Chattisgarh High Court
Girdhari Lal vs Smt. Gomti Devi on 24 March, 2022
1
FAM No. 130 of 2019
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 130 of 2019
Judgment Reserved on : 17/3/2022
Judgment Passed on : 24/3/2022
Girdhari Lal S/o Late Shri Darshan Lal Aged About 59 Years
Office Address AGM Department P.L.E.M. Bhilai Steel Plant
Bhilai, Tahsil And District- Durg, Chhattisgrh, Present R/o Vidyut
Nagar, Durg, Tehsil And District-Durg, Chhattisgarh...........
(Applicant)
---- Petitioner
Versus
Smt. Gomti Devi W/o Shri Girdhari Lal Aged About 57 Years C/o
Shri Vidhushekhar Pandey, R/o Block No. 182, Street No. 20C,
Pragati Nagar Risali Bhilai, Tehsil And District- Durg,
Chhattisgarh.............(Non-Applicant), District : Durg,
Chhattisgarh
---- Respondent
For Appellant Mr. Avinash Chand Sahu, Advocate
For Respondent Mr. Shikhar Bakhtiyar, Advocate
DB.: Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice Deepak Kumar Tiwari
C A V JUDGMENT
The following Judgment of the Court was passed by
Deepak Kumar Tiwari, J.
FAM No. 130 of 2019
1. This is an appeal filed by the husband under Section 19(1) of the
Family Courts Act, 1984 read with Section 28 of the Hindu
Marriage Act, 1955 (in short "the Act, 1955") challenging the
judgment and decree dated 13.2.2019 passed in Civil Suit
No.213-A/2015 by the Third Additional Principal Judge, Family
Court, Durg, whereby, an application preferred by the appellant
under Section 13 (1) (ia) and (ib) of the Act, 1955, for granting
decree of divorce on the ground of cruelty and desertion, was
dismissed.
2. The facts of the case are that the marriage between the parties
was solemnized on 8.5.1970 according to the Hindu Rites and
Rituals. After the 'Gauna' ceremony, the respondent-wife joined
the company of the husband. The appellant alleged that after
the marriage, he gave complete facilities to the wife to lead a
comfortable life. As he started aging, the wife did not take care
and support him and instead troubled and harassed him. Due to
her such cruel behaviour, he is living separately from her. It is
alleged that on 5.8.2011, the respondent along with her son
kicked him out of his own house, which he has constructed and
since then, he has no permanent residence to live. He has also
made a report to the Police Station - Newai in this regard. He
stated that since 5.8.2011, there is no relation between them;
the respondent deserted, abused and misbehaved with him,
therefore, it has become extremely difficult for him to live with
her any longer. The respondent-wife has also preferred an
application for maintenance before the Consultancy
FAM No. 130 of 2019
Department of Bhilai Steel Plant on 30.7.2012 and on the said
application, a compromise was made and Rs.7000/- monthly
maintenance was granted to the respondent on a condition that
she will take no legal action against him without giving
information to the Consultancy Department. However, the
respondent contravened the said condition and on 20.4.2015,
sent a legal notice to the appellant alleging that since the
appellant is living with another woman, the amount of
maintenance should be enhanced. The appellant replied to the
notice and filed a suit seeking divorce on 8.5.2015. The
respondent-wife denied the averments and stated that the
appellant has developed illicit relationship with the wife of his
younger brother namely Bholiya Bai and out of such illicit
relationship, one son has born. After sometime, he left Bholiya
Bai and kept another woman namely Sarawati Devi and out of
such illicit relationship, one daughter was also born. On account
of such acts of the appellant, the respondent suffered extreme
mental stress and physical discomfort and a quarrel took place
and thereafter, the appellant left her and started residing
separately at village Durg with his concubine (Sarwaswati Devi)
and her daughter. She stated that the appellant is working on
the post of AGM and getting monthly salary of Rs.1 lakh and
paying a very meagre amount of maintenance of Rs.7000/- to
her, therefore, to enhance the amount of compensation, the
notice was sent. It is alleged that due to misconduct of the
appellant, she is suffering mentally and physically. It is stated
by the wife that inspite of all this, she is ready to live with the
FAM No. 130 of 2019
appellant, but the appellant himself is not willing to keep her.
She stated that the appellant has filed the suit for divorce
pleading false and baseless facts, hence, it was prayed that the
appeal of the appellant be dismissed.
3. On the basis of the averments made by the parties, the issues
were framed and after affording opportunity of hearing to the
parties, the Family Court decided all the issues in negative and
held that the appellant failed to prove the grounds of cruelty
and desertion and hence, dismissed the suit.
4. We have heard learned counsel for the parties and perused the
judgment and the evidence with utmost circumspection.
5. In the present case, the appellant has examined himself as PW-1
Rejji Kumar as PW-2, Pradeep Kumar as PW-3 (the Family Court
has wrongly mentioned PW-2) and Chinnodo as PW-4. Per
contra, the respondent examined herself as DW-1.
6. The petitioner has sought divorce on the ground of cruelty and
desertion. In this regard, the Supreme Court in the matter of
Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, has
observed thus in paras 6 and 9 :
"6. Treating the petitioner with cruelty is a ground for divorce
under Section 13(1)(i-a) of the Act. Cruelty has not been defined
under the Act but in relation to matrimonial matters it is
contemplated as a conduct of such type which endangers the
living of the petitioner with the respondent. Cruelty consists of
acts which are dangerous to life, limb or health. Cruelty for the
purpose of the Act means where one spouse has so treated the
FAM No. 130 of 2019
other and manifested such feelings towards her or him as to
have inflicted bodily injury, or to have caused reasonable
apprehension of bodily injury, suffering or to have injured
health. Cruelty may be physical or mental. Mental cruelty is the
conduct of other spouse which causes mental suffering or fear
to the matrimonial life of the other. "Cruelty", therefore,
postulates a treatment of the petitioner with such cruelty as to
cause a reasonable apprehension in his or her mind that it would
be harmful or injurious for the petitioner to live with the other
party. Cruelty, however, has to be distinguished from the
ordinary wear and tear of family life. It cannot be decided on
the basis of the sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct which would, in
general, be dangerous for a spouse to live with the other. In the
instant case both the trial court as well as the High Court have
found on facts that the wife had failed to prove the allegations
of cruelty attributed to the respondent. Concurrent findings of
fact arrived at by the courts cannot be disturbed by this Court in
exercise of powers under Article 136 of the Constitution of
India. Otherwise also the averments made in the petition and
the evidence led in support thereof clearly show that the
allegations, even if held to have been proved, would only show
the sensitivity of the appellant with respect to the conduct of
the respondent which cannot be termed more than ordinary
wear and tear of the family life.
9. Following the decision in Bipinchandra case [AIR 1957 SC 176] this
Court again reiterated the legal position in Lachman Utamchand
Kirpalani v. Meena [AIR 1964 SC 40] by holding that in its essence
desertion means the intentional permanent forsaking and
abandonment of one spouse by the other without that other's
consent, and without reasonable cause. For the offence of
desertion so far as the deserting spouse is concerned, two
essential conditions must be there (1) the factum of separation,
and (2) the intention to bring cohabitation permanently to an
end (animus deserendi). Similarly two elements are essential so
far as the deserted spouse is concerned : (1) the absence of
consent, and (2) absence of conduct giving reasonable cause to
the spouse leaving the matrimonial home to form the necessary
FAM No. 130 of 2019
intention aforesaid. For holding desertion as proved the
inference may be drawn from certain facts which may not in
another case be capable of leading to the same inference; that
is to say the facts have to be viewed as to the purpose which is
revealed by those acts or by conduct and expression of
intention, both anterior and subsequent to the actual acts of
separation."
7. Reverting back to the facts of the present case, Girdhari (PW-1),
in order to prove 'cruelty', has deposed that the respondent is a
lady of distrustful character and she always used to quarrel and
harass him. He mentioned a particular incident of 5.8.2011 and
stated that on the said date, the respondent along with his sons
quarrelled with him and also beat and abused him. He further
stated that on 5.8.2011, they all were residing in the same
house. For the incident alleged by the appellant-husband, there
is no eye-witness and the witnesses Rejji Kumar (PW-2) and
Pradeep Kumar (PW-3) have categorically admitted that they
have no personal knowledge about the above incident and they
have come to know about the incident from the information
given by the appellant himself. There is no report in this regard
in the police station, which has either been exhibited or proved.
8. Respondent-Gomti Bai specifically deposed that after sometime
of marriage, the appellant developed illicit relationship with her
sister-in-law Bholiya Bai (wife of the younger brother of the
appellant) and out of such relationship, one Sanjay Kumar was
born. After sometime, the appellant left Bholiya Bai and kept
another woman Saraswati Devi and out of such illicit
FAM No. 130 of 2019
relationship, one daughter Geeta Devi was also born. The above
acts show that the appellant himself neglected the wife and
started residing separately with Saraswati Devi at Vijay Nagar,
Durg.
9. Gomti Devi (DW-1) stated that she wanted to reside with her
husband voluntarily and discharge her marital obligations but
the appellant himself having such illicit relationships, started
living separately. For the appellant's such misconduct, the
respondent has also filed a Criminal Complaint case before
JMFC, Durg on 15.9.2016, registered as Criminal Complaint
Case No.8102/2016, the order sheet of the said case has been
filed as Ex.D/1, which shows that after examination of the
respondent and his three sons, an offence under Section 494 of
the IPC was registered against the appellant for having illicit
relationship with Saraswati Devi. Against it, the appellant
preferred Criminal Revision bearing No.228 of 2016 before the
ASJ, Durg, which was dismissed on 19.10.2016. The appellant
himself admitted in the cross-examination at para 17 that in the
medical treatment card issued on 1.7.2001, he has mentioned
the name of Geeta Devi as his family member (daughter).
10. The appellant denied the relationship with Saraswati Devi and
stated that Saraswati devi is his maid. Though the appellant
stated about an incident of the year 1987 in his pleadings when
the respondent has given rat poison to kill him, but in the cross-
examination, he stated that he has not made any report in this
regard. The appellant has also stated one incident of the year
FAM No. 130 of 2019
1986, for which, no averment has been made in the petition,
that when he had gone to duty, his father and his uncle (Phupha)
has seen the respondent with one Santosh Sonkar in an
objectionable condition.
11. Having gone through the aforesaid evidence, it is very explicit
that the appellant has developed the allegation beyond the
pleadings to the extent that the respondent does not wish to
join his company, she has given poison at some point of time
and he also caught her red handed with Santosh Sonkar in an
objectionable condition. Such allegations are not pleaded and
also not proved by the appellant, which may amount to cruelty.
Further, the respondent-wife has given sufficient evidence that
the appellant himself was having illicit relationship with one
Bholiya Bai (sister-in-law) and thereafter, with another woman
and out of such relationships, children were also born. To cover
up such illicit relationships, the appellant has made such wild
allegations against the wife and thus, stigmatized and attacked
her character, which itself amounts to 'mental cruelty'. He
further alleged that on 5.8.2011, the respondent has ousted him
from the house, but the fact remains that the respondent
always wanted to reside with the appellant. It appears that the
conduct of the appellant itself is blameworthy and he cannot
gain for his own fault.
12. No party can be permitted to carve out the ground for
destroying the family, which is the basic unit of the society. The
foundation of the family rests on the institution of a legal and
FAM No. 130 of 2019
valid marriage. The approach of the Court should be to preserve
the matrimonial home and be reluctant to dissolve the marriage
merely at the insistence of one of the parties.
13. We, therefore, do not find any infirmity in the impugned
judgment and decree passed by the Family Court. The appeal,
therefore, fails and is accordingly dismissed.
Sd/- Sd/-
( Goutam Bhaduri) ( Deepak Kumar Tiwari)
Judge Judge
Shyna
FAM No. 130 of 2019
HEAD NOTE
In matrimonial matters, the party cannot be allowed to take
benefit of his own fault.
fookg laca/kh ekeyksa esa i{kdkj dks viuh gh xyrh dk ykHk ugha
fn;k tk ldrkA
