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Devashish Sarkar vs Smt. Suparna Sarkar 26 … on 8 May, 2018

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 25-4-2018
Pronounced on 08-05-2018

FAM No. 95 of 2017
[Arising out of judgment and decree dated 10-3-2017 in Civil Suit
No. 12-A/2016 of the Additional District Judge, Bhanupratappur,
Distt. North Bastar Kanker (CG)]

Devashish Sarkar S/o Mahendra, Aged About 35 years Caste
Namoshudra, R/o Village P.V.37, Police Station and Tahsil
Pakhanjur, District North Bastar Kanker, Chhattisgarh
—- Appellant
Versus
Smt. Suparna Sarkar W/o Devashish Sarkar, aged about 30
years Caste Namoshudra, R/o Village P.V.38, Police Station and
Tahsil Pakhanjur, District North Bastar Kanker, Chhattisgarh
—-Respondent

For appellant : Shri D.N. Prajapati, Advocate
For respondent : Shri C.J.K. Rao, Advocate

Hon’ble Shri Sharad Kumar Gupta, Judge
C.A.V. JUDGMENT

1. Challenge in this appeal is levied to the judgment and

decree dated 10.03.2017 of the Additional District Judge,

Bhanupratappur, district North Bastar, Kanker C.G. in Civil Suit

No. 12A/ 2016 vide Annexure A-1 whereby and whereunder the

trial Court dismissed the divorce petition filed by appellant-

husband under section 13 of the Hindu Marriage Act, 1955 (in

brevity ‘the Act of 1955’) against the respondent- wife.

2. This is admitted by the respondent that marriage of both

parties was solemnized in the year 2006 in residential place of

her father village PV48 in accordance with Bengali rights and
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rituals, after the marriage she resided in his house at village

PV37 where they led the conjugal life, now she is living

separately from him in her paternal house.

3. In brief, appellant’s case is that two years after the

marriage she started quarreling with him, she used to go to her

maternal house without intimating him, she is living separately

from him since eight years back. She used to give threat to him

to implicate in a false dowry case. He had tried to bring her

back, but she refused to live with him.

4. In brief, the respondent’s case is that she lived in his house

at village PV37 till June, 2016. He harassed her saying that she

is less educated and he got less dowry. She had not procreated

child, thus, he was taunting that she is barren. Due to

harassment, she came in her maternal house after June, 2016.

5. After conclusion of the trial, the trial Court passed aforesaid

judgment and decree. Being aggrieved, the appellant preferred

this appeal.

6. Shri D.N. Prajapati, counsel for the appellant vehemently

argued that the trial Court has failed to appreciate the evidence

properly. The aforesaid judgment and decree of the trial Court

are bad in the eyes of law. Thus, the impugned judgment and

decree may be set aside and a decree of divorce may be

granted.

7. Shri C.J.K. Rao, counsel for the respondent argued that the

impugned judgment and decree are in accordance with law and

do not call for any interference by this Court, thus, the appeal
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may be dismissed.

8. Points for determination :-

There are following points for determination in this case :-

(1) Whether after solemnization of the marriage, the

respondent treated the appellant with cruelty ?

(2) Whether the respondent has deserted the appellant for

a continuous period of not less than two years immediately

preceding the presentation of the petition without

reasonable cause and without the consent or against the

wish of him ?

(3) Whether the appellant is entitled to get the decree of

divorce for dissolution of the marriage on the grounds of

cruelty and desertion ?

(4) Relief and costs.

Points for determination No. 1 2 : Findings with reasons :-

9. Looking to the convenience, points for determination No.1

and 2 are disposed of simultaneously.

10. The trial Court has not framed issue regarding desertion,

though it ought to have done it. The evidence available on

record shows that the appellant and the respondent have

adduced evidence regarding desertion. The evidence available

on record is sufficient to enable this Court to pronounce the

judgment. Non-framing of additional issue regarding desertion

does not cause any prejudice to either of the parties. Thus,

looking to the provisions of Order 41 Rule 24 of the Civil
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Procedure Code, 1908 (in brevity ‘ the CPC’), this Court finds

that it may pronounce the judgment in this appeal.

11. AW1 Devashish Sarkar says in para 3, 8, 11 and 13 of his

statement given on oath that the respondent was quarreling with

him on petty matters. He is living separately from her since 8

years back, she was threatening that she will implicate him in

false dowry case.

12. AW2 Chitranjan Mandal says in para 4 of his statement

given on oath that he was present in a meeting held regarding

quarrel between appellant and respondent.

13. AW3 Ashok Das says in paras 3, 8 and 11 of his statement

given on oath that 2 – 2½ years after the marriage the

respondent was abusing the appellant. She used to go without

intimating any member of the appellant’s family. She is living

separately from him since 7-8 years back.

14. NAW1 Suparna Sarkar says in paras 2 and 8 that she is

living in her maternal house since 5 -6 months back. He was

making quarrel with her.

15. NAW2 Prabash Malik says in paras 4 and 6 that the

respondent is living in her maternal house since 5-6 months

back. Her father had told that the appellant is misbehaving with

her.

16. In G.V.N. Kameswara Rao vs. G. Jabilli; M.L.J. 2002 (1)

317, the Hon’ble Supreme Court has held as under :
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“Cruelty can be said to be an act committed with an
intention to cause sufferings to the opposite party and it
has become intolerable for other to suffer any longer and to
live together is impossible. This is to be judged not from a
solitary incident, but on an overall consideration of all
relevant circumstances. Austerity of temper, rudeness of
language, occasional outbrust of anger may not amount to
cruelty, though it may amount to misconduct.”

17. In Prabhash Saxena v Smt. Ranjana Saxena {Mrr.L.J.

2002 (1) 502} Hon’ble Delhi High Court has laid down the

following judicial precedent:

“A consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty within
the meaning of Section 13(1)(ia) of the Act. Mental cruelty
may consist of verbal abuses and insults by using filthy and
abusive language leading to constant disturbance of
mental peace of other party.”

18. In Gurinder Singh v Bhupinder Caur {Mrr.L.J. 2008 (1)

261} Hon’ble Punjab and Haryana High Court has laid down the

following judicial precedent: –

“Desertion means the separation of one spouse from other
with an intention of bringing cohabitation permanently to an
end without reasonable cause a consent of the other
spouse and with an intention not return or resume
cohabitation. Mere severance of relation or separation
without desertion is not sufficient. Desertion is not walking
out of a house but is withdrawn from a home. Desertion
consists in withdrawn not from a place but from the state of
thing.”

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19. Hon’ble Supreme Court in Adhyatma Bhattar Alwar v

Adhyatma Bhattar Sri Devi {2002 (1) SCC 308} has laid

following judicial precedent:-

“For the offence of desertion two essential conditions must
be there; (1) the factum of separation and (2) the intention
to bring cohabitation permanently to an end (animus
deserendi). Two elements are essential so far as the
deserted spouse is concerned; (1) the absence of consent
and (2) absence of conduct giving reasonable cause to the
spouse leaving the matrimonial house to form the
necessary intention.”

20. Shri D.N. Prajapati, counsel for the appellant cited para 16

of the judgment of this Court in Smt. Vijaya Laxmi Soni v.

Rajkumar Soni [2009 (2) C.G.L.J. 72 (DB)] wherein the

Hon’ble Division Bench has held as under :

“16. After appreciating the evidence available on record,
the Court below has recorded a finding that the appellant,
who is wife of the respondent, has treated him with cruelty
and has failed to discharge her marital obligation. Even she
has threatened the respondent to implicate him falsely in
cases. Yet, the Court below has not passed order for
dissolution of marriage by a decree of divorce and has
passed the decree of judicial separation. Findings of the
Court below on issue No. 1 clearly show that there is no
chance of restitution of conjugal rights or reunion. In the
facts and circumstances of the case, dissolution of
marriage by a decree of divorce was the only remedy left,
but the Court below has not passed the decree of divorce,
which was fully possible on the basis of proved facts in this
case. ”

21. He further cited para 42 of the judgment of the Hon’ble
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Supreme Court in Malathi Ravi, M.D. v. B.V. Ravi, M.D. [(2014)

7 SCC 640] wherein the Division Bench has held as under :-

“42. For the present, we shall restrict our delineation to the
issue whether the aforesaid acts would constitute mental
cruelty. We have already referred to few authorities to
indicate what the concept of mental cruelty means. Mental
cruelty and its effect cannot be stated with arithmetical
exactitude. It varies from individual to individual, from
society to society and also depends on the status of the
persons. What would be mental cruelty in the life of two
individuals belonging to a particular strata of the society
may not amount to mental cruelty in respect of another
couple belonging to a different stratum of society. The
agonised feeling or for that matter a sense of
disappointment can take place by certain acts causing a
grievous dent at the mental level. The inference has to be
drawn from the attending circumstances.”

22. AW1 Devashish Sarkar says in para 26 of his cross

examination that in August, 2016 his father-in-law had taken

back her. He says in para 27 that this is true that the respondent

resided in his house after the marriage till August, 2016. PW3

Ashok Das says in para 23 during his cross examination that

this is true that she is living in her maternal house since August,

2016. This is true that prior to August, 2016 she was residing in

appellant’s house. Appellant had given the suggestion to NAW2

Prabhash Malik in para 33 during his cross examination that this

is true that she is living in her maternal house since 5-6 months

back.

23. AW1 Devashish Sarkar says in para 29 that this is true that

no child was born in their wedlock. PW2 Chitranjan Mandal says
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in para 10 during his cross examination that his statement is

hearsay. He says in para 15 that this is true that he had not seen

the quarrel of the appellant and the respondent.

24. Appellant has not proved any report lodged by him in any

police station alleging that, two years after the marriage she

started quarrel with him, she used to go in her maternal house

without intimating him, she is living separately from him since

eight years back. She used to threat him to implicate in a false

dowry case. He has failed to prove any document of their

community wherein said facts have been mentioned. He has

failed to prove any notice given by him to her wherein said facts

have been mentioned. For not doing so there is no plausible

explanation offered by him.

25. Looking to the above mentioned facts and circumstances

this Court finds that the aforesaid judicial precedents in G.V.N.

Kameswara Rao (Supra), Prabhash Saxena (Supra),

Gurinder Singh (Supra), Adhyatma Bhattar Alwar (Supra),

and Malthi Ravi M.D. (supra) are applicable against the

appellant’s case and in favour of the respondent’s case

regarding these points for determination.

26. After appreciation of the evidence discussed herebefore

this Court disbelieves on aforesaid statements of paras 3, 8, 11

and 13 of AW1 Devashish Sarkar, paras 4 of AW 2 Chitranjan

Mandal in this reference that allegedly the respondent was

making quarrel with the appellant, paras 3, 8 and 11 of AW3

Ashok Das and believes on aforesaid statements of paras 2, 8
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of NAW1 Suparna Sarkar, paras 4 and 6 of NAW2 Prabhash

Malik.

27. After appreciation of the evidence discussed herebefore,

this Court finds that there is no such evidence on record which

shows that the respondent has an intention to bring cohabitation

permanently to an end (animus deserandi) without reasonable

cause and consent of the appellant. Respondent has an

intention not to return or resume cohabitation with the appellant.

28. After the appreciation of the evidence discussed herebefore

this Court finds that after the solemnization of the marriage,

respondent has not treated appellant with cruelty, she has not

deserted him for a continuous period of not less than two years

immediately preceding the presentation of the petition without

reasonable cause and without the consent or against the wish of

him. Thus, this Court decides points for determination No. 1 and

2 accordingly.

Point for determination No. 3 : Findings with reasons :-

29. This has been earlier decided that the appellant has failed

to prove grounds of cruelty and desertion. Thus, in the case in

hand, no question arises that instead of decree of judicial

separation, decree of divorce may be granted. Thus, the

appellant does not get any help from the aforesaid judicial

precedent laid down in Smt. Vijay LaXMI Soni (supra).

30. Looking to the above mentioned facts and circumstances,

this Court finds that appellant is not entitled to get the decree of

divorce for dissolution of the marriage on the grounds of cruelty
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and desertion. Thus, this Court decides point for determination

No.3 accordingly.

Point for determination No. 4 : Findings with reasons :-

31. After the complete appreciation of the evidence discussed

herebefore this Court finds that the appeal is devoid of merit,

thus the impugned judgment and decree of the trial Court are

hereby affirmed to above extent and the appeal is dismissed.

32. Appellant shall bear his own costs and costs of respondent

also.

33. A decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
Judge

kishore/P

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