Smt. Duleshwari Sahu vs Ramesh Kumar Sahu
2023 Latest Caselaw 448 Chatt

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                                                                        AFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                  Judgment Reserved on : 13/10/2022

                  Judgment Delivered on : 23/01/2023

                        FA(MAT) No. 81 of 2019

1.    Smt. Duleshwari Sahu W/o. Ramesh Kumar Sahu, Aged About 27
      Years, Caste Teli, R/o. Jagriti Chowk Behind Teen Darshan Temple,
      Ward No. 18 Camp-1 Bhilai, Tehsil And District Durg (C.G.).
                                                              ---- Appellant
                                                            (Non-Applicant)
                                 Versus

1.    Ramesh Kumar Sahu S/o Roop Singh Sahu, Aged About 30 Years,
      Caste Teli, R/o Village Mohndipaat, Post Khrusuni Tehsil
      Gunderdahi District Balod (C.G.). Official Address Unit No. 86
      Armed Regiment Rank S.W.R. No. 15501262 X, Headquarter
      Squire Through 56 A.P.O. Babina, District Jhansi (U.P.)
                                                           ---- Respondent

(Applicant) For Appellant : Mr. Vidya Bhushan Soni, Advocate. For Respondent : Mr. Pushpendra Kumar Patel, Advocate.

Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Shri Justice Radhakishan Agrawal C A V Judgment

Per Radhakishan Agrawal J.

(1) Challenge in this appeal by the appellant/wife under Section 28 of

the Hindu Marriage Act, 1955 read with Section 19(1) of the Family

Courts Act. 1984 is to the legality, validity and propriety of the

judgment dated 27/11/2019 passed by Principal Judge, Family

Court, Durg (C.G.) in Case No. 328/2018; whereby the petition filed

by the respondent/ husband under Section 13(1)(2)(a) of the Hindu

Marriage Act, 1955 has been allowed and marriage between the

parties has been dissolved by a decree of divorce.

(2) As per averments in the plaint, marriage of the respondent/

husband with the appellant/wife was solemnized on 27/04/2009 as

per the Hindu customs and rituals at Bhilai, District Durg (C.G.). At

the time of marriage the respondent/husband was posted in Indian

Army at Badmer, Rajasthan and in the year 2011 he was posted in

Babina, District Jhansi (M.P.). According to the husband, the wife

used to misbehave with his parents and when he would try to make

her understand, she would get aggressive and threaten of

implicating him in false dowry and women harassment cases. From

their wedlock, a female child was born on 18/09/2012. After naming

ceremony of the child, in April 2014 the wife having quarreled with

her in-laws left the matrimonial home with the child without

informing anyone and went to her parental home at Camp-1 Bhilai,

District Durg (C.G.) and started residing there. However, after a

social meeting being convened at the parental home of the

appellant/wife in which the parents of both the parties were present,

the matter was resolved and wife came back to her matrimonial

home. But in May 2014, she lodged a false report at the Police

Station of being assaulted by her husband and demand of dowry by

her father-in-law and mother-in-law; whereas at that time the

husband was not present there. During counseling proceedings in

the said matter the husband appeared where he expressed his

willingness to live with the appellant/wife but she straight way

refused to go with him. However, on being persuaded by the

counseling members, the appellant wife herself came back to her

matrimonial home in September, 2014 but on 17/09/2014 she again

lodged a false case under Sections 498-A, 323, 394 and 506B of

IPC against the husband and vide judgment dated 04/05/2017 the

Judicial Magistrate First Class, Guderdehi acquitted the husband of

all the charges.

(3) The appellant/wife had filed a Civil Suit No. 273/2015 on

16/06/2015 before the Family Court, Durg (C.G.) for grant of divorce

which was dismissed for want of prosecution on 18/09/2017.

Hence, the husband filed a petition for grant of divorce on the

ground of cruelty and desertion on the part of the wife.

(4) Refuting the averments made in the complaint, the wife contended

that it is the husband and his parents who used to quarrel and treat

her with cruelty and force her to leave her matrimonial home. She

never harassed a husband and his parents or threatened them of

implicating in false case. She states that the husband and his

parents used to beat her in connection with demand of dowry and

also tried to burn her by pouring kerosene oil which was reported by

her to the Mahila Thana, Durg (C.G.) where they were persuaded

and advised to live together peacefully but the husband ousted her

from his house. The husband was acquitted of the offences under

Sections 498-A, 323, 294, 506B of IPC as on his repeated request

she made statement in his favour but after his acquittal he again

started beating her and therefore she filed a divorce petition.

However, she deliberately did not appear in the said proceedings

thinking that the situation would change in future which resulted in

dismissal of the suit for want of prosecution. It is specifically stated

by her that the husband wants to marry one Dakeshwari of Village

Masul, District Balod (C.G.) and therefore has filed the divorce

petition on false and frivolous grounds; whereas considering the

future of her minor daughter and herself she has filed an application

for restitution of conjugal rights before the Family Court, Durg (C.G.)

which is pending. In these circumstances, she prayed for dismissal

of the divorce petition filed by the husband.

(5) On the basis of the pleading of the respective parties, the oral and

documentary evidence adduced by them, the Trial Court vide

impugned judgment dated 27/11/2019 decreed the suit in favour of

the husband and dissolve the marriage between the parties by a

decree of divorce.

(6) Learned Counsel for the appellant/wife submits that impugned

judgment is per se, illegal and contrary to the evidence available on

record. The Family Court has failed to consider the fact that

acquittal of the husband was due to change of statement of the

appellant in his favour on the assurance of the husband of living

together happily. The Court below has also not considered the fact

that the appellant/wife has filed an application for restitution of

conjugal rights and she has also stated in her affidavit that she is

willing to live with the husband without any condition. Though she

had filed a divorce petition but deliberately she did not appear in

that proceeding to save her family which resulted in dismissal of the

petition for non-prosecution. The Family Court has not considered

the evidence available on record in its correct perspective which

shows the cruel conduct of the husband and his parents on the one

hand and readiness and willingness on the part of the wife to live

with him on the other hand. For all these reasons, the impugned

judgment passed by the Court below is liable to be set aside in the

interest of justice.

(7) 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 and

desertion. Being so, no interference in the impugned judgment and

decree is warranted.

(8) Husband/PW-01 Ramesh Kumar Sahu, in support of his pleadings

states in the affidavit under Order 18 Rule 4 of CPC in paras 4 to 7

that while he was posted in Jhansi, the appellant was living with

him and she delivered a female child on 18/09/2012 whose naming

ceremony was performed in November 2012 which was attended

by the family members of the appellant and himself. He states that

the appellant always used to insist for living separately from her in-

laws and used to quarrel on this ground because he wanted her to

live with his parents so that proper care could be taken of his

daughter and wife as he being posted in Army he is required to

stay away from his family. He also got her appointed on the post of

Panchayat Secretary in the year, 2012 with the hope that it would

help in changing her conduct towards the family members but in

April 2014 after naming ceremony of his daughter, she quarreled

with his parents and left her matrimonial home with the daughter for

her parental home at Camp-1 Bhilai without informing anyone. In

fact the appellant did not want to live in the village and therefore in

May, 2014 she lodged false report against him and his parents

under Sections 498-A, 323, 294 and 506 of IPC on 17/09/2014 and

after the trial proceedings, they were acquitted by the Trial court on

04/05/2017. In para 8, he states that the wife had filed divorce

petition on 16/06/2015 before the Family Court, Durg which was

dismissed on 18/09/2017 due to non-appearance of the wife. In

para 9, he states that the wife has also filed a case against his

parents under Protection of Women from Domestic Violence Act,

which is pending. In para 23 he admits that when his wife went to

her parental home on 17/09/2014, he did not file any application

under Section 9 of the Hindu Marriage Act or initiated any

proceeding for bringing her back to the matrimonial home. In para

23, in reply to the question as to why he did not file application

under 9 of the Hindu Marriage Act and tried at the social level for

bringing his wife back when his wife left her parental home in the

year 2014 and filed divorce petition, he states that he went to her

parental home four times, lastly on 14/08/2017 but she did not

come and her family members having abused him filthily drove him

away from there.

(9) DW-01 Duleshwari Sahu, wife in her affidavit under Order 18 Rule

4 denied all the allegations. However, in para 10 she admits that in

the case instituted at her instance in the year 2013 under Section

498-A of IPC, the husband was acquitted. In para 11 she admits

that she filed a suit under Section 13 of the Hindu Marriage Act, in

which the husband did not appear but after his appearance in the

said matter she withdrew the said divorce case. In para 12, she has

admitted that she was not living with the husband since 2013 and

that she had filed a case under the Protection of Women from

Domestic Violence Act against the husband and further admits that

no harassment has been meted out to her by the husband. It is

worthwhile to mention here that as per order dated 18/09/2017, the

suit under Section 13 of Hindu Marriage Act filed by the wife was

dismissed for want of prosecution.

(10) DW-02 Khorbahra Ram Sahu, father of wife stated in his cross-

examination in para 9 admits that he had singed the affidavit under

Order 18 Rule of CPC after reading the same and a case under

Section 498-A of IPC was filed by his daughter in which the

applicant (husband) has been acquitted. In para 10, he states that

since the relation of his daughter and her family was cordial, she

lived at her matrimonial home since 2013. He admits that a social

meeting was convened at his home and thereafter his daughter

went back to her matrimonial home.

(11) PW-02 Neelkanth Sahu, states in para 8 that the wife had filed a

divorce petition on 16/06/2015 before the Family Court, Durg i.e.

Case No. 273/2015 which was withdrawn by the wife after

apperance of the husband before the Court, and after counseling in

the Court, due to non-appearance of the wife the application under

Section 13(1)(2)(a) of the Hindu Marriage Act was dismissed on

18/09/2017.

(12) 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."

(13) 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 conjugal 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.

(14) Further it has been held by the Apex Court in the matter of Raj

Talreja Vs. Kavita Talreja (Civil Appeal No. 10719 of 2013, decided

on 24.04.2017), that a false complaint was registered against the

husband by the wife and in criminal proceedings, the husband had

been acquitted. On this account, the husband was held entitled to

decree of divorce, on the ground of cruelty. Further, in the matter of

Rani Narsmiha Sastry Vs. Rani Suneela Rani (Civil Appeal No.

8871 of 2019) it has been held by the Apex Court that :

"when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after partis having been married on 14.08.2005, they lived together only for 18 months and thereafter they are separately living for more than a decade now. In view

of the foregoing discussion, we conclude that appellant has made a ground for grant of decree of dissuolution of maariage ont he ground as mentioned in Section 13 (i)(i-a) of the Hindu Marriage Act, 1955.

(15) In the present matter, on perusal of the pleadings of the respective

parties and the evidence adduced by them in support thereof, as

also the admission of the parties and their witnesses, it is found

that the respondent wife is living separately from her husband at

her parental home without any just and reasonable cause since

May, 2014. She lodged a report on 17/09/2014 against the

husband under Sections 498-A, 323, 294, 506 of IPC and after

trial, he was acquitted of all the charges. This apart, the wife also

made a report against the husband and his parents under

Protection of Women from Domestic Violence Act. It is also

admitted position that the wife filed divorce petition under Section

13 of the Hindu Marriage Act which was dismissed for want of

prosecution. It is also admitted by the wife that no application under

Section 9 of the Hindu Marriage Act for restitution of conjugal rights

was filed by her. It is not disputed that the wife is working as

Panchayat Secretary and is also getting Rs. 7,000/- per month as

maintenance. Therefore, in the given facts and circumstances of

the case, the conduct of the wife, in light of the judgments of

Hon'ble Supreme Court as mentioned above, the act committed by

the wife against the husband amounts to cruelty and it stands

proved that she is living separately from the husband since 2014

without any just and reasonable cause. They are seems to be no

possibility of their re-union. In theses circumstances, this Court

finds no illegality or perversity in the impugned judgment of the

Family Court granting decree of divorce in favour of the husband.

(16) In the result, the appeal being without any substance is liable to be

dismissed and is, accordingly dismissed.

(17) A decree be drawn up accordingly.

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


Chandrakant