Research › Search › Judgment

Chhattisgarh High Court · body

2022 DIGILAW 331 (CHH)

Nandkumar Dewangan, S/o Kalicharan Dewangan v. Omlata Dewangan, W/o Nandkumar Dewangan

2022-07-26

GOUTAM BHADURI, RAJANI DUBEY

body2022
ORDER : Rajani Dubey, J. 1. The appellant has preferred this appeal against the judgment and decree dated 24.10.2017 passed by the learned Additional Principal Judge, Family Court, Bilaspur in Civil Suit No.65-A/2016, whereby the learned Family Court has rejected the application filed by the appellant-husband under Section 13 (1) of the Hindu Marriage Act, 1955 (for short ‘the Act, 1955’) seeking divorce. 2. Before the Trial Court, this is an admitted fact that the marriage of the appellant-husband and respondent-wife was solemnized on 13.05.1989 according to Hindu Rites and Rituals and out of their wedlock, three children were born, which are aged about 22 years, 18 years and 13 years, respectively, and they are living with the appellant-husband. 3. Brief facts of the case are that the appellant-husband filed an application under Section 13 (1) of the Act, 1955 before the Family Court, Bilaspur seeking divorce from respondent-wife contending therein that the marriage of the parties was solemnized on 13.05.1989 and the respondent-wife married to the appellant-husband against her father’s wishes. At the time of marriage, the appellant was unemployed. Since beginning, the respondent-wife started quarreling with the appellant-husband for demand of gold, diamond, clothe etc. The appellant-husband was unable to fulfill the demands of the wife, as he was unemployed. The appellant-husband joined as Assistant Professor in the year 2007 in Government College, Kawardha, but behavior of the respondent-wife remained the same and was not proper. She always used to mentally harass the appellant and children. On 14.05.2010, the respondent-wife left the house of the appellant-husband and since then she has been living with her parents. The appellant tried to get her back but she refused to live with the appellant. They have been residing separately for last 6 years. The appellant even sent notice to the respondent on 12.10.2011, but she did not come to home and instead she filed an application under Section 125 of CrPC for maintenance before the Family Court, Bilaspur. On compromise entered into between the parties, the appellant has been paying Rs.1500/- per month to the respondent as maintenance since then. The appellant even sent notice to the respondent on 12.10.2011, but she did not come to home and instead she filed an application under Section 125 of CrPC for maintenance before the Family Court, Bilaspur. On compromise entered into between the parties, the appellant has been paying Rs.1500/- per month to the respondent as maintenance since then. She again filed application under Section 18 of the Hindu Adoption and Maintenance Act, 1956 for maintenance, but the same was dismissed vide order dated 18.10.2015 on the ground that the wife is residing separately without any sufficient cause on her own will, thereafter the appellant filed the application under Section 13 (1) of the Act, 1955 for dissolution of marriage, which was dismissed, against which the present appeal has been filed. 4. In her written statement, the respondent-wife denied all allegations and stated that she has not left the house of the appellant on her own will. The appellant-husband always used to torture her physically and mentally. She stated that she had come to her parental house for attending the marriage of her brother. The appellant husband also attended the marriage of her brother, but after marriage of her brother, he was not ready to take her back with him. When the father of the respondent-wife took her to appellant’s house, then also he refused to keep her with him. She is willing to stay with the appellant-husband, but the husband is not ready to stay with her. 5. The learned Trial Court after appreciating the oral and documentary evidence available on record dismissed the application of the husband, hence this appeal has been filed by the appellant-husband. 6. Learned counsel for the appellant submits that the impugned judgment and decree is illegal, arbitrary and contrary to the facts and circumstances of the case. The learned Trial Court has not properly appreciated the evidence adduced by the appellant as well as the document (Ex-D/1), whereby the compromise was effected between the parties. The learned Trial Court has failed to consider that the appellant and the respondent have been residing separately since 14.05.2010. The respondent went to her parental house and since then she did not return. In the evidence of the appellant-husband, it is clearly stated that he went to bring back the respondent-wife, but she refused to come back with the husband. The respondent went to her parental house and since then she did not return. In the evidence of the appellant-husband, it is clearly stated that he went to bring back the respondent-wife, but she refused to come back with the husband. He further submits that it is settled principle of law that when the wife deserts the husband and refuses to fulfill her matrimonial obligations, a decree of divorce can be passed. The learned Trial Court has failed to see that the respondent wife is residing at her parental house without any sufficient cause, therefore, the judgment and decree is liable to be set aside. 7. Learned counsel for the respondent supports the impugned judgment and decree. 8. Heard learned counsel for the parties and perused the material available on record. 9. It is not disputed before the Family Court that the marriage between the parties was solemnized on 13.05.1989 according to Hindu Customs and Rituals prevailing in their society. It is also not disputed that since 14.05.2010, they have been living separately and their children are living with the appellant-husband. 10. The appellant husband filed an application under Section 13 (1) (b) of the Act, 1955 on the ground that the wife Omlata left his house without any cogent and sufficient reason and has been living separately for a long period. In this background, the question for our decision in the present case is as to whether the learned Family Court is justified in dismissing the application of the appellant-husband and whether in the facts and circumstances of the case, a decree for dissolution of the marriage between the parties can be passed on the grounds as contemplated under Section 13 (1) of the Act, 1955. 11. Section 13 (1) of the Act, 1955 provides several grounds for obtaining divorce by either party to the marriage whether solemnized before or after commencement of the Act. For facility of reference, Section 13 (1) (b) is reproduced herein below:- “13. Divorce.- (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party . [(i) xxxx [(ia) xxxx [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or].” 12. [(i) xxxx [(ia) xxxx [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or].” 12. The appellant Nand Kumar Dewangan (AW-1) stated in his evidence that the respondent is living separately without any sufficient cause. He has filed notice (EX-A), order under Section 125 of CrPC (Ex-B) and order of Family Court (Ex-C). 13. The appellant-husband denied all suggestions of respondent-wife in his cross-examination and stated in para 25 that it is wrong to say that in the community meeting, he was directed to take her wife with him, instead he himself insisted the respondent-wife to go with him before the community members, but she refused to go. He further stated in para 27 that It is right to say that the community meeting was arranged by him, but he denied that he had not informed about the same to her wife and her family. The daughter of the parties Ku. Richa Dewangan (AW-2) also supported the appellant’s version. 14. The respondent wife Omlata Dewangan (DW-1) stated in para 15 of her cross-examination that it is right to say that out of their wedlock, they have three children. On being asked as to why her children are not living with her, she replied that the children never told her that they wanted to live with her. She further denied that she had gone to her matrimonial house in the year 2010 to attend her brother’s marriage without the permission of the appellant-husband. In para 16, she admitted that she has been living separately from the appellant since 2010 and has been taking maintenance from the appellant from 2012. In para 18, she further stated that on being asked as to whether she was expelled from the community for not following the order/direction of the community, then she replied that she does not know. She further denied that she is making false statement before the Court. 15. AW-2 - Shivshankar Dewangan, father of the respondent wife, also admitted the fact in para 16 that his daughter has been taking maintenance from the appellant for last 4 years. He denied that the appellant had arranged a community meeting to take her daughter with him and the community has expelled them for not sending his daughter with the appellant. 16. He denied that the appellant had arranged a community meeting to take her daughter with him and the community has expelled them for not sending his daughter with the appellant. 16. Ex-C is a judgment dated 08.10.2015 passed by the learned Family Court, Bilaspur in Civil Suit No.320-A/2013, which was passed in respondent wife’s application under Section 18 of the Hindu Adoption and Maintenance Act, 1956. The learned Family Court after appreciating the oral and documentary evidence available on record found that the wife is living separately from the husband without any sufficient cause and on her own will and dismissed the application of the respondent-wife. 17. It is a well settled principle that 'Desertion' for the purpose of seeking divorce under the Act, 1955, means the intentional permanent forsaking and abandonment of one spouse by the other without other's consent and without reasonable cause. Desertion is not the withdrawal from a place but from the state of things. Desertion therefore means withdrawing from the matrimonial obligations that is to say not permitting or allowing and facilitating the cohabitation between the parties. It is not a single act complete in itself. It is a continuous course of conduct to be determined under the facts and circumstances of each case. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (i) the factum of separation, arid (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to from the necessary intention aforesaid. 18. As regard to the desertion is concerned, in the present case, the wife has stated in her written statement that she was subjected to ill treatment by the appellant-husband and was forced to leave the house, but we find from the record that no such oral or documentary evidence has been adduced by the wife to substantiate her plea, which could prove this fact that the husband used to brutally assault her and as a result of which she left the matrimonial house. The respondent-wife and her witnesses have not stated any single incident that what efforts were made by the wife to reside with her husband. The respondent-wife and her witnesses have not stated any single incident that what efforts were made by the wife to reside with her husband. The appellant-husband proved this fact by the document/legal notice (Ex-A), which was sent to his wife and social meeting was called for reconciliation, but the learned Family Court did not appreciate this fact that the wife was living separately without any sufficient case, as such the finding of the learned Family Court is not based on proper appreciation of oral and documentary evidence available on record. 19. In the present case, the burden of proof is on the wife to prove that she has sufficient reason to live separately from her husband and the wife has not been able to prove in her oral and documentary evidence that she has sufficient cause to live separately, which could justify her desertion from her husband. 20. In view of the foregoing discussions, we are of the opinion that the finding of the learned court below is not sustainable in the eyes of law, therefore, the judgment and decree passed by the learned Family Court is hereby set aside. 21. The appeal is allowed. The marriage solemnized between the parties on 13.05.1989 is dissolved. 22. Considering the facts situation of the case, it is ordered that the appellant-husband will pay Rs.10,000/- per month as maintenance to the respondent-wife. The respondent-wife is already getting maintenance of Rs.1500/- per month from the appellant-husband in the proceeding under Section 125 of CrPC, therefore, the said amount would be adjusted in the amount of Rs.10,000/-.