Smt. Narmada Gupta vs Manoj Gupta
2022 Latest Caselaw 5904 Chatt

                                       1

                                                                         NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                              FAM No. 26 of 2018

      Smt. Narmada Gupta, W/o Manoj Gupta, Aged About 38 Years, R/o Village-
       Kudukela Bazapara, Police Station- Chal, District- Raigarh, Chhattisgarh.

                                                                  ---- Appellant

                                    Versus

      Manoj Gupta, S/o Shri Daleshawar Gupta, Aged About 41 Years, R/o
       Village-Kansabel, Tehsil- Kansabel, District- Jashpur, Chhattisgarh.

                                                                ---- Respondent



For Appellant             Mr. Dharmesh Shrivastava, Advocate.

For Respondent            Mr. J.K. Saxena, Advocate.


                  Hon'ble Shri Justice Goutam Bhaduri &

                 Hon'ble Shri Justice Radhakishan Agrawal

                             Judgment on Board


Per Goutam Bhaduri, J.

21/09/2022

1. Heard.

2. This appeal is under Section 19 (1) of the Family Courts Act, 1984 is

preferred by appellant-wife against the judgment and decree dated

11.01.2018 passed in Civil Suit No.20-A/2017 by which learned

Judge, Family Court Jashpur, District Jashpur (CG) allowed petition

filed by respondent husband under Section 13 (1-A) of the Hindu

Marriage Act, 1955 (for short 'the Act of 1955') for dissolution of his

marriage with respondent wife by way of a decree of divorce.

3. Brief facts of the case, as pleaded by husband before the Court below,

are that the marriage between appellant and respondent was

solemnized on 06.12.2001 as per social customs and out of their

wedlock, two sons were born. Since 2008, wife is living separately in

her matrimonial home without any sufficient cause. The husband filed

petition for divorce, in which wife appeared and at the stage of

recording of evidence, she filed an application for stay of proceedings.

When she did not appear and adduce any evidence, ex-parte

proceeding was drawn against wife on 06.01.2015 and thereafter ex-

parte order was passed on 29.1.2015. Subsequently on 18.7.2017

said ex-parte order was set aside. Before filing divorce petition,

husband filed an application under Section 9 of the Act of 1955 for

restitution of conjugal rights, which was decreed in favour of husband

and wife was directed to resume cohabitation with husband, but the

wife did not join the company of her husband and eventually the

execution proceeding for restitution of conjugal rights was also

dismissed due to non-cooperation of wife, and the wife is living

separately from the husband, therefore, he is entitled for decree of

divorce.

4. The wife in her reply, stated that she was subjected to inhuman torture

and disrespect by husband. Husband used to demand money and on

account of non-fulfillment of demand, he used to abuse, beat and

subjected her physical and mental harassment. Due to harassment of

husband and for the fear of life, she along with her children left

matrimonial home and started residing at her parental home. Due to

threats given by husband, the wife did not appear in proceedings of

restitution of conjugal rights and therefore, an ex-parte decree was

passed in favour of husband.

5. On the basis of pleadings of the parties, learned Family Court framed

three issues. Issue No.1 relates to whether the wife is not discharging

her marital obligation without any sufficient cause. This issue was

answered by family Court in affirmative and consequently, decree of

divorce was granted to the husband.

6. Learned counsel for appellant wife would submit that the learned

Court below failed to consider the fact that in fact the wife was

subjected to torture by the husband and therefore, there was sufficient

reason with wife for not joining company of the husband. He further

submits that because of torture meted out to wife, she was living

separately at a distance of 200 km and due to threats given to her, she

could not attend the Court where application for restitution of conjugal

right was filed. Eventually, she could not join. He further submits that

arrears of maintenance, which has been ordered and is more than

Rs.8 lakh, has not been paid by husband. This conduct of husband

itself shows that he failed to maintain his wife.

7. Per contra, learned counsel for the respondent Husband submits that

the wife herself had left the company of husband without any sufficient

cause. It is stated the wife filed complaint under Section 498A of IPC

alleging false allegation against the husband, based on which criminal

case was registered against husband, but he was acquitted in such

criminal case, which goes to show that false allegation was made

against the husband by the wife. Under these circumstances, husband

was entitled for divorce and hence, the order of the Court is well

merited.

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

pleadings and the evidence.

9. Respondent husband was examined as PW-1 before the Court below.

He deposed that after marriage in the year 2001, two sons were born.

The relations between the two were cordial till 2008. In the year 2008,

on being called by Sita Bai, mother of the wife, he along with his wife

went to village Kudekela where he stayed for two days and on the

request of his mother-in-law, he left his wife and children there and he

came back alone. Thereafter, he waited for return of his wife from

village Kansabel for some time and when she did not return for

sufficient long time, he made various attempts to bring her back but

she did not return. It is stated that he served notice through his

advocate to wife calling upon her to join his company, but she did not

join. Further, he has stated that he filed a petition under Section 9 of

the Act of 1955 for restitution of conjugal rights and in which restitution

order was passed on 31.07.2009 (Ex.P-5) by the Family Court

directing the wife to join company of the husband. He further stated

that thereafter he filed an application for execution of decree of

restitution of conjugal rights, but she did not join instead lodged report

against the family members under Section 498A of IPC wherein

eventually an acquittal order was passed on 16.05.2012, which is

marked as Ex.P-4.

10. Evaluating the aforesaid facts, reading of the order for restitution of

conjugal rights and judgment of acquittal under Section 498A of IPC

would show that when the wife was asked to join the company, she

lodged report against the respondent husband and his family

members wherein eventually acquittal order was passed. Case like

this, as held in Rani Narasimha Sastry v. Rani Suneeta Rani,

reported in 2019 SCC OnLine SC 1595, the Hon'ble Supreme Court

observed that when a prosecution was launched against the husband

on a complaint made by the wife under Section 498A of IPC making

serious allegations in which the husband had to undergo trial which

ultimately resulted into acquittal, then in such a situation, it cannot be

accepted that no cruelty was meted out on the husband, therefore, he

can make a ground for grant of decree of dissolution of marriage as

mentioned under Section 13 (1) (i-a) of the Act of 1955. In instant

case, perusal of judgment of acquittal dated 16.5.2012 (Ex.P-4) would

show that apart from respondent Manoj, his father Mahaveer Prasad,

mother Smt. Rajkumari Gupta, brothers namely Arun Kumar Gupta,

Pramod Kumar Gupta, Mukesh Kumar Gupta, Sandeep Gupta and

sister Seema Gupta, were also arrayed as accused in Criminal Case

No.477/09, which eventually culminated into their acquittal by trial

Court. Furthermore, from the statement of husband PW-1, it is

apparent that it is the wife who left company of husband without any

reason since 2008.

11. The wife (DW-1) in her reply/statement stated that sometimes

husband used to demand Rs.50,000/-, sometimes Rs.30,000/- and

sometimes Rs.3,00,000/- and on non-fulfillment of demand, he used

to subject her to cruelty by beating and abusing her filthily, which has

constrained her to leave the company of husband. This issue of

demand of money has been set at rest as the acquittal order was

passed on the complaint filed by the wife which eventually attained its

finality and therefore, the fact that wife was living separately for valid

reason was not established. Further, in the cross-examination of her

statement, the wife (DW-1) has admitted that she is aware about the

fact of passing of decree of restitution of conjugal rights under Section

9 of the Act of 1955, but she did not resume company of her husband

in compliance thereof as she had already lodged FIR against her

husband and therefore, she does not want to reside with him. She has

further admitted that no effort was made by her or through her family

members to go and live with the husband. She also admitted that

neither she got convened society meeting nor she lodged any

complaint in police station in respect of assaults made by her

husband.

12. The overall conduct of appellant wife would show that she is living

separately since 2008 and despite knowing that an order for restitution

of conjugal rights was passed against her, she did not join company of

the husband and thereby she had failed to honour the said decree. In

backdrop of the facts of case, an inference can be drawn that the wife

has deserted her husband and is residing separately for more than 13

years with her parents without any sufficient reason. So, after

evaluation of the facts, we are of the opinion that the impugned

judgment and decree passed by the Court below granting decree of

divorce to the husband do not call for any interference. Accordingly,

the impugned judgment and decree passed by the Court is hereby

affirmed.

13. Now coming to the grant of alimony to wife. During the course of

hearing before this Court, the appellant and the respondent both were

directed to place on record their source of income as also the assets.

Consequently, the wife her affidavit with covering memo dated

7.9.2022 stating that she does not have any source of income except

maintenance amount being paid by respondent-husband. She has

given details of income and properties of husband. Respondent-

Husband also filed his affidavit stating that he earns Rs.70,000/- per

month from tractor trolley and construction equipments (JCB).

Further, he owns land bearing khasra No.368 ad-measuring 0.573

hectare and Khasra No.482/1 ad-measuring 0.430 hectare situated at

village Naryardand Tahsil Bagicha District-Jashpur (CG); land bearing

Khasra No.191/5 ad-measuring 0.047 hectare, which is self-acquired

property of husband situated in village Kansabel on which he

constructed a house (2BHK) in an area of 1000 sq. ft.

With respect to tractor-trolley bearing registration No. CG14-E-2074

and JCB machine bearing registration number CG10-DA-3133, it is

stated that the same have been purchased by availing finance facility

from two different financial institutions i.e. Magma ITL Finance and

HDB Finance Service Ltd. and he is paying monthly EMI of

Rs.11,220/- and Rs.28,647/- respectively. This apart, husband is

paying EMI of Rs.11,200/- per month as against home loan of

Rs.13,10,000/- obtained from State Bank of India. As per affidavit,

approximately Rs.8,00,000/- is to be paid to the wife as arrears of

maintenance.

14. From the documents relating to income and liabilities filed by both the

parties along with affidavits, it is apparent that husband owe liability of

more than Rs.8,00,000/- towards the wife and children. Apart from

monthly salary of Rs.70,000/-, the husband earns considerable

amount as house rent. Accordingly, it is directed that respondent

husband shall pay maintenance amount of Rs.20,000/- per month to

appellant wife as permanent alimony amount. In respect of the arrears

of maintenance amount, appellant wife would be entitled to recover

the same by attachment of movable and immovable properties of

respondent husband.

15. With such observation appeal stands disposed off.

                     Sd/-                                       Sd/-

              (Goutam Bhaduri)                       (Radhakishan Agrawal)
                  Judge                                    Judge



Nisha