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2022 DIGILAW 614 (CHH)

Sohil Agrawal S/o Nand Kishore Agrawal v. Anjali Agrawal W/o Sohil Agrawal

2022-12-20

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

body2022
JUDGMENT : RADHAKISHAN AGRAWAL, J. 1. Appellant-Husband preferred this appeal against the judgment and decree dated 18.04.2018 passed by the learned Additional Principal Judge, Family Court, Bilaspur, C.G. in Civil Suit No. 112-A/2016, whereby the petition filed by the wife/respondent for grant of decree of divorce was allowed. 2. Averments made in the suit filed under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act 1955’) by the respondent/wife, in brief, are that appellant/husband married the respondent/wife on 26.04.2012 according to the Hindu rites and rituals. After marriage, the respondent/wife joined the company of the husband and from their wedlock, one male child was born. It is alleged by the wife/respondent that soon after the marriage, she was being tortured and harassed mentally and physically on different occasions by the appellant/husband in connection with demand of dowry and for saving the family, she was tolerating the torture given by the husband. Even at the time of her pregnancy, she was ill-treated by the appellant/husband and was dropped at her parental home. This apart, the appellant/husband also levelled false allegation on her character and on that ground sought divorce by filing a petition under Section 13 of the Act, 1955 i.e. Civil Suit No. 48A/14 which was subsequently dismissed by the Court. Being fed up with the persistent ill-treatment by the husband and his family members, she filed a complaint case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and an application under Section 125 of Cr.P.C. for grant of maintenance as also lodged a report under Section 498-A of IPC against him. Respondent/wife is living separately from the appellant/husband since 09.04.2014, there is no possibility of re-union of the parties and as such, decree of divorce on the ground of cruelty was sought for. 3. Appellant/husband in his written statement denied all the adverse averments made by the respondent/wife and stated that it is the respondent/wife who used to pressurize him for living separately from his family members. He never treated her with cruelty, rather took all possible best care of her. He had filed a suit under Section 13 of the Hindu Marriage Act because during the proceedings in Mahila Paramarsh Kendra, Bilaspur, she had admitted having extra marital affair with other persons and during the said proceedings, a false report under Section 498A of IPC was lodged against him. He had filed a suit under Section 13 of the Hindu Marriage Act because during the proceedings in Mahila Paramarsh Kendra, Bilaspur, she had admitted having extra marital affair with other persons and during the said proceedings, a false report under Section 498A of IPC was lodged against him. To avoid arrest in the said case, he had to run away and, therefore, his suit for divorce was dismissed due to his non-appearance. Even by mentioning false date of birth of the wife and showing forged Janam Kundli (Birth Chart), the marriage was performed with the husband against which he made a complaint to the police and when no action was taken thereon, he filed a complaint case before the Court of CJM, Bilaspur which was dismissed and the same has been challenged in revision before the Sessions Court which is under consideration. With the above averments, the appellant/husband prayed for dismissal of the suit filed by the respondent/wife. 4. The Family Court considering the pleadings of the respective parties, the oral and documentary evidence adduced by them, by the impugned judgment and decree dated 18.04.2018, allowed the suit and dissolved the marriage performed between the parties. 5. Learned counsel for the appellant/husband submits that the Family Court was not justified in granting decree of divorce in favour of the respondent/wife on the ground of cruelty, the said finding is perverse and contrary to the material available on record. No evidence of any independent witness of family of the wife was adduced before the Court below. The appellant vehemently denied the allegations levelled against him by the wife in his written statement as also in the oral evidence whereas the respondent/wife failed to prove her case by adducing any reliable evidence and the Court below wrongly shifted the burden of proof upon the appellant. The Family Court has also erred in law in treating one or two instances of hot talk or quarrel between the parties as cruelty. For all these reasons, the impugned judgment and decree of the Family Court is liable to be set aside. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Suman Singh vs. Sanjay Singh, (2017) 4 SCC 85 . 6. For all these reasons, the impugned judgment and decree of the Family Court is liable to be set aside. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Suman Singh vs. Sanjay Singh, (2017) 4 SCC 85 . 6. On the other hand, learned counsel appearing for the respondent/wife submits that the Family Court considering all the relevant aspects of the matter in light of the pleadings of the parties and the evidence adduced in support thereof has rightly granted decree of divorce in favour of the wife on the ground of cruelty. Being so, no interference in the impugned judgment and decree is warranted. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of V. Bhagat vs. Mrs. D. Bhagat, (1994) 1 SCC 337 . 7. We have heard learned counsel appearing for the parties, perused the pleadings and the evidence available on record. 8. In the present case, an application (I.A. No. 03/2022) has been filed by the husband/appellant under Order 41 Rule 27 of the CPC for taking additional evidence on record i.e. medical reports of the appellant of the relevant period and certified copy of the orders dated 28.04.2018 and 15.05.2018 passed by the Judicial Magistrate First Class, Bilaspur as also the certified copy of the evidence of Mahesh Agrawal, father of respondent/wife recorded before the Judicial Magistrate First Class, Bilaspur. It is stated that the aforesaid documents are relevant and important for just decision of the matter. Apart from that, the husband/appellant also wants to place on record the relevant order sheets particularly the order dated 28.05.2022 of the case under Section 498A read with 34 of IPC to show that the appellant/husband has been acquitted of the charge under Section 498A read with 34, 506-II of IPC. 9. Reply to the aforesaid application has been filed by the respondent/wife raising objections that the appellant/husband did not file the aforesaid documents before learned Court below inspite of sufficient opportunity afforded to him and now at the appellate stage, the appellant/husband wants to place on record the aforesaid documents. 10. Perusal of the record shows that the appellant/husband wants to place on record the medical documents pertaining to the year 2014 i.e. medical slips, test reports, medicines bills etc. 10. Perusal of the record shows that the appellant/husband wants to place on record the medical documents pertaining to the year 2014 i.e. medical slips, test reports, medicines bills etc. The appellant/husband should have filed the aforesaid documents before the Court below as he was in exclusive possession of the same. On due consideration, this Court deems it appropriate to allow the application filed under Order 41 Rule 27 of CPC by the appellant in part and thereby take the order sheets, deposition sheet of Mahesh Agrawal (father of the respondent/wife) and the judgment of acquittal dated 28.05.2022 relating to case under Sections 498A read with 34, 506-II of IPC. 11. The respondent/wife (PW-1) in her affidavit under Order 18 Rule 4 of CPC reiterating the averments made in the divorce petition stated cruelty on her that she was married with the appellant in the year 2012 and after few days of her marriage, the appellant/husband started assaulting, abusing and torturing her by making disrespectful statements. When she became pregnant, even then the behaviour of the appellant/husband and his family members did not change and continued to abuse and torture her. On 19.06.2014, the respondent/wife was blessed with a male child and three days thereafter, the appellant/husband visited there to take away the child from her and threatened her of life. On 05.10.2014, the appellant again visited there and extended the threat to kill the male child and while abusing, without her consent or opinion, he was taking the child with him. On account of torture meted out to her by the appellant and his family members, she is residing in her parental house from 09.04.2014. Apart from that the appellant also doubted her character by saying that she was having an affair with one Pankaj Agrawal and by mentioning all those facts, the appellant/husband moved an application under Section 13A of the Hindu Marriage Act before the Family Court, Bilaspur seeking divorce. However, the appellant did not appear before the Family Court on the dates of hearing, as a result of which his case seeking divorce was dismissed on 19.02.2015. The appellant/husband by filing a divorce petition on false grounds before the Family Court intentionally tried to defame her and thereby the appellant/husband destroyed the foundation of trust between the husband and wife by making such allegation against her. The appellant/husband by filing a divorce petition on false grounds before the Family Court intentionally tried to defame her and thereby the appellant/husband destroyed the foundation of trust between the husband and wife by making such allegation against her. Therefore, from the aforesaid conduct of the appellant, it can be said that the appellant by his conduct committed 12. Wife also stated that the appellant/husband in order to defame them in the society had also filed a report in the Police Station Civil Lines, Bilaspur against the family of the respondent/wife which was published in the newspaper (Ex.P-1) that the respondent/wife was married with him mentioning wrong date of birth. After due investigation, the report filed by the appellant/husband was found to be false on which he filed a complaint case before the Court of CJM, Bilaspur which was dismissed and the same has been challenged in revision before the Sessions Court which is under consideration. On account of ill-treatment by the husband and his family members, she filed a complaint case under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and an application under Section 125 of Cr.P.C. for grant of maintenance as also lodged a report under Section 498-A of IPC against them. 13. Order sheets (Ex.P-5) of the Family Court have been filed by the wife. In the order dated 19.02.2015, it was mentioned that the appellant/husband moved a petition under Section 13A of the Hindu Marriage Act on 28.10.2014 and thereafter the matter was fixed for hearing on 28.11.2014, 31.12.2014, 19.01.2015 and 19.02.2015. On all the dates, the appellant did not appear. On 12.02.2015, the appellant was specifically directed to remain present on the further dates of hearing. Since the appellant was not interested to pursue his matter before the Family Court, the learned Court below dismissed his petition under Section 13A of the Hindu Marriage Act in his absence. 14. The respondent/wife has also produced the medical papers concerning her pregnancy to demonstrate that when she was admitted in Bajaj Nursing Home for delivery, the appellant was asked to put his signature on the consent form and other necessary documents which the appellant/husband refused and perusal of the relevant papers (Ex.D-1 & D-2) show that only respondent/wife has signed the documents. 15. 15. The respondent/wife has also stated in Para 20 of her cross-examination that the appellant himself accompanied her on 09.04.2014 to leave her at parental house. At Para 34 of her cross-examination, it was stated that the appellant got published the information in the newspaper that he was married with the respondent by fraudulently showing her incorrect date of birth and the report to that effect was also lodged in the concerned police station and suit was also filed. 16. The appellant/husband (DW-1) in his affidavit under Order 18 Rule 4 of the CPC stating that he moved a petition for divorce under Section 13 of the Hindu Marriage Act only after admission of the respondent/wife during counselling proceeding that she was having an affair with other persons. It was also stated that after the marriage, the respondent/wife used to talk with other persons and she was not taking care of him. He also admitted in cross-examination at Para 21 that he made allegation on her character in the petition for divorce under Section 13 of the Hindu Marriage Act. He has also admitted in Para 27 that at his instance, the report was published in the newspaper and because of which the respondent/wife and her family members were defamed. It is also correct that a report was lodged against the respondent/wife under Section 420 of IPC which was rejected on being found false. 17. Appellant/husband has also admitted in Para 32 that on 01.12.2017, he visited the parental house of the respondent/wife and abused them and also threatened to kill them whereupon the respondent/wife lodged a report against him under Sections 294, 506-B read with Section 34 of PC and charge sheet of the same was also filed in the concerned Court. He has further admitted that he had filed a report against his uncle (Mama), Aunt (Mosi) and father of his wife. It is also correct that his wife/respondent lodged a report in the police station Kota outpost Belgahna against the appellant under Sections 294, 506-B read with 34 of IPC. 18. He has further admitted that he had filed a report against his uncle (Mama), Aunt (Mosi) and father of his wife. It is also correct that his wife/respondent lodged a report in the police station Kota outpost Belgahna against the appellant under Sections 294, 506-B read with 34 of IPC. 18. As per judgment dated 28.05.2022 passed in Criminal Case No. 776/2015 by the Judicial Magistrate, First Class, Bilaspur, C.G. the husband/appellant and his family members were acquitted of the charge under Sections 498A read with 34 & 506-II and as such, it stands proved that no cruelty for demand of dowry was committed by the appellant or his family members against the respondent/wife. 19. Having gone through the judgment relied upon by learned counsel for the appellant and the principles of law laid down therein, in the given facts and circumstances of the present case, the aforesaid judgment being distinguishable on facts is of no help to the appellant. 20. In the matter of V. Bhagat (Supra), the Supreme Court held that mental cruelty in Section 13(1) (i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put-up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 21. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 21. The Hon’ble Supreme Court in the matter of K. Srinivasa Rao vs. D.A. Deepa, (2013) 5 SCC 226 wherein it has been held at paragraphs 30 and 31, which read as under: “30. It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, 2007 4 SCC 511 , if we refuse to sever the tie, it may lead to mental cruelty. 31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.” 22. On the basis of aforesaid discussions, it is explicit that the appellant/husband and respondent/wife lodged criminal cases against each other, the appellant used to doubt the character of the respondent/wife saying that she was having an affair with one Pankaj Agrawal even prior to the marriage. During the period of pregnancy also, when the respondent/wife was staying at her parental house at Belgahna, the appellant (as admitted by him in his evidence) visited there, abused them filthily and extended threat to kill them whereupon a report was lodged by the respondent/wife under Sections 294, 506-B read with Section 34 of IPC. During the period of pregnancy also, when the respondent/wife was staying at her parental house at Belgahna, the appellant (as admitted by him in his evidence) visited there, abused them filthily and extended threat to kill them whereupon a report was lodged by the respondent/wife under Sections 294, 506-B read with Section 34 of IPC. It is also pertinent to mention here that even when the respondent/wife was admitted in the hospital for delivery and the appellant/husband was asked to put his signatures on various papers, he refused the same. The appellant/husband also got published an information in the newspaper that marriage between them (husband and wife) was solemnized by stating her wrong date of birth. Further more, on account of continuous ill-treatment and torture given by the appellant/husband, the respondent/wife was residing separately since 2014. 23. Keeping in view the principals of law laid down by the Hon’ble Supreme Court in the aforesaid matters, the facts and circumstances of the case, the manner in which the respondent/wife was treated by the appellant/husband while she was residing with him and even while she was living at her parental house, it is evident that the appellant/husband subjected her to cruelty which forced her to leave her matrimonial home and stay at her parental home since 2014. Being so, the finding arrived at by the learned Court below granting decree of divorce in favour of the respondent/wife does not call for any interference. 24. In the result, the appeal being without any substance is liable to be dismissed and is, accordingly, dismissed. 25. A decree be drawn up accordingly.