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2009 DIGILAW 54 (CHH)

VIAYA LAXMI SONI v. RAJ KUMAR SONI

2009-02-19

SUNIL KUMAR SINHA, T.P.SHARMA

body2009
JUDGMENT As per Hon'ble Shri T.P. Sharma, J. :- 1. The appellant has challenged legality & propriety of the judgment & decree dated 5-5-2006 passed by the Judge, Family Court, Korba in Civil Suit No. 23-A/2005, whereby the said Court has passed a decree for judicial separation in a suit filed by the respondent herein for divorce under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act'). 2. The respondent has also filed cross-objection under Order 41 Rule 22 of the Code of Civil Procedure for modification of the decree of judicial separation into decree of divorce. 3. The appellant/non-applicant & the respondent/applicant are husband & wife, they are governed by the Hindu law, as such the Hindu Marriage Act, 1955. 4. The respondent herein has filed a suit for dissolution of marriage by a decree of divorce under Section 13 of the Act on the ground of physical & mental cruelty committed by the present appellant/non-applicant, before the Judge, Family Court, Korba. Marriage between the parties was solemnized on 10th of July, 2000 at Janjgir. After marriage, behaviour of the appellant/non-applicant with the respondent/applicant was not proper. The appellant used to condemn the respondent and also thereaten the respondent to send him to prison. Her behaviour was indecent. On the ground of physical & mental cruelty, the respondent filed a suit for dissolution of marriage by a decree of divorce. 5. In her reply to the suit for divorce, the appellant/non-applicant denied the allegations made in the suit. 6. On the basis of pleadings of the parties, issues were framed and after affording opportunity of adducing evidence and hearing the parties, learned Judge, Family Court decreed the suit for judicial separation in accordance with Section 13A of the Act. The appellant/non-applicant has challenged the decree on the following grounds and prayed for setting aside the impugned judgment and decree: (1) That, the decree passed by the Court below is arbitrary, illegal and contrary to the facts and circumstances of the case. (2) That, the Court below has committed error in holding that the respondent is liable to get decree of judicial separation under Section 10 of the Hindu Marriage Act. (2) That, the Court below has committed error in holding that the respondent is liable to get decree of judicial separation under Section 10 of the Hindu Marriage Act. (3) That, the Court below failed to see that the respondent filed an application under Section 13(1 )(i-a) of the Act, 1955, the Court below overlooked and granted judicial separation under Section 10 of the Act, 1955. (4) That, the Court below has not properly appreciated the evidence adduced by the appellant. (5) That, the Court below has failed to see that in support of written statement the appellant examined Mohit Ram, Mukesh Kumar Vora and Anil Sarafunder Order 18 Rule 4 of the Code of Civil Procedure. (6) That, the court below has failed to see that the appellant had filed a suit under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. (7) That, the Court below failed to see that the respondent admitted that in the month of October 2002 the respondent resided with the appellant at Champa and on 28/1 0/2002 the respondent filed application under Section 13 of the Act 1955. Therefore, the application filed by the respondent was pre-mature as per the provisions of the Act 1955. (8) That, the Court below has failed to see that the appellant was willing to reside with the respondent but the Court below passed decree of judicial separation which is bad in law. 7. The respondent/applicant has also filed cross-objection under Order 41 Rule 22 of the Code of Civil Procedure for modification of the decree of judicial separation and for grant of decree of divorce on the ground that the Judge, Family Court has failed to pass a decree of divorce on the ground of cruelty on the part of the appellant/non-applicant and has committed illegality by passing a decree of judicial separation. S. We have heard learned counsel for the parties and have also perused the judgment impugned as also the record ofthe Family Court. 9. Learned counsel for the appellant submits that the appellant is wife, she is not capable of committing physical or mental cruelty upon the husband who is in dominating position. The Court below has wrongly arrived at a finding that the appellant has committed cruelty upon the respondent. 9. Learned counsel for the appellant submits that the appellant is wife, she is not capable of committing physical or mental cruelty upon the husband who is in dominating position. The Court below has wrongly arrived at a finding that the appellant has committed cruelty upon the respondent. The Court below has not considered the evidence of the appellant which is sufficient for drawing inference that the appellant has not committed any cruelty. 10. Learned counsel for the respondent submits that the respondent/ applicant has proved the issue of cruelty/indecent behaviour of the appellant by adducing reliable & cogent evidence. Even after arriving at a positive finding of cruelty/indecent behaviour of the appellant, the Judge, Family Court, instead of passing a decree for dissolution of marriage by divorce, has illegally passed the decree of judicial separation. In the present case there is no chance of reunion or restitution of conjugal rights, only dissolution of marriage by a decree of divorce is the solution left for the welfare of the parties and for their future. 11. We have examined the evidence adduced on behalf of the parties. 12. Respondent Raj Kumar Soni (A W -1) has categorically stated in his evidence that the present appellant who is his wife has committed physical & mental cruelty against him and her behaviour was indecent after the marriage. His evidence is corroborated by Bhanwar Singh (A W -2), Surendra Singh Tekam (AW-3), Jitendra Swamakar(AW-4), Ramlal Soni (AW-5) & Ramesh Soni (AW6). 13. Appellant Smt. Vijaya Laxmi Soni has stated in her affidavit filed under Order 18 Rule 4 of the Code of Civil Procedure that behaviour of the respondent with her was not proper and the respondent has committed physical & mental cruelty upon her in connection with demand of dowry. Non-applicant's witnesses namely Mohit Ram Saraf, Mukesh Kumar Bohra & Anil Kumar Saraf have corroborated the evidence of the appellant. 14. Both the parties had made counter allegations against each other and had adduced evidence to that effect. The appellant has admitted in para 20 of her cross-examination that she is residing separately from her husband since 18-102002, but she has stated that the respondent never behaved with her like a husband. 15. In this case, both the parties have made allegations of cruelty against each other and they are not residing together since October, 2002. The appellant has admitted in para 20 of her cross-examination that she is residing separately from her husband since 18-102002, but she has stated that the respondent never behaved with her like a husband. 15. In this case, both the parties have made allegations of cruelty against each other and they are not residing together since October, 2002. The appellant has stated that she has filed petition for restitution of conjugal rights against the respondent in the year 2002, but she has not pleaded this material fact in her pleading. The decree of judicial separation has been passed on 5-5-2006, but even after the decree, parties have not tried for restitution of conjugal rights or any attempt for cohabitation. The Court below has arrived at a finding that the appellant has committed cruelty upon the respondent i.e. with her husband, even she has slapped the respondent/her husband and she has tried to assault him with the help of other persons. This shows the nature of instance took place between the parties and there is no chance of any reunion or restitution of conjugal rights. Though the learned Court below was empowered to pass a decree of judicial separation in accordance with Section 13A of the Act in case of petition for dissolution of marriage by a decree of divorce under Section 13 of the Act, however, it is note case where it was necessary to pass a decree of judicial separation. When reunion or restitution of conjugal rights becomes impossible between the parties, dissolution of marriage by a decree of divorce is the only effective remedy for the welfare of the parties. 16. After appreciating the evidence available on record, the Court below has recorded a finding that the appellant, who is wife of the respondent, has treated him with cruelty and has failed to discharge her marital obligation. Even she has threatened the respondent to implicate him falsely in cases. Yet, the Court below has not passed order for dissolution of marriage by a decree of divorce and has passed the decree of judicial separation. Findings of the Court below on issue No.1 clearly show that there is no chance of restitution of conjugal rights or reunion. Even she has threatened the respondent to implicate him falsely in cases. Yet, the Court below has not passed order for dissolution of marriage by a decree of divorce and has passed the decree of judicial separation. Findings of the Court below on issue No.1 clearly show that there is no chance of restitution of conjugal rights or reunion. In the facts and circumstances of the case, dissolution of marriage by a decree of divorce was the only remedy left, but the Court below has not passed the decree of divorce, which was fully possible on the basis of proved facts in this case. 17. For the foregoing reasons, we are of the considered view that the respondent aapplicant has succeeded to make out a case for dissolution of marriage by a decree of divorce. We do not find any force in the appeal, same is liable to be dismissed and it is hereby dismissed. Cross-objection of the respondent is allowed. Judgment & decree impugned is hereby modified and marriage between the parties is hereby dissolved by a decree of divorce. Decree be drawn up accordingly. 18. Parties shall bear their costs of the suit as well as of the appeal. Appeal Dismissed. Cross-objection Allowed.