Chattisgarh High Court
Smt. Pushpa Kashyap vs Omkar Prasad Kashyap on 13 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 65 of 2020
Smt. Pushpa Kashyap D/o Ramadhar Kurmi Aged About 23 Years W/o Shri
Omkar Prasad Kashyap, R/o Karra, Police Station and Tahsil- Nawagarh,
District- Janjgir-Champa, Chhattisgarh.
---- Appellant
Versus
Omkar Prasad Kashyap S/o Sitaram Kashyap Aged About 23 Years R/o Karra,
Police Station and Tahsil- Nawagarh, District- Janjgir-Champa, Chhattisgarh.
---- Respondent
For Appellant : Shri Pankaj Singh, Advocate
For Respondent : Shri H.V. Sharma, Advocate
Hon'ble Shri Goutam Bhaduri, Judge
Hon'ble Shri Radhakishan Agrawal, Judge
Judgment on Board
Per Goutam Bhaduri, Judge
13.10.2022
1. The instant appeal is by the wife against the judgment and decree dated
05.02.2020 passed by the Family Court, Janjgir, District Janjgir-Champa
in Civil Suit No.148-A/2018, granting divorce to the husband on the
ground of cruelty.
2. According to the plaint averments, the husband filed the petition stating
inter alia that the marriage took place on 15.10.2016 under coercion and
pressure. It is alleged that by force, the marriage was got performed
though by relation the parties were related to each other as brother and
sister. It is pleaded that after marriage, the wife asked the husband to
allow her to join his place of posting but the husband being employed in
Army, could not take her to the place of posting. After 2-3 days of
marriage, the husband left to resume his duties and subsequent to it, the
wife had stayed only for 15-20 days in the matrimonial home. It is
contended that the maternal home being situated in the same vicinity,
the wife used to stay at her parental home. After some time, a false
report was made on 02.04.2016 at Nawagarh police station under
Section 498A read with Section 34 of Indian Penal Code against all
family members including the husband. Lastly in the aforesaid
background and on the ground of desertion and cruelty by wife, the
petition for divorce was filed.
3. The wife contended that marriage was solemnized voluntarily and not
under any coercion or force, but when the husband left her at
matrimonial home, the family members and others had pressurized the
wife to fulfill the illegal demands. Consequently, a report was lodged
under Section 498A read with Section 34 of the Indian Penal Code. It
was further stated that the husband wanted to lead life of free lancer
and after marriage he has not committed to the obligation of marital
relation. It is, therefore, stated that on false ground, the application for
divorce was filed and the same may be dismissed.
4. Learned Family Court framed four issues. Issue No.1 pertains to the fact
regarding solemnization of marriage between the parties and the finding
was given in positive. In respect of Issue No.2 which pertains to cruelty
for the reason that wife has lodged the report which caused the family
members mental agony, the Family Court held that cruelty was
committed by the wife. In respect of issue No.3 the Court further held
that the wife frequently used to leave matrimonial home and used to stay
apart from husband for a long time thereby the husband was denied
marital life, which also resulted into cruelty and accordingly, passed a
decree of divorce in favour of the husband.
5. Learned counsel for the appellant-wife would submit that as per the
evidence placed before the Court below, the allegation of husband was
that the marriage was performed under coercion whereas the wife
refuted the same by stating that voluntarily the marriage was solemnized
and not under coercion or force. It s stated that the finding that the
marriage was not under any undue pressure or coercion is not under
any challenge, therefore, such finding will attain its finality. It is further
submitted that the Family Court failed to appreciate the fact that husband
after 2-3 days of marriage went away to join his duties, as such, finding
of the Family Court that she frequently left the company of the husband
is a wrong finding. With regard to the report under Section 498A read
with Section 34 of the Indian Penal Code, learned counsel would submit
that mere acquittal of the family members would not absolve them from
cruelty inasmuch as the Family Court has held that the demand for
dowry was made by all the accused. He placed his reliance on a
decision of the Supreme Court in Raj Talreja Versus Kavita Talreja
(2017) 14 SCC 194 and would submit that mere filing of complaint is not
cruelty and based on observations of Supreme Court, further submission
is made to the effect that only because of the fact that after the trial the
accused is acquitted may not be a ground to treat such accusations of
the wife as cruelty within the meaning of Hindu Marriage Act, 1955.
Therefore, he submits that under these grounds, the learned Family
Court came to a wrong finding of fact, hence, the appeal.
6. Per contra, learned counsel for the respondent-husband would submit
that this fact cannot be ignored because of the report made by the wife
the entire family of the husband had to pass through the torment of trial
for about 6 years and eventually, were acquitted. He submits that the
report was made by the wife on 02.04.2017 and the acquittal in criminal
case was on 30.03.2022. He referred to the application under Order 41
Rule 27 of the Code of Civil Procedure, 1908 to submit that the acquittal
was on the subsequent date, therefore, the same may be taken on
record. He relies on a case law reported in (2020) 18 SCC 247 - Rani
Narasimha Sastri Vs. Rani Suneela Rani and submits that when the
prosecution was lodged against the husband on complaint and the entire
family had to pass through the trial which culminated into acquittal, it
would amount to cruelty. Consequently, the order passed by the Family
Court is well merited, which do not call for any interference.
7. We have heard the learned counsel for the parties have also perused the
records.
8. The petition seeking divorce was filed by the husband. Husband
examined himself as PW-1 along-with other two witnesses namely
Kamleshawar (P.W.2) and Balram Kashyapm (P.W.3). Husband (PW-1)
has stated that he was posted in Army and immediately after the
marriage, the wife started persisting to take her to the place where he
was working. It is also stated that the wife asked the husband to stay
apart from his parents, but he did not adhere to it and went away to join
the place of posting. The husband further stated that she often used to
go to her parental home and while the husband was posted at Jammu &
Kashmir, on 02.04.2017 a report was made by the wife under Section
498A of the Indian Penal Code. In the statement of wife (DW-1), she has
stated that she had lodged the report for demand of dowry under Section
498A of the IPC and cruelty against the husband. The husband further
stated that after two days of marriage which took place on 15.10.2016,
the husband went away to join his place of posting and in January,
2019, the family members informed by phone that his parents were
attacked by the persons of wife, for which, a criminal case was lodged.
Though such statements are made, no document has been filed to
substantiate the same. Another allegation has been made that wife had
made report to Sainik Welfare Board against the conduct of husband,
but no document has been filed to substantiate the same.
9. Kamleshwar (PW-2) in his statement has further affirmed the fact about
the report made by the wife for demand of dowry and cruelty and similar
statement has been made by (PW-3) Balram Kashyap (P.W.3) that a
report was made by the appellant on 02.04.2017. Therefore, the fact
that a report was made by wife in the month of April 2017 has been
substantiated by the evidence of these witnesses.
10. During the course of hearing before this Court, the order passed by the
Judicial Magistrate in Criminal Case No.143/2017 has been filed along
with application (I.A.No.5) under Order 41 Rule 27 of CPC. The order is
dated 30.03.2020 and it being the subsequent event and perusal of it
shows it has relevance to the issue, the same is taken on record and
accordingly, application I.A. No. 5 stands allowed.
11.Perusal of the said order dated 30.02.2020 would show that four persons
were tried as accused, namely, Omkar Kashyap (respondent herein),
Sita Ram Kashyap, father-in-law, Kumari Bai, mother-in-law and Balram
Kashyap, brother in law. Perusal of the said judgment would show that
Court after evaluating the evidence came to a conclusion that though
some demand was made and threat was extended in case of failure to
fulfill such demand she would be kept as a domestic help, but
complainant failed to prove that in absence of fulfilling the demand,
whether any cruelty was inflicted on the complainant by the conduct of
husband. Therefore, the learned Magistrate came to a finding that no
cruelty was meted out qua the complaint to prove the ingredient of
section 498-A of IPC. The fact remains that four persons were subjected
to trial for almost five years and eventually, acquittal order passed in
March, 2020.
12. The Supreme Court in case of Rani Narasmha Sastri Vs. Rani
Suneela Rani (supra) has observed that when a prosecution was
launched against the husband on a complaint made by the wife under
Section 498A of the Indian Penal Code making serious allegations in
which the husband and his family members were constrained to undergo
trial which ultimately resulted into acquittal, then in such case, it cannot
be accepted that no cruelty was meted out to the husband and his family
members and he can make a ground for decree of dissolution of
marriage under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
13. The principle which is laid down by Hon'ble Supreme Court would
squarely govern the facts of the present case. It is obvious that by
making demand, offence under Section 498A of the Indian Penal Code
would not be made out as has been held by the learned Magistrate, but
it has to be followed by cruelty, which may include grave injury causing
danger to life, limb whether mental or physical. A perusal of the order of
acquittal further does not show any fact complained was proved.
Undergoing a trial for 5 years and the attendance on each day of
hearing in trial Court almost amounts to punishment for day till the court
rises, so the agony remains cannot be shelved.
14. In view of such facts situation, we are of the view that the judgment and
decree passed by the learned Family Court do not call for any
interference. Consequently, the appeal is dismissed.
15. Now coming to the grant of maintenance, during the course of hearing,
learned counsel for the appellant has placed the salary slip of the
husband for the month of July, 2022 to show that the husband is drawing
a gross salary of Rs.65,710/-. It has been stated that the wife has no
source of income and is completely dependent on the husband who is
employed in Indian Army, therefore, a permanent alimony may be fixed
in terms of Section 25 of the Hindu Marriage Act so as to enable her to
live safely with dignity of womanhood.
16. The Court would not afford to see such spouse seeking sanctuary on
streets at the stake of losing her soul and virtues. The Supreme Court in
Chaturbhuj Versus Sita Bai (2008) 2 SCC 316 held that the object of
maintenance is to prevent the vagrancy and destitution of a deserted
wife by providing her food, clothing and shelter through a speedy
remedy. Therefore, following the law lad down by the Supreme Court
and looking to the market inflation, we deem it appropriate to grant
maintenance of Rs.15000/- per month, which the wife is entitled to
receive from the husband. It is accordingly directed that the husband
shall pay a monthly maintenance of Rs.15,000/- to the wife. Accordingly
a decree be drawn.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Rao
