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AFR
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
1. Challenge in this appeal is levied to the judgment
and decree dated 11.12.2014 passed by the Additional
District Judge, Sarangarh, District – Raigarh in Civil Suit
No. 3-A/2012 vide Annexure A-1 whereby and whereunder
the trial Court dismissed the divorce petition filed by
appellant under section 13 of the Hindu Marriage Act, 1955
(in brevity ‘the Act, 1955’).
2. This is admitted by respondent that name,
occupation of both parties shown in the title of the
application are true, both parties are Hindu by religion and
governed by Mitakshara Branch of Hindu Law, marriage of
both parties was solemnized on 09.07.2010 in accordance
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with Hindu rights and rituals at village Kumhari, after the
marriage she resided in appellant’s parental house at
village Timerlaga, thereafter, she went to her maternal
house at Kumhari, she returned back on 20.07.2010 at
Raipur where appellant was residing, both parties had led
conjugal life at Raipur, she has received a notice dated
27.11.2010 sent by appellant, now she is not living with
him.
3. In brief, the appellant’s case is that respondent was
not behaving properly, she used to go some other places
leaving the school without intimating him, she was making
quarrel with him on petty matters, she was not inclined to
sexual intercourse. On 17.10.2010 by 8 pm a quarrel
occurred between them on account of meals, on the next
day when he returned back from his duty by 9 am then he
found that she was not present in the house and had gone
away to her maternal house along with her bag and
baggages. He has lodged the report on 24.10.2010. He
had tried for brining her back but she did not come with
him. She did not reply his notice.
4. In brief, the respondent’s case is that appellant is
living at his posting place at Narayanpur. She is still living in
same house where they were living jointly at Raipur. He
had left that house and gone away to his place of posting.
5. After completion of the trial, the trial Court passed
aforesaid judgment and decree. Being aggrieved, appellant
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preferred this appeal.
6. Shri S.B. Pandey, counsel for appellant vehemently
argued that the trial Court has not properly appreciated the
evidence available on the record. The trial Court ought to
have given weightage to appellant’s witnesses. Aforesaid
judgment and decree are bad in the eyes of law and
deserve to be set aside.
7. Shri Raghvendra Pradhan, counsel for 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 may be dismissed.
8. Points for determination :-
There are following points for determination in this case :-
(1) Whether respondent had subjected appellant with
cruelty ?
(2) Whether the trial Court had territorial jurisdiction to
entertain the divorce petition filed by appellant ?
(3) Whether appellant is entitled to get the decree of
divorce for dissolution of the marriage on the ground of
cruelty ?
(4) Relief and costs.
Point for determination No. 1 : Findings with reasons :-
9. The trial Court has not framed issue regarding cruelty
though the trial Court ought to have done it. The evidence
available on record shows that appellant and respondent
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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, this Court finds that it
may pronounce the judgment in this appeal.
10. AW1 Hemant Kumar Patel says in para 2, 3, 4 and 7
of his statement given on oath that respondent was leaving
the house early and returning back late in night. She was
not behaving properly. She used to go some other places
leaving the school without intimating him. She was making
quarrel with him on petty matters. She was not inclined to
sexual intercourse. On 17.10.2010 by 8 pm, a quarrel
occurred between them on account of meals, on the next
day when he returned back from his duty by 9 am then he
found that she was not present in the house and had gone
away to her maternal house along with her bag and
baggages. He had tried for brining her back but she did not
come with him.
11. AW2 Arun Kumar Patel who is brother of appellant
says in para 6, 2 and 3 of his statement given on oath that
as told by AW1 Hemant Kuamr Patel he knows that
disputes were occurring on account of early leaving, late
returning and going other places by respondent without
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intimating appellant. On 17.10.2010, respondent left the
house along with her bag and baggages in absence of
appellant. She had told him that she is not inclined to live
with appellant.
12. AW3 Banshidhar Patel who is father of appellant
says in para 2 3 of his statement given on oath that,
disputes were occurring on account of early leaving, late
returning and going other places by respondent without
intimating appellant. Respondent left the house along with
her bag and baggages in absence of appellant.
Respondent had told that she will never return back.
13. As per Ex. P1 dated 24.10.2010 (marked as Ex. P2
also) on 17.10.2010 a dispute occurred between appellant
and respondent in night, next day morning when appellant
returned back to his house then found respondent had
gone away along with her bag and baggages.
14. As per the notice Ex.P4 respondent was not
behaving properly, she used to go some other places
leaving the school without intimating appellant, she was
making quarrel with him on petty matters, she was not
inclined for sexual intercourse. On 17.10.2010 by 8 pm a
quarrel occurred between them on account of meals, on
the next day when he returned back from his duty by 9 am
then he found that she was not present in the house and
had gone away to her maternal house along with her bag
and baggages. He had tried for brining her back but she did
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not come with him.
15. NAW1 Uma Patel says in para 3 of her statement
given on oath that her husband left the house without
intimating her.
16. NAW2 Dhanurjay Patel who is the father of
respondent says in para 4 of his statement given on oath
that appellant left the house without intimating respondent.
17. As per the rent agreement Ex. D1 dated 03.04.2012
the house was taken on rent on 20.07.2010 and the
tenancy was renewed from 03.04.2012 to 03.03.2013 with
respondent.
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
outburst 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
7immeasurable 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.”
20. This is not the appellant’s case that respondent was
allegedly leaving house early and returning back late in
night on account of school. Moreover, this is not mentioned
in Ex.P1 that respondent allegedly was not behaving
properly, she allegedly used to go some other places
leaving the school without intimating him, she was allegedly
making quarrel with him on petty matters, she was
allegedly not inclined for sexual intercourse. On
17.10.2010 by 8 pm allegedly a quarrel occurred between
them on account of meals, on next day when he returned
back from his duty by 9 am then he found that allegedly
she was not present in the house and had gone away in
her maternal house along with her bag and baggages. He
had allegedly tried for brining her back but she did not
come with him. Moreover, appellant has not examined any
school authority who could have stated that she was
leaving school during working hours.
21. AW1 Hemant Kumar Says in para 5, 13, 14, 15 and
16 of his statement given on oath that he had left the house
where he and respondent were residing earlier and started
living in another house. Village Singharpur is near about
60-65 km away from his earlier residence at Pandari by
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road. This is true that she used to go Bhatapara by rail and
then Singharpur by bus or auto, she was returning back by
same mode. Raipur railway station is 4-5 km away from
Pandari. The train takes 1 hour from Raipur to Bhatapara.
She used to go Bhatapara by 7:40 am train. It takes 45
minutes to go from Bhatapara to Singharpur by bus. She
used to return back from Bhatapara to Raipur by catching
Danapur Express at 7:00 pm. She used to come from
Raipur railway station to their house by auto or walking.
She was returning back by 8 – 8:30 pm. When she was
returning back after some time it was time for him to go for
his duty.
22. AW2 Arun Kumar Patel says in para 6 of his
statement given on oath that any dispute between
appellant and respondent had not been occurred in his
presence.
23. AW3 Banshidhar Patel says in para 8, 9 and 11 of his
statement given on oath that this is true that when
appellant was returning back from his duty it was time for
respondent to leave for her duty. Due to this time
mismatching disputes were occurring. Appellant had left
that house and started residing in another house at Raipur.
24. Appellant has not examined any neighbour to that
house where he and respondent were residing jointly who
could state that respondent allegedly was not behaving
properly, she allegedly used to go some other places
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leaving the school without intimating him, she was allegedly
making quarrel with him on petty matters, she was
allegedly not inclined for sexual intercourse, on 17.10.2010
by 8 pm allegedly a quarrel occurred between them on
account of meals, on next day when he returned back from
his duty by 9 am then he found that she was allegedly not
present in the house and had gone away to her maternal
house along with her bag and baggages. He had allegedly
tried for brining her back but she did not come with him.
Moreover, he has not proved any letter wherein said facts
have been mentioned. Moreover, he has failed to prove
any report lodged by him in any police station wherein this
has been mentioned that, respondent allegedly was not
behaving properly, she allegedly used to go some other
places leaving the school without intimating him, she was
allegedly making quarrel with him on petty matters, she
was allegedly not inclined for sexual intercourse. He had
tried to bring her back but she refused to live with him. He
has failed to prove any document of their community
wherein said facts have mentioned.
25. Looking to the above facts and circumstances of the
case this Court finds that the aforesaid judicial precedents
in G.V.N. Kameswara Rao (Supra) and Prabhash
Saxena(Supra) are applicable against the appellant’s
case and in favour of the respondent’s case regarding his
point for determination.
26. After appreciation of the evidence discussed
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herebefore this Court finds that appellant does not get any
help from Ex.P1, Ex.P4 regarding this point for
determination, this Court disbelieves on aforesaid
statements of para 2, 3, 4 and 7 of AW1 Hemant Kumar
Patel, para 6, 2 and 3 of AW2 Arun Kumar Patel, para 2
and 3 of AW3 Banshidhar Patel, and believes on aforesaid
statements on para 3 and 4 of NAW1 Uma Patel @ Toshika
Patel, para 4 of NAW2 Dharunjay Patel and on Ex. D1.
27. After appreciation of the evidence discussed
herebefore this Court finds that, appellant failed to prove
that respondent had subjected him with cruelty. Thus, this
Court decides point for determination No.1 accordingly.
Point for determination No. 2 : Findings with reasons :-
28. It would be pertinent to mention the provisions of
Section 19 of the Act, 1955, thus, reads as under :-
“Section 19. Court to which petition shall be
presented – Every petition under this Act shall be
presented to the district court within the local limits of
whose ordinary original civil jurisdiction –
(i) the marriage was solemnised, or
(ii) the respondent, at the time of the
presentation of the petition, resides, or
(iii) the parties to the marriage last resided
together, or [(iiia) in case the wife is the
petitioner, where she is residing on the date of
presentation of the petition, or]
(iv) the petitioner is residing at the time of the
presentation of the petition, in a case where
the respondent is, at that time, residing outside
11the territories to which this Act extends, or has
not been heard of as being alive for a period of
seven years or more by those persons who
would naturally have heard of him if he were
alive.]
29. This is admitted that marriage was solemnized in
village Kumhari, both parties lastly resided at Raipur. From
Ex.D1 this is clear that at the time of the filing of the divorce
petition respondent was residing at Raipur.
30. Looking to the above mentioned facts and
circumstances this Court finds that the trial Court had no
territorial jurisdiction to entertain the divorce petition filed by
appellant. Thus, this Court decides point for determination
No.2 accordingly.
Point for determination No. 3 : Findings with reasons :-
31. This has been earlier decided that appellant failed to
prove ground of cruelty, the trial Court had no territorial
jurisdiction to entertain the divorce petition, thus, this Court
finds that appellant is not entitled to get the decree of
divorce for dissolution of the marriage. Thus, this Court
decides point for determination No. 3 accordingly.
Point for determination No. 4 : Findings with reasons :-
32. After complete appreciation of the evidence
discussed hereinbefore, this Court finds that there is no
substance in this appeal. Thus, this Court affirms the
impugned judgment and decree to the above extent. The
appeal deserves to be and is hereby dismissed.
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33. Appellant shall bear his own costs as well as costs of
respondent.
34. Decree be drawn up accordingly.
Sd/-
(Sharad Kumar Gupta)
Judge
kishore