Bhojram Barle vs Salit Barle
2022 Latest Caselaw 3346 Chatt

                                       1
                                                               FAM No. 75 of 2019


                                                                        NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

(Arising out of order dated 25.1.2019 passed by learned 2nd Additional Principal
          Judge, Family Court, Raipur in Civil Suit HMA No.693/2016)

                           FAM No. 75 of 2019

     Bhojram Barle S/o Late Rajaram Barle Aged About 26 Years R/o
      Nagar Panchayat Tundra, PS-Tundra, Gidhori, Tahsil Kasdol,
      Distric- Balodabazar, Chhattisgarh, Presently At Kota, Raipur,
      Tahsil And District- Raipur, Chhattisgarh.

                                                               ---- Appellant

                                   Versus

     Salit Barle W/o Shri Bhojram Barle Aged About 25 Years R/o
      Palari, Tahsil Palari, PS- Palari, District- Balodabazar,
      Chhattisgarh, Presently Working As A.N.M. At Primary Health
      Centre, Raja Talab, Raipur, Chhattisgarh.

                                                            ---- Respondent




For Appellant         :-     Mr. Vivek Shrivastava, Advocate
For Respondent        :-     Mr. Barun Kumar Chakrabarty, Advocate


              Hon'ble Shri Justice Goutam Bhaduri
             Hon'ble Shri Justice N.K. Chandravanshi
                      Judgment On Board


Per Goutam Bhaduri, J.

10/5/2022

1. Heard.

2. The instant appeal is preferred by the husband against the

order dated 25.1.2019 passed by learned 2nd Additional

FAM No. 75 of 2019

Principal Judge, Family Court, Raipur whereby an

application for seeking divorce by the husband was

dismissed.

3. The brief facts of this case are that both the appellant and

respondent solemnized their marriage on 15.5.2013

according to the Hindu rituals, thereafter, it was alleged that

wife started behaving in an indecent manner, abused the

husband and also used to threaten him by saying that she

would inculpate his entire family in a case of dowry. This

continued up till 13.5.2014, thereafter she left the company

of the husband as she started living at Raipur and was

engaged in a job of A.N.M. at a Primary Health Centre.

Husband further alleges that despite of all the efforts to bring

the wife back, everything failed and she denied their relation

as husband and wife and used to address the husband as

brother (bhaiya). It is further alleged that she never used to

put vermilion (sindoor) on her forehead and mangalsutra,

whereby used to deny the relation and to be as married lady.

Husband further alleged that before filing of the petition in

the month of December, 2016, the wife was residing

separately at Raipur. The husband further pleaded that

whenever he planned for a child, it was vehemently opposed

by the wife and even she did not allow to have physical

relation in-between. All the incidents caused mental agony

FAM No. 75 of 2019

which amounts to cruelty, therefore, marriage be dissolved

by a decree of divorce.

4. Per contra, wife denied all the adverse allegations and

submitted that she never addressed the husband publically

as her brother (bhaiya) and always used to behave as that

of a wife, which is expected. She further denied that she

ever objected the physical relation and instead it is stated

that husband got a job as a technician in an ambulance, he

was posted at Bilaspur and at the instance of husband, the

wife used to stay at Raipur wherein she was working. She

further submitted that she is ready and willing to join the

company of the husband, therefore, no cruelty was meted

out. It is further stated that on an occasion, when husband

came with the members of society, father of the wife advised

them since it is late night they can leave in the morning but

instead of that they went back, therefore, no cruelty on the

part of the wife was done towards the husband.

5. The learned Family Court framed the issue on cruelty as to

whether the husband was subjected to cruelty by behavior of

the wife and the finding was in negative, resulting into the

dismissal of the divorce petition. The husband being

aggrieved by such judgment, filed the instant appeal.

6. Learned counsel for the appellant would submit that

FAM No. 75 of 2019

relations between the husband and wife, about their

personal life and physical relations and the narrations were

intimate and were known only to each other, therefore, it

could not be made public, consequently, the statement given

by the husband should have been accepted by the learned

Family Court and decree of divorce should have been

granted. He refers to the statement of the husband and

witness to submit that denial of relation of husband and wife,

in public eye, coupled with the fact to deny the physical

relation will certainly come within the ambit of cruelty which

the learned Family Court failed to consider, therefore, the

appeal be allowed and decree of divorce be passed.

7. Per contra, learned counsel for the respondent would submit

that nothing has come on record to substantiate that wife

has behaved in such a manner that it would lead to cruelty

to husband. He would submit that only omnibus averments

have been made which are not supported by independent

witnesses, therefore, since there is no admission of any

factual behavior instead the denial was made, the judgment

and decree passed by the learned Court below is well

merited and do not call for interference.

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

perused the documents place on record.

FAM No. 75 of 2019

9. The perusal of the petition filed by the husband under

Section 13 (A) of the Hindu Marriage Act, 1955 would reveal

that the husband alleged that after marriage wife used to tell

him that while talking, deformity is caused on your face, you

behave like an illiterate man and also used to abuse him.

After marriage on 15.5.2013, wife eventually left on

13.5.2014 and started living at her parental house. Further it

was pleaded that the husband with the intervention of the

society members tried to bring back the wife but she refused

to accompany him and therefore, it was stated that during

that time wife was working at Raipur, he used to visit

wherein the wife advised him not to disclose their relation

and she portrayed herself as an unmarried lady and called

the husband as brother (bhaiya) before public. The

statement of the husband is also in the similar line to the

pleading made and would reveal that husband and wife

have performed love marriage and after marriage they came

to village Kundra, wherein they stayed for 15 days and

thereafter shifted to Raipur wherein she got the job in the

health department in 2014 and husband also got the job in

2014 as a technician in an ambulance and was posted at

Bilaspur and he used to commute in between Bilaspur and

Raipur. PW2 Rahul Barle, who is a villager and PW3 Milap

Ram Manhar both the witnesses have made similar

averments that after marriage, the wife remained in village

FAM No. 75 of 2019

for two days thereafter both husband and wife came to

Raipur. As against this, the averment of the wife would

show that she has completely disowned the allegations,

instead she has stated that she never denied the physical

relation or status of wife or relation of husband and wife in

public. She further stated that while she got a job in health

department since initially she was a temporary contract

worker, as such, she was compelled to stay at Raipur and

further in the deposition she stated that she is ready and

willing to join the company of the husband. The statement

of wife further would show that both the parties were known

to each other, consequently, inference can be drawn that

both were aware of each other's behavior but it appears that

after marriage while the wife started a job at Raipur and

husband got a job at Bilaspur, the difference started. So far

the relation of husband and wife is concerned, the husband

though has stated that the wife denied to have physical

relation, but it is completely disowned and denied by wife.

10. Further the suggestion given to the wife that she refused to

stay in the company of the husband because of his poverty,

was denied, instead she stated that she can live with

husband anywhere. Narrating one incident it is stated that

on certain date the husband came with the society member

and insisted the wife to go immediately with him, though

FAM No. 75 of 2019

they were suggested that she would accompany him in

morning and were requested to stay for the night but instead

the husband went back. The same statement was made by

the father of the wife Pawan Kumar.

11. In the statement of the father of wife, he deposed that his

daughter is willing to stay with husband even at Bilaspur. He

further deposed that his daughter is working on contract

basis at Raipur, therefore, he made prayer that transfer of

his daughter be made to Bilaspur or anywhere where both

husband and wife can stay together.

12. Overall assessment of evidence of the witnesses adduced

on behalf of husband and wife would show that on trivial

issue, the dispute started. Though the husband tried to

protect their relation but wife denied the relation in the public

eye but except this statement of the husband, the said fact is

not supported by any independent witness. If wife was

behaving in such a fashion, in an office wherein she is

working to show that she is unmarried, obviously, it would be

known to everybody and the evidence in this regard could

have been produced before this Court. In absence of any

evidence, when one statement of husband is denied by the

wife then some additional facts were required to be placed

on record to draw such inference. Only omnibus allegations

have been made, on the contrary, the wife deposed that she

FAM No. 75 of 2019

is ready and willing to join the company of the husband.

Therefore, having overall assessment of the evidence, we

are of the opinion that cruelty on which divorce was sought

for has not been proved by the husband.

13.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 spouse. Cruelty

normally has to be distinguished from the ordinary wear and

tear of family life and naturally it cannot be adjudged on the

basis of the sensitivity of a particular person, when one of

the parties to the marriage gives a self-certificate about

conduct of the other regarding cruelty. Petty outrageous

behavior or differences between the spouses does not come

in the ambit of cruelty because this is something that is

common in a day to day married life.

14.In view of the foregoing, we are of the considered view that

finding of the learned Family Court is well merited and no

interference is required.

15.Accordingly, the appeal is dismissed.

                SD/-                                   SD/-
         (Goutam Bhaduri)                       (N.K. Chandravanshi)
              Judge                                   Judge


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