Chattisgarh High Court
Smt. Kunti Chakradhari vs Gajendra @ Gajanand Chakardhari on 5 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 196 of 2019
Reserved on 15-12-2022
Delivered on 05-1-2023
Smt. Kunti Chakradhari W/o Gajendra @ Gajanand Aged About 25
Years D/o Tukaram Chakradhari, R/o Pulgaon, Chowk Durg, District
Durg CG
---- Appellant/Defendant
Versus
Gajendra @ Gajanand Chakardhari S/o Chhote Lal Chakradhari Aged
About 29 Years R/o Village Koliyari, Tahsil And District Dhamtari CG
---- Respondent/Plaintiff
For Appellant : Mr. Praveen Dhurandhar, Adv.
For Respondent : Mr. Anil Gulati, Adv.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
CAV Judgment
Per N.K. Chandravanshi, J.
1. This appeal has been preferred by the appellant/wife
against judgment and decree dated 30-4-2019 passed by the Judge,
Family Court, Dhamtari (CG) in Civil Suit No. 67A/2017 whereby civil
suit filed by the appellant/husband under Section 9 of the Hindu
Marriage Act, 1955 (hereinafter referred to as 'the Act, 1955'), for
restitution of conjugal rights, was allowed in favour of the
respondent/husband.
2. Facts of the case, in brief, are that appellant wife and
respondent husband were married on 12-12-2015 . After 1 ½ month of
marriage, wife started quarreling on petty issues and humiliating
parents of husband. She did not take any interest in domestic works.
Parents of husband are old aged persons suffering from various
ailments. Mother of appellant is also suffering from paralysis, hence,
she could not do her own works. Wife used to ask that she is not
servant who would look after his parents and prepare food for them.
On being explained, she threatened to implicate them in false case.
Financial status of husband is not good, despite that on being demand
made by the wife when husband could not provide her valuable
articles, then she abused and insulted him and some times, assaulted
also. When his elder brother who lived separate, came to his house to
meet parents, wife did not respect him. It is further alleged that
appellant wife always indulged in talking over mobile phone with some
other person, despite explaining her, she did not change her conduct.
Therefore, once husband had broken her mobile phone smashing on
the ground. Hence, she started preparing to leave the in-laws house
and on being explained by parents of husband, she insulted them. Wife
had pressurized husband to give Rs. 5 lakhs for nursing training of
her sister and due to quarrel made by her, husband somehow
managed Rs. 1 lakh, despite that, she made false allegation on
character of her father-in-law. Husband called parents of wife and other
member of their society to explain her and in the month of February,
2017, her parents took her to her parental place. Thereafter despite
being asked, she did not return and she put condition for the same
that if husband brakes all relations from his parents and lives
separately from them, then only she will join him. Social meeting was
also convened in this regard, there also, wife refused to join his
company until fulfillment of aforesaid condition. Due to such arrogance
of wife, husband has been deprived of marital enjoyment, therefore, he
filed the application under Section 9 of the Act, 1955 before learned
Family Court seeking relief of restitution of conjugal rights against wife.
3. The appellant/wife, in reply, denied all the allegations
levelled against her and has pleaded that she was subjected to cruelty
by husband on demand of dowry of motorcycle from her parents and
her in-laws instigated the husband for the same. It is further stated that
on 18-2-2017 her father-in-law had molested her, therefore on the
same day, her father brought her to her parental place Pulgaon, Durg.
On 24-8-2017, she had made a complaint in this regard to the
Superintendent of Police, Durg. After few days, respondent was asked
to bring her back, but he did not come. After 18-2-2017, respondent
never came to bring her back, she has never refused to lead marital
life with husband, however, she has stated him to improve his
behaviour and she is scared due to obscene act of her father-in-law.
Appellant / wife has further pleaded that if she goes to respondent's
home, her in-laws may harm her by creating problems. Therefore,
application is liable to be dismissed.
4. Learned Family Court, on the basis of averments made by
both the parties in the pleadings, framed issues and after providing
opportunity to lead evidence and after hearing the parties and
considering the evidence avilable on record, has held that without any
reasonable excuse, wife has deprived husband of marital enjoyment,
hence it granted decree in favour of husband, therefore, this appeal
has been preferred by appellant/wife.
5. Learned counsel for the appellant would submit that as per
provisions of Section 9 of the Act of 1955, if one of the spouses without
reasonable excuse withdraws the society of other spouse, then
aggrieved party is entitled for decree of restitution of conjugal relation.
In the instant case, it has been proved by the appellant/wife by
adducing evidence that respondent/husband not only harassed her
for demand of dowry, but also questioned her character, only because
she used to talk over mobile phone. He would further submit that
appellant/wife was also molested by her father-in-law on 18-2-2017. In
this regard, meeting of members of society was also held wherein
father of the respondent had apologized for his such obscene
behaviour. In this regard, appellant had also made a complaint to the
Superintendent of Police, Durg on 24-8-2017. Thus, there are
reasonable excuses in favour of appellant/wife for not joining the
company of respondent/husband, but learned Family Court without
appreciating aforesaid evidence in true perspective has granted decree
in favour of the respondent. Hence, the impugned judgment and
decree is baseless, perverse and against the evidence available on
record, which deserves to be set aside.
6. Per contra, learned counsel appearing for the respondent,
would submit that the impugned judgment and decree has been
passed on minute observation of the evidence adduced by the parties
and the same is well merited, therefore, it does not call for any
interference by this Court.
7. We have heard learned counsel for the parties and
perused the impugned judgment, record of the Court below, and the
documents annexed with the appeal.
8. To substantiate the pleading, respondent/husband
Gajendra Chakradhari has examined himself as AW 1, his brother
Kashiram Chakradhari as AW 2, one Chaitram Chakradhari as AW 3,
and Bhogilal Chakradhari as AW 4, who is said to be Vice President of
Durg Chakradhari Kumhar Samaj. On the other hand, in defence, the
appellant/wife Smt. Kunti Chakradhari has examined herself as NAW
1, her maternal uncle Fenkuram Pandey as NAW 2, and Ravi Kumar
Chakradhari as NAW 3.
9. Respondent/husband Gajendra alias Gajanand
Chakradhari (AW 1) in his examination-in-chief, reiterated all the facts
as have been pleaded by him in the application that, after 1 ½ months
of marriage, wife started quarreling on petty issues. She did not do
house hold works and never took care of his ailing parents, rather, she
misbehaved with them and his elder brother also. Even she also
abused the respondent and some times assaulted also. He has further
deposed that wife always used to talk over mobile phone with some
other person. He has also deposed that for nursing training of younger
sister of wife, on being demanded for Rs. 5 lakh, somehow he provided
Rs. 1 lakh, then she quarelled, did not take meal for 2 days and on
being explained by father of husband, she levelled false allegation of
molestation against him. In this regard, social meeting was held. His
statement is also supported by his brother Kashiram Chakradhari (AW
2), Chaitram Chakradhari (AW 3) and Bhogiram Chakradhari (AW 4).
10. Appellant Kunti Chakradhari (NAW 1) has stated in her
deposition that after 2 months of marriage, her husband and his
parents started torturing her by taunting that motorcycle was not given
in the marriage, whereas in her pleading, she has stated that she was
subjected to cruelty on demand of motorcycle. In her deposition, she
has made allegation of aforesaid cruelty against her husband and her
in-laws only, but in her cross-examination, she has also made
allegation regarding demand of dowry against elder brother-in-law
(Jeth) and sister-in-law (Jethani), thus, there is material contradiction
in respect of alleged harassment for demand of dowry.
11. It is also pertinent to mention here that appellant/wife
herself has stated in her pleading and deposition that husband was
already having motorcycle and her aforesaid statement i.e. harassment
for demand of motorcycle, has not been supported by her witnesses
namely Fenkuram Pandey (NAW 2) and Ravi Kumar Chakradhari
(NAW 3), rather Fenkuram Pandey (NAW 2) has stated in his
deposition that some dispute was raised by husband that the golden
chain given in marriage was made of fake gold, but this fact has neither
been pleaded nor stated by the appellant in her examination-in-chief.
Fenkuram (NAW 2) has admitted in his cross-examination at
para 11 that respondent has never complained him about fake golden
chain, he has also admitted in para 12 that appellant wife has not told
him about demand of dowry. Therefore, only on the basis of statement
of appellant/wife that she was subjected to cruelty for demand of
motorcycle by her husband or her in-laws family, is not found to be
trustworthy.
12. So far as alleged allegation against her character is
concerned, respondent husband has not leveled any allegation in his
pleading or deposition in respect of her character, rather he has only
pleaded/ stated that she remained busy for hours in talking over
mobile phone with some other person. Such statement cannot be
termed as allegation about character of wife. Fenkuram Pandey (NAW
2) has admitted in cross-examination in para 18 that respondent/
husband had asked to explain the wife regarding her talks with some
other person and to save his marital life, and on which, the wife had
promised him and her mother not to repeat such mistake. Thus,
submission made by learned counsel for the appellant that respondent
had levelled her character is not found to be correct, because if wife
remains busy in talking with some other person for long time, who is
not known to the husband or other family members, then it is quite
common for respondent to object and restrain her to do it. Hence, we
are not impressed with the submission made by learned counsel for
the appellant in this regard.
13. Wife (NAW 1) has stated in her deposition that
respondent/husband had admitted in front of her that he is having
affair with some other girl, but neither husband has been asked any
question in this regard in cross-examination nor her other witnesses
have supported her that any such admission was made by husband in
social meeting, therefore, only on the basis of solitary statement of
appellant, it cannot be held that respondent had stated or admitted
aforesaid fact.
14. Appellant/wife (NAW 1) has leveled allegation against her
father-in-law that on 18-2-2017, when she was alone in the house, then
her father-in-law caught hold her hands and molested her. It is also
evident from her statement that on the same day i.e. 18-2-2017 on
being complaint made by her to her parents, her parents along with
other members of society including Fenkuram Pandey (NAW 2), Ravi
Kumar Chakradhari (NAW 3) had come to the house of husband and a
meeting was held, wherein her father-in-law had admitted his mistake
and had also apologized. This fact has also been supported by NAW 2
and NAW 3 but these witnesses have also stated in their deposition
that father of respondent had denied allegations and had not
apologized. Fenkuram Pandey (NAW 2) has also admitted in his cross-
examination at para 13 that father-in-law of appellant had stated that
alleged incident of 18-2-2017 was false. Ravi Kumar Chakradhari
(NAW3) has also admitted in his cross-examination at para 14 that
respondent and his father had denied the allegation of molestation.
Both the above witnesses have admitted in their cross-examination
that on being demand made by appellant/wife and her family members,
respondent and his father had refused to give written apology on
allegation leveled against father of respondent/husband. Therefore, he
(respondent/husband) did not take the wife with him. Although
appellant had made complaint Ex. D-1-C to the Superintendent of
Police, Durg against respondent and his parents in respect of
harassment for dowry and molestation by her father-in-law, but this
complaint was made on 24-8-2017 whereas alleged molestation had
been done on 18-2-2017. Prior to that, respondent / husband had also
made complaint Ex. P-1-C to the Superintendent of Police, Dhamtari
that his wife Kunti may implicate them in false case of dowry
harassment. Document Ex. P-2-C is photocopy of postal receipt and
Ex. P-3-C to Ex. P-7-C are medical documents and other documents
like marriage card.
15. Perusal of aforesaid evidence available on record would
show that report with regard to alleged molestation by father-in-law
was made after more than 6 months of alleged incident, prior to that,
respondent had already made complaint to the Superintendent of
Police, Dhamtari that they may be implicated in dowry / harassment
case as his father has also been made accused by her to slander his
character. Respondent and his witnesses have denied aforesaid
allegation leveled against his father and both the witnesses of
appellant have also stated in their deposition that respondent and his
father have stated that alleged allegation is false, although both the
defence witnesses have earlier stated that father of husband had
apologized in earlier occasion for the same. Hence, considering
aforesaid contradictory and weak type of evidence of both the defence
witnesses, only on the basis of statement of respondent/wife, it cannot
be held proved that her father-in-law had molested her.
16. Since, it is not proved by appellant/wife that her father-in-
law had molested her, therefore, not giving written apology in this
regard by respondent/husband and his father cannot be held
inappropriate. Thus, the reasons stated by the appellant/wife for not
joining the company of husband are not found proved.
17. Appellant/wife has stated in her examination-in-chief that
she was ready to go with respondent, but he himself had not come to
bring her back. Now since the judgment has been passed against
appellant to resume their marital life, therefore, she should have to
restore their conjugal relations. But, in cross-examination, when she
was asked that "today also respondent/husband want to keep you
with him separate from joint family, whether you are ready to live with
him ?', she replied 'No'. As per her statement in para 26, she had
problem only with father-in-law, and there was problem with husband
also, but she has specifically stated that at present, she has no
problem. In such a situation, wife should have to join conjugal relation
with respondent /husband.
18. In view of above consideration on the evidence available
on record, we do not find any infirmity, perversity or illegality in the
impugned judgment passed by learned Family Court. Therefore,
appeal is devoid of merit and it is hereby dismissed.
A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
Pathak/-
