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Austerity of temper, irritability of language, occasional outburst of annoy is not Cruelty

HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 16-4-2018
Pronounced on 20-04-2018

First Appeal (M) No. 5 of 2015
Hemant Kumar Patel S/o Banshidhar Patel Aged About 30 Years R/o
Village And Post- Timerlaga, P.S. And Tah. Sarangarh, Distt. Raigarh, Chhattisgarh —- Appellant

Versus

Smt. Uma Patel @ Toshika Patel W/o Hemant Kumar Patel Aged About
33 Years R/o Kumhari, Tah. Saraipali, Distt. Mahasamund C.G.,
Presently Posted As Shiksha Karmi, Grade-I, Govt. High School,
Singharpur, Tah. Bhatapara, Now Distt. Balodabazar-Bhatapara,Chhattisgarh—- Respondent

For appellant : Shri S.B. Pandey, Advocate For respondent : Shri Raghvendra Pradhan, Advocate

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

JUDGMENT

Challenge in this interest is levied to a visualisation and direct antiquated 11.12.2014 upheld by a Additional District Judge, Sarangarh, District Raigarh in Civil Suit No. 3-A/2012 vide Annexure A-1 whereby and whereunder a Trial Court discharged a divorce petition filed by appellant underneath Section 13 of a Hindu Marriage Act, 1955 (in abruptness ‘the Act, 1955’).

2. This is certified by respondent that name, function of both parties shown in a pretension of a focus are true, both parties are Hindu by sacrament and governed by Mitakshara Branch of Hindu Law, matrimony of both parties was solemnized on 9.7.2010 in suitability with Hindu rights and rituals during encampment Kumhari, after a matrimony she resided in appellant’s parental chateau during encampment Timerlaga, thereafter, she went to her maternal chateau during Kumhari, she returned behind on 20.7.2010 during Raipur where appellant was residing, both parties had led conjugal life during Raipur, she has perceived a notice antiquated 27.11.2010 sent by appellant, now she is not vital with him.

3. In brief, a appellant’s box is that respondent was not operative properly, she used to go some other places withdrawal a propagandize yet intimating him, she was creation argue with him on sparse matters, she was not prone to passionate intercourse. On 17.10.2010 by 8 p.m. a argue occurred between them on comment of meals, on a subsequent day when he returned behind from his avocation by 9 a.m. afterwards he found that she was not benefaction in a chateau and had left divided to her maternal chateau along with her bag and baggages. He has lodged a news on 24.10.2010. He had attempted for brining her behind yet she did not come with him. She did not respond his notice.

4. In brief, a respondent’s box is that appellant is vital during his posting place during Narayanpur. She is still vital in same chateau where they were vital jointly during Raipur. He had left that chateau and left divided to his place of posting.

5. After execution of a trial, a Trial Court upheld aforesaid visualisation and decree. Being aggrieved, appellant elite this appeal.

6. Mr. S.B. Pandey, Counsel for appellant vehemently argued that a Trial Court has not scrupulously appreciated a justification accessible on a record. The Trial Court ought to have given weightage to appellant’s witnesses. Aforesaid visualisation and direct are bad in a eyes of law and merit to be set aside.

7. Mr. Raghvendra Pradhan, Counsel for respondent argued that a impugned visualisation and direct are in suitability with law and do not call for any division by this Court, thus, a interest might be dismissed.

Points for determination:

8. There are following points for integrity in this case:

(1)

Whether respondent had subjected appellant with cruelty ?

(2)

Whether a Trial Court had territorial office to perform a divorce petition filed by appellant ?

(3)

Whether appellant is entitled to get a direct of divorce for retraction of a matrimony on a belligerent of cruelty ?

(4)

Relief and costs.

Point for integrity No. 1 : Findings with reasons:

9. The Trial Court has not framed emanate per cruelty yet a Trial Court ought to have finished it. The justification accessible on record shows that appellant and respondent have adduced justification per this indicate for determination. The justification accessible on record is sufficient to capacitate this Court to pronounce a judgment. Non-framing of additional emanate per this indicate for integrity does not means any influence to possibly of a parties. Thus, looking to a supplies of Order 41 Rule 24 of a Civil Procedure Code, 1908, this Court finds that it might pronounce a visualisation in this appeal.

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10. AW1 Hemant Kumar Patel says in paras 2, 3, 4 and 7 of his matter given on promise that respondent was withdrawal a chateau early and returning behind late in night. She was not operative properly. She used to go some other places withdrawal a propagandize yet intimating him. She was creation argue with him on sparse matters. She was not prone to passionate intercourse. On 17.10.2010 by 8 p.m., a argue occurred between them on comment of meals, on a subsequent day when he returned behind from his avocation by 9 a.m. afterwards he found that she was not benefaction in a chateau and had left divided to her maternal chateau along with her bag and baggages. He had attempted for brining her behind yet she did not come with him.

11. AW2 Arun Kumar Patel who is hermit of appellant says in paras 6, 2 and 3 of his matter given on promise that as told by AW1 Hemant Kuamr Patel he knows that disputes were occurring on comment of early leaving, late returning and going other places by respondent yet intimating appellant. On 17.10.2010, respondent left a chateau along with her bag and baggages in deficiency of appellant. She had told him that she is not prone to live with appellant.

12. AW3 Banshidhar Patel who is father of appellant says in paras 2 and 3 of his matter given on promise that, disputes were occurring on comment of early leaving, late returning and going other places by respondent yet intimating appellant. Respondent left a chateau along with her bag and baggages in deficiency of appellant. Respondent had told that she will never lapse back.

13. As per Ex. P1 antiquated 24.10.2010 (marked as Ex. P2 also) on 17.10.2010 a brawl occurred between appellant and respondent in night, subsequent day morning when appellant returned behind to his chateau afterwards found respondent had left divided along with her bag and baggages.

14. As per a notice Ex.P4 respondent was not operative properly, she used to go some other places withdrawal a propagandize yet intimating appellant, she was creation argue with him on sparse matters, she was not prone for passionate intercourse. On 17.10.2010 by 8 p.m. a argue occurred between them on comment of meals, on a subsequent day when he returned behind from his avocation by 9 a.m. afterwards he found that she was not benefaction in a chateau and had left divided to her maternal chateau along with her bag and baggages. He had attempted for brining her behind yet she did not come with him.

15. NAW1 Uma Patel says in para 3 of her matter given on promise that her father left a chateau yet intimating her.

16. NAW2 Dhanurjay Patel who is a father of respondent says in para 4 of his matter given on promise that appellant left a chateau yet intimating respondent.

17. As per a lease agreement Ex. D1 antiquated 3.4.2012 a chateau was taken on lease on 20.7.2010 and a control was renewed from 3.4.2012 to 3.3.2013 with respondent.

18. In G.V.N. Kameswara Rao v. G. Jabilli, we (2002) DMC 266 (SC)=MLJ 2002 (1) 317, a Hon’ble Supreme Court has hold as under:

“Cruelty can be pronounced to be an act committed with an goal to means sufferings to a conflicting celebration and it has turn frightful for other to humour any longer and to live together is impossible. This is to be judged not from a unique incident, yet on an altogether care of all germane circumstances. Austerity of temper, irritability of language, occasional outburst of annoy might not volume to cruelty, yet it might volume to misconduct.”

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19. In Prabhash Saxena v. Smt. Ranjana Saxena, II (2001) DMC 365 (DB)=92 (2001) DLT 732 (DB)=Mrr.LJ 2002 (1) 502, Hon’ble Delhi High Court has laid down a following legal precedent:

“A unchanging march of control inflicting infinite mental anguish and woe might good consecrate cruelty within a definition of Section 13(1)(ia) of a Act. Mental cruelty might include of written abuses and insults by regulating dirty and violent denunciation heading to consistent reeling of mental assent of other party.”

20. This is not a appellant’s box that respondent was allegedly withdrawal chateau early and returning behind late in night on comment of school. Moreover, this is not mentioned in Ex.P1 that respondent allegedly was not operative properly, she allegedly used to go some other places withdrawal a propagandize yet intimating him, she was allegedly creation argue with him on sparse matters, she was allegedly not prone for passionate intercourse. On 17.10.2010 by 8 p.m. allegedly a argue occurred between them on comment of meals, on subsequent day when he returned behind from his avocation by 9 a.m. afterwards he found that allegedly she was not benefaction in a chateau and had left divided in her maternal chateau along with her bag and baggages. He had allegedly attempted for brining her behind yet she did not come with him. Moreover, appellant has not examined any propagandize management who could have settled that she was withdrawal propagandize during operative hours.

21. AW1 Hemant Kumar Says in paras 5, 13, 14, 15 and 16 of his matter given on promise that he had left a chateau where he and respondent were staying progressing and started vital in another house. Village Singharpur is nearby about 60-65 km. divided from his progressing chateau during Pandari by road. This is loyal that she used to go Bhatapara by rail and afterwards Singharpur by sight or auto, she was returning behind by same mode. Raipur Railway Station is 4-5 km. divided from Pandari. The sight takes 1 hour from Raipur to Bhatapara. She used to go Bhatapara by 7.40 a.m. train. It takes 45 mins to go from Bhatapara to Singharpur by bus. She used to lapse behind from Bhatapara to Raipur by throwing Danapur Express during 7.00 p.m. She used to come from Raipur Railway Station to their chateau by automobile or walking. She was returning behind by 8 – 8.30 p.m. When she was returning behind after some time it was time for him to go for his duty.

22. AW2 Arun Kumar Patel says in para 6 of his matter given on promise that any brawl between appellant and respondent had not been occurred in his presence.

23. AW3 Banshidhar Patel says in paras 8, 9 and 11 of his matter given on promise that this is loyal that when appellant was returning behind from his avocation it was time for respondent to leave for her duty. Due to this time mismatching disputes were occurring. Appellant had left that chateau and started staying in another chateau during Raipur.

24. Appellant has not examined any neighbour to that chateau where he and respondent were staying jointly who could state that respondent allegedly was not operative properly, she allegedly used to go some other places withdrawal a propagandize yet intimating him, she was allegedly creation argue with him on sparse matters, she was allegedly not prone for passionate intercourse, on 17.10.2010 by 8 p.m. allegedly a argue occurred between them on comment of meals, on subsequent day when he returned behind from his avocation by 9 a.m. afterwards he found that she was allegedly not benefaction in a chateau and had left divided to her maternal chateau along with her bag and baggages. He had allegedly attempted for brining her behind yet she did not come with him. Moreover, he has not valid any minute wherein pronounced contribution have been mentioned. Moreover, he has unsuccessful to infer any news lodged by him in any military hire wherein this has been mentioned that, respondent allegedly was not operative properly, she allegedly used to go some other places withdrawal a propagandize yet intimating him, she was allegedly creation argue with him on sparse matters, she was allegedly not prone for passionate intercourse. He had attempted to move her behind yet she refused to live with him. He has unsuccessful to infer any request of their encampment wherein pronounced contribution have mentioned.

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25. Looking to a above contribution and resources of a box this Court finds that a aforesaid legal precedents in G.V.N. Kameswara Rao (supra) and Prabhash Saxena (supra) are germane opposite a appellant’s box and in foster of a respondent’s box per his indicate for determination.

26. After appreciation of a justification discussed herebefore this Court finds that appellant does not get any assistance from Ex.P1, Ex.P4 per this indicate for determination, this Court disbelieves on aforesaid statements of paras 2, 3, 4 and 7 of AW1 Hemant Kumar Patel, paras 6, 2 and 3 of AW2 Arun Kumar Patel, paras 2 and 3 of AW3 Banshidhar Patel, and believes on aforesaid statements on paras 3 and 4 of NAW1 Uma Patel @ Toshika Patel, para 4 of NAW2 Dharunjay Patel and on Ex. D1.

27. After appreciation of a justification discussed herebefore this Court finds that, appellant unsuccessful to infer that respondent had subjected him with cruelty. Thus, this Court decides indicate for integrity No. 1 accordingly.

Point for integrity No. 2 : Findings with reasons :

28. It would be impending to discuss a supplies of Section 19 of a Act, 1955, thus, reads as under:

“Section 19. Court to that petition shall be presented—Every petition underneath this Act shall be presented to a District Court within a internal boundary of whose typical strange polite office –

(i)

the matrimony was solemnised, or

(ii)

the respondent, during a time of a display of a petition, resides, or

(iii)

the parties to a matrimony final resided together, or

[(iiia)

in box a mother is a petitioner, where she is staying on a date of display of a petition, or]

(iv)

the postulant is staying during a time of a display of a petition, in a box where a respondent is, during that time, staying outward a territories to that this Act extends, or has not been listened of as being alive for a duration of 7 years or some-more by those persons who would naturally have listened of him if he were alive.]

29. This is certified that matrimony was solemnized in encampment Kumhari, both parties lastly resided during Raipur. From Ex.D1 this is transparent that during a time of a filing of a divorce petition respondent was staying during Raipur.

30. Looking to a above mentioned contribution and resources this Court finds that a Trial Court had no territorial office to perform a divorce petition filed by appellant. Thus, this Court decides indicate for integrity No. 2 accordingly.

Point for integrity No. 3 : Findings with reasons:

31. This has been progressing motionless that appellant unsuccessful to infer belligerent of cruelty, a Trial Court had no territorial office to perform a divorce petition, thus, this Court finds that appellant is not entitled to get a direct of divorce for retraction of a marriage. Thus, this Court decides indicate for integrity No. 3 accordingly.

Point for integrity No. 4 : Findings with reasons:

32. After finish appreciation of a justification discussed herein before, this Court finds that there is no piece in this appeal. Thus, this Court affirms a impugned visualisation and direct to a above extent. The interest deserves to be and is hereby dismissed.

33. Appellant shall bear his possess costs as good as costs of respondent.

34. Decree be drawn adult accordingly.

Appeal dismissed.

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