Smt. Khemlata Chouhan vs Ratan Lal
2023 Latest Caselaw 453 Chatt

                                   1


                                                               NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                         FAM No. 11 of 2015

                Judgment Reserved on : 20.10.2022

                Judgment Delivered on : 23.01.2023

     Smt. Khemlata Chouhan, W/o Shri Ratan Lal Chouhan, aged
     about 25 years, R/o village Dindori, Post Sohagpur, Tahsil
     Kartala, District Korba, Chhattisgarh.
                                                       ---- Appellant
                                Versus

     Ratan Lal, S/o Shri Bodhram, aged about 28 years, R/o
     through Bodhram Chouhan, Shyamnagar, in front of Atal Awas,
     P.O. Jamnipali, Tahsil Katghora, District Korba, Chhattisgarh.
                                                     ---- Respondent



For Appellant     : Mr. Rajesh Jain and Mr. Nitansh Jaiswal, Advocates
For Respondent : Mr. Parasmani Shriwas, Advocate


              Hon'ble Shri Goutam Bhaduri, Judge
            Hon'ble Shri Radhakishan Agrawal, Judge

                          C A V Judgment

Per Radhakishan Agrawal, J.

1. The instant appeal is against the judgment and decree dated

30.10.2014 passed in Civil Suit No.08-A/2013 by the Family

Court, Korba, District Korba Chhattisgarh whereby application

under Section 13(1)(i-a)(i-b) as well as Section 27 of the Hindu

Marriage Act, 1955 (for short 'Act of 1955') filed by the wife

seeking a decree of divorce on the ground of cruelty and

desertion was dismissed, but the learned Family Court has

directed to return of Stridhan.

2. The present appeal is by the wife.

3. The appellant/wife filed a petition for divorce stating inter-alia

that she was married to Ratan Lal prior to seven years at

village Katainaar, District Korba as per Hindu customs. After

the marriage, she joined the company of husband. It was

stated that up-till 4 years after the marriage, the relations

between them were cordial, but subsequently, she alleged that

husband and her in-laws were demanding dowry and

subjected her to physical harassment and mental cruelty,

therefore, the situation became aggravated day by day. It is

further pleaded that quarrels and fighting between the parties

had become regular phenomena and on 23.10.2009, the

husband forcibly dropped her in her maternal house. The

husband also threatened her her parents on demand of dowry.

It is pleaded that despite the efforts made by elders and

relatives, the husband was not ready to improve his behavior,

therefore, it would be difficult to restore harmony/cordial

relations between them. It was also pleaded that because of

assault and torture, she was forced to leave the house and

was threatened to her life. It is further submitted that because

of such misbehaviour and cruelty, it would be difficult for her to

say with him and maintained marital relations. On these

grounds, the decree of divorce was sought for.

4. Appellant/wife also filed an application under Section 27 of the

Act of 1955 for return of her Stridhan amounting to

Rs.1,70,480/- as also certificates of her educational

qualifications before the Family Court, which was partly

allowed.

5. Per contra, the respondent/husband, in his reply, denied all the

allegations and stated that without any rhyme and reason, the

wife deserted the company of husband. It is further stated that

he made several efforts to get back the wife, but she did not

accede to his request and without any sufficient cause started

living continuously at her parental home. It is also stated that

he and his family members did not pressurize the appellant on

account of demand of dowry and he made efforts for further

study of his wife. It is further pleaded that in his community,

there was no dowry culture and no demands of dowry was

raised by him. He also denied the allegations of harassment

and torture levelled by the wife and she is not entitled for any

relief.

6. The learned Family Court framed the issue on the ground of

cruelty and desertion. The answer was given in negative. The

Court held that the wife is not entitled to get decree of divorce,

however, partly allowed the application filed under Section 27

of the Act of 1955 for returning Stridhan of the appellant/wife.

No cross-appeal was filed by the respondent/husband against

the order relating to return of Stridhan.

7. The appellant/wife examined herself as PW-1, her father

Gokul Prasad as PW-2 and one Neeraj Kumar as PW-3

whereas the respondent/husband examined himself as DW-1,

his father Budhram as DW-2 and one Ajor Singh as DW-3.

8. Learned counsel for the appellant/wife would submit that the

learned Family Court erred in holding that wife was not being

physically and mentally subjected to cruelty by the husband on

account of demand of dowry. He would further submits that the

wife was treated with cruelty as she was subjected to physical

and mental assault, therefore, she was forced to leave the

matrimonial house. It is contended that impugned judgment

and decree passed by Family Court cannot be sustained and

deserves to be set aside.

9. Per contra, learned counsel for the respondent/husband would

submit that the impugned judgment and decree passed by the

Family Court is well merited, which do not call for any

interference.

10. We have heard learned counsel for the parties at length and

have also perused the record.

11. During the pendency of this appeal, the appellant has filed an

application for taking additional documents on record under

Order 41 Rule 27 of the CPC.

12. A perusal of the said application shows that copy of evidence

of Khemlata Chouhan was annexed, which was recorded in

the Court of Judicial Magistrate First Class, Katghora. The

said evidence is not relevant to the instant case and also that

cross-examination of witnesses is adjourned so it was not

complete statement of witnesses, hence, the said application

is liable to be and is hereby dismissed.

13. Wife/Khemlata Chouhan (PW-1) in her examination-in-chief

has deposed that the marriage in between the parties was

solemnized prior to seven years as per Hindu customs.

Initially, the husband lived peacefully with her and after few

days of marriage, his behaviour changed drastically and he

started quarelling and beating frequently with her on account

of demand of dowry. She has further deposed that in the year

2009, her elder father passed away, but her in-laws refused

her to go there and one day prior to Dasgatra, husband

dropped her in her maternal house. She further deposed that

she was waiting for the call of her husband, but despite

several efforts made by elders and relatives, he was not ready

to come and take her. Thereafter, she filed a complaint of

demand of dowry against her husband and in-laws before

Police Station Darri. She filed an application for maintenance,

which was allowed. She has deposed that she filed an

application for return of her Stridhan. In cross-examination,

she has admitted that her husband had not beaten her with

belt, hands and fists. She further deposed that husband has

never abused her.

14. Likewise, reading of evidence of other witnesses, namely,

Gokul Prasad (PW-2) and Neeraj Kumar (PW-3) shows that

they stood firm to the statement of Khemlata Chouhan (PW-1).

They stated that after marriage, appellant and respondent

lived peacefully and after few days of marriage, respondent

and his family members were started quarelling and beating

appellant on account of demand of dowry. Gokul Prasad (PW-

2) also deposed that in their community, there is no dowry

culture and he has given all the articles and ornaments on his

own will. In cross-examination, they have stated that

respondent and his family members neither demanded money

nor demanded any article or ornament from him and even he

stated that the respondent/husband made efforts for further

study of his wife.

15. Ratan Lal (DW-1) has examined himself to prove his case in

defence. He stated that he was married to the appellant prior

to seven years. After the marriage, he joined the company of

wife. On the date of marriage, appellant was 12th pass and

after marriage at his instance, she did her B.A. as also L.L.B.

(2nd year). He deposed that on 14.10.2009, he knew about the

death of elder father of his wife, but he took her to her

maternal house on Dasgatra. He further deposed that on

26.10.2009 he had gone to her matrimonial house to take

back her wife, but his father-in-law refused to get back his

daughter with him. He stated that after 18 days of the alleged

incident, wife lodged a compliant of dowry against him and his

family members. He also deposed that if any list of items was

prepared, which were given at the time of marriage, he is

ready to return the same. In cross-examination, he has

deposed that he and his father attended the social meeting.

He further deposed that he and his father never demanded

anything in marriage.

16. Likewise, Budhram (DW-2) and Ajor Singh (DW-3) supported

the evidence of Ratan Lal (DW-2). They have stated that they

neither demanded money nor any article or ornament at the

time of marriage.

17. The appellant/wife has sought divorce on the ground of cruelty

and desertion. In this regard, the Supreme Court in case of

Savitri Pandey v. Prem Chandra Pandey reported in (2002)

2 SCC 73, has observed thus in paras 6 and 9 :

"6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the

Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.

9. Following the decision in Bipinchandra case reported in AIR 1957 SC 176, this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena reported in AIR 1964 SC 40 by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation."

18. In order to find out the cruelty apart from a physical cruelty,

mental cruelty has been defined by the Supreme Court in case

of Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC

511, which are reproduced herein below :

"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing

with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

  (viii) The conduct must be much more
  than         jealousy,     selfishness,




possessiveness,       which       causes

unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."

19. Insofar as decree on the ground of desertion is concerned, for

constituting such ground, element of animus deserendi should

always remain present. In case of Smt. Rohini Kumari v.

Narendra Singh reported in AIR 1972 SC 459, the Supreme

Court held that desertion does not imply only a separate

residence and separate living. It is also necessary that there

must be a determination to put an end to marital relation and

cohabitation.

20. Hon'ble Supreme Court in case of Raj Talreja v. Kavita

Talreja (Civil Appeal No. 10719 of 2013, decided on

24.04.2017) held 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 case of Rani Narsmiha Sastry v. 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 parties 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 dissolution of marriage on the ground as mentioned in Section 13(i)(i-a) of the Hindu Marriage Act, 1955."

21. Copy of judgment of Judicial Magistrate First Class, Katghora

dated 23.04.2018 shows that husband along with his father,

mother, brother and sister was convicted under Section 498-A

of Indian Penal Code, but in appeal before the Additional

Sessions Judge, Katghora, all above persons were acquitted

vide judgment dated 24.11.2018, therefore, false charge /

prosecution has been initiated not only against the husband

but also his old aged father and mother along with brother and

sister, which amounts to cruelty upon husband.

22. In the evidence and material placed before us, we cannot say

that there is any much less clinching material to show that the

impugned judgment and decree calls for an interference.

Further, it also does not show that the husband has committed

any physical and mental cruelty upon his wife or deserted his

wife.

23. The learned Family Court has discussed the entire evidence

and has reached to the finding that the appellant/wife has

failed to prove the cruelty. On appreciation of evidence, we do

not find any perversity in the findings recorded by the Family

Court. The impugned judgment and decree is just and proper

warranting no interference of this Court.

24. As an upshot, the appeal, sans substratum, is liable to be and

is hereby dismissed, leaving the parties to bear their own

cost(s).

25. However, in respect of return of Stridhan, which has been

awarded by the Family Court to that extent, we are of the

considered opinion that Family Court was justified in returning

the Stridhan to the appellant/wife.

26. A decree be drawn accordingly.

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