Durga Bai vs Narayan Sinha on 8 November, 2017

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

FAM No. 42 of 2015

Judgment reserved on 30.08.2017

Judgment delivered on 08.11.2017

(Arising out of Judgment and decree dated 12.03.2015 passed by
the Judge, Family Court Dhamtari, in Civil Suit No. 99-A/2013)

 Durga Bai, W/o Narayan Sinha Aged About 25 Years D/o
Doman Lal Sinha, R/o Village Semra (Bhakhara), Tahsil And
District Dhamtari, Chhattisgarh

—- Appellant

Versus

 Narayan Sinha S/o Dujram Sinha Aged About 27 Years R/o
Village- Arjuni, Tahsil And District, Dhamtari, Chhattisgarh

—- Respondent

For Appellant Shri P.P. Sahu, Advocate
For Respondent None, though served

Hon’ble Shri Justice Prashant Kumar Mishra
Hon’ble Shri Justice Arvind Singh Chandel

C A V Judgment

The following judgment of the Court was delivered by

Prashant Kumar Mishra, J.–

1. By this appeal under Section 19 (1) of the Family Courts Act,

1984 the appellant/wife would assail the impugned judgment
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and decree allowing the respondent/husband’s prayer for

dissolution of marriage.

2. The parties were married as per the Hindu rituals at village

Semra (Bakhra), Tahsil and District Dhamtari on 17.05.2005.

They have a daughter, born out of the wedlock, who was aged

about 8 years at the time of presentation of divorce petition on

09.07.2013. The respondent/husband sought divorce on the

pleadings that for some time after the marriage their relations

were cordial, but, subsequently, the appellant/wife started

behaving indifferently and misbehaving with the family

members of the respondent/husband. She used to move out of

the house without informing him or the family members and on

inquiry she used to raise unnecessary dispute. She went to her

parental house on 24.08.2008, came back on 15.09.2008, but

again went back on 18.09.2008 and did not join the company

of the husband, therefore, Panchayat meeting was convened

in the month of January, 2009, which was unfruitful, and, as

such, second Panchayat meeting was convened in February,

2009. The appellant/wife lodged the First Information Report

(FIR) with the Arjuni Police against the respondent and his

family members for offence punishable under Section 498-A of

the Indian Penal Code (IPC). On completion of the trial, the
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accused persons were convicted by the trial Court on

30.04.2011, however, the Session Judge, Dhamtari, allowed

the appeal on 17.08.2011 and acquitted all the accused

persons. The appellant/wife has also preferred an application

for grant of maintenance to herself and her minor daughter. In

paras 7 9 of the plaint, it was pleaded that the appellant/wife

having residing separately for more than two years without any

reasonable and justifiable cause the respondent is entitled to

divorce on the ground of desertion for which the cause of

action has arisen on 18.09.2008 when the appellant left the

company of the respondent and on 17.08.2011 when the

respondent and his family members were acquitted in the

criminal case.

3. The appellant denied the plaint allegations. She stated that

the respondent and his family members were subjecting her to

intense physical and mental cruelty, therefore, she convened

Panchayat meeting wherein the respondent’s parents were

fined for Rs. 5000/-, but they did not deposit the amount.

Another meeting of the Panchayat was convened at Kurud,

where a quarrel took place between the parties. Third

Panchayat meeting was convened at village Gadadih, which

was not attended by the respondent and his parents.
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Thereafter, another Panchayat meeting was convened at

village Telinsatti where again the respondent and his parents

failed to appear. Having failed in her attempt to reconcile the

matter through Panchayat meeting, the appellant lodged the

FIR. It was further pleaded that the Sessions Court acquitted

the respondent and his family members only on the ground

that there was delay in lodging the FIR whereas the FIR was

lodged immediately when the effort for reconciliation failed

even after repeated Panchayat meetings. It was further

pleaded that both the parties are residing at village Simra and

are frequently meeting, therefore, there is no desertion.

4. The respondent/husband has examined himself as PW-1

whereas the appellant/wife examined herself as DW-1. No

other witnesses were examined by either of the parties. The

Family Court framed only one material issue for determination

as to whether the appellant/wife has treated the respondent/

husband with cruelty.

5. The trial Court has recorded a finding in para 18 of the

judgment that the plaintiff (husband) has failed to prove that

the appellant/wife was misbehaving with him or his family

members or that she used to visit her parental house without

informing him or his family members. This finding of the trial
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Court would imply that the ground of cruelty urged by the

plaintiff has not been proved in trial. The trial Court has,

thereafter, considered the second aspect of cruelty i.e. whether

the appellant/wife has lodged false report for demand of dowry

and has, thus, caused cruelty to the plaintiff.

6. The trial Court has referred the judgment rendered by the

Supreme Court in K. Srinivas v. K. Sunita 1 and has

discussed the finding recorded in the appellate judgment

rendered by the Sessions Court acquitting the respondent and

his family members from the charge under Section 498-A of

the IPC.

7. Lodging of false complaint with intent to harass and humiliate

the respondent and his family members has been treated to be

amounting to cruelty.

8. The Supreme Court in K. Srinivas Rao v. D.A. Deepa 2

observed thus in paras 27 28 :

27. We need to now see the effect of the
above events. In our opinion, the first
instance of mental cruelty is seen in the
scurrilous, vulgar and defamatory statement
made by the respondent-wife in her complaint
dated 4/10/1999 addressed to the
Superintendent of Police, Women Protection
1 (2014) 16 SCC 34
2 (2013) 5 SCC 226
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Cell. The statement that the mother of the
appellant-husband asked her to sleep with his
father is bound to anger him. It is his case
that this humiliation of his parents caused
great anguish to him. He and his family were
traumatized by the false and indecent
statement made in the complaint. His
grievance appears to us to be justified. This
complaint is a part of the record. It is a part of
the pleadings. That this statement is false is
evident from the evidence of the mother of
the respondent-wife, which we have already
quoted. This statement cannot be explained
away by stating that it was made because the
respondent-wife was anxious to go back to
the appellant-husband. This is not the way to
win the husband back. It is well settled that
such statements cause mental cruelty. By
sending this complaint the respondent-wife
has caused mental cruelty to the appellant-

husband.

28. Pursuant to this complaint, the police
registered a case under
Section 498-A of the
IPC. The appellant-husband and his parents
had to apply for anticipatory bail, which was
granted to them. Later, the respondent-wife
withdrew the complaint. Pursuant to the
withdrawal, the police filed a closure report.
Thereafter, the respondent-wife filed a protest
petition. The trial court took cognizance of the
case against the appellant-husband and his
parents (CC No. 62/2002). What is pertinent
to note is that the respondent-wife filed
criminal appeal in the High Court challenging
the acquittal of the appellant-husband and his
parents of the offences under the
Dowry
Prohibition Act and also the acquittal of his
parents of the offence punishable under
Section 498-A of the IPC. She filed criminal
revision seeking enhancement of the
punishment awarded to the appellant-

husband for the offence under Section 498-A
of the IPC in the High Court which is still
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pending. When the criminal appeal filed by
the appellant-husband challenging his
conviction for the offence under
Section 498-
A of the IPC was allowed and he was
acquitted, the respondent-wife filed criminal
appeal in the High Court challenging the said
acquittal. During this period respondent-wife
and members of her family have also filed
complaints in the High Court complaining
about the appellant-husband so that he would
be removed from the job. The conduct of the
respondent- wife in filing a complaint making
unfounded, indecent and defamatory
allegation against her mother-in-law, in filing
revision seeking enhancement of the
sentence awarded to the appellant-husband,
in filing appeal questioning the acquittal of the
appellant-husband and acquittal of his
parents indicates that she made all attempts
to ensure that he and his parents are put in
jail and he is removed from his job. We have
no manner of doubt that this conduct has
caused mental cruelty to the appellant-

husband.

9. In K. Sunita (supra) the Supreme Court allowed divorce on

the ground that the criminal complaint lodged by the wife was

a contrived afterthought and ill adviced.

10. In an extremely recent judgment rendered in the matter of Raj

Talreja v. Kavita Talreja 3 the Supreme Court has held that

mere filing of complaints is not cruelty, if there are justifiable

reasons to file the complaints. Merely because no action is

taken on the complaint or after trial the accused is acquitted

may not be a ground to treat such accusations of the wife as

3 2017 SCC On line SC 462
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cruelty within the meaning of the Hindu Marriage Act 1955 (for

short ‘the Act’). However, if it is found that the allegations are

patently false, then there can be no manner of doubt that the

said conduct of a spouse levelling false accusations against

the other spouse would be an act of cruelty.

11. In the case at hand, the parties stayed together till 18.09.2008

and, thereafter, effort was made by the appellant/wife and her

parents to reconcile the matter by convening successive

Panchayat meetings on atleast four occasions.

12. The record of the criminal Court, summoned by us, is

available. In the written report lodged by the appellant she has

stated in detail about the Panchayat meetings wherein the

respondent did not appear, therefore, the members of the

Panchayat advised her to initiate legal action. The FIR itself

states that the delay in lodging the same happened because

the appellant was trying to settle the matter in the Panchayat.

13. On completion of the trial, the respondent and his relatives

were convicted by the trial Court, which has been set aside by

the sessions Court only on the ground that the FIR was

delayed. Moreover, in the present suit the respondent/

husband has not pleaded that the criminal case lodged against
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him and his family members was false and has caused cruelty

to him. The criminal complaint was for demand of dowry and

physical cruelty and it is not a case where scandalous or

indecent allegations have been leveled against the family

members of the respondent. Merely because judgment of

acquittal has been passed by the Sessions Court, it cannot be

said that the same would amount to cruelty because if that is

allowed to happen then in every case where the respondent

and his relatives are acquitted in the criminal case by the

JMFC or by the Sessions Court that would itself amount to

grant of decree of divorce.

14. The matters before the family Court and the issue concerning

commission of cruelty is to be tested on the basis of evidence

adduced before the Family Court and not only on the ground

that in criminal case the husband has been acquitted. For this

conclusion we would draw support from the observation made

by the Supreme Court in the recent judgment rendered in Raj

Talreja (supra).

15. There is yet another reason as to why in the case at hand the

decree of divorce is not sustainable inasmuch as in absence of

any pleading that such criminal case has caused cruelty and

the decree of divorce is sought on this ground alone, the
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respondent/wife was precluded from defending the

matter.

16. In a case of this nature where the criminal case has ended in

acquittal only on the ground of delay in lodging the FIR without

even commenting that the FIR contains false accusations or

that there is an effort to implicate the accused persons in a

false case, the absence of pleading of causing of cruelty on

account of criminal case assumed significance.

17. Moreover, when the dispute occurs between the husband and

wife, it cannot be expected of the wife that the moment the

dispute arose she would straightway lodge the FIR without

making any effort to save the marital institution. The effort to

reconcile the matter between the husband and wife by

convening Panchayat meeting can never be treated as a

ground to disbelieve the prosecution case for acquitting the

accused persons.

18. We are aware of the fact that this appeal is not about the

validity of the order of acquittal passed by the sessions Court,

but in the facts and circumstances of the case, it becomes

necessary for us to analyze the whole gamut of evidence to

conclude as to whether such acquittal would by itself amount
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to lodging of false FIR for harassing the husband and/or his

relatives.

19. For all the aforesaid reasons we are convinced that the

appellant/wife has not lodged any false report against the

respondent and has caused cruelty to him.

20. In the result, the appeal succeeds. The impugned judgment

and decree deserves to be and is hereby set aside. The

parties shall bear their respective costs.

21. A decree be drawn accordingly.

Sd/- Sd/-

Judge Judge
Prashant Kumar Mishra Arvind Singh Chandel

Gowri

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