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Kunjbihari Soni vs Smt. Mamta Soni 18 Mcc/333/2018 … on 1 May, 2018

AFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 17.04.2018
Delivered on 01.05.2018
First Appeal (Misc.) No. 261 of 2016

 Kunjbihari Soni S/o Shri Rambhajan Soni, Aged About 50 Years R/o
Ramgopal Tiwari Ward Mungeli, Tehsil And District Mungeli, Chhattisgarh
—- Appellant
Versus
 Smt. Mamta Soni W/o Shri Kunjbihari Soni, D/o Girdhari Prasad Soni, Aged
About 46 Years At Present Resident Of C/o Suryakant Soni, Near Chanakya
Bhawan, Gali No.1, Fafadeeh Raipur, District Raipur, Chhattisgarh.
—- Respondent

For Appellant : Shri P.P. Sahu and Shri R.K. Pali, Advocates
For Respondent : None.

Hon’ble Shri Sharad Kumar Gupta, Judge

C.A.V. JUDGMENT

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

dated 7-10-2016 of the Additional Judge to the Court of Additional District

Judge, Mungeli, Chhattisgarh in Civil Suit No. 23-A/2015 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 respondent-wife.

2. In brief, appellant’s case is that his marriage was solemnized with the

respondent 15-16 years prior to the date of petition i.e. 20-7-2015. In the

wedlock one daughter Ku. Roshni alias Babli was born, now she is 11 years

old. After the marriage she used to go frequently in her maternal house. She

was harassing him and his family members making false allegations. She
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often used to say that she does not like him. She used to threat saying that

she will die by burning herself and falsely implicate him and his entire family.

She had left his house in year 2012 after making quarrel. He had filed an

application under Section 9 of the Act of 1955 on 3-1-2013 which was

dismissed on account of not pressing the same because a compromise was

taken place between them out of the Court. She herself filed an application

under Section 9 of the Act of 1955 in the Family Court, Raipur which was

also dismissed because she did not press the same. She is living separately

from him for the last 3 years before filing the divorce petition.

3. The respondent was ex-parte in trial Court and she had not filed the

written statement.

4. After conclusion of the trial, the trial Court passed the aforesaid

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

5. Shri P.P. Sahu, Counsel for the appellant vehemently argued that the

trial Court did not consider that respondent herself left the company of the

appellant. She had also withdrawn her application filed under Section 9 of

the Act of 1955. The trial Court did not appreciate the evidence in proper

perspective. Thus, the impugned judgment and decree may be set aside and

divorce may be granted to the appellant.

6. No one appears for the respondent at the time of hearing though

served.

7. Points for determination : –

There are following points for determination in this Case –

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

treated the appellant with cruelty ?

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(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 cause and without the consent or against the

wish of him ?

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

of cruelty and desertion ?

(4) Relief and costs.

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

8. 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.”

9. 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.”

10. AW 1 Kunjbihari Soni does not say clearly and strongly as per his own

case that, she was allegedly harassing him and his family members making

false allegations. She used to say that she does not like him. She allegedly

used to threat saying that she will die by burning herself and falsely implicate
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him and his entire family. Moreover, he has not proved any letter wherein

said facts have been mentioned. Moreover, he has also not proved any

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

mentioned. Moreover, he has not proved any document of their community

wherein said facts have been mentioned. Moreover, 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 explanation from him.

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

finds that above mentioned judicial precedents laid down in G.V.N.

Kameswara Rao (supra) and Prabhash Saxena (supra) are applicable

against the appellant’s case regarding this point for determination.

12. After appreciation of the evidence discussed herebefore this Court

finds that the appellant failed to prove that after solemnization of the

marriage, the respondent had treated him with cruelty. Thus, this Court

decides point for determination No.1 accordingly.

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

13. 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.”

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

Bhattar Sri Devi {2002 (1) SCC 308} has laid following judicial precedent:-
5

“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.”

15. AW1 Kunjbihari Soni says in para 2 of his statement given on oath on

17-3-2016 that respondent did not return back in his house after year 2012.

They are not in contact since last 3 – 3½ years.

16. As per para 2 of the application under Section 9 of the Act, 1955 dated

3-1-2013 Ex. A/2, 5-6 months ago mother of the respondent had taken back

her but did not send her back.

17. AW2 Ganesh Soni who is the real brother of the appellant in para 2

and AW3 Vinod Kumar Mishra in para 3 say that in 2013 respondent had

come in the appellant’s house and lived for 10-12 days. Appellant has filed

divorce petition on 20-7-2015. AW2 Ganesh Soni and AW3 Vinod Kumar

Mishra do not say at least the month of year 2013 when respondent again

left appellant’s house. In these circumstances, this Court disbelieves

aforesaid statement of para 2 of AW1 Kunjbihari Soni, Ex. A/2, in this

reference that allegedly at least continuously two years back from the date of

the presentation of divorce petition, respondent is living separately from

appellant.

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

finds that above mentioned judicial precedents laid down in Gurinder Singh

(supra) and Adhyatma Bhattar Alwar (supra) are applicable against the

appellant’s case regarding this point for determination.

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

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

20. After appreciation of the evidence discussed herebefore this Court

finds that appellant failed to prove that respondent has deserted him 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 . Thus, this Court decides point for determination

No.2 accordingly.

Point for determination No. 3 : Finding with reasons :-

21. This has been earlier decided that appellant failed to prove grounds of

cruelty and desertion.

22. Learned counsel for the appellant placed reliance on a decision of

Hon’ble Supreme Court in the matter of K. Srinivas Rao -v- D.A. Deepa

[(2013) 5 SCC 226], para 30 and 31 are quoted below :-

“30. It is also to be noted that the appellant-husband and the
respondent wife are staying apart from 27/4/1999. Thus, they are living
separately for more than ten years. This separation has created an
unbridgeable distance between the two. As held in Samar Ghosh
[(2007) 4 SCC 511], if we refuse to sever the tie, it may lead to mental
cruelty.

31. We are also satisfied that this marriage has irretrievably broken
down. Irretrievable breakdown of marriage is not a ground for divorce
under the Hindu Marriage Act, 1955. But, where marriage is beyond
repair on account of bitterness created by the acts of the husband or
the wife or of both, the courts have always taken irretrievable
breakdown of marriage as a very weighty circumstance amongst
others necessitating severance of marital tie. A marriage which is dead
for all purposes cannot be revived by the court’s verdict, if the parties
are not willing. This is because marriage involves human sentiments
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and emotions and if they are dried-up there is hardly any chance of
their springing back to life on account of artificial reunion created by
the court’s decree. ”

23. If for the sake for argument it is deemed that respondent has allegedly

treated the appellant with cruelty, though this Court does not find so, then,

this is the appellant’s case that he had filed an application for restitution of

conjugal rights on 3-1-2013 after allegedly going back of the respondent to

her parental house, this conduct of the appellant shows that he had allegedly

condoned the cruelty.

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

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

precedent laid down in K. Srinivas Rao (surpa).

25. After appreciation of the evidence discussed herebefore this Court

finds that appellant is not entitled to get the decree of divorce on the grounds

of cruelty and desertion. Thus, this Court decides point for determination No.

3 accordingly.

Point for determination No. 4 : Finding with reasons :-

26. 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 as to

above extent. The appeal is dismissed.

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

28. A decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
JUDGE
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kishore

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