Smt. Richa Sahu vs Rajesh Sahu
2022 Latest Caselaw 1496 Chatt

                                   1

                                                                 NAFR
       HIGH COURT OF CHHATTISGARH, BILASPUR
                 Judgment reserved on : 28/01/2022
                 Judgment delivered on:      23/03/2022
                        FAM No. 12 of 2019
Smt. Richa Sahu W/o Rajesh Sahu, Aged About 32 Years (D/o Shri
Ratiram Sahu), R/o Arihant Colony, Gobra Nawapara, District
Raipur, Chhattisgarh.
                                                          ---- Appellant
                              Versus
Rajesh Sahu S/o Maharaji Lal Sahu, Aged About 36 Years, R/o House
No. M. I. G. 28, Sector-3, Krishna Kunj, Deen Dayal Upadhyaya
Nagar, Raipur, Tehsil And District Raipur, Chhattisgarh.
                                                     ---- Respondent

For Appellant                 : Mr. Lukesh Kumar Mishra, Adv.
For Respondent                : Ms. Shriya Mishra on behalf of Mr.
                                Kashif Shakeel, Adv.


         DB : Hon'ble Shri Justice Goutam Bhaduri, J.

Hon'ble Smt. Justice Rajani Dubey, J.

C A V Order

Per: Hon'ble Smt. Justice Rajani Dubey, J.

1. Appellant/wife has filed the present appeal against the

judgment and decree dated 14.12.2018 passed by Second

Additional Principal Judge, Family Court, Raipur, in Civil Suit HMA

Case No. 320/2015 whereby the decree of divorce has been

granted in favour of respondent/husband.

2. The respondent/husband filed an application under Section

13(1) of the Hindu Marriage Act seeking dissolution of marriage on

the ground of cruelty. As per prosecution case, marriage of the

appellant and respondent was solemnized on 11.07.2013 at Gobra

Nawapara, District Raipur as per Hindu rites and ritual and

thereafter, the appellant started residing with the respondent at

Raipur. On 07.04.2014 a female child was born out of their wedlock

and she was advised to take complete bed rest for the period of

two months. The appellant was suffering from home sickness as a

result of which gradually she became stubborn and ill-tempered.

On 26.05.2014, with the consent of husband and his family

member, appellant went to her maternal house and did not come

back when the respondent went to her to take her back. Thereafter,

a complaint under Section 498A of the IPC has been filed by the

appellant against the respondent and his family member to defame

them which caused mental harassment to the respondent.

3. In her reply, appellant/wife denied all the allegation made

against her by the respondent and submitted that due to the

harassment by the respondent and his family member as well as

due to not taking proper care to her daughter by the respondent,

appellant refused to go back to her matrimonial home.

4. Learned trial Court after framing issued recorded the

evidence of the parties and allowed the application preferred by the

respondent and dissolved the marriage of the parties dated

11.07.2013. Hence, Appellant/wife filed this appeal before this

Court.

5. Learned counsel for the appellant submits that the learned

court below while passing the impugned judgment and decree has

failed to appreciate the pleadings, evidence and the material

brought on records by the parties in its correct prospective. He

would next submit that appellant in her written statement pleaded

that she was continuously tortured by the family of the respondent.

The appellant had left the matrimonial home for the reasonable

cause. Furthermore, the ground of cruelty has not been proved by

the husband and the learned Family Court has granted the decree

of the divorce on the ground that the respondent has been

acquitted form the criminal charges which amounts to cruelty. The

intention of the legislature has always been to the preserve the

solemnous thread of marriage rather than to break it and

particularly, the fact that the appellant wants to reside together

with the respondent, therefore, the impugned judgment and decree

kindly be set-aside. In support of his argument learned counsel for

the appellant placed reliance in the matter of Ravi Kumar Vs.

Julmidevi passed in (2010) 4 SCC 476.

6. Learned counsel for the respondent supported the impugned

judgment and decree passed by the Family Court, Raipur and

submits that wife has filed fabulous complaints against respondent

which was irreparably damaged the reputation of the mental peace

of the respondent. The respondent cannot, therefore be compel to

resume matrimonial life with the appellant in the face of such

baseless allegations and likely treatment and parties are separated

since 26.05.2014, appellant/wife has lived with him only for few

months. Marriage of the parties was solemnized on 11.07.2013 and

they are residing separately since 26.05.2014. In support of his

argument learned counsel for the respondent placed reliance in the

matter of Raj Talreja Vs. Kavita Talreja (2017) 14 SCC 194,

Joydeep Majumdar Vs. Bharti Jaiswal Majumdar (2021) 3

SCC 742, & Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511.

7. Heard counsel for both the parties and perused the material

available on record.

8. Learned trial Court has framed two issues on the basis of

submissions of the parties, which are as under:-

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9. It is clear from the record that the marriage of the parties was

solemnized on 11.07.2013 and the appellant has been residing

separately since 26.05.2014. A complaint under Section 498A of

IPC was filed by the appellant against the respondent and his family

in which all have been acquitted by the concerned Court.

10. As far as the matter of cruelty is concerned, appellant/wife

admitted in her cross-examination in para 9 that:-

ÞeSa llqjky ls ek;ds vafre ckj fnukad 26 ebZ 2014 dks vkbZ FkhA eS

mlds i'pkr yxHkx <kbZ rhu ekg i'pkr vkosnd ,oa mldh ekrk ds

fo#) efgyk Fkkuk jk;iqj esa ngst izrkMuk dk fjiksVZ ntZ djk;h FkhA ;g

lgh gS fd bl e/; ge yksx iz;kljr Fks fd vkosnd eq>s ysus ds fy;s

ugha vk jgk FkkA ;g lgh gS fd esjk ,oa vkosnd dk cPph ds bZykt dks

ysdj fookn gqvk FkkA lk{kh Lor% dgh fd izkjaHk ls gh eq>s ngst ds fy;s

izrkfMr djrs FksAß

But in paras 15 & 17 she stated that:-

Þ;g lgh gS fd eSa 26-05-2014 dks jtkeanh ds vk/kkj ij ek;ds vkbZ Fkh A

Lor% dgh fd vkosnd ,oa mlds ifjokjokyks us eq>s Hkstk FkkA ;g lgh gS

fd mlds i'pkr eSa jkfte esa viuh iq+=h dk bZykt djkuk izkjaHk dh Fkh

mlds i'pkr jk;iqqj esa bykt djk;h FkhA

;g lgh gS fd mDr izdj.k ds yacudky ds nkSjku ;g tkudkjh

feyh Fkh fd vkosnd dks mlds daiuh okys fudky fn;s gSaA Lor% dgh fd

vkosnd us dgk Fkk fd mlus ukSdjh NksM fn;k gSA ;g dguk xyr gS fd

vkosnd dks ukSdjh ls fudky jgs Fks blfy;s og etcwjho'k ukSdjh NksMk

gSA ;g lgh gS fd blh vk/kj ij U;k;ky; }kjk varfje Hkj.k iks "k.k dh

jkf'k de dj nh xbZ FkhAß

11. Appellant filed order sheets of criminal case (Ex. P/1) which

shows that respondent Rajesh Sahu and his mother Krishna Sahu

were arrested and produced before the Judicial Magistrate First

Class, Raipur, (EX P/2) is copy of judgment dated 05.01.2018 in

which learned Judicial Magistrate First Class finds that cruelty under

Section 498A as it is described in Section 498 of IPC was not proved

and the bone of contention in this case is not giving the proper

attention and treatment by the respondent to their daughter.

12. Hon'ble Supreme Court in the case of Joydeep (supra) held

in para 10 & 14 that:-

"10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh V. Jaya Ghosh (2007) 4 SCC 511, this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.

...14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties wold not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation. "

13. After marriage, both the parties lived together only for the

period of 10 months. Marriage of the parties was solemnized on

11.07.2013 and the appellant left the house of the respondent on

26.05.2014, and since then about 8 years have been passed and

they have been living separately which shows the parties did not

have any interaction with each other. The irresistible conclusion

would be that matrimonial bond has been raptured because of the

mental cruelty caused by the appellant.

14. Appellant/wife admitted that she filed complaint case against

husband and his mother after three months of leaving her

matrimonial home i.e. on 26.05.2014. Appellant left her

matrimonial house with the consent of her husband and, thereafter,

she filed complaint case against husband and mother-in-law due to

which respondent has suffered adverse consequences in his life.

In this case, on the one hand wife has not shown her interest to live

with the respondent and on the other, respondent examined

himself as PW-1 before the trial Court in which he submitted in para

22 that he does not want to keep his wife with him. This is clearly

illustrative of the fact that now the parties have no emotions,

sentiments or feeling for each other. Thus, this is a clear case of

irretrievable breakdown of marriage and any further effort to keep

it alive would prove to be totally counterproductive.

15. Learned trial Court also find that parties are living separately

and wife filed complaint case against husband for demand of dowry

but the same was not proved, which creates cruelty to

respondent/husband and this finding is based on correct

perspective of the trial Court.

16. Thus, in view of the above findings, we find that the

impugned order and decree passed by the learned Family Court is

based on proper appreciation of oral and documentary evidence

and need not be corrected. Hence, the appeal is liable to be and is

hereby dismissed.

           Sd/-                                         Sd/-
      (Goutam Bhaduri)                             (Rajani Dubey)
           Judge                                       Judge

V/-