)
---- Respondent
For Appellant : Shri Ravindra Sharma, Advocate.
For Respondent/State : Ms. Nirupama Bajpai, Advocate.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
(23/06/2022)
Goutam Bhaduri, J.
Heard.
1. The instant appeal has been filed by the husband against the
judgment and decree dated 22.07.2016 passed by the Family
Court Janjgir, District Janjgir-Champa (C.G.) whereby the
application preferred by the husband was dismissed seeking
divorce on the ground of cruelty.
2. The brief facts pleaded by the husband was that he was
married to the respondent in the year 2005 according to the
Hindu Rituals. As per the custom, the brother of the
respondent/wife was married to the sister of the
appellant/husband. However, after the marriage she joined the
company of husband at Village Taroud and out of the wedlock a
child was born namely Ashna Singh. It was stated that after
marriage, the wife was kept in the place where the
appellant/husband was working and it is alleged and pleaded
that the wife always shown her displeasure that she was not
willing to perform the marriage, consequently, used to abuse.
The husband tried to continue with the matrimonial life but
eventually, all failed. On 27.02.2010, wife made a report under
Section 498-A of IPC R/w Sections 323 & 506 of IPC against the
husband. It was pleaded by the husband that he never wanted
to keep the wife with him. Since they were living separate, it
led to different filing of different applications under Section 125
of Cr.P.C, which are still pending. Husband further pleaded that
he wanted to take her back and made efforts but eventually, all
failed and since 03.03.2010, the husband was deserted by the
wife and she was living at her parental home, consequently,
application for divorce was filed.
3. The wife, in turn, stated that after the marriage she was
subjected to cruelty for demand of dowry, consequently, she
was abused. But since it was an outcome of the exchange
marriage, the wife could not raise her voice. It is further stated
that after consuming the liquor, the wife was being tortured
which continued and forcefully she was made to leave the
house. Since she was made to stay separate for the act of the
husband, it led to filing of an application under Section 125 of
Cr.P.C. claiming maintenance for herself and the daughter. The
wife further pleaded that she always wanted to join the
company but as the husband kept another lady with him, in a
consequence, wife could not join the company and was forced
to stay in the parental house.
4. On behalf of the husband/appellant 4 witnesses were examined
namely Rahul, Kanti Kumar Singh, Sant Kumar Singh & Ishwar
Singh and on behalf of the wife she examined herself apart
from 3 witnesses namely Rajesh Singh, Prahlad Singh &
Mrityunjay Singh. Learned Family Court dismissed the
application filed by the husband. Hence this appeal.
5. Leaned counsel for the appellant would submit that during the
pendency of this appeal, on 08.01.2015 judgment was passed
in the criminal case under Sections 498-A, 323 & 506 part II of
IPC and husband was acquitted on merits. He referred to the
document filed under Order 41 Rule 27 of CPC. It is further
contended that the wife never wanted to stay along with
husband instead she placed the condition that the husband
should stay at Janjgir and maintain wife and daughter. He
would submit that in the examination of wife she made the
allegation that the husband is having illicit relation with the
lady outside the marriage and also refers the document of the
counseling which took place that the husband wanted to take
back the wife but the wife refused to go at any cost. Therefore,
the decree of divorce should have been passed on the ground
of cruelty for making the husband pass through the criminal
trial coupled with the fact of illicit relation which was alleged
against the husband and lastly the desertion.
6. Per contra, learned counsel for the respondent/wife would
submit the judgment and decree of the trial Court is well
merited. She would submit that the circumstances will speak
that the husband was posted in an area wherein it was affected
with naxalite and the entire night the wife was kept alone. The
husband and wife used to go away. Under these circumstances,
there was no other course left for the wife but to stay at Janjgir.
It is further submitted that the allegation of illicit relations is
difficult to prove except the personal experience which the wife
has deposed. The husband was used to torture the wife after
consuming liquor, therefore, the cruelty was on the part of the
husband rather than the wife and she prays that the appeal
may be dismissed.
7. We have heard counsel for the parties and perused the
documents.
8. Perusal of the pleadings would show that the husband alleged
that the wife extended threat that she would inculpate the
husband in a criminal case under Section 498-A along with the
other allegation. In reply to that, the wife alleged that she was
subjected to torture physically and mentally both by the sister
of the appellant after the marriage. On 27.02.2010, a report
was made by the wife under Section 498-A r/w Sections 323 &
506 of the IPC for which, after investigation, charge-sheet was
filed and he was acquitted on 08.01.2015. The certified copy of
the order dated 08.01.2015 is placed before this Court under
order 41 Rule 27. It being the certified copy of a criminal case
is taken into record. Inasmuch as it runs parallel to the
pleading made by the husband that he was subjected to a trial
under Section 498-A along with other Sections. The judgment
would be relevant to show that there was a trial resulting into
acquittal. Perusal of the acquittal order dated 08.01.2015
would show the learned Court of Magistrate adjudicated the
trial under Section 498-A, 323 & 506 Part II of IPC by including
the evidence led by the respondent. Eventually, the finding
arrived at was that the assault caused by the
appellant/husband was not proved and this fact was also not
proved that she was subjected to torture for demand of dowry
or any threat, consequently, was extended under Section 506
of IPC.
9. Perusal of the pleading evidence and the copy of the acquittal
order dated 08.01.2015 would show that the husband had to
undergo trial which ultimately resulted in his acquittal. In the
prosecution under Section 498-A, 323 and 506 of IPC not only
acquittal was recorded but observation was made that the
assault was not caused by the husband which were alleged to
be made by the wife, therefore, as has been held by Supreme
Court, in the matter of Rani Narasimha Sastry Vs. Rani
Sunella Rani reported in 2020 SAR (Civ) 122 can be
applied in the facts of this case and when a person undergoes
a trial in which he is acquitted on merits of the allegation of
offence under Sections 498-A, 323 & 506 Part II of IPC, levelled
by the wife against husband, it cannot be accepted that no
cruelty was meted out on the husband.
10.The another ground which is raised by the husband is about
desertion by the wife that without any lawful cause she left the
company and she is residing separately since 03.03.2010. The
pleading at para 4 of the plaint and the reply when are
considered would show that wife has made two-fold defence.
One is that, husband has kept another lady and she was
abused and assaulted. Further she made a categorical
statement that the husband should stay at Janjgir by taking a
house on rent, because the nature of the husband is cruel, as a
result, she does not want to join the company of husband
where he is working. The husband is working at Jagdalpur
which is away from Janjgir wherein the wife wanted the
husband to stay. The statement of the husband is that he
wanted to take her back but she did not come back and
refused to stay. It is also corroborated by the statement of
Kanti Kumar Singh (PW-2), the father of the husband. The copy
of the counseling which are also on record would show that in
the counseling on 01.11.2014, the husband deposed that he
wants to keep the wife with him wherein wife discloses that
she may be given some time to think over it, thereafter, the
case for counseling was further adjourned to 27.12.2014. The
proceeding of 27.12.2014 would show that on that day the
husband appeared but wife did not appear and it is on record
that on the earlier occasion, the wife did not want to go with
the husband at any cost, therefore, the counseling was stuck.
Reading all the facts cumulatively would show that the wife
without sufficient cause refused to go with the husband.
11.Now coming back to the allegation of extra marital affairs, the
wife pleaded at para 4 that the husband has kept another lady
along with him. In the cross-examination of the husband, at
para 13, suggestion was made that he is in a relation with a
lady named Gauri who is an Aganwadi worker. In the statement
of her cross-examination, she maintained the stand that the
husband is having the illicit relation with other lady and the
husband always kept stand and denied the allegation.
12.In a matter of extra marital affair allegation, the Hon'ble
Supreme Court dealing with the said issue in the matter of
Narendra Vs. K. Meena reported in AIR 2016 SC 4599
reiterated the view taken in the matter of Vjaykumar
Ramchandra bhate Vs. Neela Vijaykumar Bhate, reported
in AIR 2003 SC 2462 and held that when the assassination of
character is made by either of the parties it would constitute a
mental cruelty for which a claim for divorce under Section
13(1)(i-a) of the Hindu Marriage Act, 1955 would be
sustainable. The Hon'ble Supreme Court held thus at para 13:
"13.... The position of law in this regard has come to be
well-settled and declared that levelling disgusting
accusations of unchastity and indecent familiarity with a
person outside wedlock and allegations of extra marital
relationship is a grave assault on the character, honour,
reputation, status as well as the health of the wife. Such
aspersions of perfidiousness attributed to the wife, viewed in
the context of an educated Indian wife and judged by Indian
conditions and standards would amount to worst form of
insult and cruelty in law, warranting the claim of the wife
being allowed. That such allegations made in the written
statement or suggested in th course of examination and by
way of cross-examination satisfy the requirement of law has
also come to be firmly laid down by this Court. On going
through the relevant portions of such allegations, we find
that no exception could be taken to the findings recorded by
the Family Court as well as the High Court. We find that they
are of such quality, magnitude and consequence as to cause
mental pain, agony and suffering amounting to the
reformulated concept of cruelty in matrimonial law causing
profound and lasting disruption and driving the wife to feel
deeply hurt and reasonably apprehend that it would be
dangerous for her to live with a husband who was taunting
her like that and rendered the maintenance of matrimonial
home impossible."
13.Taking into totality of the pleadings of the evidence, we are of
the view that the husband was able to prove that he was
falsely implicated in the case and was subjected to criminal
trial under Section 498-A r/w Sections 323 & 506 Part II of IPC
and had to undergo a trial on a report made by the wife.
Further, since the wife categorically deposed that she does not
want to stay with husband and no plausible cause has been
shown not to join the company and she is residing separately
since 03.03.2010, the desertion by the wife was also proved.
With respect to the illicit relation, nothing is on record to show
that the allegation so levelled by the wife against husband that
he is having an extra-marital affair outside the marriage was
proved and only casual allegations was made, therefore, that
would also be within the ambit of cruelty.
14.Under the circumstances, the impugned judgment and decree
of learned Court below is liable to be and is hereby set-aside
and we grant a decree of divorce in favour of husband to
dissolve the marriage dated 29.06.2005 by decree of divorce.
15.During the course of argument before this Court, the pay-slip
of the appellant has been placed and he is said to be working
as Sikshak Panchayat and gets a Salary of Rs. 51,229/-, after
deduction of Rs. 6,262/- an amount of around Rs. 45,000/- is
being paid. The wife on the other hand, is without any
avocation and it is stated that the wife and the child are
getting maintenance of Rs. 8,000/- per month from the
appellant/husband. Naturally with the passage of time, the rate
of inflation is on higher side and hence we deem it proper to fix
permanent alimony of Rs. 12,000/- per month to the wife,
which would be reciprocally enhanced with the increase in
salary of husband.
16.In the result, the appeal is allowed to the extent indicated
above.
The decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Rajani Dubey)
Judge Judge
V/-
