Chattisgarh High Court
Smt. Hemlata Yogi vs Rajendra Nath Yogi on 14 February, 2025
Author: Rajani Dubey
Bench: Rajani Dubey, Narendra Kumar Vyas
1
2025:CGHC:7985-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 24-01-2025
Judgment delivered on : 14-02-2025
FA(MAT) No. 210 of 2023
Smt. Hemlata Yogi W/o Rajendra Nath Yogi Aged About 50 Years
Resident Of Ward No. 2, Mahkapara, Rahaud, Police Station
Shivrinarayan, Tahsil Pamgarh, District Janjgir-Champa (C.G.)
... Appellant /plaintiff
versus
Rajendra Nath Yogi S/o Late Tungeshwar Nath Aged About 51 Years
Resident Of Ward No.8, Mahkapara, Rahaud, Police Station
Shivrinarayan, Tahsil Pamgarh, District Janjgir-Champa (C.G.)
... Respondent/Defendant
For Appellant : Mr. Ishwar Jaiswal, Advocate.
For Respondent : Mr. Sahdev Yadav, Advocate.
Hon'ble Smt. Justice Rajani Dubey, J
Hon'ble Shri Justice Narendra Kumar Vyas, J
C A V Judgment
Per Rajani Dubey, J
Challenge in this appeal under Section 19(1) of the Family
Courts Act, 1984 is to the legality and validity of the judgment and
decree dated 26.6.2023 passed by Additional Principal Judge, Family
Court, Janjgir, Distt. Janjgir-Champa in Civil Suit No.265A/2022
whereby the application under Section 13 of the Hindu Marriage Act,
1955 filed by the appellant/wife for dissolution of marriage with the
respondent/husband has been dismissed.
02. The admitted fact in this case is that marriage of the appellant
with the respondent was solemnized on 7.6.1991 as per Hindu rites
and rituals and from their wedlock, two daughters and one were born.
03. The appellant/wife filed an application under Section 13 of the
Hindu Marriage Act, 1955 with the averments that her marriage with the
respondent was solemnized on 7.6.1991 at Village-Rahaud and from
their wedlock, son Voneshnath was born on 3.2.1993, daughter Yamini
was born on 1.4.1995 and Bhavna born on 16.3.2004. Yamini has been
married on 3.2.2021. As per the appellant/wife, she was studying at
the time of her marriage and she wanted to continue her studies,
however, the respondent and his family members did not agree to it.
The respondent used to make physical relations with her forcibly and
on her refusal, abuse her filthily and beat her as well but she continued
to bear all this cruelty. He was not doing any work and the appellant
has to bear the expenses of maintenance of the children and their
education. She got a house constructed by taking loan and also bore
the entire expenses of marriage of her daughter Yamini. She further
averred that the respondent also has illicit relations with many women
of the village. Being fed up with this cruel and promiscuous conduct of
the respondent, she got a meeting of their family members convened
and there she proposed for divorce from him. She stated that there is
so much bitterness in their relations that the respondent is living in
another room of the appellant's house since 2018 and there is no
physical relation between them since then. She also averred that the
respondent is not vacating the shop with a view to grabbing and selling
her private house. Hence she prayed for a decree of divorce on the
ground of physical and mental cruelty as also desertion.
04. The respondent in his written statement denied all the adverse
averments and contended that he never had forcible sexual intercourse
with the appellant and also never treated her with cruelty. He stated
that he bore all the expenses of education of his son up to Class-12th
and also spent Rs.3 lacs on purchase of land and construction of
house thereon after selling his ancestral property. The appellant/wife
has filed the instant application on false and frivolous grounds,
therefore, it is liable to be rejected.
05. Based on the pleadings of the respective parties, the learned
Family Court framed issues and after appreciation of oral and
documentary evidence, rejected the application of the appellant by the
impugned judgment and decree. Hence this appeal.
06. Learned counsel for the appellant would submit that the
impugned judgment and decree are illegal and contrary to the evidence
on record. Learned Family Court ought to have seen that the
respondent/husband was proceeded ex-parte before the Court below
and there was no rebuttal to the pleadings of the appellant/wife.
Further, it failed to appreciate that since 2018 there is no cohabitation
between the appellant and the respondent. He would next submit that
the learned Family Court also did not appreciate the fact that the entire
expenses of maintenance and education as also marriage of daughter
Yamini were borne by the appellant and that the daughter Bhavna Yogi,
appellant/plaintiff's witness, has stated that her mother/appellant and
herself do not want to live with the respondent due to his cruel nature
and conduct. The appellant is a government teacher, she got a house
constructed after taking loan, the respondent did not want to reside
separately from her and always tortured her mentally and physically
and took money from her but the learned trial Court did not consider
this aspect of the matter properly. The respondent never tried for
getting employment anywhere. Thus, looking to the oral and
documentary evidence and conduct of the respondent, the appellant
deserves to be granted a decree of divorce.
Reliance has been placed on the judgment dated 26.7.2023 of
this Court in FA(MAT) No. 4 of 2022 in the matter of Smt. Payal
Sharma Vs. Umesh Sharma.
07. On the other hand, learned counsel appearing for the respondent
supporting the impugned judgment and decree would submit that upon
proper appreciation of oral and documentary evidence the learned
Family Court rightly recorded a finding that no physical or mental
cruelty was committed by the respondent to the appellant and as such,
she is not entitled for any decree of divorce. The appeal being without
any substance is liable to be dismissed.
08. Heard learned counsel for the parties and perused the material
available on record.
09. It is clear from the record of learned Family Court that it is an
admitted position that marriage of the appellant with the respondent
was solemnized on 7.6.1991 and from their wedlock, two daughters
and one son were born. It is also not in dispute that one daughter
namely Yamini is married on 3.2.2021 and the son has completed his
B.E. degree and is taking coaching in Bengaluru whereas the younger
daughter is studying in Class-12th. It is also admitted that the
appellant/wife is a teacher in government school and the respondent
has an electronic shop in the village.
10. Learned Family Court on the basis of pleadings of the respective
parties framed following three issues :
dza वाद प्रश्न निष्कर्ष
01- क्या प्रतिवादी/अनावेदक, वादिनी/आवेदिका को अप्रमाणित ।
मानसिक एवं शारीरिक रुप से प्रताडित कर कू रता
कारित की है ?
02- क्या प्रतिवादी/अनावेदक, वादिनी/आवेदिका पेश अप्रमाणित ।
करने के दो वर्ष पूर्व से निरन्तर कालावधि में
अभित्यक्त कर रखा है?
03- सहायता एवं वाद व्यय ? वादिनी का वाद निरस्त ।
(कं डिका 20)
11. Before the learned Family Court, the appellant/wife filed her
affidavit under Order 18 Rule 4 of CPC and the respondent/husband
appeared and also filed his written statement but since 1.3.2023 he
remained absent. on 16.6.2023 the case was fixed for plaintiff's
evidence and on this date the plaintiff/wife filed affidavits of herself and
two witnesses namely Bhavna Yogi and Girja Shankar, and the Court
proceeded ex-parte against the respondent/husband. Thereafter, the
case was fixed for 20.6.2023 and again fixed for 23.6.2023 but the
respondent/husband did not appear before the Court. Finally, on
26.6.2023 the learned Family Court passed the impugned judgment
and decree rejecting the application of the appellant/wife.
12. The appellant/wife in her affidavit under Order 18 Rule 4 of CPC
stated that she is working as a teacher and she got a house
constructed after taking loan and is also maintaining the children alone.
She also opened an electronic shop for the respondent/husband but he
did not sit in the shop, rather he would take money in advance from the
customers and thereafter close the shop and as a result of this, his
business has totally ruined. She stated that the respondent has also
illicit relations with many women and since 2018 they have no marital
relationship.
She filed her marriage card as Ex.P/1, marriage photographs as
Ex.P/2, photograph of the closed shop as Ex.P/3; copy of passbook as
Ex.P/4; fees receipts of her daughter Bhavna Yogi as Ex.P/5; copy of
loan account statement as Ex.P/6; copy of her service book as Ex.P/7
and photographs of marriage of her daughter Yamini as Ex.P/8.
[
13. Witness Bhavna Yogi, daughter of the appellant and the
respondent, and witness Girja Shankar Jaiswal have also supported
the statement of the appellant/wife.
14. It is clear from the order sheets of the learned Family Court that
on 27.1.2023 mediation was conducted between the parties but it
failed. On 8.1.2025 this Court also after hearing both the parties
directed the respondent to sit in his shop from tomorrow onwards from
9.30 am to 8 pm till the next date of hearing and the appellant was also
directed to file an affidavit as to whether the allegations made against
him in the complaint are true or not. At the same time, learned counsel
for the respondent was also directed to produce respondent's income
chart of 23 days before this Court on the next date of hearing i.e.
23.1.2025. Though on 23.1.2025 the appellant/wife filed her affidavit
and documents as also photographs of the closed shop but the
respondent/husband did not file any document. In her affidavit the
appellant stated that the respondent is having illicit relations with other
women, the electronic shop always remains closed; he has no income;
he always used to take money from her forcibly and consume liquor
and that he is not taking care of her or any of the family members.
15. This Court in the matter of Smt. Payal Sharma (supra) held in
paras 10 & 11 of its judgment as under:
"10. There is no cross-examination to the aforesaid facts.
In absence of any cross-examination, the averments made
by the wife would be deemed to be an acceptance. Even
otherwise, if the children are born out of the wedlock, the
respondent being the father cannot shirk his
responsibilities specially when the wife is a non-working. It
is very natural that the wife would depend upon the
husband for her household need and to upbring her
children to give a good education and life. If the husband
instead of discharging of his obligation indulges himself in
excessive drinking habit, which deteriorates the family
condition, it would naturally lead to a mental cruelty to the
wife and the entire family including children.
11.Having not done so the husband/respondent can be
safely be stated that he has caused mental cruelty to the
wife. The conduct of the wife would show that she tried to
save the marriage as otherwise in the earlier occasion the
application seeking divorce on the similar ground of
excessive drinking would not have been withdrawn on the
promise of the husband that he would mend his
behaviour."
16. In the present case also, the appellant/wife filed affidavit to prove
her pleadings and also filed documents and alleged that conduct of the
respondent is not proper, he is not discharging his obligation as a
husband and father by taking care of the appellant and the children.
Even their daughter Bhavna Yogi has also supported the averments
made by the appellant/wife. One witness Girja Shankar Jaiswal has
also supported the allegations of the appellant. There is no cross-
examination to the said facts, therefore, in absence of any cross-
examination despite sufficient opportunity being afforded therefor, the
averments made by the wife would be deemed to be an acceptance on
the part of the respondent/husband. This Court in the matter of Smt.
Payal Sharma (supra) has held that if the husband instead of
discharging his obligation indulges himself in excessive drinking habit,
which deteriorates the family condition, it would naturally lead to a
mental cruelty to the wife and the entire family including children. In
this case also, the respondent indulged himself in excessive drinking
habit as also has illicit relations with other women and is not doing any
work to support his family. Such irresponsible and promiscuous
conduct of the respondent is causing social infamy to the whole family.
However, the learned Family Court did not consider all this and held
that no mental or physical cruelty has been committed by the
respondent to the appellant. This finding of the learned Family Court is
not based on proper appreciation of material available on record and
as such, is liable to be set aside.
17. On the basis of aforesaid discussions, this Court is of the opinion
that the conduct of the respondent/husband amounts to mental as well
as physical cruelty to the appellant/wife and as such, she is entitled for
a decree of divorce on this ground. Being so, the impugned judgment
and decree dated 26.6.2023 of the learned Family Court are hereby set
aside. Consequently, marriage between the parties held on 7.6.1991
stands dissolved from today.
Let a decree be drawn up accordingly.
Sd/ Sd/
(Rajani Dubey) (Narendra Kumar Vyas)
Judge Judge
Digitally
MOHD signed by
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan
