Smt. Anima @ Chetna Dewangan vs Jitendra Kumar Dewangan
2023 Latest Caselaw 608 Chatt

                                1

                                                           NAFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                   F.A. (Mat.) No. 6 of 2021

             Judgment Reserved on : 06.01.2023

             Judgment Delivered on : 31.01.2023

Smt. Anima @ Chetna Dewangan, wife of Jitendra Kumar
Dewangan, aged about 30 years, resident of Village - Devri
Bangla, Police Station - Devri Bangla, Tahsil - Doundilohara,
District Balod (C.G.)

                                               ---Appellant/Wife

                             Versus

Jitendra Kumar Dewangan, son of Jeevanlal Dewangan, aged
about 34 years, resident of Annapurnapara, Police Station &
Tahsil - Kanker, District - North Bastar Kanker (C.G.)

                                      ---- Respondent/Husband



For Appellant           : Mr. Vidya Bhushan Soni, Advocate.
For Respondent          : Mr. Sumit Shrivastava, Advocate.


            Hon'ble Shri Justice Goutam Bhaduri
           Hon'ble Shri Justice N.K. Chandravanshi

                       CAV JUDGMENT

Per N.K. Chandravanshi, J.

1. Instant appeal is by the appellant/wife against the judgment

& decree dated 23.12.2020 passed by 3 rd Additional Principal

Judge, Family Court, Durg (C.G.) in Civil Suit No. 80-A/2019,

C.I.S. No. 80/2019 granting decree of divorce in favour of the

respondent/husband on the ground of cruelty.

2. Essential facts leading to filing of this appeal are that

marriage of appellant was solemnized with the respondent on

23.04.2012 as per Hindu rituals and customs. Respondent/

husband filed an application for grant of decree of divorce under

Section 13(1)(ia) of the Hindu Marriage Act, 1955 (henceforth "Act,

1955") alleging therein that after few days of marriage,

appellant/wife started quarreling with husband and his mother; she

always indulged in talking over phone and on being asked by

mother-in-law that with whom, she is talking, she started quarreling

and abusing her. They thought that with the passage of time, her

behaviour will improve, but it did not happen and during quarrel,

she started threatening to go to her parental place. In between on

24.09.2013, she delivered a male child, despite that her conduct &

behaviour did not improve/change. Even when relatives came to

their house, she misbehaved with them also. On one occasion, she

insisted to go to her parental house and threatened that otherwise,

she will implicate all the family member of husband in dowry case.

In such a situation, under fear & pressure, husband got reduced in

writing Ikrarnama (Ex.P-1) on 15.03.2014 from her, wherein she

voluntarily accepted in writing that if she goes anywhere, the

husband and his family members will not be responsible for it,

which was executed and notarized by her in front of witnesses and

notary (Public) of Kanker, thereafter, husband alongwith

neighbours dropped her to her parental place. On being explained

by husband to his father- in law about the aforesaid facts situation,

he angered on him and misbehaved also and further stated that

until his permission, husband will not come to bring her back. It is

further pleaded that despite several efforts made by husband and

his family members, wife did not return, rather she filed an

application for maintenance and under Domestic Violence Act.

Husband also filed an application under Section 9 of the Act, 1955.

In both the cases, on being explained by the Court, husband had

gone to bring her back, but she did not return, rather her father

created propaganda in front of 15-20 persons. Thus, wife is living

apart four years prior to filing of this application without having any

valid and sufficient reasons and not fulfilling her marital obligations.

Such conduct & behaviour amounts to physical and mental cruelty

by her towards husband, hence, it was prayed that decree of

divorce may be granted against the wife.

3. In reply filed by the appellant/wife, she has denied all the

allegations levelled against her and pleaded that neither she

quarreled or misbehaved with respondent/husband nor with his

parents, rather on demand of dowry, she was subjected to physical

and mental cruelty by them. It is further pleaded that husband

wants to marry with some other female and, therefore, he has

ousted her and their son without any fault of her. Thus, she has

been compelled to live apart and the respondent/husband has

neither tried to meet with them nor to bring her back, therefore, he

himself led to be dismissed his application under Section 9 of the

Act, 1955 for want of prosecution, which he had filed only to avoid

paying maintenance in an application filed by the wife. It is further

pleaded that respondent/husband has made contact with other

female, with whom he wants to marry and, therefore, he has filed

instant application levelling false allegations against her. Hence,

the application for grant of decree of divorce filed by the

respondent/husband is liable to be dismissed.

4. Pursuant to the averments made by the parties, learned

Family Court framed issues and granted decree of divorce in

favour of respondent/husband on the ground of cruelty holding

therein that without any sufficient and valid reasons, wife has left

the company of husband and the reasons mentioned by her are

not found to be proved, thus, she is not fulfilling her marital

obligations.

5. Learned counsel for the appellant/wife submits that decree

has been granted in favour of husband on the ground of cruelty but

any act of wife, which could constitute cruelty for granting decree

of divorce has not been proved by the husband. The documents

(Exs. P-1 & P-3) filed by husband have also not been proved by

adducing any independent witnesses. It is further submitted that

husband has pleaded and stated also in his deposition that he

himself had left the wife to her parental place on 15.03.2014,

thereafter, he never tried to bring her back and only to show his

false willingness, he moved an application under Section 9 of the

Act, 1955, but he himself led to the case dismissed for want of

prosecution. If conduct and behaviour of the wife would have

been objectionable or torturous, then any complaint would have

been filed by husband before any of the forum, but no such

complaint has been filed in this regard. On the other hand, wife is

still ready to go further in her marital life with husband, but

husband has admitted in his deposition that if wife wants to come

with him, despite that he is not ready to keep her with him. Thus,

impugned judgment & decree passed in favour of husband, being

perverse and erroneous, are liable to be set aside.

6. Per contra, learned counsel for the respondent/husband

would submit that after few days of marriage, appellant/wife used

to quarrel with husband and his mother over petty issues and

threatened them to implicate in dowry case. On being threatened

and insisted by her and also after reducing Ikrarnama in writing by

her, she was dropped by husband to her parental house,

thereafter, various efforts were made by husband to bring her back,

despite that she did not join his company, rather levelling false

allegation like demand of dowry, husband has made contact with

other female, etc. and living apart from company of husband four

years prior to filing such application, itself constitutes physical and

mental cruelty to husband by the appellant/wife. Hence, impugned

judgment & decree do not suffer any infirmity or illegality

warranting interference of this Court, therefore, appeal is liable to

be dismissed.

7. We have heard learned counsel for the parties and perused

the impugned order, record of the court below and other material

available on record with utmost circumspection.

8. In the instant case, decree of divorce has been sought by

the respondent/husband on the ground of cruelty and desertion. In

this regard, Hon'ble Supreme Court in case of Savitri Pandey v.

Prem Chandra Pandey 1 has observed in paragraph 6 and 9 as

under :-

"6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) 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

1 (2002) 2 SCC 73

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 shows 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 Jaisinghbai Shah v. Pabhavati2 this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [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 deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to

2 AIR 1957 SC 176

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 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."

9. In the case of Samar Ghosh v. Jaya Ghosh 3, Hon'ble

Supreme Court has laid down / enumerated some instances of

human behaviour, which may be relevant in dealing with the cases

of mental cruelty.

10. In view of the aforesaid propositions, if we examine facts of

the instant case, then in order to prove the pleadings,

respondent/husband - Jitendra Kumar Dewangan (AW-1) has

stated in his deposition that after few days of marriage, wife started

quarreling with him and his mother, she always indulged in talking

over phone and on being asked by mother-in-law that with whom

she is talking, she used to quarrel and abuse his mother. She also

used to threat to go to her parental home and implicate them in

dowry case. These facts have also been supported by his father

3 (2007) 4 SCC 511

Jitendra Kumar Dewangan (AW-2), but as per his admission, in his

cross-examination, he himself does not know anything about all

these facts, rather he came to know about these facts, on being

information given by his son (respondent) and wife. He has also

admitted that all the facts narrated by him in his affidavit, filed

under Order 18, Rule 4 of the CPC, have not happened in front of

him. Thus, Jeevan Lal Dewangan (AW-2) is hearsay witness and,

therefore, statement of husband - Jitendra Kumar Dewangan

(AW-1) does not get any substantive support from his father -

Jeevan Lal Dewangan (AW-2) in respect of alleged conduct of

wife.

11. If conduct and behaviour of respondent/wife would have

been torturous in such a manner, then complaint in this regard

would have been made to the police or social forum of the parties,

but husband - Jitendra Kumar Dewangan (AW-1) and his father

Jeevan Lal Dewangan (AW-2) have admitted in their cross-

examination that they have never made any complaint against the

appellant /wife in any of the forum.

12. Jitendra Kumar Dewangan (AW-1), who is husband of the

appellant, has stated in his cross-examination that wife did not talk

behind his back, rather she always talked in front of him over

phone. He has also stated that she (wife) used to prepare meal in

his house and she herself served him food. He has further

admitted that wife also used to help in the household work.

Respondent's such statement/admission in his cross-examination

are adverse to his own pleadings.

13. As per deposition of husband Jitendra Kumar Dewanagan

(AW-1), since the wife has insisted and compelled him to drop her

to her parental house, otherwise she had threatened to implicate

them in dowry case, therefore, he left her at her parental house on

15.03.2014. In this regard, she has also executed Ikrarnama

(Ex.P-1) in front of witnesses. He has further stated that during

quarrel, she used to say that she was not ready to marry, but her

parents performed her marriage without her wishes. In this regard,

she has written a letter (Ex.P-3) dated 10.09.2012, which he found

in her almirah.

14. Smt. Anima @ Chetna Dewangan (NAW-1) has rebutted

aforesaid facts in her deposition and stated that husband used to

torture her physically and mentally on demand of dowry and

various other counts and he himself ousted her from his house and

left her at her parental house. She has denied her signature in the

aforesaid documents. In such a situation, husband ought to have

examined alleged witnesses of Ikrarnama (Ex.P-1) but neither he

examined alleged witnesses nor examined concerned Notary, who

notarized the aforesaid documents. Statement of Jitendra Kumar

Dewangan (AW-1) in respect of place of execution of Ikrarnama

(Ex.P-1) are contradictory in his own cross-examination, as once

he said that Ikrarnama was executed in his house at Kanker and

further he said that it was executed at Tahsil (Office). Hence,

considering the denial of wife and contradictory statement of

husband in respect of place of its execution, only on the basis of

statement of husband - Jitendra Kumar Dewangan (AW-1), it

cannot be held that appellant/wife had executed alleged Ikrarnama

(Ex.P-1) and on being insisted or compelled or threatened by her,

respondent/husband had dropped her at her parental house.

15. So far as letter Ex.P-3c is concerned, contents of the letter

has been typed, but other facts noted below the alleged signature

are hand written. Had alleged letter (Ex.P-3c) been written by wife,

then why would she has typed some portion and written some

portion by hand. This facts makes doubtful to the credibility of

letter (Ex.P-3c), as wife - Smt. Anima @ Chetna Dewangan

(NAW-1) has also deposed in her statement that respondent had

taken her signature in the blank paper. Hence, husband does not

get any support from this document also.

16. It is apparent from the evidence of both the parties that

appellant/wife is living apart from respondent/husband since

15.03.2014 and divorce application was filed by the husband on

27.03.2018. It is also evident that husband himself has dropped

her at her parental place and the reasons of alleged cruelty by wife

in this regard stated by husband has not been proved. Although

husband (AW-1) and his father Jeevan Lal Dewangan (AW-2) have

stated in their examination-in-chief that various efforts were made

by them to bring appellant/wife back, but she did not return and her

father also refused to send her back, but in cross-examination,

both of them have admitted that after going appellant/wife to her

parental place, they have never gone to bring her back. They have

also not examined any independent witnesses in respect of their

alleged efforts to bring her back from her parental house.

17. Evidence available on record shows that after filing

maintenance application by wife and application under Section 9 of

the Act, 1955 filed by husband, on being explained by the Court,

respondent/husband had gone to bring her (wife) back, but

statement (cross-examination paragraph 33) of wife - Smt. Anima

@ Chetna Dewangan (NAW-1) reflects that when husband and his

father had gone to her parental house to bring her back, husband

did not come out from vehicle and his father seated only for about

five minutes in their house and, thereafter, they came back without

informing them. Such conduct of husband and also letting to be

dismissal of application under Section 9 of the Act, 1955 by him

(husband) for want of prosecution gives indication that

respondent/husband never have intended to bring her back and

only to show false willingness in this regard, he had filed an

application under Section 9 of the Act, 1955, and on being

explained by the Court, he had gone at parental house of the

appellant/wife, as ultimately he himself has stated in his deposition

that he does not want to keep her with him. Hence, it cannot be

held that wife has left his company on her own and she is not

fulfilling her marital obligation and she herself has deserted him.

18. Instant petition has been preferred by the husband seeking

decree of divorce on the ground of cruelty and desertion, hence, it

is up to the respondent/husband to prove his allegations levelled

against the appellant/wife, but husband has failed to prove the

same. Although, wife has also levelled various allegation on him in

her reply and deposition and some of which may not have been

levelled by her in other proceedings like maintenance proceeding,

but only on the basis of such facts, decree of divorce cannot be

granted against her.

19. In view of above discussion, we find that from the evidence

available on record, neither any act of cruelty by wife towards

husband for granting decree of divorce has been proved nor it has

been proved that wife is living apart from husband on her own,

rather, evidence shows that respondent/husband himself has

compelled her to live apart from him. Thus, learned Family Court

has failed to appreciate the evidence available on record in its

proper perspective and erred in granting decree of divorce in

favour of respondent/husband.

20. In view of foregoing discussion, we are of the considered

view that the impugned judgment dated 23.12.2020 passed by 3 rd

Additional Principal Judge, Family Court, Durg (C.G.) in Civil Suit

No. 80-A/2019, granting decree of divorce in favour of

respondent/husband is unsustainable and the same deserves to

be and is hereby set aside/quashed. The appeal accordingly

stands allowed.

21. Now coming to the grant of maintenance, on being directed,

learned counsel for the respondent has placed the salary slip of

respondent/husband for the month of December, 2022, which

shows that husband is drawing a gross salary of Rs.39,454/-. It

has been stated that wife has no source of income and is wholly

dependent on the husband, who is government employee,

therefore, amount of maintenance may be fixed in terms of Section

25 of the Hindu Marriage Act, 1955 so as to enable her to lead safe

and dignified life.

22. The Supreme Court in the case of Chaturbhuj v. Sita Bai 4

held that the object of maintenance is to prevent the vagrancy and

destitution of a deserted wife by providing her food, clothing and

shelter through a speedy remedy. Therefore, following the law laid

down by the Supreme Court and looking to the cost of living and

market inflation, we deem it appropriate to grant maintenance of

Rs.12,000/- per month, which the wife is entitled to receive from

the husband. The aforesaid amount shall be deducted from the

salary of the respondent and shall be payable in the account of

appellant/wife.

4 (2008) 2 SCC 316

23. It is made clear that as and when the salary of husband is

reciprocally increased, subsequently the amount of maintenance

shall also be increased proportionally to the extent of increase in

future salary.

24. If the wife is getting amount of maintenance in any other

case, then this order shall be dominant on it.

25. Let a decree be drawn up accordingly.

               Sd/-                                       Sd/-
         (Goutam Bhaduri)                           (N.K. Chandravanshi)
            Judge                                         Judge

Amit