Chattisgarh High Court
Vikas Patel vs Smt. Rakhi Patel on 3 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 90 of 2019
Vikas Patel S/o Shri Girvar Patel Aged About 35 Years Profession -
Vakalat, R/o Bariyo, Police Station And Tahsil Rajpur, District -
Balrampur, Chhattisgarh., Presently R/o D.C. Road Ambikapur,
Police Station And Tahsil Ambikapur, District - Ambikapur
Chhattisgarh
---- Appellant
Versus
Smt. Rakhi Patel W/o Shri Vikas Patel Aged About 31 Years
Profession House Wife, R/o Pali, (Front In Rest House) Police
Station Pali, District - Korba Chhattisgarh., Presently R/o House
No. C/192 , Near Bali-Bal Ground And Shiv Mandir, Yadunandan
Nagar Tifra Bilaspur, Police Station Sirgitti, District - Bilaspur
Chhattisgarh
---- Respondent
For Appellant : Shri Vijay K. Deshmukh, Advocate
For Respondent : Shri Suresh Pandey, Advocate
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
Per Goutam Bhaduri, J.
03/11/2022
1. Heard.
2. The present appeal is against the judgment and decree dated
19.06.2018 passed in civil suit No.85A/2014 by the Judge, Family
Court, Ambikapur (CG), whereby the application preferred by the
husband under Section 13 of the Hindu Marriage Act, 1955 was
dismissed. The present appeal is by the husband.
3. The brief facts of the case as pleaded are that:-
The marriage in between the parties solemnised on
18.05.2013 as per the Hindu rituals. After marriage when
the respondent/wife went to her matrimonial home on the
first date, the husband alleged that a message was received
in mobile of the wife that since she had already cohabited
with another person, therefore, she should not cohabit with
the appellant. The husband stated that when it was
confronted to the wife, she got agitated and started
misbehaving. Apart from that the allegations have been
made that she failed to take care of the in-laws and
perform the matrimonial obligations but with the passage
of time husband thought that the things will be set at rest
but nothing improved.
It is further stated that the wife used to carry three to four
mobiles and one of the mobiles when was sent for
repairing, on the basis of the Compact Disc/Chip it was
revealed that the wife had indecent conversation with the
persons outside the marriage. It is also stated that because
of such reason, the social meeting was convened and when
the indecent transcripts were confronted to wife it was
initially denied and the wife leveled allegations of
conspiracy over the husband, however, subsequently, when
her voice was confronted, she could not answer; went
away with her mother; and extended threat that she would
inculpate in-laws in a false case of dowry. The petition for
divorce was filed by the husband on the ground that before
one year of the filing of the petition she was residing
separately.
The respondent/wife filed her written-statement and
denied all the allegations. It was stated that because of the
behaviour of the husband that he used to doubt her fidelity
and he also named one lady namely Neelam Dubey with
whom he was having relation and husband told her that the
wife cannot replace her. She further stated that the
husband was not happy with the cash amount, which was
received during the marriage along with goods and
because of that she was subjected to torture. When she
went to a place Pali for Rakshabandhan, the husband did
not come to bring her back. According to the wife, the
husband entrusted one Dharmendra to send indecent SMS
to the wife and for which the report was made and the
investigation was carried out. The husband confessed the
fact and revealed that he has entrusted Dharmendra to send
such message to the wife. She stated that she was ready
and willing to join the company of the husband despite the
ill behaviour meted out to her and prayed for dismissal of
the divorce petition.
The husband in his favour examined himself as PW-1 also
examined Sakaldeep Chaudhari as PW-2, Kanta Singh as
PW-3 and Ramkishun as PW-4. Whereas the wife
examined herself as DW-1 and also examined Ravi
Sonwani as DW-2 and Prabha Gayakwad as DW-3. The
learned Family Court after evaluating the facts & evidence
dismissed the appeal. Hence this appeal.
4. Learned counsel for the appellant/husband would submit that the
evidence would show that the wife was in indecent conversation
with people outside the marriage, which construed the cruelty and
when the wife was confronted with the same, instead of mending
her behaviour she got agitated; abused; and left the house. He
referred to the statement of Vikas Patel (PW-1) the husband and the
other witnesses and submits that there is no valid reason for the
wife to stay away. Under these circumstances, the judgment and
decree of learned Court below is required to be set aside.
5. Per contra, learned counsel for the respondent/wife would submit
that only bald and oral allegations have been leveled which is not
supported by any evidence. It is further submitted that though it is
been stated that conversation was received from the mobile of the
wife but nothing has been placed in this case to evaluate the same.
Therefore, in absence thereof such serious allegation cannot be
inferred when in the counter the allegations have been denied by
the wife clamping allegations of cruelty on husband. He would
therefore, submit that the judgment & decree is well merited which
do not call for any interference.
6. We have heard learned counsel for the parties and perused the
record and evidence.
7. The pleading and the evidence would show that the husband in the
examination stated that after the marriage in the first night a
message was received in the mobile of the wife that since she had
already cohabited with the person who messaged, therefore, she
should not perform Suhag Raat with her husband. He further
stated that subsequent to that the wife used to talk to third person
outside the marriage for hours. Whenever it was confronted she
used to abuse. The evidence would show that nothing has been
placed on record to appreciate the fact whether such SMS of the
like nature was actually received. The husband since has leveled
the allegation on the basis of mobile message conversation, in
order to appreciate those facts, unless such evidence are placed
before the Court, it cannot be presumed that such kind of messages
were ever received by the wife.
8. Learned counsel for the appellant during his submission though
has tried to refer certain averments made in a proceeding under
Section 125 Cr.P.C. by naming the exhibits but such exhibit or
copy of such documents have not been placed in this case to
appreciate the allegations. Simply because an order refers to
certain exhibits, this Court cannot draw an inference that in those
exhibits certain facts might have been proved and it would be
totally a presumptive.
9. With respect to the statement of Sakaldeep Chaudhari (PW-2)
though he stated that the wife of the appellant used to talk to
different persons but in the cross-examination he has stated that he
himself has not seen and he is only a hearsay witness. The
statement of Kanta Singh (PW-3) would show that she referred to a
meeting which was held and only stated that in the meeting the
allegations were made by the husband that the respondent used to
abuse and nothing more than that. Therefore, the statement of the
husband that because of the messages and the obscene
conversation in between the wife and the person outside the
marriage was the subject matter of the meeting is not been proved.
10.The wife (DW-1) on the contrary in her statement has stated that
she was forced to stay at her parental home for the reason that she
was subjected to torture for demand of dowry and Rs. 5 Lakhs was
demanded initially. The wife had stated that when she received
certain indecent messages on her mobile, the matter was reported
to the police and one Dharmendra of Kawardha and Vikas
(husband) were summoned by the police and according to
Dharmendra it was admitted that those messages were sent at the
behest of her husband. The reports Ex. D/1 & D/2 are on record to
this effect. In response to these allegations, in the cross-
examination nothing has come up to negate the same. The
allegation of demand of dowry further has been corroborated by
Ravi Sonwani (DW-2) narrating the fact that when the appellant
did not come to take her back, a meeting was convened wherein
certain demand was made by husbands. Likewise Prabha
Gayakwad (DW-3) also made a statement in the same manner that
the demand of dowry was made and in absence thereof no
settlement was arrived at.
11. Overall perusal of the record would show that the primary
allegation of the husband was on the ground that the wife had an
extra martial relation outside the marriage and she received phone
calls and SMS, it was made in the CD and confronted to the wife.
Those allegations have been denied by the wife and except the oral
statement nothing is on record to substantiate the same that certain
conversation in between the mobile numbers had ever taken place.
Therefore, if the appellant/husband was sanguine of the facts of
existance of such evidence and he was in hold of those electronic
evidence when are not produced, which would have been the best
evidence for the case qua the pleading, the adverse inference is
required to be drawn against husband. Consequently, it can be
inferred that bald allegations though have been made but not
proved instead the allegation that the wife was forced to stay at her
parental home for demand of dowry for non-fulfilling of such
demand is established. Under these circumstances, the judgment
and decree of the Court below appears to be justified as such it do
not call for any interference.
12.Accordingly, the appeal fails and is dismissed, leaving the parties
to bear their own cost(s).
13.A decree be drawn accordingly.
SD/- SD/-
(Goutam Bhaduri) (Radhakishan Agrawal)
JUDGE JUDGE
Ashu
