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Nathu Ram vs Smt. Leelawati 34 Fam/182/2015 … on 23 April, 2018

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 16-4-2018
Pronounced on 23-04-2018

First Appeal (M) No. 122 of 2015
 Nathu Ram S/o Mahora Aged About 46 Years Caste- Panika,
Occupation- Agriculturist, R/o Village – Bisati Navapara, Police
Station- Bhatgaon, District Surajpur, Chhattisgarh.
—- Appellant
Versus
 Smt. Leelawati W/o Nathu Ram Aged About 44 Years Caste-
Panika, R/o Village-Bhatgaon Bandhpara, Police Station-
Bhatgaon, District- Surajpur Chhattisgarh Presently R/o At
Jenjhripara, Shivaripara, Ward No. 1, P. S. Bhatgaon, District
Surajpur Chhattisgarh.
—- Respondent

For appellant : Shri Alok Tiwari on behalf of Sudeep Agrawal,
Advocates
For respondent : Shri D. Kushwaha, 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 24.02.2015 passed by the Additional

District Judge, Surajpur, district Surajpur in Civil Suit No.

48A/ 2012 vide Annexure A-1 whereby and whereunder the

trial Court dismissed the divorce petition filed by appellant-

husband under section 13 of the Hindu Marriage Act, 1955

(in brevity ‘the Act,1955’) against the respondent- wife.

2. This is admitted by respondent that marriage of both

the parties was solemnized 24 years prior to 06.09.2012 in

accordance with customary and Hindu rights and rituals,

her behaviour was normal, she had filed an application
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under Section 125 Cr.P.C., in the Court of the Chief Judicial

Magistrate, Surajpur in 2011 which was disposed of, now

she is living in her maternal house.

3. In brief, appellant’s case is that in wedlock, four

children have born, respondent was always with

intoxication, she was giving threatening to get him killed,

she left his house three years ago and spending adulterous

life.

4. In brief, the respondent’s case is that appellant has

an illicit relation with a woman, named Janaki, earlier

application of Section 125 Cr.P.C. was disposed of on

account of a compromise, he ousted her after beating, she

again filed an application under Section 125 Cr.P.C., in the

Court of CJM, Surajpur, wherein an interim order was

passed against the appellant, to avoid liability of

maintenance he filed this petition subsequently.

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

aforesaid judgment and decree. Being aggrieved, appellant

preferred this appeal.

6. Shri Alok Tiwari, counsel for appellant vehemently

argued that the trial Court failed to appreciate the evidence

properly. The aforesaid judgment and decree of the trial

Court are bad in the eyes of law. Thus, the impugned

judgment and decree may be set aside and a decree of

divorce may be granted.

7. Shri D Kushwaha, counsel for respondent argued
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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 after solemnization of the marriage, the

respondent treated 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 cause and without the consent or against the

wish of him ?

(3) Whether after solemnization of the marriage, she had

voluntary sexual intercourse with any person, other than

her spouse ?

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

divorce for dissolution of the marriage on the ground of

cruelty, desertion, sexual intercourse with other person ?

(5) Relief and costs.

Points for determination No. 1, 2 and 3: Findings with

reasons :-

9. Looking to the convenience, points for determination

No.1, 2 and 3 are disposed of simultaneously.

10. The trial Court has not framed issues regarding

cruelty, desertion, voluntary sexual intercourse with any
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other person, though the trial Court ought to have done it.

The evidence available on record shows that appellant and

respondent have adduced evidence regarding these points

for determination. The evidence available on record is

sufficient to enable this Court to pronounce the judgment.

Non-framing of additional issues regarding these points 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.

11. NAW1 Leelawati says in para 7 during her cross-

examination (recorded on 12.11.2014) that this is true that

she is living in village Bhatgaon since back 5 years.

12. AW- 1 Nathuram says in para 3 and 4 of his

statement given on oath that, respondent was always in

intoxication, she was giving threatening to get him killed.

She had illicit relation with a person, and now, is living with

that person.

13. AW- 2 Bhagwan Bharat, who is the cousin of the

appellant in para 3 and AW 3 Basant S/o Mohan in para- 2

say in their statements given on oath that, respondent had

illicit relation with a person, she is living with that person.

14. NAW- 1 Leelawati, NAW- 2 Basant S/o Dadai, who is

the brother of respondent say in para 2, 3 and 4 of their

statement given on oath that the appellant has illicit relation
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with Janaki Bai, he was beating respondent regularly, he

had ousted her after beating, she has filed an application

for the maintenance in the Court of CJM, Surajpur, wherein

an interim order has been passed in favour of her, to avoid

liability, appellant has filed this divorce petition.

15. 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.”

16. 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.”

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17. 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.”

18. 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.”

19. Appellant has not pleaded in his divorce petition the

name of that person with whom respondent has illicit

relation and with whom she is residing. AW- 1 Nathuram,

AW- 2 Bhagwan Bharat and AW- 3 Basant also do not

disclose clearly and strongly the name of that person, in

their statements.

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20. AW- 1 Nathuram says in para 8 that this is true that

earlier application for the maintenance was disposed of on

account of compromise, and thereafter, they lived together.

If respondent had alleged illicit relation with some person,

then, naturally appellant did not do compromise and live

with her.

21. AW- 1 Nathuram says in para 9, 10 and 11 that this is

true that subsequently, respondent has filed an application

for maintenance which is pending. He does not know that

he filed the report in Police Station before or after his

appearance in the maintenance case. He does not say

clearly and strongly that he filed divorce petition before

filing the maintenance case by respondent. Thus, this

possibility cannot be ruled out that allegedly to avoid the

liability of maintenance, he filed the divorce petition.

22. He further says in para 11 that his one child is living

with respondent. AW2 Bhagwan Bharat, AW3 Basant say in

para 8 that this is true that children are living with

respondent. In these circumstances, it does not appear

natural that, respondent allegedly is living with another

person.

23. Appellant has not examined any neighbour of the

respondent’s house who could state that allegedly

respondent is living with such person. He has not proved

any letter wherein it has been mentioned that, respondent

was usually living intoxicated, she was giving threatening to
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get him killed, she had illicit relation with some other

person, she is allegedly living with such person. He has

failed to prove any report lodged by him in any police

station wherein said facts have been mentioned. He has

not proved any document of their community wherein said

facts have been mentioned. He has not proved any notice

given by him to her wherein said facts have been

mentioned. For not doing so, no explanation has been

offered by him.

24. Looking to the above mentioned facts and

circumstances, this Court finds that the aforesaid judicial

precedents in G.V.N. Kameswara Rao (Supra), Prabhash

Saxena (Supra), Gurinder Singh (Supra) and Adhyatma

Bhattar Alwar (Supra) are applicable against the appellant’s

case and in favour of the respondent’s case regarding

points for determination No. 1 and 2.

25. 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.

26. After appreciation of the evidence discussed

herebefore this Court disbelieves on aforesaid statements

of para 3, 4 of AW1 Nathu Ram, para 3 of AW2 Bhagwan
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Bharat, para 2 of AW3 Basant and believes on aforesaid

statements of para 2, 3 and 4, para 2 of NAW1 Leelawati,

NAW2 Basant in this reference that respondent allegedly

has not treated appellant with cruelty, allegedly she has not

deserted him, allegedly she is not living with some other

person.

27. After appreciation of the evidence discussed

herebefore this Court finds that appellant failed to prove

that, after solemnization of the marriage, respondent

treated appellant with cruelty, 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, after solemnization of the marriage she had

voluntary sexual intercourse with any person, other than

her spouse. Thus, this Court decides points for

determination No. 1, 2 and 3 accordingly.

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

28. This has been earlier decided that appellant has

failed to prove ground of cruelty, desertion, sexual

intercourse with other than spouse. Thus, this Court finds

that appellant is not entitled to get the decree of divorce for

dissolution of the marriage on the ground of cruelty,

desertion, sexual intercourse with other person. Thus, this

Court decides point for determination No.4 accordingly.

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

29. After complete appreciation of the evidence

discussed herebefore, this Court finds that the appeal is

devoid of merit, thus the impugned judgment and decree of

the trial Court are hereby affirmed to the above extent and

the appeal is dismissed.

30. Appellant shall bear his own costs and costs of

respondent also.

31. A decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
Judge

kishore

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