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2009 DIGILAW 263 (CHH)

Kamleshwari Bai v. Peeluram Latkhor Sahu

2009-10-08

R.N.CHANDRAKAR, T.P.SHARMA

body2009
JUDGMENT T.P. Sharma, J. 1. This first appeal under Section 19(1) of the Family Courts Act, 1984 (in short 'the Act, 1984') is directed against the judgment and decree dated 28-12-2007 passed by the First Additional Principal Judge, Family Court, Durg, in Civil Suit No. 19A/07, whereby & whereunder learned First Additional Principal Judge has passed decree of divorce. 2. The defendant/appellant has challenged the judgment and decree of divorce on the ground that without there being any evidence of cruelty and desertion, the Court below has passed decree of divorce and thereby committed illegality. 3. Brief facts of the parties as per pleading are that the appellant and the respondent are Hindu and legally wedded wife and husband. Marriage was solemnized in the year 1993. Two children were bora out of the wedlock of the parties. Without any cause the present appellant has deserted the respondent and went to her paternal house. The present appellant was not ready to adjust in poor family of the respondent and has started committing cruelty. She refused to go to field for work and she was in habit of frequent visit to her parental house. The respondent has tried his level best to resolve the problem, but the appellant was adamant and finally she lodged a false report of demand of dowry against the respondent and his relatives. The respondent and his relatives were acquitted of the charges. The appellant has deserted the respondent and failed to discharge her marital obligation without any reasonable and cogent reason. On the ground of cruelty and desertion, continue of marital relation was not possible. On the aforesaid basis, the respondent has filed the suit for dissolution of marriage by a decree of divorce. 4. The present appellant has contested the suit and denied the allegation made by the respondent. She has specifically pleaded that she has never deserted or committed cruelty upon the respondent. The present respondent has married with another woman namely Sumitra Bai and he was residing with her. The respondent used to commit cruelty upon the appellant and used to beat her. Finally, the respondent ousted the appellant from his house and at present, the appellant is residing in her parental house under compulsion. The respondent has demanded Rs. 50,000/-and has also committed cruelty upon her, therefore, she lodged a report against the respondent. The respondent used to commit cruelty upon the appellant and used to beat her. Finally, the respondent ousted the appellant from his house and at present, the appellant is residing in her parental house under compulsion. The respondent has demanded Rs. 50,000/-and has also committed cruelty upon her, therefore, she lodged a report against the respondent. The appellant is ready to live with the respondent and ready to discharge marital obligation. The present appellant came to know that the respondent has left Sumitra Bai, therefore, she is ready to live with the respondent. 5. On the basis of averments made by the parties, issues were framed and after affording an opportunity of adducing evidence and hearing to the parties, learned First Additional Principal Judge, Family Court, Durg has passed a decree of dissolution of marriage by a decree of divorce. 6. We have heard learned Counsel for the parties and perused the judgment and decree impugned and record of the Court below. 7. Learned Counsel for the appellant vehemently argued that the appellant has not committed any cruelty or has not deserted the respondent, but the respondent himself has committed cruelty and has ousted the appellant from his house. Learned Counsel further argued that the respondent has remarried with Sumitra Bai. The appellant is residing in her parental house under compulsion and the respondent has left and deserted her. Learned Counsel placed reliance in the matter of Shyam Sunder Kohli v. Sushma Kohli alias Satya Devi (2004) DMC 586 (SC) : AIR 2004 SC 5111 in which the Apex Court has held that on the ground of irretrievable breakdown, the Court must not lightly dissolve a marriage. It is only in extreme circumstances that the Court may use this ground for dissolving a marriage and in the absence of evidence of desertion by opposite party, a marriage cannot be dissolved. Learned Counsel further placed reliance in the matter of Krishan Kumar v. Shankari (2007) DMC 367 : AIR 2007 (delhi) 2151 (Del) in which the High Court of Delhi has held that institution of criminal proceedings by wife would not constitute cruelty and even if there was acquittal in criminal proceedings by itself would not constitute cruelty. 8. Learned Counsel further placed reliance in the matter of Krishan Kumar v. Shankari (2007) DMC 367 : AIR 2007 (delhi) 2151 (Del) in which the High Court of Delhi has held that institution of criminal proceedings by wife would not constitute cruelty and even if there was acquittal in criminal proceedings by itself would not constitute cruelty. 8. On the other hand, learned Counsel for the respondent supported the judgment and decree and argued that the present appellant has willfully deserted the respondent and has committed cruelty with a view to harass him. The appellant has lodged a false report of commission of offence in which the respondent and his relatives were finally acquitted. The present appellant has, dragged the respondent and his relatives in the Court without there being any reasonable cause. Continuous of marital relation between the parties would not be possible and the only recourse left to the parties is dissolution of marriage by a decree of divorce. Learned Counsel further submits that the appellant has filed an application for maintenance, but the same has been dismissed by the Judicial Magistrate First Class, Balod on the ground that the appellant is not residing separately from the respondent under reasonable cause. 9. In order to appreciate the contentions of the parties, we have examined the evidence available on record. Respondent Smt. Kamleshwari has examined herself and has deposed that she had married with the respondent and out of the wedlock between the parties, two children were born, one is aged about 13 and second is aged about 11 years. Both are residing with the respondent. She herself is residing in village Mohara. The present respondent has remarried with Sumitra Bai and was residing with her, but at present the respondent has left Sumitra. She has also deposed that the respondent used to beat her. She has convened village meeting where villagers advised both the parties to live jointly. She has specifically deposed that nurse. Sumitra is presently living with her husband, therefore, she is ready to live with the respondent. Appellant witness Dinesh Kumar Sahu has deposed that before two years, the respondent has convened village meeting in which he was present. Persons from both the parties were also present. She has specifically deposed that nurse. Sumitra is presently living with her husband, therefore, she is ready to live with the respondent. Appellant witness Dinesh Kumar Sahu has deposed that before two years, the respondent has convened village meeting in which he was present. Persons from both the parties were also present. The respondent was residing with nurse Sumitra and has illicit relation with Sumitra, at that time nurse Sumitra was residing in the house of the respondent and the appellant was also residing in the house of the respondent. After sometime, the respondent refused to live with Sumitra Bai and at present Sumitra is residing with her husband of Taligundra. 10. The present respondent has also examined himself and has deposed that behaviour of the appellant was not normal. She refused to work in the field. She was in habit to go frequently to her parental house and whenever the respondent went to the parental house of the appellant for taking her back, she refused to come back. She has lodged a false report before the police and has dragged the respondent and his relatives in the Court where they were finally acquitted. She has also filed an application for maintenance, but the same has been dismissed. She has levelled false charge of illicit relation with Sumitra Bai. Smt. Keshar Bai mother of the respondent has corroborated the statement of the respondent. 11. The appellant has admitted in her cross-examination that she is residing in her parental house since year 2000 and has visited the village of the respondent for 7 to 8 times to see her children. She did not know after leaving the house of the respondent that the respondent is residing with any woman or not. She has admitted lodging of report and filing an application for maintenance, which has been dismissed. She has deposed that the respondent used to commit torture, therefore, she has left his house. The appellant witness Dinesh Kumar Sahu has also admitted in his cross-examination that the appellant is residing in her parent house since 7 years. The respondent has admitted in para 7 of his cross-examination that he has not filed any petition for restitution of conjugal rights. The respondent has deposed in his evidence that wherever he directed the appellant to work in the field, she refused. The respondent has admitted in para 7 of his cross-examination that he has not filed any petition for restitution of conjugal rights. The respondent has deposed in his evidence that wherever he directed the appellant to work in the field, she refused. The respondent has denied the suggestion of cruelty and torture and has specifically admitted that even if the appellant will ready to live with him, he is not ready to keep her. Mother of the respondent has also admitted in her cross-examination that even if the appellant will ready to live with her son, then they are not ready to keep her. She has denied the allegation of remarriage of her son with nurse Sumitra Bai. The respondent has also denied any relation with Sumitra Bai. 12. The evidence adduced on behalf of the parties reveals that the present appellant has lodged a report against the respondent and his relatives and prosecution has been launched at the instance of the appellant. While dealing with the question of cruelty by institution of criminal proceedings by wife, the High Court of Delhi in the matter of Krishan (supra) has held that institution of criminal proceedings by wife would not by itself constitute cruelty and even the acquittal in criminal proceedings by itself would not constitute cruelty. 13. Invoking of legal remedy by the parties cannot be termed as cruelty unless the same is launched mala fidely and with a view to harass and torture the opposite party. 14. In the present case, the respondent and his witness have not adduced any evidence to show that the appellant has intentionally or mala fidely launched the prosecution with a view to harass and torture the respondent. In absence of such evidence, we are unable to accept such launching of prosecution as a ground of cruelty. 15. The evidence adduced on behalf of both the parties reveals that financial status of the respondent and his family is low in comparison to the financial status of the appellant's parents. In absence of such evidence, we are unable to accept such launching of prosecution as a ground of cruelty. 15. The evidence adduced on behalf of both the parties reveals that financial status of the respondent and his family is low in comparison to the financial status of the appellant's parents. In such a situation, there may be some dispute, but this type of dispute does not constitute irretrievable breakdown of marriage and trifle dispute may be resolved by the parties with the help of senior members of the community and society, but the evidence adduced on behalf of the respondent reveals that he has not tried for convening caste meeting or society meeting to resolve the problem. The present appellant has levelled the allegation upon the respondent that he was residing with one nurse Sumitra Bai, but presently he has left Sumitra Bai which the present respondent and his witness have denied. 16. The present appellant has not examined Sumitra Bai. The evidence adduced on behalf of the appellant reveals that Sumitra Bai was living with the present respondent for sometime, but at present she is living with her husband. In these circumstances, it is difficult for the appellant to examine Sumitra Bai in support of her claim, but non-examination of nurse Sumitra Bai itself is not cruelty, sufficient for dissolution of marriage by a decree of divorce. On the other hand, the present respondent has not taken this ground in plaint/petition for dissolution of marriage by a decree of divorce, therefore, in the absence of any pleading and issue, this ground is also not available to the respondent. 17. Both the parties have admitted that they are residing separately since 2000. According to claim of the appellant, she is residing separately on the ground of cruelty and torture. The evidence adduced on behalf of the parties is not sufficient to prove the fact that the present appellant is residing separately from her husband and has deserted her husband for a continuous period not less than two years without there being any reasonable and cogent reason. The present appellant has not filed any petition for restitution of conjugal rights. 18. The present appellant has not filed any petition for restitution of conjugal rights. 18. The Hindu marriage is sacrament and not a contract and may be dissolved by a decree of divorce on the ground available under Section 13 of the Act, 1955 and in the absence of such ground, any marriage between Hindu cannot be dissolved by decree of divorce. 19. For the foregoing reasons, the respondent has not established the ground of cruelty or desertion for dissolution of marriage. The Court below has not considered the evidence adduced on behalf of the parties and reached into wrong conclusion that the appellant has committed cruelty upon the respondent. The Court below has also not considered the material fact that in absence of pleading and evidence, ground of cruelty on the basis of allegation of illicit relation with Sumitra Bai was not available to the respondent. 20. As a result, the judgment and decree for dissolution of marriage by decree of divorce is not sustainable under the law and is liable to be set aside. Accordingly, the appeal is allowed. The judgment & decree impugned is hereby set aside. Parties shall bear their own costs. Advocate fee as per schedule. Decree be drawn up accordingly.