Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 361 (CHH)

PAWAN KUMAR DEWANGAN v. RAMA DEWANGANT

2011-11-17

NAWAL KISHORE AGARWAL

body2011
JUDGMENT : N.K. AGARWAL, J. 1. The appeal in a matrimonial case, is by the husband, is directed against the judgment and decree dated 23.6.1998 pasted by the 5th Additional District Judge, Raipur, in Civil Suit No. 452-A/1996, whereby and whereunder the appellant's petition filed under Sections 13(1)(i) and 13(1)(1b) of the Hindu Marriage Act 1955 (for short 'the Act of 1955') for grant of divorce has been dismissed. Facts of the case in brief are as under: (i) Marriage between the appellant-Pawan Kumar Dewangan and respondent -Rama Dewangan was solemnized in the year 1970, as per Hindu Rites and Customs. (ii) The marriage, according to the appellant lasted upto 1990 when respondent left matrimonial home. Since men, the appellant and respondent are living separately. (iii) According to the appellant, no child was born from the wedlock. Respondent developed illicit relationship with one Sehattar Ram Yadav of her parental village resulting into birth of a child after the period of 12 months, she left the matrimonial home, i.e. December, 1990, thus she is leading an adulterous life. It was further alleged, she lodged complaint against Sehattar Ram Yadav for committing rape on her but the matter has been compromised, and therefore, her integrity and character is doubtful and appellant is entitled for divorce. (iv) The respondent, i.e. wife of the appellant, by filing written statement denied the allegations levelled by the appellant on her and pleaded that the allegations are false and frivolous. According to the respondent, the appellant throw her out of her matrimonial home in the month of June, 1990 and son Devendra was born in the month of December is out of their wedlock and the allegations levelled by the appellant amount to cruelty on her and divorce petition may be dismissed. 2. The Trial Court framed the following issues: ("Vernacular language omitted") 3. The appellant examined himself and Ram Awatar Dewangan (A.W.2). The respondent, examined herself, Dr. Smt. S.P. Dhalla (D.W.2) and Shivkumar (D.W.). 4. The Trial Court, vide judgment and decree impugned, dismissed the divorce petition filed by the appellant/husband finding inter alia respondent has not left matrimoniathome of her own and also not leading adulterous life. 5. Mr. The appellant examined himself and Ram Awatar Dewangan (A.W.2). The respondent, examined herself, Dr. Smt. S.P. Dhalla (D.W.2) and Shivkumar (D.W.). 4. The Trial Court, vide judgment and decree impugned, dismissed the divorce petition filed by the appellant/husband finding inter alia respondent has not left matrimoniathome of her own and also not leading adulterous life. 5. Mr. R.S. Patel, learned Counsel appearing for the appellant would submit: the Trial Court has not considered the evidence led by the parties in its proper perspective; wrongly held, son Devendra born out of their wedlock, respondent is not leading adulterous life; and the Trial Court has fallen in error in dismissing the appellant's divorce petition. In the alternative, he would submit the respondent deserted him and denied the matrimonial bliss of physical relation which itself constitutes cruelty. The appellant and respondent are living separately for a sufficient length of time, marriage was broken down irretrievably, there is no chance of their living together, therefore, the appellant is also entitled for grant of decree of divorce on the ground of irretrievable breakdown of marriage. 6. On the other hand, Mr. Raja Sharma, learned Counsel for the respondent contended, the Trial Court has rightly dismissed the appellant's petition for divorce and in the facts and circumstances of the case, the same needs no interference. 7. I have heard Counsel for the parties, perused the record of the Trial Court including judgment and decree impugned. 8. The appellant, in his examination-in-chief, paras 1 and 2, has not stated anything regarding illicit relationship between respondent and Sehattar Ram Yadav. He has only stated that one criminal case was initiated against Sahattar Ram Yadav and the same was dismissed due to compromise between respondent and that Sehattar Ram Yadav and one son was born after a period of 12 months, respondent left matrimonial home. In his cross-examination, para -6, he has deposed, the incident with Sehattar Ram Yadav is of the year 1989 or 1979 or 1978. He has also deposed, no document regarding compromise between respondent and Sehattar Ram Yadav has been filed by him. He admits that he did not mention in his divorce petition in which month of 1990 respondent left matrimonial home. In para - 7, he admitted that he has not lodged any report and no notice was issued by him when respondent left matrimonial home. He admits that he did not mention in his divorce petition in which month of 1990 respondent left matrimonial home. In para - 7, he admitted that he has not lodged any report and no notice was issued by him when respondent left matrimonial home. He has also stated that no child was born from the wedlock. In para -10, although he has denied that he developed illicit relation with one Leena @ Neelima, i.e., his office typist and that Leena gave birth in Jubeda Hospital on 8.8.1990 to one girl, but has also stated that he is not aware that due to his relation with Leena, two children were born after 1990. 9. Ram Awatar Dewangan (P.W.) has deposed in para 1 of his statement that when he went to the house of appellant Pawan Kumar Dewangan in the month of January - February, 1990, respondent - Rama Dewangan was not present and on his asking to the appellant, he said that she left the matrimonial home. However, in cross-examination para - 6, he has admitted that the above statement given by him is false and the same was at the instance of appellant-Pawan Dewangan. 10. The respondent examined herself as D.W.1. She deposed in examination-in-chief paras 1 to 4, five children were born out of their wedlock; in the year 1990, appellant developed illicit relation with one Leena, i.e. his husband's office typist; he brought her in the matrimonial home and they started living as husband and wife; she was thrown out of her matrimonial home on 7.6.1990, at that time, she was 4 months' pregnant; Devendra was born out of their wedlock; report against Sehattar Ram Yadav for sexually trying to outrage her modesty was filed by her in the police station; she gave her statement in the Court and she is not aware what has happened in that case thereafter. She has also denied the factum of any illicit relation with any person. The above facts stand unrebutted in the cross-examination. 11. Dr. Smt. F.B. Dhalla, who was examined as D.W.2, has stated that Certificate (Ex. D-(1) was issued by her with regard to child born out of wedlock of Leena Dewangan and appellant-P.K. Dewangan. As per her, the child was born on 9.8.1990 in her hospital. The above statement also stands unrebutted in the cross-examination. 12. Shiv Kumar (D.W.3) examined by respondent. Smt. F.B. Dhalla, who was examined as D.W.2, has stated that Certificate (Ex. D-(1) was issued by her with regard to child born out of wedlock of Leena Dewangan and appellant-P.K. Dewangan. As per her, the child was born on 9.8.1990 in her hospital. The above statement also stands unrebutted in the cross-examination. 12. Shiv Kumar (D.W.3) examined by respondent. i.e., real brother of the appellant also supported the case of the respondent and stated, the appellant has kept his typist Leena as his wife in the year 1990 and had thrown respondent and children from matrimonial home, in the month of June, 1990. In the month of June, 1990, respondent was 4 months' pregnant. 13. The above evidence adduced in this case itself shows, it was the appellant who had beaten and thrown his wife-respondent from matrimonial home and is leading adulterous life. It also appears from the above evidence that respondent was not leading adulterous life. The charge of adultery is a very serious charge, has to be proved by adducing clinching and cogent evidence. In the absence whereof, the above charge amounts to appellant's cruelty. 14. The learned Counsel for the appellant relied upon a decision of the /Supreme Court in the case of Rishikesh Sharma Vs. Saroj Sharma, (2007) 2 SCC 263 and submitted that the parties are living separately for sufficient length of time and it can be presumed that marriage has been broken down irretrievably and the divorce decree may be passed on the above ground or irretrievable breakdown of marriage. 15. It is required to be noted that the Legislature has not provided irretrievable breakdown of marriage as one of the grounds u/s 13 of the Act for dissolution of marriage. The Supreme Court, in the case of Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558 , has held, irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. It is only in extreme circumstances that the Court may use this ground of irretrievable breakdown of marriage of divorce. Marriage results in unity of marital relation between husband and wife. Neelu Kohli, (2006) 4 SCC 558 , has held, irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. It is only in extreme circumstances that the Court may use this ground of irretrievable breakdown of marriage of divorce. Marriage results in unity of marital relation between husband and wife. Even otherwise, the powers of the Supreme Court under Article 142 of the Constitution of India are different and, therefore, the decision of the Supreme Court under Article 142 of the Constitution of India cannot be straightaway made applicable so far as proceedings before the High Courts are concerned, as this Court in an appeal is required to find out as to whether any statutory ground is available for passing a decree of divorce. 16. Further, a party cannot be permitted to take advantage of his own wrong. 17. When the matter is examined in the light of above evidence adduced by the parties, it is crystal clear that the appellant failed to prove grounds of desertion and adultery, of which, he sought divorce from respondent/wife and the Trial Court has not committed any illegality in dismissing the appellant's divorce petition warranting interference of this Court in the instant appeal. 18. For the foregoing reasons, I do not find any merit in the appeal preferred by the appellant. Appeal, being devoid of substance, liable to be and is hereby dismissed. 19. No order as to costs. A decree be drawn accordingly.