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Hemant Kumar Patel vs Smt. Uma Patel @ Toshika Patel 14 … on 20 April, 2018

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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
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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.”

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
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the 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

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