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Dayachand Porte vs Kamlabai 14 Fam/58/2012 Ashok … on 19 April, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 16.04.2018
Pronounced on 19.04.2018

First Appeal (M) No. 91 of 2011
• Dayachand Porte (Dayachandra Wrongly Mentioned), S/o Mangal
Singh Porte, R/o Village Dhanura, Post Parasi, Tahsil Marwahi, Dist.
Bilaspur (C.G.)
—- Appellant
Versus
• Kamlabai W/o Dayachand Porte, D/o Johan Singh Shyam, R/o
Village Dadiya, Post Karhanni, Tahsil Marwahi, Dist. Bilaspur (C.G.)
—- Respondent

———————————————————————————————————-

For Appellant : Shri Dhirendra Prasad Mishra,
Advocate
For Respondent : None

———————————————————————————————————–

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

1) Challenge in this appeal is levied to the judgment and decree

dated 11.07.2011 of the Additional District Judge, Pendra Road,

district Bilaspur passed in Civil Suit No.19-A/2011, whereby and

whereunder he dismissed the petition of appellant filed under

Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to

as ‘the Act, 1955’).

2) This is admitted by respondent that both the parties are Gond

by caste, marriage of them was solemnized in accordance with the

rights and rituals in 1997 at village Dadiya, after the marriage, she

resided in her in-laws’ house along with appellant in village Dhanora

for 10-15 days and thereafter, she went her maternal house, two-

three months after, she again came to her in-laws’ house, now she
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is living in her maternal house since back three years from filing of

the written statement.

3) In brief, the appellant’s case is that respondent was saying

that she does not like him, she does not want to lead conjugal life

with him. She used to go frequently in her maternal house without

the permission of him. On 20.04.2006, she voluntarily left his house.

He had tried for her to return back to his house, but, she refused to

live with him.

4) In nutshell, respondent’s case is that appellant was saying her

that he does not like her and he will perform second marriage. He

had ousted her from his house after beating. She is inclined to live

with him.

5) After completion of the trial, the trial Court passed the

aforesaid judgment and decree. Being aggrieved, appellant

preferred this appeal.

6) Shri Dhirendra Prasad Mishra, the learned counsel for

appellant strenuously argued that the trial court has not properly

examined the evidence and reached to the wrong conclusion. Thus,

aforesaid judgment and decree may be set aside and a decree of

divorce may be granted.

7) None appears for respondent though served.

8) Points for determination :-

The following points are for determination in this case :-
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(1) Whether respondent has subjected appellant with

cruelty ?

(2) Whether respondent has deserted appellant for a

continuous period of not less than two years immediately

preceding the presentation of the petition without reasonable

and without the consent or against the wish of him ?

(3) Whether suit of appellant is maintainable ?

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

divorce on the ground of cruelty and desertion ?

(5) Relief and costs.

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

9) Looking to the convenience points for determination No. 1 2

are decided simultaneously.

10) AW1 Dayachand Porte says in para 4 and 5 of his statement

given on oath that respondent used to say that she does not like

him, her family members have performed her marriage forcibly, she

is not inclined to lead conjugal life with him, she was making

frequent quarrels with his parents. She used to go frequently in her

maternal house without obtaining his permission.

11) AW2 Amin Singh Maravi, AW3 Sewa Das say, in para 3 and 4

of their statements given on oath that, respondent used to say that

she does not like appellant, her family members have performed her

marriage forcibly, she is not inclined to lead conjugal life with

appellant, she was making frequent quarrels with the parents of
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appellant. She used to go frequently in her maternal house without

obtaining permission from appellant.

12) NAW1 Kamlabai says in para 2 of her statement given on

oath that appellant was making quarrel with her saying that she is

not beautiful, he was not taking care of her. He had ousted her after

beating.

13) NAW2 Gyan Singh who is the cousin of respondent says in

para 2 of his statement given on oath that respondent used to say

that appellant was making quarrel with her saying that she is not

beautiful, he was not taking care of her, he had ousted her after

beating.

14) AW1 Dayachand Porte says in para 13 and 19 of his cross

examination that he has studied PGDCA. His mother had told him

that respondent is one year elder than him. AW2 Amin Singh says

in para 11 during his cross examination that he does not know why

appellant and respondent are living separately. AW3 Sewa Das says

in para 6 of his cross examination that he does not know what is the

dispute between appellant and respondent. NAW1 Kamlabai says in

para 3 during her cross examination that she is illiterate.

15) In alleged information of non-congnizable offence Ex.P 1 and

alleged Rajinama Ex.P 2 this is not mentioned that, respondent

allegedly used to say appellant that she does not like him, her

marriage has performed forcibly, she is allegedly not inclined to lead

conjugal life with him. She was allegedly making quarrel with his

parents. She allegedly used to go her maternal house frequently

without obtaining permission from him. Thus, appellant does not get
5

any help from Ex.P1 and Ex.P2 regarding these points for

determination.

16) Appellant has failed to prove any letter wherein said facts

have been mentioned. Appellant has failed to prove any report

lodged by him in any police station wherein said facts have been

mentioned. Appellant has failed to prove any document of their

community wherein said facts have been mentioned. Appellant has

failed to prove any notice given by him to respondent wherein said

facts have been mentioned.

17) Appellant has preferred divorce petition 3 years 4 months

after from 20.04.2006. He is failed to explain why he has not filed

earlier divorce petition.

18) 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.”

19) 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.
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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.”

20) 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.”

21) 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.”

22) Looking to the above mentioned facts and circumstances

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

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

(Supra) and Adhyatma Bhattar Alwar (Supra) are applicable against
7

appellant and in favour of respondent regarding these points for

determination.

23) Looking to the above mentioned facts and circumstances this

Court disbelieves the aforesaid statements of para 4 and 5 of AW1

Dayachand Porte, para 3 and 4 of AW2 Amin Singh Maravi , AW3

Sewa Das and believes the aforesaid statements of para 2 of NAW1

Kamlabai and NAW2 Gyan Singh.

24) 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

consent of appellant. Respondent has an intention not to return or

resume cohabitation with appellant.

25) After the appreciation of the evidence discussed herebefore

this Court finds that appellant failed to prove that respondent has

subjected appellant with cruelty and she has 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 :-

26) The trial Court did not frame issue regarding maintainability of

the suit though the trial Court ought to have done it. The evidence

available on record shows that appellant and respondent have

adduced evidence regarding this point for determination. The
8

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 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.

27) This is admitted position that both the parties are Gond by

caste.

28) It would be pertinent to mention the provisions of Section 2 of

the Act, 1955:-

“2. Notwithstanding anything contained in sub-section
(1), nothing contained in this Act shall apply to the
members of any Scheduled Tribes within the meaning
of clause (25) of Article 366 of the Constitution unless
the Central Government, by notification in the Official
Gazette, otherwise directs.”

29) As per the provisions of the (SCHEDULED TRIBES) ORDER

1950 (C.O.22) of the constitution of India serial No. 16 ‘Gond’ is

Scheduled Tribe in C.G. State.

30) Appellant has failed to show that the Central Government has

specified in official gazette by notification that the Act, 1955 is

applicable to members of Gond scheduled tribes in Chhattisgarh

State.

31) In Surajmani Stela Kujur v Durgacharan Hansdah, {AIR

2001 SC 938}, Hon’ble Supreme Court has laid down the following

judicial precedent :-

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“In this appeal the parties are admittedly tribals,
the appellant being an Oraon and the respondent a
Santhal. In the absence of a notification or order under
Article 342 of the Constitution they are deemed to be
Hindus. Even if a notification is issued under the
Constitution, the Act can be applied to Scheduled Tribes
as well by a further notification in terms of Sub-section
(2) of Section 2 of the Act. It is not disputed before us
that in the Constitution (Scheduled Tribes) Order, 1950
as amended by Scheduled Castes and Scheduled
Tribes Order (Amendment) Acts 63 of 1956, 108 of
1976, 18 of 1987 and 15 of 1990, both the tribes to
which the parties belong are specified in Part XII. It is
conceded even by the appellant that “the parties to the
petition are two tribals, who otherwise profess
Hinduism, but their marriage being out of the purview of
Hindu Marriage Act, 1955 in light of Section 2(2) of the
Act, are thus governed only by their Santhal customs
and usage”.

32) Looking to the above mentioned facts and circumstances, this

Court finds that suit of appellant is not maintainable. Thus, this court

decides point for determination No.3 accordingly.

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

33) This has been earlier decided that appellant has failed to

prove the grounds of cruelty and desertion, the suit of appellant is

not maintainable, thus this Court finds that appellant is not entitled

to get the decree of divorce on the ground of cruelty and desertion.

Thus this Court decides point for determination No.4 accordingly.

Point for determination No.5 – Findings with reasons :-

34) After complete appreciation of the evidence discussed

hereinbefore, this Court finds that there is no substance in this
10

appeal. Thus, the impugned judgment and decree of the trial Court

are hereby affirmed as to aforesaid extent. The appeal deserves to

be and is hereby dismissed.

35) Appellant shall bear his own costs as well as costs of

respondent.

36) Decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
JUDGE

kishoer/ padma

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