Chattisgarh High Court
Smt. Asha vs Ashok Tiwari on 6 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
F.A. (M) No. 130 of 2018
Judgment Reserved on : 14.12.2022
Judgment Delivered on : 06.01.2023
Smt. Asha W/o. Ashok Tiwari, aged about 40 years, R/o House
No. 342 M.D. Duplex, near Pragati Maibar Borsi, P.S. Pulgaon,
Tahsil and District Durg (C.G.)
---Appellant
Versus
Ashok Tiwari, S/o. Late Bhagwat Prasad Tiwari, aged about 42
years, R/o. Plot No. 920, 921, Near Pani Tanki, Aditya Nagar
Tahsil and District Durg (C.G.)
---- Respondent
For Appellant : Mr. Rajendra Kumar Patel, Advocate
For Respondent : Mr. Anand Kesharwani, Advocate.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
CAV JUDGMENT
Per N.K. Chandravanshi, J.
1. This is an appeal preferred by appellant/wife against the
judgment & decree dated 16.02.2018 passed by Principal Judge,
Family Court, Durg (C.G.) in Civil Suit No. 166 / 2015, whereby
application preferred by appellant/wife seeking decree of divorce
has been dismissed.
2. Essential facts leading to filing of this appeal, as projected by
the appellant/wife, are that appellant & respondent are legally
wedded spouse, their marriage was solemnized on 27.04.2002 as
per Hindu rites and rituals. It is stated that before their marriage,
brother of appellant and sister of respondent had also got married,
thus, marriage of appellant and respondent/husband was "xksjkoV"
marriage. Prior to marriage, appellant /wife was working as
Government Employee and she was posted at Tilda. At the time of
filing aforesaid application, she was posted in Govt. Lal Bahaduri
Shastri Hospital, Supela, Bhilai on the post of J.N.M.. After few days
of marriage, respondent/husband started quarreling, abusing and
assaulting her and also doubting her character, since husband did
not take her in his parental house, therefore, they started living in
rented house at Borsi, Durg, there also husband used to abuse and
insult her by saying that she was having affair with five persons, he
also tried to throttled her twice and thereby he maligned her
reputation in society. He used to go her work place and there also
he humiliated her on many counts including demand of money from
the appellant/wife. Due to such persistent conduct of husband, she
was facing immense mental torture and suffers from depression and
also feels danger to her life from respondent/husband. Prior to one
year of filing application, they were living in a house but did not have
any physical relation. Due to all these reasons, appellant/wife is not
ready to lead her marital life further with the respondent/husband, as
he abused and threatened her to kill repeatedly over phone, hence,
decree of divorce may be granted to her.
3. In reply, respondent/husband, has denied all the allegations
levelled against him and has pleaded that at the time of marriage
since she was posted at Govt. Hospital, Tilda, therefore, he used to
do up-down to Tilda from Durg. Whenever, she come to Durg,
instead of going her matrimonial home, she directly went to her
paternal home. She always has arrogant attitude, as she was
posted in Government job, therefore, she never respect him, rather
she treat him like a servant. Consequently, she gave legal notice
dated 13.07.2005 to respondent/husband alleging false allegation
that he is having relation with some other married woman and,
therefore, he avoided her (appellant/wife).
3.1. Husband replied to the notice and due to dual relation, he lived
with appellant/wife, despite that her behaviour and attitude towards
husband did not change. She not only used to absent from duties in
Govt. Lal Bahadur Shastri Hospital, Supela, Bhilai but also not came
to the house for 2-3 days, and on being asked for the same, she
quarreled, humiliated and also assaulted him. She also threatened
him to implicate in the false cases. Respondent further pleaded that
appellant/wife has ended her relation with her brothers over the
property dispute and also trying to close her relation with the
respondent/husband. He has pleaded that neither he has harrassed
or misbehaved with the appellant/wife nor doubted her character,
rather she herself has ousted him whereas he still wants to enjoy
marital life with the appellant/wife, therefore, she is entitled to get
relief, as sought for by her.
4. Perusal of the impugned order dated 16.02.2018 shows that
after filing of divorce petition by appellant/wife, respondent/husband
filed an application under Section 9 of the Hindu Marriage Act, 1955
(henceforth "Act, 1955") for Restitution of conjugal rights and,
therefore, learned Principal Judge of Family Court has decided both
the applications by common order dated 16.02.2018.
5. To prove her case, the appellant/wife has examined herself as
(AW-1) and two other witnesses namely Venkteshwar Rao (AW-2)
and Shailendra Choubey (AW-3), she has also filed document
(Ex.P-1), whereas, respondent/husband examined himself as
(NAW-1) and two other witnesses namely Lalit Dubey (NAW-2) &
Upmanu Dwivdei (NAW-3) and exhibited total 9 documents i.e. reply
to notice (Ex.D-1) and medical documents of the appellant/wife
(Ex.D-2 to Ex.D-9).
6. Learned Principal Judge, Family Court, Durg, on the basis of
averments made by parties, framed issues in respect of cruelty by
respondent/husband towards wife/appellant, as she has claimed but
the same was decided against her and declined to grant decree of
divorce in her favour, whereas the application filed by
respondent/husband under Section 9 of the Act, 1955 was allowed
and directed the appellant/wife to restore her marital life with
respondent/husband. Hence, appellant/wife has filed instant appeal
challenging dismissal of her application for granting decree of
divorce.
7. Learned counsel appearing for the appellant/wife would submit
that conduct & behaviour of respondent/husband was not well with
the appellant, because he doubted her character and alleged that
she is having illicit relation with 4-5 persons and, therefore, he
always used to abuse and beat her. It is further submitted that
respondent/husband used to go her work place and there also he
humiliated her on many counts including demand of money from the
appellant/wife, due to such persistent behaviour of
respondent/husband, wife did not feel her life safe from him and
suffering from depression also. These facts have been proved by
the appellant/wife and her witnesses, but learned Family Court has
not appreciated those evidence in accordance with the principles
governing the field of appreciation of evidence. It is submitted that
the impugned judgment & decree is baseless, perverse, erroneous
and against the evidence available on record, therefore, decree of
divorce may be granted to the appellant/wife by allowing instant
appeal.
8. Per contra, learned counsel for the respondent/husband
would submit that application filed by the appellant/wife is
baseless and there is no cogent evidence to support her case, as
such, impugned judgment & decree, being well merited, does not
call for any interference of this Court.
9. We have heard learned counsel for the parties and perused
the impugned order, record of the court below and other material
available on record with utmost circumspection.
10. Smt. Asha Tiwari (AW-1), in her examination-in-chief, has
reiterated her pleadings by saying that respondent/husband has
doubted her character that she is having affair with someone and
used to quarrel with her and he abused, assaulted and humiliated
her on various counts. She has further deposed that since
respondent/husband was not ready to reside in his parental house
alongwith her, therefore, they took rented house at Borsi, Durg and
residing therein, there also respondent/husband abused, assaulted
and humiliated her. In day time, he resided at his parental house at
Aditya Nagar, Durg and only in the night he joined her in their
house. She has further stated that about four times, husband left
her alone for about 6 - 7 months, therefore, on being given notice
dated 13.07.2005 to him, respondent/husband started living with
her but his attitude became more cruel towards her and he used to
assault her frequently. The husband also alleged that she is
having affair with 4-5 persons, he also went to her work place and
insulted there also. Two times, he throttled her and due to such
conduct of respondent/husband, her life is not safe with him. She
has further stated that despite living in the same house, they do
not have any physical relation since April, 2014.
11. Vyankateshwar Rao ( AW-2), who is fellow-employee of the
appellant/wife, in his examination-in-chief, has supported the
statement of the appellant/wife that respondent used to come in
Govt. Hospital, Supela, Bhilai and demanded money from the
appellant/wife and alleges that she is having affair with five
persons, but in his cross-examination (paragraph 9), he could not
have stated that on which date, respondent/husband had gone to
Hospital and how much money, he demanded. He has also stated
that neither he tried to intervene between them nor asked reasons
with regard to their dispute. He has also stated in his cross-
examination that only at once he had seen the
respondent/husband in Supela Hosptial, Bhilai. Thus, neither he
could have stated any date in respect of quarrel between appellant
& respondent at Govt. Hospital, Supela, Bhilai nor his conduct
seems to be normal, as despite being fellow employee of appellant
and even office bearer of Employees Union, neither he intervened
nor tried to know the reason about the quarrel. As per his cross-
examination, he had seen the respondent/husband only, at once at
Supela Hospital, Bhilai, therefore, his statement made in
examination-in-chief cannot be held reliable. Hence, appellant did
not get any support from this witness.
12. Shailendra Choube (AW-3), who is nephew of appellant, in
his examination-in-chief, has supported the statement of
appellant/wife up to some extent that the respondent is a skaptical
type person and doubted character of the appellant/wife. He has
also stated that appellant/wife used to inform him that whenever
she did not give money, as demanded, he used to abuse and
assaulted her. He had also tried twice to throttle her. This witness
is nephew of the appellant/wife but in cross-examination, he has
admitted that he do not know how was marital life of the appellant
and the respondent. He has also admitted that he did not know
that whether appellant/wifed has ever made complaint in the police
station against the respondent and also do not know that in the
year 2015, appellant has ousted her husband from her house or
not. Aforesaid admission of this witness and not knowing about
the material facts, being nephew of appellant/wife, shows that his
statement is based only on the information given by the
appellant/wife and, thus, he is hearsay witness, therefore,
appellant/wife does not get any support from this witness also.
13. Respondent/husband - Ashok Tiwari (NAW-1) has stated in
his deposition that all the allegations levelled against him by the
appellant/wife is baseless, as neither he has abused or assaulted
her nor he has humiliated her ever. He has also stated that due to
dual relation, he always tried to adjust with the appellant, despite
that her arrogant and neglecting behaviour towards him was not
changed. He has further stated that neither he has doubted her
character nor alleged her in this regard, rather, wife herself has
sent legal notice (Ex.P-1) to him, wherein she has levelled false
allegation upon him that he is having relation with one married
female, about which she has not only heard but seen also.
Nothing has been elicited in his cross-examination to discard his
statement made in his examination-in-chief.
14. Lalit Dubey (NAW-2) is brother of appellant and Upmanu
Dwivedi (NAW-3) is also relative of both the parties. They have
fully supported the statement of respondent/husband.
15. Lalit Dubey (NAW-2) and Upmanu Dwivedi (NAW-3) have
stated in their depositions that respondent/husband has neither
misbehaved with the appellant/wife nor doubted her character,
rather appellant herself had made false allegation against the
respondent/husband that he is having illicit relation with some
other woman. Both these defence witnesses have specifically
stated that from July, 2015, wife herself has ousted the husband. It
seems that relation of both the parties was much more
deteriorated, as other person namely Navneet Mishra came in the
life of appellant/wife, as has been stated by her brother Lalit Dubey
(NAW-2).
16. So far as alleged misconduct & misbehaviour of
respondent/husband, that he abused and assaulted many times to
appellant/wife is concerned, wife herself has admitted that she has
never made any complaint against the respondent. If husband
would have misbehaved her for such a long period by abusing,
beating and insulting or any other counts, then at least, at once in
a while she would have made complaint to the police or elsewhere,
but she has never made any complaint against husband, hence,
allegations levelled against the husband in respect of causing
cruelty meted out to her is not found to be proved, rather it has
been proved by defence witnesses that she herself has levelled
false allegations against the respondent/husband that he is having
illicit relation with some other married woman and she herself has
ousted husband from their rented house.
17. Evidence available on record would show that
respondent/husband has not caused any cruelty with
appellant/wife but her own behaviour does not seem to be
affectionate and cordial with him. Hence, we do not find any
illegality or infirmity in the impugned judgment & decree warranting
interference by this Court.
18. As a fallout and consequence of the aforesaid discussion,
the First Appeal (M), being devoid of substance, is liable to be and
is hereby dismissed. Let a decree be drawn up accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
Amit
