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2013 DIGILAW 237 (CHH)

OMPRAKASH TIWARI v. SUSHILA DEVI

2013-08-13

Radheshyam Sharma, SATISH K.AGNIHOTRI

body2013
ORDER 1. In this appeal, the appellant is assailing the legality, validity and propriety of the judgment and decree dated 30.04.2010 passed by the Judge, Family Court, Ambikapur, Sarguja in Civil Suit No. 35-A/2008 (Omprakash Tiwari Vs. Smt. Sushila Devi). 2. Facts of the case, in brief, are that the appellant filed an application under Section 13 of the Hindu Marriage Act, 1955 (for short "the Act, 1955") for dissolution of marriage between the appellant and the respondent on the ground of cruelty and desertion. In the said application, the appellant contended that the marriage of the appellant and the respondent was solemnized on 05.03.2002 at Bedanikala, Police Station Manatu, District Palamu (Jharkhand) as per the Hindu rites and rituals. After the marriage, relation between the couple was well and good quite for sometime, however, after some time the respondent was not willing to reside with the family members of the appellant and accordingly she started misbehaving with the family members of the appellant. On 23.07.2005, the respondent, without any sufficient and cogent reasons left the house of the appellant on her own and started residing with her parents. Thereafter, the appellant tried his level best to bring the respondent to his home, but all the efforts failed. 3. According to the appellant, before marriage both the parties i.e. appellant and respondent have not seen each other and when the appellant went to Jharkhand he came to know that the girl with whom his marriage was fixed was some other girl, not the respondent, but on the pressure of the family members of the respondent, he agreed to perform marriage with the respondent. 4. The contention of the appellant is that the respondent always pressurized the appellant to live separately and when the appellant did not agree with the aforesaid proposal of the respondent, she left the appellant's house. Subsequently, she filed a false criminal case for demand of dowry against the appellant and his family members. Under these circumstances he has no other option except to file a petition for decree and divorce. 5. In the said application under Section 13 of the Act, 1955, the respondent wife submitted her written statement and denied the allegations leveled by the appellant against her. Under these circumstances he has no other option except to file a petition for decree and divorce. 5. In the said application under Section 13 of the Act, 1955, the respondent wife submitted her written statement and denied the allegations leveled by the appellant against her. In the said written statement, the respondent contended that on account of ill treatment given by the appellant and his family members, she left the house of the appellant and started residing with her parents. She also stated that sometimes the family members of the appellant tried to kill her by setting her ablaze on fire after pouring kerosene upon her body. 6. Subsequently, the Court below dismissed the application filed by the appellant holding that he has failed to establish the grounds on the basis of which the application for dissolution of marriage was filed. Thus, this appeal. 7. Learned counsel appearing for the appellant submits that without appreciating the facts and circumstances of the case in its true perspective the Court below has dismissed the application filed by the appellant. The Court below has failed to appreciate the fact that the marriage was solemnized in 2002 and the respondent left the house of the appellant in 2005 and since then she has been living separately without any sufficient and cogent reasons. Learned counsel for the appellant further submits that the Court below has committed gross error in not considering the fact that there is no chance of reconciliation between the parties. The respondent was constantly avoiding staying with the appellant and preventing him to have matrimonial relation. The respondent has implicated the appellant and his family members in a false and fabricated case. Thus, the impugned judgment and decree be set aside and pass an appropriate order for dissolution of marriage between both the parties. 8. On the other hand, learned counsel appearing for the respondent while supporting the impugned judgment and decree submits that even today the respondent is ready and willing to stay with the appellant, but the appellant is not at all interested to keep the respondent with him. 9. We have heard learned counsel appearing for the parties and examined the record of the Court below. 10. The appellant in his deposition has stated that his wife namely; Sushila started misbehaving with him as well as his parents and other relatives. 9. We have heard learned counsel appearing for the parties and examined the record of the Court below. 10. The appellant in his deposition has stated that his wife namely; Sushila started misbehaving with him as well as his parents and other relatives. She used to threaten all the time to commit suicide if her wishes are not fulfilled. It was also stated that she used to go to her parental house frequently and despite his efforts she used to spend most of time with her parents. The marriage of the appellant and the respondent was solemnized on 5.3.2002. After 23.7.2005 she declined to come her maternal house. Sushila had also filed a criminal case on 18.1.2008 for the offences punishable under Sections 498-A, 380, 384 & 504 of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act, 1961 wherein the appellant and his parents were arrested and thereafter, they were released on bail. Thus, in view of lodging of a case and also looking to her misbehaviour it was not possible for him to stay with the respondent and, as such, he filed an application under Section 13 of the Act, 1955 for grant of divorce on the ground of desertion and cruelty. 11. The appellant also stated that his father had never demanded money, Hero Honda Motorcycle from the parents of the respondent. It was denied by him that at the time of marriage one Hero Honda Motorcycle was gifted to him and also a sum of Rs.74,000/- was deposited. It was admitted by the appellant that he had not made any report in respect of the allegation that some other girl was shown before his marriage with Sushila, as averred by the appellant in his application under Section 13 of the Act, 1955. 12. Parimal Tiwari, brother of the appellant, who was also examined as witness No.2 emphasized that there was a dispute with regard to the girl, which was proposed for marriage and also Sushila. He has further stated that the respondent used to threaten his brother that if he does not live separately from his patents she may commit suicide. 13. Sushila Devi stated in her deposition that the appellant and his parents used to treat her with cruelty, as according to them proper gifts and dowry was not given to them. He has further stated that the respondent used to threaten his brother that if he does not live separately from his patents she may commit suicide. 13. Sushila Devi stated in her deposition that the appellant and his parents used to treat her with cruelty, as according to them proper gifts and dowry was not given to them. One day, one cup was broken and for that she was scolded stating that she had not brought any money and also abused her for that. Even one day an attempt was made to pour kerosene on her with the purpose to kill her, then her parents, brothers and local people intervened and the dispute was resolved. At the time of marriage, one TV, Fridge, Godrej Almirah, Hero Honda Motorcycle and an amount of Rs.1,25,000/- by way of bank draft was given. Sushila had stated that she is ready to stay with the appellant. The statement of Sushila was corroborated by her father Ramdhani Pandey (NA witness-2). 14. On perusal of the evidences, it is manifest that the statement made by the appellant is not credible, as the first issue that there was a misrepresentation about the girl, but the same was not stated in his deposition. Only there was a denial in cross-examination. The divorce application was filed by the appellant on 29.7.2008 as a counter act after the respondent filed a criminal case against the appellant, on 18.1.2008, under the above-stated provisions. Thus, it cannot be held that the marriage is irretrievable. 15. The allegations made by the appellant have not been found proved by the Court below. Even if there is some dispute between the parties, an attempt should be made by both the parties to continue with the marriage, as they have lived together initially for a period of 3 years. It is a clear case where some demand was made by the appellant and his parents, which could not be fulfilled. 16. In a criminal case, which is pending trial, the respondent had made serious allegations against the appellant and his parents. Without making any observation on the issue pending before the criminal Court it cannot be held that this was a case of cruelty or dissertation. 17. Reliance of the appellant upon the decision of the Supreme Court in V. Bhagat Vs. Without making any observation on the issue pending before the criminal Court it cannot be held that this was a case of cruelty or dissertation. 17. Reliance of the appellant upon the decision of the Supreme Court in V. Bhagat Vs. D. Bhagat (Mrs.) (1994) 1 SCC 337 is not applicable to the facts of the present case, as here nothing has been alleged and found proved which comes within the definition of cruelty. 18. It is well settled that the ground of irretrievable breakdown is not one of the grounds for seeking a decree of divorce under Section 13 of the Act, 1955. However, the Supreme Court in some of the matters while exercising power under Article 142 of the Constitution of India had granted a decree of divorce in the facts of the case. (See: Satish Sitole Vs. Ganga AIR 2008 SC 3093 ). 19. In view of the above, we do not find any illegality or infirmity in the judgment and decree passed by the Court below. The same is just and proper, warranting no interference of this Court. 20. As an upshot, the appeal, being devoid of merit, is liable to be and is hereby dismissed. No order as to costs. Appeal Dismissed.