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Dalendra Kannauje vs Smt.Reena Kannauje 14 … on 18 May, 2018

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR

RESERVED ON 16-5-2018
DELIVERED ON 18-5-2018
FAM No. 120 of 2014
(Arising out of order and decree dated 30-10-2014 of the 1st Addl. District Judge,
Baloda Bazar, Distt. Baloda Bazar in Civil Suit (Hindu Marriage Act) No. 37-A/2012)

Dalendra Kannauje S/o Late Dhurendra Kannauje aged about 38 Years R/o
Community Health Centre, Bhatapara, P.S. And Post- Bhatapara, Distt.
Baloda Bazar-Bhatapara C.G.
—- Appellant
Versus
Smt.Reena Kannauje W/o Dalendra Kannauje aged about 33 Years R/o
Ward No. 12, Palari, P.S. And Post- Palari, Distt. Baloda Bazar-Bhatapara
C.G.
—- Respondent

For Appellant : Shri Manoj Paranjpe and Shri Prasoon
Agrawal, Advocate
For Respondent : Shri Ravindra Agrawal, Advocate

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

1. In this appeal, the challenge is levied to the order and decree dated

30.10.2014 of the First Additional District Judge, Baloda Bazar, CG in Civil

Suit (Hindu Marriage Act) No. 37A/2012 whereby and whereunder he

dismissed the divorce petition filed by appellant-husband under Section 13 of

the Hindu Marriage Act, 1955 (in brevity ‘the Act, 1955’) against respondent-

wife.

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

solemnized on 14.05.2002 in accordance with customary rites and rituals, in

the wedlock two children have born namely Dipendra born on 04.02.2003

and Vaibhav born on 29.02.2004, she is living in his house yet now, he had

given her notice for divorce.

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3. In brief, appellant’s case is that after marriage the respondent used to

abuse and beat him. She had given threatening to implicate him in false

dowry case. There is no conjugal life between them since back two years to

16.08.2012.

4. In brief, respondent’s case is that after marriage the appellant was

harassing her on account of demand of dowry. He himself is escaping from

leading conjugal life, she is always ready to lead conjugal life

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

and decree. Being aggrieved, the appellant has preferred this appeal.

6. Shri Manoj Paranjpe, counsel for the appellant vehemently argued that

the trial Court did not appreciate the evidence in its proper perspective. Thus,

the impugned order and decree may be set aside and divorce may be

granted to the appellant.

7. Shri Ravindra Agrawal, counsel for the respondent argued that the

order and decree passed by the trial Court are in accordance with law. The

impugned order and decree do not call for any interference by this Court,

thus the appeal may be set aside.

8. Points for determination : –

There are following points for determination in this case –

(1) Whether after solemnization of marriage, the respondent had 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 presentation of the

petition without reasonable cause and without the consent or against the

wish of him ?

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

grounds of cruelty and desertion ?

(4) Relief and costs.

Point for determination No. 1 : Finding with reasons :-

9. AW 1 Dalendra Kannauje says in para 2, 3 and 5 of his statement

given on oath that after marriage the respondent used to abuse and beat

him. She had given threatening to implicate him in false dowry case. There is

no conjugal life between them since back two years to 16.08.2012.

10. AW 2 Hiralal Khunte and AW 3 Deendayal say in para 2 of their

statements given on oath that after marriage the respondent was abusing

and beating the appellant.

11. NAW 1 Smt. Reena Kannauje, NAW 2 Hemant Kumar Rajak who is

brother of the respondent, in paras 1, 2 and 4 of their statement given on

oath say that after marriage the appellant was harassing the respondent on

account of demand of dowry. He is deliberately not leading conjugal life

though she was always ready to discharge her marital obligation.

12. NAW 3 Smt. Suruj Bai who is aunt of the appellant says in para 1 of

her statement given on oath that after marriage the appellant was harassing

the respondent.

13. In G.V.N. Kameswara Rao vs. G. Jabilli; M.L.J. 2002 (1) 317, the

Hon’ble Supreme Court has held as under :

“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.”

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14. 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.”

15. Shri Manoj Paranjpe, Counsel for the appellant placed reliance on the

decision of Hon’ble Supreme Court in the matter of Samar Ghosh -v- Jaya

Ghosh [(2007) 4 SCC 511] para 30 of which is quoted below :-

“30. The High Court has seriously erred in not appreciating the
evidence on record in a proper perspective. The respondent’s refusal
to cohabit has been proved beyond doubt. The High Court’s finding
that the husband and wife might be sleeping in separate rooms did not
lead to a conclusion that they did not cohabit and to justify this by
saying that the respondent was highly educated and holding a high
post was entirely unsustainable. Once the respondent accepted to
become the wife of the appellant, she had to respect the marital bond
and discharge the obligations of marital life.”

16. Shri Paranjpe further placed reliance on a decision of this Court in the

matter of Som Kumar Bahidar -v- Smt. Jyoti passed in FAM No. 102/2012

dated 13-9-2017, para 12 of which reads thus :-

“12. The principle is, thus, settled that whether in the facts and
circumstances of a given case, the plaintiff has been able to make out
a case of grant of divorce on the ground of cruelty would depend upon
the nature of pleadings and evidence in that case and there can be no
straitjacket formula nor an exhaustive list of instances can be
prepared, where cruelty is said to have been committed by one or
other party to the marriage. Cruelty can also not be inferred by
applying any formula because the said question is to be determined
keeping in view the social status of the parties, their financial and other
conditions, the atmosphere and the kind of employment or vocation
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which they carry out would all be important to interfere whether on the
given set of allegations it has become difficult for the plaintiff to live
with the other side and the behavior of such degree which amounts to
cruelty.”

17. Shri Ravindra Agrawal, counsel for the respondent placed reliance on

a decision of Hon’ble Supreme Court in the matter of Gurbax Singh -v-

Harminder Kaur [(2010) 14 SCC 301] relevant portion of para 12 is

reproduced below :-

“12. In Samar Ghosh v. Jaya Ghosh (supra) a three-Judge Bench of
this Court while considering Section 13(1)(i-a) of the Act laid down
certain guidelines. The analysis and ultimate conclusion are relevant
which reads as under:

“xxx xxx xxx

101. No uniform standard can ever be laid down for guidance, yet we
deem it appropriate to enumerate some instances of human behaviour
which may be relevant in dealing with the cases of ‘mental cruelty’. The
instances indicated in the succeeding paragraphs are only illustrative
and not exhaustive:

xxx xxx xxx

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married
life which happens in day-to-day life would not be adequate for grant of
divorce on the ground of mental cruelty……….”

18. He further placed reliance on a decision of Hon’ble Supreme Court in

the matter of J.A. Nanda -v- Smt. Veena Nanda [(1988) Sup SCC 112]

relevant portion of para 7 is quoted below :-

“7. ……..Sometimes the temperament of the parties may not be
conducive to each other which may result in petty quarrels and
troubles although it was contended by the appellant that he had to
suffer various ailments on account of this kind of behaviour meted out
to him by the wife but it could not be held on the basis of any material
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that ailment of the appellant was the direct result of her (respondent’s)
conduct. The Division Bench therefore was right in coming to the
conclusion that there is no material to come to the conclusion that the
respondent treated the appellant with such cruelty as would entitle him
to a decree for divorce. …….”

19. Shri Agrawal also placed reliance on a decision of Hon’ble Supreme

Court in the matter of A. Anil Kumar -v- Vanishri A. [(2009) AIR (Karnataka)

201] para 22 of which is reproduced below :-

“22. In the case of Savitri Pandey Vs. Prem Chandra [(2002) 2SCC
73], the Hon’ble Supreme Court observed that cruelty must be
distinguished from the ordinary wear and tear of family life. It cannot be
decided on the basis of the sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct, which would in
general, be dangerous for a spouse to live with the other.”

20. This is not the appellant’s case that the respondent had allegedly

refused to lead the conjugal life or to discharge her marital obligation though

he was inclined to lead the conjugal life.

21. AW 1 Dalendra Kannauje says in para 26 and 32 during his cross-

examination that this is true that the quarrel was such which ordinarily

happens between husband and wife, he does not go to sleep to the place

where the respondent resides.

22. AW 2 Leelaram Khunte says in para No. 17 during his cross-

examination that this is true that main cause of the dispute was relationship

of appellant with some woman. AW 3 Deendayal says in para 11 during his

cross-examination that this is true that quarrel was happened between the

respondent and her mother in law on account of domestic work. Moreover,

the appellant has given suggestion to NAW 1 Smt. Reena kannauje during

her cross-examination in para 13 that she was quarreling on account of petty

matters.

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23. AW 2 Leelaram Khunte and AW 3 Deendayal say in para 3 that the old

mother of the appellant cooks meals and does domestic work.

24. The appellant has failed to prove any report lodged by him in any

police station wherein, it has been mentioned that after marriage the

respondent allegedly used to abuse and beat him. She had allegedly given

threatening to implicate him in false dowry case. Moreover, he has failed to

prove any document of their community wherein said facts have been

mentioned. For not doing so he has not offered any plausible explanation.

25. Looking to the above mentioned facts and circumstances, this Court

finds that the appellant does not get any help from notice Ex. A-1 regarding

this point for determination.

26. Looking to the above mentioned facts and circumstances, this Court

finds that appellant does not get any help from above mentioned judicial

precedent laid down in Samar Ghosh (supra) regarding this point for

determination and above mentioned judicial precedent laid down in G.V.N.

Kameswara Rao (supra), Prabhash Saxena (supra), Som Kumar Bahidar

(supra), Gurubax Singh (supra), J.L. Nanda (supra) and A. Anil

Kumar(supra) are applicable against the appellant and in favour of the

respondent regarding this point for determination.

27. After the appreciation of the evidence discussed herebefore this Court

disbelieves on aforesaid statements of para 2 and 3 of AW 1 Dalendra

Kannoje, para 2 of AW 2 Leelaram Khunte and AW 3 Deendayal, and

believes on statements of para 1, 2 and 4 of NAW 1 Smt. Reena Kannoje

and NAW 2 Hemant Kumar Rajak, para 1 of NAW 3 Smt. Suruj Bai, and this

Court finds that the appellant does not get any help from the aforesaid

statement of para 5 of AW 1 Dalendra Kannauje.

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28. After the appreciation of the evidence discussed hereinbefore, this

Court finds that the respondent had not treated the appellant with cruelty.

Thus, this Court decides point for determination No. 1 accordingly.

Point for determination No. 2 : Finding with reasons :-

29. The trial Court has not framed issue regarding desertion, though the

trial Court ought to have done it. The trial Court has given the finding on

issue of desertion. The evidence available on record shows that the appellant

and the respondent have adduced evidence regarding this point for

determination. The evidence available on record is sufficient to enable this

Court to pronounce the judgment. Non-framing of additional issue regarding

this point for determination does not cause any prejudice to either of the

parties. Thus, looking to the provisions of Order 41 Rule 24 of the Civil

Procedure Code, 1908 (in brevity ‘ the CPC’), this Court finds that it may

pronounce the judgment in this appeal.

30. 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.”

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

Bhattar Sri Devi {2002 (1) SCC 308} has laid down the following judicial

precedent:-

“For the offence of desertion two essential conditions must be there;

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(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.”

32. In the case in hand, the case of the appellant is that respondent is

residing in his house in a separate room. This is not his case that she had

left his house and living in a separate place. Living in his house and not

leaving his house itself indicates that the respondent is willing to cohabit with

him. This has been earlier decided that she has not committed any cruelty

with the appellant and he was harassing her and he himself had escaped

from leading the conjugal life.

33. After appreciation of the evidence discussed herebefore, this Court

finds that there is no such evidence on record which shows that respondent

has an intention to bring cohabitation permanently to an end (animus

deserandi) without reasonable cause and without consent of appellant.

Respondent has an intention not to return or resume cohabitation with

appellant.

34. Looking to the above mentioned facts and circumstances, material

placed on record this Court finds that aforesaid judicial precedents laid down

in Gurinder Singh (supra) and Adhyatma Bhattar Alwar (supra) are

applicable against the appellant and in favour of the respondent regarding

this point for determination.

35. After appreciation of the evidence discussed herebefore this Court

finds that the respondent has not deserted the appellant for a continuous

period of not less than two years immediately preceding presentation of the

petition without reasonable cause and without the consent or against the

wish of him. Thus this Court decides point for determination No. 2
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accordingly.

Point for determination No. 3 : Finding with reasons :

36. This has been earlier decided that the appellant has failed to prove the

grounds of cruelty and desertation thus, he is not entitled to get divorce on

the grounds of cruelty and desertion. Thus this Court decides the point for

determination No. 3 accordingly.

Point for determination No. 4 : Finding with reasons :

37. After the complete appreciation of the evidence discussed herebefore,

this Court finds that appeal is devoid of merit and deserves to be set aside.

Thus, the impugned order and decree of the trial Court are affirmed to the

above extent. The appeal is dismissed.

38. Appellant shall bear his own costs as well as costs of respondent.

39. A decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
JUDGE

kishore/P

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