Husband judicial separation upheld

Chattisgarh High Court
First Appeal M No 39 of 2008

Smt Shilpi Jaiswal…Petitioners
Versus
Alok Jaiswal…Respondents

Shri D N Prajapati counsel for the appellant
Shri Sunil Otwani counsel for the respondent

CORAM: Honble Shri Dhirendra Mishra & Honble Shri Rangnath Chandrakar J
Dated: 30/03/2010

JUDGMENT

Delivered on 30th March 2010

Appeal under Section 19 1 of the Family Court Act 1984 Per Rangnath Chandrakar, J.

By this appeal, the appellant challenges the legality and propriety of the judgment and decree dated 23-1-2008 passed by the Judge, Family Court, Korba in civil suit No. 61-A/2007, whereby the learned Judge Family Court refusing the application under Section 13 of the Hindu Marriage Act, 1955 (for short, “the Act, 1955”) for dissolution of marriage, granted a decree of judicial separation under Section 10 of the Act in favour of the respondent/husband. The decree is impugned on the ground that without any proof of cruelty the court below has passed the decree and thereby committed illegality. 2) Admittedly, the parties are legally wedded spouses and their marriage was solemnized at Korba, according to Hindu rites and customs on 3-7-2003 and after marriage they resided together for some time peacefully. The respondent/husband filed an application under Section 13 of the Act, 1955 against his wife for a decree of dissolution of marriage on the ground of adultery, desertion and cruelty. As per pleadings of the respondent/husband, it was alleged that after some time of the marriage, the appellant/wife used to receive telephone calls from her paramours namely Anirudh Sarkar and Kishore Upadhyay which were also heard by the respondent/husband through a parallel telephone connection. The respondent/husband objected the relationship of the appellant/wife on which she assured him that she would not continue the relation with them but after some time she again started to talk with them by telephone. The appellant/wife used to visit her parental house frequently and was not ready to live with the respondent/husband. On 26-9-2005 the appellant/wife left for her parental house which is situated at Ambikapur and was not willing to come to her matrimonial house at Korba. In the month of February, 2006 the respondent/husband was informed telephonically by sister-in-law of the appellant/wife that appellant/wife was enjoying with her paramours at Ambikapur. On this, the respondent/husband brought the appellant/wife to Korba on 8- 2-2006 after persuasion but the appellant/wife continued her relations with her paramours and on objection of the respondent/husband, she threatened to implicate him and the entire family in a false case of demand of dowry. She further threatened to kill him and his family members with the help of her friends and brother namely Indrajit, who has already undergone in a murder case.

3) It is further alleged that on 27-8-2006 at about 5.30 a.m., she left the matrimonial house on the pretext that she was going to the house of her neighbour Shailendra Lala to perform some Pooja on the occasion of “Teeja Vrat”. She did not return till 8.30 a.m. and then he searched the house of Shailendra Lala for her whereabouts but she was not found there. Thereafter, in search of the bed room, one letter written by the appellant/wife was found in which she made some vague allegations against the respondent/husband and in-laws. In that letter she also mentioned that she was not willing to live with the respondent/husband and therefore, she left the matrimonial house voluntarily. It was also found that she had taken away one suit case, one ladies purse, costly sarees, 16-17 Tolas of gold jeweleries and cash amount with her. After recovery of the letter, the incident was informed to the father of the appellant/wife and her relatives. She was searched in four corners by the respondent/husband and his father along with Doctor Pramod Thawait and P.S. Kokhar. Thereafter, a report regarding missing person was lodged in Police Station, Korba and several efforts were made to find out the whereabouts of appellant/wife by way of paper publication and telecasting news in radio and televisions. On 17-12-2006 the respondent/husband was informed by one woman namely Nisha from Jagdalpur that she had seen the appellant/wife with one boy who had come to her STD/PCO. On the same date, the respondent/husband received a telephone call from the appellant/wife who threatened him to implicate his entire family in a false case of torture for demand of dowry as he had caused her disturbance by publishing the news in newspapers about her missing, though she had left her matrimonial house voluntarily. 4) It is also alleged that on 19-12-2006 the appellant/wife lodged a false report against the respondent/husband and his family members in Police Station at Ambikapur under Section 498-A of the IPC and after leaving the matrimonial house, the appellant/wife lived at Bhilai from November, 2006 to July, 2007 in the house of Abhishek @ Neeraj Jaiswal showing herself to be Ku. Shilpi Gupta where she also continued her relationship with her paramours and other persons to which Abhishek @ Neeraj Jaiswal objected and therefore, she was vacated from his premises. Thus, the conduct of the appellant/wife comes within the purview of adultery and cruelty which made the life of the respondent/husband miserable to live with her. Therefore, the respondent/husband sought for decree of divorce by way of dissolution of marriage.

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5) On the other hand, the appellant/wife denied the allegations made in the petition and pleaded that she never tortured the respondent/husband or committed cruelty upon him. The application under Section 13 of the Act has been filed on false and baseless grounds. She knew Anirudh Sarkar as he was senior to her in Govt. Polytechnic College, Ambikapur, but she did not know Kishore Upadhyay. She was being tortured and harassed by the husband and in- laws for want of more dowry right from the beginning of her marital life and the application for divorce was filed as their demand was not fulfilled by her. On 27-8-2006 she was badly beaten and thrown out for bringing Rs.2,00,000/- from her parents, therefore, she left her matrimonial house. She did not leave the matrimonial house voluntarily. She was also manhandled in a hotel by her husband during their visit to “Maihar” and once she was left alone near Koni (Bilaspur) in the night by her husband while coming from Korba to Bilaspur. She did not take any money, clothes and jewelleries with her on 27-8-2006. Her husband is a very cruel person and being harassed and tortured by the husband and in-laws she wrote the alleged letter, the facts of which were produced in wrong way by suppressing its reality. The respondent/husband is a very greedy and smart person who seeks divorce with a view to re- marry for want of dowry. The appellant/wife specifically pleaded in para 36 of her written statement that she is ready to give divorce to the respondent/husband if he would return all her ornaments, 18 tolas of gold jewelleries and R.3,00,000/- cash given at the time of marriage, Rs.51,000/- given on “Teeka” and Rs.20,00,000/- cash in hand as permanent alimony.

6) On the basis of averments made by the parties, issues were framed and after affording an opportunity of hearing to the parties, learned Judge, Family Court has granted a decree of judicial separation instead of granting decree of divorce.

7) The respondent examined himself (PW/1), his father Sitaram Jaiswal (PW/2) and his neighbour Doctor Pramod Thawai (PW/3). In support of his case, he produced documents Ex.P/1 to Ex.P/7. On the other hand, the appellant/wife examined herself (DW/1), her father Laxman Prasad Gupta (DW/2) and Jayaprakash Jaiswal (DW/3). She produced Ex. D/1 and Ex.D/2 in support of her case. 8) We have heard Shri D.N. Prajapati, learned counsel for the appellant and Shri Sunil Otwani, learned counsel for the respondent, perused the judgment & decree and record of the Family Court.

9) Learned counsel appearing for the appellant vehemently argues that the respondent has not adduced any evidence to prove the cruelty committed by the appellant. The Family Court has overlooked the evidence of the appellant that she was subjected to ill-treatment and cruelty by the respondent/husband for want of dowry, therefore, decree of judicial separation ought not to have been granted in favour of the respondent/husband. It is further argued that the Family Court has not appreciated the evidence on record in its proper perspective and in absence of proof of cruelty, the decree of judicial separation is not sustainable under the law, therefore, the impugned judgment and decree be set aside. Learned counsel for the appellant placed his reliance in the matter of Gopal Chandra Mallick Vs. Manjari Mallik1, R. Balasubramanian vs. Smt. Vijayalakshmi Balasubramanian2 and Ravi Kumar vs. Julmi Devi3.

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10) On the other hand, learned counsel appearing for the respondent vehemently opposed the appeal and submitted that the respondent has proved the factum of cruelty by adducing oral and documentary evidence and after considering all the aspects, the court below has rightly granted a decree of judicial separation in favour of the respondent. In support of his arguments, learned counsel placed his reliance in the matter of Smt. Mayadevi vs. Jagdish Prasad4.

11) In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced by the parties. It may be true that there is no definition of cruelty under the Act, 1955. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Some time cruelty in a matrimonial relationship may take the form of violence, some time it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty. Therefore, cruelty in matrimonial behaviour defies any definition and its category can never be closed. Whether husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by baking into account the entire facts and circumstances of the given case and not by any pre-determined rigid formula. Cruelty in matrimonial cases can be of infinite variety – it may be subtle or even brutal and may be by gestures and words.

12) If we examine the evidence adduced by the parties in the light of above principles of law, we find that the respondent/husband sought a decree of divorce on the grounds of desertion and cruelty alleging that the appellant/wife was having relationship with her paramours after her marriage and despite his persuasion she did not change her conduct. From perusal of the finding given by the Family Court in para 46 of its judgment, it appears that the allegation of adultery against the appellant/wife has not been proved by the respondent in the light of evidence. It was the bounden duty of the respondent/husband to prove the allegation of adultery by cogent/direct evidence, not by mere statement in the application or in the court. There is no evidence on record to show that the appellant/wife was leading adulterous life, except the deposition of the respondent/husband. It is also apparent that the respondent/husband has not examined Abhishek @ Neeraj Jaiswal, resident of Bhilai who might have been one of the witnesses of adulterous life led by the appellant as alleged in para 26 of the application under Section 13 of the Act that the appellant lived in his house on rent from November, 2006 to July, 2007 by concealing her real identification.

13) So far as the ground of cruelty is concerned, the respondent/husband has clearly proved the same by cogent evidence as discussed by learned Family Court in detail in its judgment from para 18 to 45. On perusal of the evidence led by the respondent/husband, it is clear that the appellant/wife deliberately deserted the respondent/husband on 27-8-2006 without any rhyme or reason leaving a letter Ex.P/2 in her bed room. The respondent/husband with tooth and nail made all efforts to find out the whereabouts of the appellant/wife and to bring her back but all efforts went in vain. The efforts made by the respondent/husband are well corroborated by the documents Ex. P/1, P/3, P/4 & P/5. Ex.P/1 is the report of missing person lodged by the respondent in Police Station, Kotwali, Korba, P/3 is the acknowledgement of `Gumsudha Talash Kendra’, Delhi and P/4 & P/5 are newspaper clippings about missing of the appellant/wife. These documents remained unrebutted and the deposition of the respondent/husband to this effect has been corroborated by his father Sitaram Jaiswal (PW/2) and Doctor Pramod Tawait (PW/3). The appellant/wife failed to rebut the aforesaid evidence or produce any evidence in contrary. Apart from this, the appellant/wife admitted the letter Ex.P/2 in para 5 of her examination-in-chief. She also admitted in para 19 of her cross examination that she resided in the house of Abhishek @ Neeraj Jaiswal at Bhilai on rent from 26-9- 2006 to 5-7-2007.

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14) So far as the defence taken by the appellant/wife that she left her matrimonial house being tortured by her husband and in-laws for want of dowry, is concerned, it is clear from the evidence that she lodged the report (Ex.D/1) on 19-12-2006 against the respondent/husband and in laws which was only after about 4 months from leaving her matrimonial house on 27-8-2006. Prior to that, she never made any complaint before any authority regarding cruelty as alleged by her in the said report dated 19-12- 2006. It is also apparent that she has made no allegation in her letter Ex. P/2, though admitted, regarding any cruelty committed by the respondent/husband or by in-laws. On the contrary, Ex.P/2 only shows her deliberate desertion of the respondent/husband. It is also pertinent to mention here that she was well aware about the news of her missing published by her husband/respondent in newspapers but neither she nor her parents informed the respondent/husband about the whereabouts of the appellant/wife. This act of the appellant/wife also shows her arbitrariness and deliberate desertion of the respondent/husband without any reasonable cause which amounts to cruelty. On a close scrutiny of the evidence, it appears that the appellant and her parents were more interested in lodging the FIR (Ex.D/1) against the respondent/husband and his parents rather than reconciliation of the matter.

15) It is further pointed out by learned Family Court in para 45 of its judgment that several attempts were made at various stages of the proceedings for reconciliation of the dispute between the parties under Section 23 (2) of the Act, 1955 but the appellant/wife was stuck to her statement that she did not want to give divorce to the respondent till the allegations made against her were proved. On the contrary, in her written statement in para 36 as well as in para 11 of her examination-in-chief, she stated to give divorce to the respondent/husband on the condition that if he would return all her ornaments, 18 tolas of gold jewelleries and R.3,00,000/- cash given at the time of marriage, Rs.51,000/- given on “Teeka” and Rs.20,00,000/- cash in hand as permanent alimony. This conduct of the appellant/wife further goes to show that she was not willing to lead happy married life with the respondent/husband.

16) Thus, on re-appraisal of the evidence and on going through the pleadings of the parties, it is clear that the respondent/husband has successfully proved the factum of cruelty committed on him by the appellant/wife and the appellant/wife has failed to prove any cruelty committed by the respondent/husband on her. In view of the above, the case laws relied upon by the counsel for the appellant are not applicable to the facts and circumstances of the present case. Apart from this, the family court has passed a decree of judicial separation instead of passing a decree of dissolution of marriage, following the provision under Section 13-A of the Act which reads as under:

“[13-A. Alternate relief in

divorce proceedings.-In any

proceeding under this Act, on a

petition for dissolution of

marriage by a decree of divorce,

except in so far as the petition

is founded on the grounds

mentioned in clauses (ii), (vi)

and (vii) of sub-section (1) of

Section 13, the court may, if it

considers it just so to do

having regard to the

circumstances of the case, pass

instead a decree for judicial

separation.”

17) Moreover, if the appellant/wife is aggrieved by the impugned judgment and decree of learned Family Court, the remedy is open to her under Section 10 (2) of the Act which reads as under:

“Where a decree for judicial separation has been passed, it shall

no longer be obligatory for the

petitioner to cohabit with the

respondent, but the court may, on the

application by petition of either

party and on being satisfied of the

truth of the statements made in such

petition, rescind the decree if it

considers it just and reasonable to do

18) For the foregoing reasons, we are of the opinion that the learned Judge, Family Court has not committed any illegality or irregularity in granting the decree of judicial separation in favour of the respondent/husband. Consequently, the appeal being devoid of merits is liable to be dismissed and is accordingly dismissed. Parties shall bear their own costs.

JUDGE

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