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2018 DIGILAW 456 (CHH)

Yogeshwar Divya S/o Khikhram Divya v. Ishwari Divya W/o Yogeshwar Divya

2018-07-27

MANINDRA MOHAN SHRIVASTAVA, RAJANI DUBEY

body2018
ORDER : MANINDRA MOHAN SHRIVASTAVA, J. 1. This appeal is directed against the judgment and decree dated 25.03.2015 passed by the Family Court, Raigarh, in Civil Suit No.F-61A/2014 by which, the appellant's suit for grant of decree of divorce has been dismissed. 2. The appellant filed a suit for grant of decree of divorce on the pleadings inter alia that after the solemnization of marriage between the parties, the appellant and defendant were blessed with two children. It was pleaded that since July, 2006, the defendant had been subjecting the appellant to cruelty. She was not taking any interest in domestic works including cooking and was more engaged in talking to others on mobile. When she was asked not to engage on mobile and pay attention to domestic work, she used to quarrel with the appellant and hold out threat to falsely implicate him. According to appellant, as the defendant was born and brought up in urban atmosphere was not prepared to reside in rural background and was insisting the appellant to part with his family and proceed to settle in an urban area. The appellant thereafter shifted to Bhupdevpur and obtained private job. At this time, he came to know that the respondent had entered into illicit relation with another person and is living adulterous life. It was pleaded that the later on, the dispute aggravated and respondent finally left the house of the appellant without information, much less any permission, on 01.09.2013 and since then, she is residing in her parental house. It was also pleaded that on account of a false criminal case lodged by the respondent against the appellant, the appellant had to remain in jail also and thus, he is subjected to extreme cruelty of false and fabricated allegation. He is also facing proceeding under Section 125 Cr.P.C. 3. The respondent filed a written statement and denied all the allegations including the allegation of adultery and stated that it is the appellant who has subjecting her to cruelty in many ways, due to which, the respondent had to lodge a report alleging cruelty in the police station and thereafter, criminal case is instituted and going on against the respondent in the criminal Court and the matter is still pending. 4. 4. Learned Trial Court framed following four issues: Øekad okn iz'u fu"d"kZ 1- D;k fookg ds vuq"Bku ds i'pkr Áfrokfnuh Jhefr bZ'ojh fnO; us oknh ;ksxs'oj fnO; ds lkFk Øwjrk dk crkZo fd;k gS\ izekf.kr ugha 2- D;k izfrokfnuh us fookg ds vuq"Bku ds i'pkr vius ifr ls fHkUu fdlh O;fDr ds lkFk LosPN;k eSFkqu fd;k gS\ ugha 3- D;k oknh ;ksxs'oj fnO; mDr vk/kkj ij fookg foPNsn dh fMØh izkIr djus dk vf/kdkjh gS\ ugha 4- lgk;rk ,oa okn O;;\ oknh dk okn Áekf.kr u ikdj fujLr fd;k x;kA oknh viuk okn O;; Lo;a ogu djsa izfrokfnuh dk okn O;; Hkh oknh vnk djsA 5. After giving the parties opportunity to lead oral and documentary evidence, learned trial Court dismissed the suit holding that the appellant has failed to prove that defendant was living an adulterous life or that the appellant was subjected to cruelty by the defendant. 6. Assailing the correctness and validity of impugned judgment and decree, learned counsel for the appellant argued that the learned Trial Court fell in error of law and fact both, in dismissing the suit despite there being clinching and reliable evidence led by the appellant that by the act of the respondent, the appellant was subjected to cruelty. He would further submit that the appellant has made an emphatic statement of respondent living adulterous life. He would submit that normally husband would not make such a serious allegation against his wife. The learned Trial Court did not appreciate the pleadings and evidence in this regard in its proper perspective and dismissed the suit. 7. No one appears for the respondent. 8. We have heard learned counsel for the appellant and perused the records. 9. In the pleadings, the appellant has come out with plea of cruelty as also of adultery. The pleadings of cruelty are that the respondent was not interested in domestic work, engaged mostly in talking on mobile, quarreling with the appellant, threating to involve in criminal cases, lodging a report alleging cruelty. In his evidence, however, no specific evidence of cruelty have been stated. It is admitted that the parties were married in the year 2006 and there are two issues born out of their wedlock. The appellant has stated that soon after marriage, the respondent started acting cruelly. In his evidence, however, no specific evidence of cruelty have been stated. It is admitted that the parties were married in the year 2006 and there are two issues born out of their wedlock. The appellant has stated that soon after marriage, the respondent started acting cruelly. However, to establish this, all that has been deposed is that the respondent was not very keen to discharge her domestic duty and was more engaged on mobile. The other allegations of cruelty are more relating to lodging of a criminal case which is still said to be pending and there is no judgment in that case that the allegations were false leading to acquittal. The appellant, himself, has appeared as the first witness of his case stating aforesaid facts. In cross examination, though he states that he had lodged a report in the police station, he cannot say that when report was lodged, he has not even produced a copy of such report. He also states that he did not make any complaint on the platform of the community regarding behaviour of respondent. He also admits that he did not make any complaint to anyone that the respondent compelled him to arrange employment. Merely, because the respondent pressurized the appellant to seek employment, it cannot be said to be an act of cruelty. He admits that against him, the defendant had lodged a report in the police station and a criminal case still pending. 10. The evidence of other two plaintiff's witnesses namely Reshmi Prasad Baghel (PW2) and Leelambar Yadav (PW3) did not contain any specific evidence with regard to cruelty meted out to the appellant by his wife. Therefore, on the aforesaid set of pleadings and evidence, learned Trial Court has not committed any illegality in coming to the conclusion that the appellant has failed to establish and prove the case of cruelty. Small and trivial dispute between the husband and wife, cannot be treated to be an act of cruelty. Slight mis-behaviour here or there or sometimes wife insisting the husband to arrange for job or to move to urban area living behind rural area are not be mistaken as cruelty on the husband. Small and trivial dispute between the husband and wife, cannot be treated to be an act of cruelty. Slight mis-behaviour here or there or sometimes wife insisting the husband to arrange for job or to move to urban area living behind rural area are not be mistaken as cruelty on the husband. We also note that the respondent has filed a criminal case against the appellant on the allegations that it is the appellant who committed cruelty on her and a criminal case has already been registered and pending and there is no material to show that in the trial Court, the appellant has been acquitted on the finding that the allegation against him were false. 11. As far as the allegation of adultery is concerned, the pleadings and evidence both are blissfully vague and without any material details. Neither in the pleadings nor even in the evidence, the appellant has even stated the name of the person, who according to him, is having illicit relation with the respondent, his wife. We find that allegations regarding adultery which have been made, are completely reckless and intended only to obtain decree of divorce. There is no independent witness proving the fact of respondent living any adulterous life. 12. In the result, we do not find any ground to interfere with the impugned judgment and decree. The appeal is, therefore, dismissed.