Chattisgarh High Court
Mahesh Ray vs Smt. Ratna Mala Ray on 16 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 9 of 2019
Reserved on 3-1-2023
Delivered on 16-1-2023
Mahesh Ray son of Shri Tenjin Prasad, aged about 42 years, R/o.
Subhash Nagar, PS Gandhinagar, Tahsil Ambikapur, distt. Surguja
CG
---- Appellant/Applicant
Versus
Smt. Ratna Mala Ray, D/o. Late Shri Vivekanand Ray, aged about 38
years, R/o. Subhash Nagar, PS Gandhinagar, Tahsil Ambikapur, Distt.
Surguja CG
---- Respondent/Non-applicant
For Appellant : Mr. Sanjeev Verma, Adv.
For Respondent : None, though served.
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 the appellant/husband
against judgment and decree dated 7-8-2019 passed by the Judge,
Family Court, Ambikapur (CG) in Civil Suit No. 172A/2014 whereby
application preferred by the appellant/husband under Section 13 of the
Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act, 1955'),
for grant of decree of divorce, has been dismissed.
2. Facts of the case, in brief, are that both the parties are
legally wedded spouses. Their marriage was solemnized on 13-5-1992
and they have 4 children. It is alleged by appellant that since beginning
of their marriage, respondent-wife was under influence of her mother.
On being asked by her, she frequently used to go to her mother's
house, when appellant-husband went to bring her back, respondent
and her mother insulted him saying that he is not suitable husband for
respondent. She would not lead further marital life with him and also
not ready to lead her life serving parents of husband and children. Due
to such persistent insulting and humiliating behaviour of respondent-
wife, husband was in mental depression, therefore, in the year 2011,
he had resigned from police service, despite efforts made by him and
his relatives, conduct and behaviour of wife did not change. In the
month of March, 2013, in absence of appellant and his mother, wife
along with children left his house and thereafter she is residing along
with their children in her parental house. Despite efforts made by
husband to bring them back, respondent did not join his company,
thus, she is living part from husband, therefore, husband filed
application seeking decree of divorce on the ground of cruelty.
3. In reply, respondent-wife has denied all the allegations
leveled and has submitted that neither she nor her mother has
humiliated or insulted appellant, nor she herself has left his company. It
is pleaded that appellant-husband is police constable, therefore, he
always misbehaved with respondent and their children and used to
harass them by beating also. Due to his such conduct, she along with
children were facing mental pressure as they were living there in fear,
which adversely affected the children. Many times, appellant did not
return home for long period. In the month of April, 2013 after
completion of examination of children, respondent-wife went to her
mother's house, therefore, appellant-husband got angered and
refused to keep her and children in his house. On being complaint
made by respondent-wife in Mahila police station, Ambikapur,
counselling was done, appellant was also explained by family and
social members , despite that, he was not ready to keep them with him.
Therefore, father-in-law of respondent had managed residential
accommodation and means for them. It is further pleaded that since
August, 2013, appellant has kept wife (namely Basanti) of brother of
respondent as concubine in his house and he is residing with her as
husband and wife, therefore, he has deserted respondent and their
children, thus, she is compelled to live apart from appellant-husband by
his own. Therefore, he is not entitled for grant of any relief sought for
by him.
4. On the basis of pleading made by both the parties, issues
were framed by learned Family Court and after affording due
opportunity of hearing to both the sides including leading evidence,
learned Family Court after considering the evidence, declined to grant
decree of divorce in favour of the appellant-husband and dismissed his
application. Hence, this appeal has been filed by the appellant-
husband.
5. Learned counsel appearing for the appellant-husband
would submit that conduct and behaviour of respondent was not well
with husband, as she was under influence of her mother and both of
them used to insult him, she frequently used to go to her mother's
house and never take care of appellant-husband, because she wanted
to lead independent life out of marital life without fulfilling marital
obligations, despite explained, attitude of respondent did not change.
These facts have been proved by appellant and his witnesses. It is
further submitted that, being a police constable there was no fix time
of him to return home from duty, therefore, she has alleged character
of appellant that he has kept concubine, which has not been proved by
her and the same amounts to cruelty towards appellant by respondent,
despite that, learned Court below has failed to appreciate evidence
led by the appellant. Hence, it is prayed that the appeal may be
allowed and decree of divorce may be granted in favour of appellant on
the ground of cruelty.
6. Despite service of notice to the respondent-wife, she
remained un-represented.
7. We have heard learned counsel for the parties and
perused the impugned judgment, record of the Court below, with
utmost circumspection.
8. Appellant-husband has sought decree of divorce on the
ground of cruelty. In this regard, he has stated in his deposition that
after marriage, respondent-wife used to lead her life accordingly to her
mother. Her mother and respondent-wife used to insult and humiliate
him saying that he is not competent to be husband of respondent,
whenever he returned home from his duty, instead of asking meal, she
used to quarrel with him, hence in mental stress, in the year 2011 he
resigned from his service of police department, but these facts have
not been supported by his witnesses namely Ashok Mandal (AW 2)
and Smt.Usha Ray Mishra (AW3) who is sister of the appellant. Hence,
only on the basis of statement of Mahesh Ray (AW 1), it cannot be
believed that appellant was humiliated by respondent and her mother,
9. Appellant Mahesh Ray (AW 1) has further stated that on
31-3-2013 brother of the respondent caused accident of appellant's
vehicle, therefore, he had said them that they all will incur expenditure
of repairing, hence, the respondent got angered and left his company
along with their children. Various efforts made by him to bring her back
failed and in January, 2015 when he had gone along with his sister to
bring her back, then respondent-wife had said that if he compels her,
then she would commit suicide. Husband has stated that he had made
complaint in police station Pondi, Distt. Korea, but any document in
this regard has not been filed.
10. Ashok Mandal (AW 2) and sister of appellant Smt. Usha
Ray Mishra (AW 3) have also supported his statement.
11. Smt. Ratnamala Ray (NAW 1), her witnesses Smt.
Sangeeta Ray (NAW 2) and Antargyani Yadav (NAW 3) have also
stated that vehicle of appellant met with an accident while being driven
by brother of respondent-wife and in the name of paying cost of
repairing, quarrel had taken place between appellant and respondent,
but respondent has denied in her deposition that due to such dispute,
she had left her matrimonial house, rather, she has stated that since
appellant had asked her to repair the vehicle, therefore, she went to
her parental home to arrange money, in between, appellant brought
Basanti, wife of her brother in their house. She has pleaded in her reply
that appellant has kept her as his concubine and despite objection
made by her, appellant said that he will keep her there only.
12. Sangeeta Ray (NAW 2) and Antargyani Yadav (NAW 3)
have also deposed that appellant has kept Basanti in his house as his
wife and she has also delivered a child from him. Although Sangeeta
Ray (NAW 2) has admitted that tenants reside in the house of
appellant, but he along with respondent have denied suggestion that
Basanti is residing as a tenant in the house of appellant. Nothing has
been elicited in their cross-examination to disbelieve their statement
that appellant has kept Basanti as his wife. Appellant Mahesh Ray
(AW 1) himself has admitted in his cross-examination at para 7 that
Basanti is residing with them in his house situated at Subhash Nagar.
13. Hon'ble Apex Court in the case of Narendra -V- K. Meena
[(2016) 9 SCC 455] has held that leveling of absolutely false
allegations and that too, with regard to an extra-marital life to be quite
serious and that can surely be a cause for mental cruelty. This fact has
also been reiterated by the Apex Court in the case of Raj Talreja -V-
Kavita Talreja [(2017) 14 SCC 194].
14. In the instant case, although appellant Mahesh Ray (AW
1) has denied in his cross-examination that he has kept Basanti with
him as his concubine however, he had admitted that she resides with
him in his house, therefore, reading this statement along with
statement of respondent-wife and her witnesses shows that he has
kept Basanti in his house, which respondent's witnesses have said as
his wife and despite objection raised by respondent, he has kept her
with him. As per provisions of Hindu Marriage Act, 1955, keeping any
lady during subsistence of his marriage is illegal, however, we do not
want to deliberate this issue about status of second lady, but thing
which emerge from the evidence available on record is that during
subsistence of first marriage with the respondent, appellant has kept
another lady with him. In such a situation, alleging character of
appellant by respondent cannot be termed as cruelty by respondent
towards appellant.
15. Appellant Mahesh Ray (AW 1) and his witnesses have
stated in their deposition that various efforts have been made to bring
respondent back but she did not return, whereas respondent has
stated in her deposition that she is ready to live with appellant, but as
has been stated earlier, because of another lady who has been kept
by appellant in the house as concubine, it cannot be said that
respondent has left the company of appellant without any valid reason.
16. For the reasons stated hereinabove, we are of the
considered opinion that the impugned judgment and decree passed by
the Family Court do not suffer from any infirmity or illegality warranting
any interference of this Court.
17. In the result, the appeal is dismissed leaving the parties to
bear their own cost(s).
A decree be drawn accordingly.
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
