Chattisgarh High Court
Jayesh Fedrik vs Smt. Vinita Fedrik on 2 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 139 of 2018
Jayesh Fedrik, S/o Shri John Fedrik, Aged About 30 Years R/o
Sarvamangla Road, Mission Road, Korba, Tahsil And District Korba,
Chhattisgarh
---- Appellant
Versus
Smt. Vinita Fedrik W/o Jayesh Fedrik, Aged About 25 Years R/o Daihan
Para, Behind Sector 7, Ward No. 27, Balco, P. S. Balco, Tahsil And
District Korba, Chhattisgarh
---- Respondent
FAM No. 168 of 2018
Jayesh Fedrik S/o Shri John Fedrik, Aged About 32 Years R/o
Sarvamangla Road, Mission Road, Korba, Tahsil And District Korba
Chhattisgarh
---- Appellant
Versus
Smt. Vinita Fedrik W/o Jayesh Fedrik, Aged About 25 Years R/o Daihan
Para, Behind Sector - 7, Ward No. 27, Balco, P.S. Balco Nagar, Tahsil
And District Korba Chhattisgarh
---- Respondent
For Appellant : Mr. Ravindra Agrawal, Advocate
For Respondent : Mr. Arvind Shrivastava, Advocate along
with Mr. Akash Shrivastava, Advocate
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
Judgment on Board
2
Per Goutam Bhaduri, J.
02/01/2023
1. Both these appeals are being heard and decided together as the
facts involved in both the cases are same.
2. FAM No.139 of 2018 has been filed against the judgment and
decree dated 18.05.2018 passed by Family Court Korba in Civil
Suit No.231-A/2015 whereby the application for divorce filed by
the husband was dismissed and FAM No.168 of 2018 has been
filed against the judgment and decree dated 21.06.2018 passed by
the Family Court, Korba in Civil Suit No.76-A/2016 whereby the
suit filed by the appellant against the decree of restitution of
conjugal rights passed in favour of the wife/respondent was
dismissed.
3. The brief facts of the case are that:-
the parties were married on 10.11.2010 according to the
Christian rituals. It is alleged by the husband that after
marriage, the wife without any rhyme or reason used to leave
the matrimonial home and false allegations were attributed to
husband. He further stated that when wife used to stay back
at parental home without any reason, the husband made
several complaints to the different authorities including the
Collector and eventually a legal notice was served to her in
the month of June, 2011 calling her to resume back the
company but eventually she failed to come back;
it was further stated that in proceedings under Section 125
Cr.P.C. the maintenance to the wife was disallowed taking
into the fact that without any sufficient cause or reason she
was living away from the husband and thereby has deserted
the husband without any lawful cause. Eventually, the
husband filed an application for divorce on the ground of
Section 10 (ix) of the Indian Divorce Act, 1869 (hereinafter
referred to as the Act, 1869) as also on the ground of cruelty;
the wife on the other hand stated that after the marriage she
stayed in the matrimonial home for one year thereafter after
consuming liquor the husband used to torture the wife and
abused & beat her and demanded Rs.60,000/- for motorcycle.
It was alleged that since the other friends of the husband were
gifted a motorcycle in their marriage, the husband too
demanded the same on the ground that in absence thereof his
image in the society is tarnished and she was forced to leave
her matrimonial home;
the wife further pleaded that the family members of the
husband too used to pass taunted remarks that during the
marriage they were not given proper gifts as it was expected
from them. She further stated that in the meanwhile she
became pregnant and was not being given proper treatment
and at the behest of her mother, she was admitted to the
hospital wherein she got the treatment. She further stated that
the husband with few of the members of the community came
to her house, offered that she may take Rs.1.00 Lakh and give
a divorce, but she refused as she wanted to stay along with
husband; and
the wife further stated that on the false allegations, certain
reports were made by the husband before the police and when
the wife went along with her mother to join the company at
her matrimonial home, she was not allowed to enter the
house, as such she had to come back. Therefore, on these
grounds the petition of divorce was filed and in the
consequence the wife has filed the petition for restitution of
conjugal rights.
4. Learned Family Court after evaluating the evidence adduced by
the parties allowed the petition for restitution of conjugal rights
filed by the wife and dismissed the appeal seeking divorce by the
husband.
5. Learned counsel for the appellant/husband would submit that after
marriage the wife without any rhyme or reason frequently used to
leave the company of the husband so much so the husband has to
make complaint to the Collector. He would further submit that
when an application under Section 125 Cr.P.C. was filed wherein
maintenance was claimed by the wife the said application was
dismissed on the ground that she without any reason had left the
company of the husband. He would further submit that eventually
when the wife did not join after all the request as per the evidence
a legal notice was served to her on 14.06.2011 (Ex. P-4) and
despite that the wife did not join the company of the husband and
at last the application was filed in the month of December, 2015
seeking divorce. He would further submit that the evidence of the
appellant - Jayesh Fedrik (AW-1) would show that all efforts were
made by him to bring back the wife but without any reason she
refused to come back consequently it would amount to desertion
without any lawful cause and the husband was entitled to get a
divorce under Section 10 (ix) of the Act, 1869.
6. Per contra, learned counsel for the respondent/wife would submit
that the pleading and the evidence of the husband itself would go
to show that the wife was subjected to torture for various reasons
and she was thrown out of matrimonial home, as such she was
forced to stay at her parental home. He would further submit that
in order to create evidence the complaints were made to the
authorities as also the legal notice, but when it actually came to
materialize, the husband failed to abide by his own words and did
not allow the wife to join back, therefore, the grounds of desertion
cannot be made out. He would further submit that though the
ground of cruelty was stated but nothing has been placed on
record or evidence has been adduced that any cruelty as alleged
was ever committed by the wife to seek divorce.
7. We have heard learned counsel for the parties at length and
perused the evidence.
8. The marriage in between the parties took place on 10.11.2010 and
out of the marriage a child was born. Predominant allegation as
per the pleading shows that the wife has levelled false allegations
of demand of dowry and has left the company of the husband. It
was further submitted that in an application filed under Section
125 Cr.P.C. the wife was not granted any maintenance for the
reason that wife deserted the husband and she left the company of
the husband and was living separately without any sufficient
reason.
9. In rebuttal to this allegation, the wife, on the other hand, stated
that the demand of Rs.60,000/- was made for purchase of a
motorcycle by husband and his family members. Since the family
of the wife was not financially well oft to the extent, they could
not fulfill such demand, which resulted into the action that the
wife was forcefully driven away from her matrimonial home, as
such she was forced to stay back at her parental home.
10. The husband in his application at para 4 has pleaded that due to
torture by the mother, father and the sister of the non-applicant it
was informed to her parents, she was taken back by them. During
the course of submission, it is submitted that there is a
typographical mistake about allegations of torture by the family
members of the wife and word Anavedak should be read as
Avedak. Even if the pleading when are interpreted in the way as
has been proposed will not help the husband/ appellant but the
averments have been made by the husband that the wife was
subjected to torture by the mother, father and the sister of the
husband as such she was taken away by her parents. So the over
all reading of the pleading would lead to show that the wife
herself has not left the company or volunteered to leave company
of husband but because of certain torture meted out to her, she was
forced to stay at her parental home. Apart of admissions by
pleadings. Even if such pleadings are ignored, what is the case in
hand we would like to venture into it by evaluating evidence.
11. The husband Jayesh Fedrik (AW-1) has stated that after the wife
became pregnant and after delivery she went back to her parents
and did not return, as such he went along with few of the society
members to bring her back but she refused. The husband denied
the suggestion to him in the cross-examination that he went along
with society members to bring back the wife but offered for a
divorce in lieu of the amount. Against this evidence, the wife
Smt. Vinita Fedrik (DW-1) stated that the husband had made
consistent demand of Rs.60,000/- and condition was put that
unless such amount is paid, she would not be allowed to enter into
her matrimonial home. She admitted the fact that with few of the
society members, the husband came and thereafter she joined back
at her matrimonial home but subsequently she was again being
tortured and meanwhile she became ill for which she requested to
be examined in the hospital but it was refused.
12. Narrating further incident, the wife has stated that she went to
certain hospital along with her co-sister (Jethani) who forced her
to take some contraceptive pills but the wife refused to the same
without the permission of the doctor and under these
circumstances when she forced, some scuffle took place. This
evidence when read along with statement of Jayesh Fedrik (AW-
1), he stated that on 28.03.2012 the husband made a complaint to
the police that the wife after pushing his sister-in-law had gone
back to her parental home. Smt. Kiran Paul (AW-2) has also
stated in her evidence that after when she came back to her in-
laws place she accompanied the wife to the hospital but while
going back she forcefully went away to her parental home.
13. The state of events as has been narrated the clear inference can be
drawn that after some society members intervened wife came back
to her maternal home and thereafter after some incident she again
went back to her parental home. It was submitted that she came
for a while for her matrimonial home to go to hospital. We are
unable to understand and accept such contention for the reason if
she wanted to go to hospital, it was not necessary to come to
matrimonial home when she was not at at her parental home. It
was not necessary for her to take into loop the family members of
her matrimonial home for those reasons alone. Consequently, the
statement of the wife and her mother Glorious Claimans (DW-2)
appears to be more logical to accept that she was at her
matrimonial home when she went for check up to the hospital and
after some incident and dispute she again went back to her
parental home.
14. The husband has further stated that a legal notice was served on
14.06.2011 (Ex. P-4) to the wife to resume the company to come
back to her matrimonial home. The husband Jayesh Fedrik (AW-
1) in his statement further stated that on 28.03.2012 he made a
report to the police at Korba that the wife has gone back forcefully
to her parental home. The said evidence when further are
examined along with counseling papers which is marked as Ex. D-
2 which purport that a counseling took place in between the
parties on 25.11.2012 before the Parivar Paramarsh Kendra,
Korba. In the finding of such counseling it records that the wife
has left the matrimonial home as she was subjected to torture and
assault was also made on her but forgetting everything she wants
to go back with her husband. Whereas the husband without
assigning any reason stated that at any cost he do not want to keep
the wife along with him. The said statement when are examined
along with the statement of Smt. Vinita Fedrik (DW-1) wherein
she stated that despite she was subjected to torture she did not
make any report as she wanted to save her marriage with a hope
that everything would be alright after some time but the demand
of dowry continued. This state of events shows that wife was
subjected to cruelty for same reason or other.
15. The statement of mother Glorious Claimans (DW-2) would show
that the appellant/husband at one time came in a drunken state to
their house and offered an amount of Rs.1.5 Lakhs to seek a
divorce but the respondent/wife since wanted to go back to her
matrimonial home, she did not agree to it. So the evidence of the
witness Smt. Vinita Fedrik (DW-1) & Glorious Claimans (DW-2)
are corroborated and supported by the statement in family
counseling center, Korba, wherein the wife stated that she wanted
to go with her husband but the husband refused.
16. Under these circumstances, it cannot be said that the wife has
deserted the husband without any lawful cause. The wife in her
petition before the family Court for restitution of conjugal rights
has maintained the stand that she was subjected to some taunted
remarks and cruelty and despite all that she wanted to stay back
with her husband. Nothing on record has come in the evidence to
draw any adverse inference to infer that the wife never wanted to
stay in the company of the husband.
17. Therefore, after over all assessment of the evidence, we are
of the view that the finding arrived at by the Family Court is well
merited in the both the cases, which do not call for any
interference.
18. Accordingly, both the appeals fail and are dismissed,
leaving the parties to bear their own cost.
19. A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
Ashu
