Smt. Pushpanjali Tamboli vs Satish Kumar Tamboli
2023 Latest Caselaw 266 Chatt

                                     1

                                                                       AFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                          FA(M) No. 116 of 2018

                   Judgment Reserved on 10.10.2022

                   Judgment Delivered on 13.01.2023

    Smt. Pushpanjali Tamboli, W/o Satish Kumar Tamboli, aged about 43
     years, R/o Near Shanti Lodge, Juna, Bilaspur, District Bilaspur, C.G.

                                                                ----Appellant

                                  Versus

    Satish Kumar Tamboli, S/o Dhani @ Dhan Singh Tamboli, aged about
     41 years, Office of High School Mopka, Police Station Sarkanda,
     District Bilaspur, C.G., R/o Village Mopka, P.S. Sarkanda, District
     Bilaspur, C.G.

                                                            ---- Respondent



For Appellant          Mr. R.K. Pali, Advocate.
For Respondent         Ms. Vijaya Laxmi Shroff, Advocate.


                 Hon'ble Shri Justice Goutam Bhaduri &

              Hon'ble Shri Justice Radhakishan Agrawal

                            C A V Judgment

Per Radhakishan Agrawal, J.

1. Appellant-Wife preferred this appeal against the judgment and decree

dated 28.04.2018 passed by the learned Additional Principal Judge,

Family Court, Bilaspur, C.G. in Civil Suit No.206-A/2016, whereby the

suit of husband / respondent for dissolution of marriage has been

decreed and the marriage dated 23.04.2000 of Smt. Pushpanjali /

appellant and Satish Kumar Tamboli / respondent has been dissolved.

2. Averments made in the suit filed under Section 13 of the Hindu

Marriage Act, 1955 (for short 'the Act, 1955') by the respondent /

husband, in brief, are that appellant / wife married the respondent /

husband on 23.04.2000 according to the Hindu rites and rituals. After

marriage, the wife joined the company of the husband and from their

wedlock, one male child and one female child were born. It is alleged

by the husband that wife was posted as Shiksha Karmi Grade-III at

Govt. Primary School, Kathakoni Division Takhatpur, District Bilaspur

and due to illness of her mother, she requested her in-laws that she

wants to reside with the respondent / husband at her parental home.

After the birth of male child, the behaviour of wife, her parents and

sisters completely changed towards husband, they started ill-treating,

abusing him in filthy language and assaulting him. Meantime, in the

year 2004, respondent / husband was appointed on the post of Hindi

Assistant on temporary basis at NTPC Jamnipali, Korba, C.G. and

thereafter in the year 2005, he got the government job and was

appointed on the post of Shiksha Karmi Grade -II at Govt. Middle

School, Bilaspur and was residing in his matrimonial home with the

wife and his children. After some time, family members of the wife

again started misbehaving with the respondent / husband and being

fed up with this persistent ill-treatment, he left the matrimonial home

and was residing separately. In the year 2010, respondent / husband

was posted on the post of Shiksha Karmi Grade - I at Govt. Higher

Secondary School Karanja, Bhilai, District Durg, C.G. where he was

residing separately in a rented house. During his service at Bhilai,

wife visited there and again requested the husband to reside with her

at Bilaspur. On this, husband got himself transferred from Bhilai and

started living at Bilaspur with the wife but the behaviour of the wife,

her parents and sisters did not change towards him. They used to

pressurize the husband to sell the agricultural land, committed

marpeet with him and also extended threat that they would implicate

him in a criminal case. Since the wife continuously treated the

husband with cruelty, she did not discharge her matrimonial

obligations towards the husband and there is no possibility of their

living together, he filed a petition for dissolution of marriage by a

decree of divorce.

3. Appellant / wife in her written statement denied all the adverse

averments made by the respondent / husband and stated that at the

time of marriage, husband was unemployed and due to illness of her

mother, she requested her in-laws to permit the husband to live with

her at her parental home. She never wanted the husband to get

separated from his family. Her family members never treated him with

cruelty, rather took all possible best care of him. As she is a

government employee and her children are small, so she could not

live with the husband at his work place. She also stated that when her

husband got the government job, his behaviour towards her

completely changed. He tortured and harassed her mentally and

physically in connection with demand of dowry, committed marpeet

with her, abused her and also threatened her of life. She was always

willing to live with her husband and was trying to save her marriage.

She never made any complaint to the police as she was under the

impression that the husband would keep her with him and they would

lead a happy married life. With the above averments, the appellant /

wife prayed for dismissal of the suit filed by the respondent / husband.

4. The Family Court considering the pleadings of the respective parties,

the oral and documentary evidence adduced by them, by the

impugned judgment and decree dated 28.04.2018, allowed the suit

and dissolved the marriage performed between the parties.

5. Learned counsel for the appellant / wife submits that the Family Court

was not justified in granting decree of divorce in favour of the

respondent / husband on the ground of cruelty, the said finding is

perverse and contrary to the material available on record. From

evidence of the appellant and her witnesses, it is clear that no cruelty

was ever committed by the wife to the husband, rather it is the

husband who used to harass and threaten the wife for demand of

dowry to purchase the land in the city. In fact, the husband wanted to

contract second marriage and he filed a divorce petition on the false

ground of cruelty but the learned Court below did not consider this

aspect of the matter and overlooking the evidence adduced by the

wife passed the impugned judgment. It is not in dispute that after

passing of the decree of divorce, the respondent has performed

second marriage and through that marriage one female child is born.

For all these reasons, the impugned judgment and decree of the

Family Court is liable to be set aside.

6. On the other hand, learned counsel appearing for the respondent /

husband submits that the Family Court considering all the relevant

aspects of the matter in light of the pleadings of the parties and the

evidence adduced in support thereof has rightly granted decree of

divorce in favour of the husband on the ground of cruelty. As such, no

interference in the impugned judgment and decree is warranted.

7. We have heard learned counsel appearing for the parties, perused

the pleadings and the evidence available on record.

8. Husband / PW-1 Satish Kumar Tamboli stated in his affidavit under

Order 18 Rule 4 of CPC that after about a week of his marriage with

the appellant / wife which was solemnized on 23.04.2000, at the

instance of wife and her father that the appellant's mother is suffering

from illness and needs care, is started living with the appellant at

Juna, Bilaspur. Through their wedlock on 13th May, 2001 a female

child was born and on 23rd August, 2003 a male child was born. While

he was living at his matrimonial home, he was being ill-treated by the

wife, her parents and sisters and, therefore, in 2008, he left the said

house and started living separately. He states that though he

requested the appellant to live with him along with the children but

she straightaway refused. In 2010, he got appointed as Shiksha

Karmi Grade-I in Government Higher Secondary School Karnja,

Bhilai, District Durg and as such he started living in Durg but wife

again refused to live with him. However, on the assurance of the wife

of treating him well and leading a peaceful life, he got himself

transferred to Bilaspur and again started residing with her at Juna,

Bilaspur but there was no change in the behaviour of the wife and her

relatives, they continued to ill-treat him and she refused to discharge

her matrimonial obligations. On 8th May, 2015, when the son of the

appellant's elder sister Vimal Kant Thawait and his brother-in-law

Rajesh Tamboli committed marpeet with him, he left her matrimonial

home and started residing in Mopka in a rented accommodation.

In cross-examination, he admits that he separated himself from

the company of the wife in 2015 while he was living in her parental

home. He also admits in para 23 that the wife was working as

Shiksha Karmi prior to the marriage, she is posted within the limits of

10 km from Bilaspur. He has denied the fact that his father-in-law is

paralyzed and volunteers that his father-in-law was not paralyzed till

2015. In para 24, he admits that in the year 2004, he was working

under a Contractor at Jamnipali and at that time the appellant was

posted at Bilaspur. He admits that while he was working at Jamnipali

for one year, his wife was working in Bilaspur and she alone was

taking care of her parents and his children. He further admits that

since the wife was in employment, she could not accompany him to

Jamnipali or other places wherever he worked. He has volunteered

that she did not want to leave her parents. In para 26, he states that

the wife has made a report against him regarding mental torture and

that on 02.05.2015, he made a complaint to Mahila Thana, Bilaspur

and in that case the wife had appeared. He also admits that his

application was rejected in the Parivar Paramarsh Kendra and that

thereafter both of them appeared before the Parivar Paramarsh

Kendra and were living together as per compromise taken place

there.

9. PW-2 M.L. Pansari, PW-3 Gajendra Chourasiya and PW-4 Manoj

Kumar Tamboli admit that they have submitted the affidavit under

Order 18 Rule 4 of CPC at the instance of the respondent / husband

and that they have no made no reference in the said affidavits as to in

what manner and on what date the respondent / husband was

tortured by the appellant / wife and her family members.

10. Wife / DW-1 Pushpanjali Tamboli in her affidavit under Order 18 Rule

4 of CPC states that prior to the marriage it was agreed upon between

the father of the husband and her father that after marriage, the

respondent would live at her parental home in Bilaspur. Since she was

posted as Shiksha Karmi about 15-20 kms from Bilaspur, she was living

at her parental home with her husband and children peacefully. She

states that no cruelty or torture was ever committed to the husband by

her parents, sisters or herself, rather he was being treated well with due

respect. In fact, it is the husband who used to demand money for

purchasing land and on her refusal, he used to abuse her filthily and

beat her brutally.

In cross-examination, she states that her two sisters are living

separately with their respective families, they are not residing at their

parental home and that she is living at her parental home since the

date when she came back to her parental home after marriage. She

admits that during the said period, the husband would reside at

different places and she has no knowledge as to where he is residing

at present. In para 14, she admits that she never resided with the

husband at any other place except at her parental home and that she

never made any complaint to police station and also made no

application to any Court. She has denied the suggestion that she

used to pressurize the husband for living at her parental home.

11. As per report dated 20.10.2016 of the Family Court, Bilaspur, during

counselling proceedings between the parties, the husband stated that

his wife wants him to live with him in her parental home as Ghar Jamai

and that he is being treated with cruelty by his mother-in-law and

sisters-in-law and, therefore, he is residing separately since October,

2015 and does not want to live with her. During the said proceeding, the

wife stated that she would live with the husband only at her parental

home because she has got him education & job and she would not give

divorce to him. The Family Court came to the conclusion that despite

counselling, there is no possibility of restitution of conjugal rights.

12. As per the general norms of our society, after marriage the bride

resides with the groom at her matrimonial home and she is expected to

discharge her matrimonial obligations. However, in the present case,

from the evidence adduced by the respondent / husband, the report of

the Family Court dated 20.10.2016 and the admission of the appellant /

wife that she has been living at her parental home after marriage since

the date she came there and that she has not resided with the

respondent / husband at any other place except her parental home, it

can safely be inferred that while the husband was living at the parental

home of his wife, he was being treated with cruelty which compelled

him to live separately in the year 2010 at Durg after his appointment as

Shiksha Karmi Grade-I.

13. In the matter of V. Bhagat vs. D. Bhagat (Mrs.) reported in (1994) 1

SCC 337, the Hon'ble Supreme Court held that the Supreme Court held

that mental cruelty in Section 13(1) (i-a) can broadly be defined as that

conduct which inflicts upon the other party such mental pain and

suffering as would make it not possible for that party to live with the

other. In other words, mental cruelty must be of such a nature that the

parties cannot reasonably be expected to live together. The situation

must be such that the wronged party cannot reasonably be asked to

put-up with such conduct and continue to live with the other party. It is

not necessary to prove that the mental cruelty is such as to cause injury

to the health of the petitioner. While arriving at such conclusion, regard

must be had to the social status, educational level of the parties, the

society they move in, the possibility or otherwise of the parties ever

living together in case they are already living apart and all other

relevant facts and circumstances which it is neither possible nor

desirable to set out exhaustively. What is cruelty in one case may not

amount to cruelty in another case. It is a matter to be determined in

each case having regard to the facts and circumstances of that case. If

it is a case of accusations and allegations, regard must also be had to

the context in which they were made.

14. The Hon'ble Supreme Court in the matter of K.Srinivasa Rao Vs.

D.A. Deepa reported in (2013) 5 SCC 226 wherein it has been held at

paragraphs 30 and 31, which read as under:

"30.It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, 2007 4 SCC 511, if we refuse to sever the tie, it may lead to mental cruelty.

31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree."

15. In the matter of Smt. Vijaya Laxmi Soni vs. Raj Kuma Soni

reported in 2009(2) CGLJ 72 (DB), this Court held that when re-union

or restitution of conjual rights becomes impossible between the parties,

dissolution of marriage by a decree of divorce is the only effective

remedy for the welfare of the parties, rejected the appeal and marriage

between the parties dissolved by decree of divorce.

16. The evidence on record goes to show that the appellant / wife is of

rigid nature and has no regards to the matrimonial obligations. During

counselling proceedings in the year 2016, the wife stated that she

would live with the husband only if he would reside at her parental

home. The evidence on record also goes to show that the husband

made all possible efforts to safe his marital life. In the year 2010, after

his appointment as Shiksha Karmi Grade-I, while he was residing in

Durg, C.G. separately being fed up with the persistent ill-treatment

meted out to him at the hands of wife and her relatives, on the

assurance of the appellant / wife of living together peacefully, he again

started living with her at her maternal home but there was no change in

the conduct of the wife and her relatives, he was again treated with

cruelty by them and also beaten by the relatives of his wife in May,

2015 and, therefore, on account of these mental and physical torture,

he did not find it safe to live with her and started living separately.

Keeping in view the principles of law laid down by the Hon'ble

Supreme Court and this Court in the aforesaid matters, the facts and

circumstances of the case, the overall evidence available on record and

conduct of the appellant / wife, it is evident that the appellant / wife

forced the respondent / husband to live in her parental home at Bilaspur

where he was treated by her with cruelty to such an extent which

compelled him to live separately and ultimately file a suit for grant of

decree of divorce on the ground of cruelty.

17. For the reasons stated above, this Court finds no illegality or

perversity in the impugned judgment granting decree of divorce in

favour of the respondent / husband.

18. In the result, the appeal being without any substance is liable to be

dismissed and is, accordingly, dismissed.

19. A decree be drawn up accordingly.

                 Sd/-                                    Sd/-
           (Goutam Bhaduri)                      (Radhakishan Agrawal)
               Judge                                   Judge



Akhilesh