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2010 DIGILAW 51 (CHH)

HEMLATA SONWANI v. K. R. SONWANI

2010-02-16

RANGNATH CHANDRAKAR, T.P.SHARMA

body2010
JUDGMENT As per Hon'ble Shri T.P. Sharma, J.- 1. Challenge in this appeal is to the judgment and decree dated 28-42008 passed by 1st Additional Principal Judge, Family Court, Raipur in civil suit No. 166-A/2007, whereby learned Judge Family Court has allowed the suit for dissolution of marriage by a decree of divorce filed on behalf of the respondent. The decree is impugned on the ground that without any proof of cruelty the court below has passed the decree and thereby committed illegality. 2. Brief facts necessary for disposal of this appeal are that as per pleadings of the parties, the parties are legally wedded spouses and their marriage was solemnized according to Hindu rights and customs on 1-5-1985. As per pleadings of the respondent, the respondent is a senior Doctor in District Hospital Raipur and after marriage they resided together at Simga till 1994. Just after 2- 3 months of the marriage, the behaviour of the appellant became abnormal. She is a woman of arbitrary nature. She was reckless for her family. She used to quarrel with the respondent for the last 20 years and used to address his mother-in-law and father in-law as "Budhe - Budhiya". She used to condemn them. Three children were born out of their wedlock. In the month of May 1998 as the sister of respondent namely Dayavati was ill, the respondent called her sister and treated her in his house. The respondent treated his sister by administrating saline. The appellant removed saline from the body of his sister and ousted her from her house. The present appellant/defendant has left the house of the respondent in 1999 and since then the respondent is residing separately. Even after the death of father of the respondent, the present appellant has condemned her father-in-law and his family members. She has also filed the petition under Section 125 of the Cr.P.C. She has broken her bangles and wiped off the vermilion from her forehead. Respondent has also pleaded that firstly he was married to one Parvati and after customary divorce prevailing in his caste, he got second marriage with the present appellant. On the aforesaid ground the petition for dissolution of marriage by a decree of divorce has been filed by the respondent. 3. Respondent has also pleaded that firstly he was married to one Parvati and after customary divorce prevailing in his caste, he got second marriage with the present appellant. On the aforesaid ground the petition for dissolution of marriage by a decree of divorce has been filed by the respondent. 3. On the other hand, present appellant/defendant denied the allegation made in the petition and has specifically pleaded that she has never tortured or committed cruelty upon the respondent. She has neither insulted her in-laws and the respondent nor deserted the respondent. The respondent himself gave torture and committed cruelty upon the appellant. The respondent suspected the appellant and he himself ousted the appellant from his house. The respondent himself has admitted before the appellant that he was having illicit relation with one girl namely Hastrekha and he wanted to marry that girl. She also alleged that the respondent assaulted her and forcibly took her signatures on five blank stamp papers. 4. On the basis of averments made by the parties, issues were framed and after affording an opportunity of hearing to the parties, learned Judge, Family Court has allowed the petition filed on behalf of the respondent and has passed the decree for dissolution of marriage by a decree of divorce. 5. We have heard Shri K.K. Singh, learned counsel for the appellant and Shri S.S. Rajput, learned counsel for the respondent, perused the judgment & decree and record of the Family Court. 6. Learned counsel appearing for the appellant vehemently argues that the respondent has not adduced any evidence to prove the cruelty committed by the appellant and in absence of proof of cruelty, the decree of dissolution of marriage by a decree of divorce is not sustainable under law. 7. On the other hand, learned counsel appearing for the respondent vehemently opposed the appeal and submitted that the respondent has proved the factum of cruelty by adducing oral and documentary evidence and after considering all the aspects, the court below has rightly decreed the suit. 8. Learned counsel for the appellant in support of his arguments has placed reliance in the matter of Komal Singh Parihar Vs. Kusum Parihar-1, in which it has been held by High Court of M.P that false allegation of second marriage made by wife amounts to cruelty. Learned counsel has further placed reliance in the matter of Smt. Sunita Vs. 8. Learned counsel for the appellant in support of his arguments has placed reliance in the matter of Komal Singh Parihar Vs. Kusum Parihar-1, in which it has been held by High Court of M.P that false allegation of second marriage made by wife amounts to cruelty. Learned counsel has further placed reliance in the matter of Smt. Sunita Vs. Priya Kumar-2, in which the Apex Court held that false allegation of illicit relation made by the parties amounts to mental cruelty. 1. 2004(II)MPJRSN27 2. 2003(3) MPHT 154 9. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. In Hindu Marriage Act, 1955 cruelty has not been defined. It defers from case to case and cruelty may relate to mental or physical, intentional or unintentional. In case of mental cruelty there must be some deliberate allegation or action which adversely affects the status of other party. As held in case of Komal Singh Parihar-1 (supra) and Smt. Sunita-2 (supra), false allegation of illicit relation of opposite party with other person constitutes mental cruelty and the same is sufficient for dissolution of marriage by a decree of divorce. 10. In the present case, the respondent has examined himself his sister PW2 Dayawati, his mother PW-3 Smt. Chanda Devi Sonwani, PW 14 Bhave Sonwani. Per contra, appellant has examined herself DW/2 Doctor D.R. Sonwani, DW/3 Swan Kumar Bandhe, DW/4 Naveneet Sonwani, DW/5 Doctor K.R. Sonwani, DW 16 Doctor Rajmahant Satyanarayan Sonwani, DW 17 Mahant Munjnu Ratre and DW 18 Rajmahant Mohan Mahilang. The decree of divorce is substantially based on the ground of alleged mental cruelty committed by the respondent. According to the judgment and decree impugned, the present appellant has made false allegation upon her husband i.e., respondent that the respondent is having illicit relation with one Hastrekha and he is willing to marry that girl. 11. The appellant has cross examined the respondent at length. In para 18 of his cross examination, the appellant has suggested that his first wife was having two issues through respondent and also suggested that one other girl aborted at his instance which the respondent has denied. 11. The appellant has cross examined the respondent at length. In para 18 of his cross examination, the appellant has suggested that his first wife was having two issues through respondent and also suggested that one other girl aborted at his instance which the respondent has denied. The appellant in her evidence has deposed that before her marriage the respondent was keeping two wives namely Umila and Pamila and he used to tell others that they were his sisters, but they were not his sisters and they were his keeps. Prior to his marriage one girl namely Hastrekha was residing with the respondent to whom the respondent was trying to marry, but that girl came to know that the respondent was having illicit relation with number of girls, therefore, she refused him for marriage. She has also deposed that the respondent was having illicit relation with one nurse namely Hemlata and even after her marriage Hemlata stayed in the house of respondent for about a month. She has also deposed in para 2 of her evidence that the respondent himself has admitted that he is having illicit relation with one nurse. In para 3 of her evidence again she has deposed that even after marriage, one nurse Sinha was keep of the respondent. The appellant has also deposed that the respondent used to take tablets of sex. In para 4 of her evidence she has further deposed that the appellant was having illicit relation at least with 10-11 girls. Even he has brought one girl namely Ku. Roshan from Simga. She has further deposed that in the year 1999 the respondent has kept one nurse namely Savitri Chandrakar and one baby was born out of their illicit relation. The respondent has examined Doctor D.R. Sonwani, but he has not deposed anything about these illicit relations. The appellant has specifically pleaded and deposed in detail in her evidence that the respondent was having illicit relation with more than 10-11 girls and even he is having one illegitimate daughter. She has disclosed the names of some nurses and women Hastrdrna Hemlata, Umila, Panlila, Sinha, Roshan and Savitri Chandrakar, but the reasons best known to her, she has not examined any of the women or any other witness to support her allegation that any witness has ever seen the respondent with any of the women. She has disclosed the names of some nurses and women Hastrdrna Hemlata, Umila, Panlila, Sinha, Roshan and Savitri Chandrakar, but the reasons best known to her, she has not examined any of the women or any other witness to support her allegation that any witness has ever seen the respondent with any of the women. The allegation in the pleading and evidence is clear and unambiguous relating to illicit relation of respondent with more than 10-11 women, but the appellant has not adduced any evidence in support of her allegation. In absence of any evidence, the allegation of illicit relation of respondent with number of women is sufficient for constituting mental cruelty. 12. After appreciating the evidence available on record, learned Judge Family Court has decreed the suit for dissolution of marriage by a decree of divorce. The allegation made by the appellant/wife itself constitutes mental cruelty and on the ground of mental cruelty committed by the appellant, the respondent is entitled for dissolution of marriage by a decree of divorce. 13. For the foregoing reasons, we are of the view that the learned Judge Family Court has not committed any illegality or irregularity in decreeing the suit for dissolution of marriage by a decree of divorce. Consequently, the appeal is without substance and is liable to be dismissed and it is hereby dismissed. Parties shall bear their own costs. Advocate fee as per schedule. 14. Decree be drawn up accordingly. Appeal Dismissed.