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2011 DIGILAW 369 (CHH)

SUBREN DANSENA v. KAMLA

2011-11-23

G.MINHAJUDDIN, I.M.QUDDUSI

body2011
JUDGMENT As per Hon'ble Shri G. Minhajuddin, J.:- 1. This appeal has been filed under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 13.12.2010 passed by Judge, Family Court, Raigarh, in Civil Suit No.32-A/09, dismissing the application filed by the appellant/plaintiff under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce. 2. Brief facts of the case, as per averments made in the application under Section 13 of the Hindu Marriage Act, 1955 by the appellant/husband, are that marriage between the parties was solemnized on 25.4.2005 at Village-Navghata as per Hindu customs and rituals and thereafter, the respondent/wife started residing with the appellant/husband at her matrimonial home. However, since the respondent/wife did not want to live in a joint family, therefore, she used to unnecessarily quarrel with her in-laws on some trivial issues, address them in a derogatory manner and refuse to live with them and also threaten to implicate the entire family in a false dowry case. The appellant/husband having been fed up with the daily state of affairs, started residing separately in a rented house, firstly at Village - Salihabhanta, then at Village - Regaon and thereafter at Village - Jheenkabahal and was working in a shop at Urja Nagar, Tamnar Power Plant. However, during this period also, the respondent/wife used to quarrel with the landlord and neighbours and go to her parental home without informing anybody. The appellant/husband had come to know through villagers and neighbours that when he used to leave for his duties, some unknown persons used to visit his house and the respondent/wife has illicit relations with those unknown persons. The appellant/husband tried his best to persuade the respondent/wife to discharge her marital obligations properly, but failed. Out of their wedlock, two sons have been born. Therefore, considering the future of their children, the appellant/husband •again brought the respondent/wife back to his village on 18.4.2009, however, the respondent/wife again went back to her parental home after quarrelling on 22.4.2009 and since then she is residing in her parental home along with her children. The conduct of the respondent/wife towards the appellant/husband and his family members has been cruel she has deserted the company of the appellant/husband without any sufficient cause and is living in adultery, therefore, the appellant/husband prayed for dissolution of marriage by a decree of divorce. 3. The conduct of the respondent/wife towards the appellant/husband and his family members has been cruel she has deserted the company of the appellant/husband without any sufficient cause and is living in adultery, therefore, the appellant/husband prayed for dissolution of marriage by a decree of divorce. 3. The respondent/wife, in her written statement, denying the adverse averments made by the appellant/husband in his application, has submitted that she has always been ready and willing to live with the appellant/husband. The appellant/husband had himself dropped her in her parental home and filed the application for grant of decree of divorce on false and frivolous grounds and the same is liable to be dismissed. 4. Heard learned counsel for the parties, perused the material available on record, including the impugned judgment and decree. 5. The core question to be decided in this appeal is - whether the respondent/wife has treated the appellant/husband and his family members with cruelty, had without reasonable cause deserted the company of the appellant/ husband and had committed adultery? 6. To substantiate the averments made in the application under Section 13 of the Hindu Marriage Act, 1955, that the appellant/plaintiff, in addition to himself, has examined Gangaram and Balmati as PW-2 & PW-3 respectively. He has also filed certain documents in support of his case. The respondent/defendant in order to substantiate the averments made in her written statement, in addition to herself, had examined Nehru and Gopal as DW-2 & DW-3 respectively. In addition to oral evidence, the respondent/defendant had also filed documents. 7. It is not in dispute that marriage between the parties was solemnized on 25.4.2005 at Village - Navghata as per Hindu rights and ceremonies and after that, the respondent/wife started residing at her matrimonial home at Village-Pusalda. It is also not in dispute that they are having two sons born out of their wedlock. As per statement of the appellant/husband, immediately after marriage, the respondent/wife expressed her desire that she wants to live separately and was not willing to live with the parents of the appellant/husband and on account of this, she used to raise disputes on petty mattes. As per statement of the appellant/husband, immediately after marriage, the respondent/wife expressed her desire that she wants to live separately and was not willing to live with the parents of the appellant/husband and on account of this, she used to raise disputes on petty mattes. The respondent/wife used to quarrel with the parents of the appellant and address them in a derogatory manner and also threaten them as well as the appellant that in case her demand of separate living is not acceded to, she will implicate them in a false case of demand of dowry, which compelled the appellant to leave his parental home and shift to Urja Nagar of Tamnar Power Plant, where he started working on salary basis. During this period, the appellant was residing in a rented house, first at Village - Salhabhanta, then at Village - Regaon and after that, at Village - Jheenkabahal. Because of the temperament of the respondent/wife as she used to quarrel with the landlord as well as the neighbours, that the appellant had to shift from one place to another. 8. The appellant has further stated that the respondent used to leave her house and go to her parental home without informing the appellant/husband, and his neighbours used to inform him that when he (appellant) used to go for discharging his duties at the shop of his employer, some unknown persons used to visit his house, with whom the respondent was having illicit relations. 9. All these allegations have been refuted by the respondent/wife in her written statement as well as in her statement on oath. Although witness Gangaram (PW-2) has stated that in the absence of the appellant, some unknown persons used to visit the house of the appellant when the respondent was all alone and from the conduct of the respondent, it used to appear that she was having illicit relations with them, but this witness Gangaram has admitted in his cross-examination, in paras-5 & 6, that the respondent in the absence of the appellant used to go to the houses of some ladies living in the neighbourhood and from that only, he was drawing the inference that she was going to the houses of others for illicit relations. Witness Balmati (PW-3) has also stated that in the absence of the appellant, some unknown persons used to visit the house of the appellant, from which it appeared that the respondent was having illicit relations with those persons. This witness has further stated in para-6 of her cross-examination that-one day when the appellant returned from his duties, he had complained to her (Balmati) that his wife (respondent) is not opening the door of the house, on which she (Balmati) came out of her house to enquire about the matter and had seen one unknown person coming out of the house of the appellant and running away. However, such an incidence has not been narrated by the appellant/husband himself anywhere in his statement. As such, the statement of Balmati (PW-3) on this point is not worthy of reliance. 10. Both the witnesses i.e. Gangaram (PW-2) and Baimati (PW-3), have stated that when they used to enquire from the respondent about her promiscuous conduct, that she used to quarrel with them. It is but natural that if a false allegation of promiscuous conduct is leveled against a lady, then she will exhibit her annoyance and on the spur of the moment, will naturally start quarreling with the persons leveling such false allegations. As such, the evidence adduced by the appellant/husband on the point of adulterous conduct of the respondent/wife is not worthy of reliance. 11. So far as treating the appellant/husband and his family members with cruelty by the respondent/wife is concerned, the appellant/husband has himself stated that as the temperament of the respondent/wife and the appellant's parents were different disputes were arising daily on account of their temperament, and therefore, he had shifted to a separate rented house and started working in a shop on salary basis at Tamnar Power Plant, Urja Nagar. From the statement of Ganga ram (PW-2) and Balmati (PW-3), it is clear that when the neighbours - used to level allegations of adulterous conduct of the respondent/wife, she used to quarrel with them. The appellant/husband has been unsuccessful in proving the charges of adulterous conduct on the part of the respondent/wife on the basis of evidence adduced by him and even on the basis of preponderance of probabilities. The appellant/husband has been unsuccessful in proving the charges of adulterous conduct on the part of the respondent/wife on the basis of evidence adduced by him and even on the basis of preponderance of probabilities. As such, leveling of false charge of adulterous conduct on the part of respondent/wife itself amounts to cruelty of the highest order and degree committed by the appellant/husband towards the respondent/wife. Thus, from the evidence available on record, the appellant has also been unsuccessful in proving that the respondent/wife has deserted him without any reasonable cause. As such, the impugned judgment and decree passed by the Family Court suffers from no illegality or infirmity warranting interference by this Court and deserves to be affirmed. 12. In the result, the appeal fails and is, accordingly, dismissed. The impugned judgment and decree dated 13.12.2010 passed by the Family Court, Raigarh in Civil Suit No.32-A/09 is hereby affirmed. 13. Additional Registrar (Judicial) is directed to draw up a decree accordingly. Appeal Dismissed.