Chattisgarh High Court
Suvarna Awadhiya vs Vikas Awadhiya on 4 April, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:15825-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 25-02-2025
Judgment delivered on : 04-04-2025
FAM No. 258 of 2019
Suvarna Awadhiya W/o Vikas Awadhiya Aged About 38 Years R/o 29/121,
Awadhiya Para, Purani-Basti, District-Raipur Chhattisgarh
... Appellant/defendant
versus
Vikas Awadhiya S/o Shri Motichand Awadhiya Aged About 42 Years R/o
N/109, Shyama Prasad Mukharji Ward, Boriyakala P.S. Tikrapara, District-
Raipur Chhattisgarh
... Respondent/plaintiff
For Appellant :: Ms. Ruchi Nagar, Advocate on behalf of Mr.
Pragalbha Sharma, Advocate.
For Respondent : Mr. Akash Ku. Kundu, Advocate.
Hon'ble Smt. Justice Rajani Dubey &
Hon'ble Shri Justice Sachin Singh Rajput, JJ
C A V Judgment
Per Rajani Dubey, J
Challenge in this appeal under Section 19 of the Family Courts Act is to
the legality and validity of the judgment and decree dated 3.7.2019 passed by
First Additional Principal Judge, Family Court, Raipur in HMA No.508/2016
whereby the application filed by respondent/plaintiff under Section 13 of the
Hindu Marriage Act, 1955 (in short "the Act of 1955") for decree of divorce on
the ground of cruelty has been allowed.
02. The respondent/husband filed an application under Section 13 of the
Act of 1955 with the averments that his marriage was solemnized with the
appellant on 3.7.2003 and from their wedlock one son Varesh Kumar was
born on 13.1.2005. It was pleaded that after marriage, the appellant/wife
started quarreling with the respondent for living separately. She used to
suspect that the respondent/husband has illicit relations with his sister-in-law
(QqQsjh HkkHkh). Even while he was living separately with her in a rented
accommodation, there was no change in her conduct and she continued to ill-
treat him, suspect his character and also beat him. In April, 2008 she sent his
son Varesh to her parental home without his permission. Being fed up with
her cruel conduct, he started living separately from her since April,2008 but
continued to pay rent of the house where she was living. However, in 2010
she lodged a false report against him and during counseling proceedings,
refused to live with him. Hence he prayed for grant of a decree of divorce on
the ground of cruelty.
03. The appellant/wife in his written statement denied all the adverse
averments and stated that she never treated the respondent/husband with
cruelty and also never suspected his fidelity. In fact, he used to demand Rs.5
lacs and torture her therefor. On account of his torturous conduct and illicit
relations with his sister-in-law (Bhabhi), she has been living separately. She
also stated that the respondent/husband has married one Tara Sahu and is
living with her and therefore, there is no possibility of reunion between the
parties. She stated that decree of divorce be granted only on the condition
that he would make suitable arrangement for the accommodation and
maintenance of the wife and son and comply with the provisions of Section
25 of the Act of 1955.
04. Based on the pleadings of the respective parties, learned Family Court
framed two issues and after appreciation of oral and documentary evidence
on record allowed the application of the respondent/husband under Section
13 of the Act of 1955 by the impugned judgment and decree. Hence this
appeal by the appellant/wife.
05. Learned counsel for the appellant/wife would contend that the
impugned judgment and decree are perverse and not sustainable in law.
Learned Family Court ought to have appreciated the fact that illicit
relationship by its nature is very discreet, hence no direct evidence is
available. It should have decided the matter on the principle of
preponderance of probability and considered the entire factual matrix. It has
also erred in deciding the issue pertaining to permanent alimony to be
awarded under Section 25 of the Act of 1955. Learned Family Court failed to
take into account the fact that the appellant has no source of income or
permanent place of abode and that she has a child to be brought up. She has
been awarded a paltry sum of Rs.3,500/- pm towards permanent alimony
which, by no means, can be said to be just and reasonable. Looking to the
basic requirements of the appellant and the responsibility of upbringing the
child, a lumpsum amount ought to have been awarded apart from monthly
amount.
Reliance has been placed on the decision of the Hon'ble Apex Court in
the matter of Pravin Kumar Jain Vs. Anju Jain reported in
MANU/SC/1314/2024 : 2024 (4) CCC 366.
06. On the other hand, learned counsel for the respondent/husband
supporting the impugned judgment and decree submits that the appellant
filed affidavit on 11.2.2025 where she stated certain facts without any proof or
contrary to facts on record. She herself had admitted that she was living in
the ancestral property of the respondent till December 2024, however, she
further states that she is living with her brother but claims expenses on rent.
The judgment relied upon by the appellant in the case of Pravin Kumar Jain
(supra) is of no help to her because in the said matter income of the husband
was undisputedly Rs.4 lacs per month whereas in the present case, nothing
as such is established and the respondent is a private self-employed
computer repairer. During mediation proceedings she also stated to have
taken personal loan of Rs.3 lacs but did not submit any proof thereof.
Learned Family Court minutely appreciated the oral and documentary
evidence and decreed the suit in favour of the respondent/husband. As such,
there being no illegality or infirmity in the impugned judgment and decree, the
present appeal is liable to be dismissed.
07. Heard learned counsel for the parties and perused the material
available on record.
08. It is an admitted position in this case that marriage of both the parties
was solemnized on 3.7.2003 and from their wedlock one son Varesh was
born on 13.1.2005. The respondent/husband filed an application under
Section 13 of the Act of 1955 against the appellant/wife for divorce on the
ground of cruelty.
09. The appellant/wife in para 10 of her written statement alleges that the
respondent/husband has illicit relations with his sister-in-law and he has
married one Tara Sahu. In para 13 she states that in these circumstances it is
very difficult for her to live with her husband and therefore, she is ready for
divorce on the condition that the husband makes proper arrangement for
accommodation and maintenance of herself and her son and give a lumpsum
amount of maintenance as also comply with the provisions of Section 25 of
the Act of 1955.
10. The respondent/husband filed certified copy of the judgment dated
13.3.2015 (Ex.P/1C) whereby the respondent/husband and co-accused
(sister-in-law of the respondent/husband) were acquitted by learned trial
Court of the charge under Section 498A/34 of IPC.
11. The appellant/wife admitted in cross-examination in para 16 that she
filed a dowry case against her husband and his sister-in-law where she
alleged his illicit relation with his sister-in-law. She volunteers that she has no
proof of this illicit relationship. She admits that in the said dowry case the
respondent and the co-accused were acquitted and she did not appeal
against the said judgment. In para 19 she states that her husband has illicit
relation with one Tara Sahu. In para 20 she admits that she wants lumpsum
amount of maintenance from her husband.
12. Learned Family Court after appreciation of oral and documentary
evidence adduced by the parties came to the conclusion that the husband
has proved cruelty on the part of the wife and accordingly allowed his
application under Section 13 of the Act of 1955.
13. The Hon'ble Supreme Court in the matter of Narendra Vs. K. Meena
reported in (2016) 9 SCC 455 held in paras 15 and 16 of its judgment as
under:-
"15. With regard to the allegations about an extra-marital affair with
the maid named Kamla, the reappreciation of the evidence by the
High Court does not appear to be correct. There is sufficient
evidence to the effect that there was no maid named Kamla
working at the residence of the appellant. Some averment with
regard to some relative has been relied upon by the High Court to
come to a conclusion that there was a lady named Kamla but the
High Court has ignored the fact that the respondent wife had
levelled allegations with regard to an extra-marital affair of the
appellant with the maid and not with someone else. Even if there
was some relative named Kamla, who might have visited the
appellant, there is nothing to substantiate the allegations levelled
by the respondent with regard to an extra-marital affair. True, it is
very difficult to establish such allegations but at the same time, it is
equally true that to suffer an allegation pertaining to one's
character of having an extra-marital affair is quite tortuous for any
person-be it a husband or a wife.
16. We have carefully gone through the evidence but we could not
find any reliable evidence to show that the appellant had an extra-
marital affair with someone. Except for the baseless and reckless
allegations, there is not even the slightest evidence that would
suggest that there was something like an affair of the appellant
with the maid named by the respondent. We consider levelling 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."
14. In the matter of Samar Ghosh Vs. Jaya Ghosh reported in (2007)
4 SCC 511, the Honb'le Apex Court held in point No. (xiv) of para 101 as
under:-
"101............ (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."
15. In the present case also, it is clear that the respondent/wife in her
written statement as also in Court statement levelled some allegations of her
husband having illicit relations with his sister-in-law as well as with one Tara
Sahu but the same were not proved by any oral or documentary evidence.
She herself admits that she has no proof of such allegation. It is also an
admitted position in this case that the parties are living separately since 2008.
Thus, keeping in view the aforesaid judgments of the Hon'ble Supreme Court,
the overall evidence on record and conduct of the appellant/wife, we are of
the opinion that the learned Family Court has committed no illegality or
infirmity in allowing the application of the respondent/husband under Section
13 of the Act of 1955 by the impugned judgment and decree.
16. As regards permanent alimony, learned counsel for the appellant
submits that the appellant/wife wants Rs.10 lacs as permanent alimony,
however, the Family Court allowed her a meager amount of Rs.3500/- pm
only. As per direction of this Court, both the parties have filed their affidavits
which go to show that the respondent/husband is engaged in computer
repairing work whereas the appellant/wife is not working anywhere. In para
14 of the impugned judgment it is observed by learned Family Court that
though the husband is ready to give a flat worth Rs.5 lacs to the wife in lieu of
permanent alimony but she is not willing to take it. Thus, having regard to the
facts and circumstances of the case, the socio-economic status of the parties
and the cost of present day standard of living, we deem it appropriate to grant
a sum of Rs.8 lacs towards permanent alimony to the appellant/wife. Ordered
accordingly.
17. On the basis of aforesaid discussions, we find no substance in this
appeal and it is dismissed as such with modification in the impugned
judgment and decree to the above extent only.
Let a decree be drawn up accordingly.
Sd/ Sd/
(Rajani Dubey) (Sachin Singh Rajput)
Judge Judge
MOHD AKHTAR
KHAN
AKHTAR Date:
KHAN 2025.04.05
10:06:06
+0530
Khan
