AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 19.04.2018
Delivered on 04.05.2018
First Appeal (Misc.) No. 112 of 2015
(Arising out of judgment/decree dated 31.07.2015 in Civil Suit No. 7A/2014 of
the Additional District Judge, Sarangarh)
Janak Ram Patel S/o Khageshwar Patel, Aged About 40 Years R/o
Darrabhata, P.S. And Tahsil- Sarangarh, District- Raigarh, Presently R/o
Salar, P.O. Salar, P.S. Sarangarh, District- Raigarh Chhattisgarh.
—- Appellant
Versus
Smt. Kavita Patel W/o Janakram Patel, Aged About 38 Years R/o Bundeli,
P.S. And Tahsil- Baramkela, District- Raigarh Chhattisgarh.
—- Respondent
For Appellant : Shri Rajendra Tripathi, Advocate.
For Respondent : Shri R.S. Patel, Advocate
Hon’ble Shri Sharad Kumar Gupta, Judge
C.A.V. JUDGMENT
1. In this appeal, challenge is levied to the judgment and decree dated
31.07.2015 of the Additional District Judge, Sarangarh District – Raigarh,
Chhattisgarh in Civil Suit No. 7A/2014 whereby and whereunder he
dismissed the divorce petition filed by the appellant-husband under Section
13 of the Hindu Marriage Act, 1955 (in brevity ‘Act of 1955’) against the
respondent-wife.
2. This is admitted by the respondent that name, address and other
particulars shown in the title of the application are correct, both the parties
are Agharia by caste and hindu by religion, the marriage of both the parties
was solemnized in year 1995 in accordance to customary rites and rituals, in
wedlock two children namely Lokesh Patel aged 19 years and daughter
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Poonam Patel, aged 17 years have born. Appellant is a teacher and posted
at village – Tamandih, his paternal residence is at village Darrabhata, he
used to commute up and down from village Darrabhata to his working place,
his father had died in 1986, his mother had died in year 2010, at the time of
marriage his grandfather and grandmother were alive and they died in year
1998, his maternal nephew Dinesh Patel was also residing with them, after
the death of his mother, respondent was living alone, she is living in her
maternal house since January, 2011. She had filed applications before their
community, the Collector Raigarh, the District Program Officer and the
Woman and Child Development Officer.
3. In brief, the appellant’s case is that the respondent was neglecting him,
she was not interested to cook meals, she was always ready to make quarrel
with him, she used to perform sexual intercourse with other persons, she had
made false allegations against him in aforesaid applications. She had also
given an application on 15.09.2013 against him making false allegation
before Station House Officer, Police Station – Sarangarh.
4. In brief, the respondent’s case is that on 13.12.2010 Bhuneshwar Sidar
and his wife had beaten her saying that she had burnt their straws by
performing witchcraft. Her husband started annoying believing that she
practices witchcraft. He got her left to her maternal house. Thereafter, he
refused to keep her with him.
5. After conclusion of the trial, the trial Court passed the aforesaid
judgment and decree. Being aggrieved, the appellant preferred this appeal.
6. Shri Rajendra Tripathi, Counsel for the appellant vehemently argued
that the trial Court has not appreciated the evidence in proper perspective.
Thus, the impugned judgment and decree may be set aside and divorce may
be granted to the appellant.
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7. Shri R.S. Patel, Counsel for the respondent argued that the impugned
judgment and decree of the trial Court are just and proper and in accordance
with the law. Thus, the appeal may be dismissed.
8. Points for determination : –
There are following points for determination in this case :-
(1) Whether after solemnization of the marriage, respondent had treated
the appellant with cruelty ?
(2) Whether after the solemnization of the marriage respondent had
voluntary sexual intercourse with any person other than her spouse?
(3) Whether appellant is entitled to get the decree of divorce on the ground
of cruelty and voluntary sexual intercourse by respondent with any person
other than her spouse ?
(4) Relief and costs.
Points for determination No. 1 2 : Finding with reasons :-
9. Looking to the convenience points for determination No. 1 and 2 are
disposed off simultaneously.
10. AW1 Janak Ram Patel says in para 3, 4, 5 and 9 of his statement
given on oath that respondent was neglecting him, she was not interested to
cook meals, she was always ready to make quarrel with him, she used to
perform sexual intercourse with other persons, she had made false
allegations against him in aforesaid applications. She had given an
application on 15.09.2013 in police station Sarangarh making false allegation
against him.
11. AW3 Dinesh Patel who is the maternal nephew of the appellant says in
para 2 of his statement given on oath that whenever the appellant was not
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present in the house, the respondent used to call other persons and commit
sexual intercourse with them.
12. AW 4 Poonam Patel who is the daughter of the appellant and the
respondent says in para 1 that behaviour of her mother was not good, she
was not serving meals to his father.
13. NAW1 Smt. Kavita Patel says in para 2 3 of her statement given on
oath that on 13.12.2010 Bhuneshwar Sidar and his wife made allegation
upon her that she had burnt their straws by performing witchcraft. Her
husband started annoying believing that she practices witchcraft. He got her
left to her maternal house. Thereafter, he refused to keep her with him.
14. NAW2 Lalit Kumar Patel says in para 2 of his statement given on oath
that the appellant had told that the respondent is a witch and refused to keep
her with him.
15. NAW3 Shankar Lal Naik says in para 2 6 of his statement given on
oath that he is the secretary of Baramkela area of the All India Agharia
Community. On 12.06.2011, the respondent had given an application to
resolve the dispute arisen between her and the appellant. Appellant refused
to keep her making the allegations that she practices witchcraft.
16. NAW4 Khemraj Patel says in para 2 6 of his statement given on oath
that he was the president of Sarangarh area of All India Agharia Community
from 2009 to 2013. On 12.06.2011, the respondent had given an application
to resolve the dispute arisen between her and the appellant. The appellant
refused to keep her making the allegation that she practices witchcraft.
17. NAW5 Jagdish Naik who is the brother of the respondent says in para
2 3 of his statement given on oath that on 13.12.2010 Bhuneshwar Sidar
and his wife had made allegation that she had burnt their straws by
performing black magic. Thereafter, the appellant leveled false allegation on
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respondent that she is practicing witchcraft. Thereafter, he refused to keep
her with him.
18. As per the appellant’s case he and the respondent lived together for
near about 16 years after the marriage. In their wedlock two children have
born.
19. AW3 Dinesh Patel says in para 6 during his cross examination that
respondent was cooking the meals. AW4 Poonam Patel says in para 5
during her cross examination that this is true that when her mother was living
with them then she was cooking and serving meals to them.
20. AW1 Janak Ram Patel, AW3 Dinesh Patel do not disclose clearly and
strongly the name or identity of those persons whom the respondent used to
invite and commit sexual intercourse. These witnesses do not say clearly
and strongly the date, month of alleged incidents.
21. From alleged letters Ex.P1, Ex.P2, Ex.P3, Ex.P4, Ex.P5 this is not
clear that these letters were written by whom and addressed to whom. From
contents of these letters it does not appear that the respondent allegedly was
committing sexual intercourse with such persons.
22. The appellant has not examined any independent neighbour or any
independent person of same locality who would state that, he/she has the
personal knowledge that the respondent was allegedly neglecting him, she
was allegedly not interested to cook meals, she was allegedly always ready
to make quarrel with him, allegedly she used to perform sexual intercourse
with such persons. He has not proved any report lodged in any police station
wherein said facts have been mentioned. He has also not proved any
document of their community wherein said facts have been mentioned. He
has also not proved any notice given by him to her wherein said facts have
been mentioned. For not doing so, there is no plausible explanation offered
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by him.
23. AW1 Janak Ram Patel says in para 33 during his cross examination
that this is true that the respondent had given the application before the
Collector Raigarh, the Woman and Child Development Officer, for living with
him.
24. There is no material on record on strength of which it could be said that
the respondent had allegedly filed a false written complaint against the
appellant before SHO, Sarangarh. There is no material on record on strength
of which it could be said that the respondent had allegedly made false
complaints before the president, the All India Agharia Community against
him.
25. After the appreciation of the evidence discussed herebefore this Court
disbelieves on aforesaid statements of para 3, 4, 5 and 9 of AW1 Janakram
Patel, para 2 of AW3 Dinesh Patel, para 1 of AW4 Poonam Patel and
believes on para 2, 3 of NAW1 Smt. Kavita Patel, para 2 of NAW2 Lalit
Kumar Patel, para 2, 6 of NAW3 Shankar Lal Naik, para 2, 6 NAW4 Khemraj
Patel, para 2, 3 of NAW5 Jagdish Naik.
26. After the appreciation of the evidence discussed herebefore this Court
finds that, after solemnization of the marriage, the respondent had not
treated the appellant with cruelty and she had no voluntary sexual
intercourse with any person other than her spouse. Thus, this Court decides
points for determination No. 1 2 accordingly.
Point for determination No. 3 : Finding with reasons
27. This has been earlier decided that the respondent had not treated
appellant with cruelty, she had not committed sexual intercourse with any
person other than appellant. Thus, this Court finds that appellant is not
entitled to get the decree of divorce on the ground of cruelty and voluntary
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sexual intercourse by the respondent with any person other than her spouse.
Thus, this Court decides point for determination No. 3 accordingly.
Point for determination No. 4 : Finding with reasons :-
28. 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 judgment and decree of the trial Court are affirmed to
the above extent. The appeal is dismissed.
29. Appellant shall bear his own costs as well as costs of respondent.
30. A decree be drawn up accordingly.
Sd/-
(Sharad Kumar Gupta)
JUDGE
kishore