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Sanjeev Kumar Kaushik vs Smt. Mongra Bai Kaushik 23 … on 24 April, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 17.04.2018
Pronounced on 24.04.2018
First Appeal (M) No. 63 of 2012

• Sanjeev Kumar Kaushik S/o Late Shri Dayaram Kaushik, R/o Village
Mungelidih, Post-Gochhiya, Tahsil And District- Kawardha (C.G.)
—- Appellant
Versus
• Smt. Mongra Bai Kaushik W/o Sanjeev Kumar Kaushik,at present
R/o of village – Jinda, Post – Birkona, Tahsil District – Kabirdham
(C.G.)
—- Respondent

———————————————————————————————————-

For Appellant : Shri Bharat Rajput, Advocate
For Respondent : Shri P.P. Sahu, 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 15.02.2012 of the District Judge, Kabirdham (Kawardha),

C.G. passed in Civil Suit No.24-A/2010, whereby and whereunder

she dismissed the petition of appellant filed under Section 13 of the

Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act, 1955’).

2) This is admitted by respondent that both the parties are Lodhi

by caste and governed by Hindu Law, near about 24 years before

10.11.2010 the marriage of both parties was solemnized in

accordance with Hindu rites and rituals in village Jinda district –

Kawardha, six years after the marriage Gauna (a custom after

marriage) was performed. After Gauna she resided in his parental

house at village Mungelidih, in wedlock two children have born, one
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is Nitin Kumar who is 16 years, another is Ku. Kavita who is 8 years

old, now she is living in her maternal house at village Jinda. He had

given him registered notice dated 06.01.2010.

3) In brief, the appellant’s case is that few days after Gauna she

was making indecent comments, she had refused to do domestic

works, she was misbehaving with him. She used to give a harmful

liquid to him by mixing it in his meals. She is living separately from

him since back three years without any sufficient cause. She had

not replied his notice.

4) In brief, the respondent’s case is that she was harassed on

account of bringing cheap quality utensils in dowry. After getting the

job, he started harassing her more, he was preventing her to come

in his residence at service place. During her operation of uterus he

did not come to see her neither he gave any money. She was

ousted after beaten by him.

5) After conclusion of the trial, the trial Court passed the

aforesaid judgment and decree. Being aggrieved, appellant

preferred this appeal.

6) Shri Bharat Rajput, counsel for appellant strenuously argued

that the trial court has not properly examined the evidence and

reached to the wrong conclusion. Thus, aforesaid judgment and

decree may be set aside and a decree of divorce may be granted.

7) Shri P.P. Sahu, counsel for respondent argued that the trial

Court has appreciated the evidence in proper perspective. The

judgment and decree passed by the trial Court are in accordance
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with law. The impugned judgment and decree do not call for

interference by this Court, thus appeal may be set aside.

8) Points for determination :-

The following points are there for determination in this case :-

(1) Whether after solemnization of the marriage

respondent has 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 his wish ?

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

divorce on the ground of cruelty and desertion ?

(4) Relief and costs.

Points for determination No.1 2 – Findings with reasons :-

9) Looking to the convenience, points for determination No. 1

2 are decided simultaneously.

10) AW1 Sanjeev Kumar Kaushik says in para 5 of his statement

given on oath that respondent is living in her maternal house since

back 4-5 years.

11) AW2 Mohan Lal Kaushik who is the uncle of appellant says in

para 1 of his statement given on oath that respondent is living in

her maternal house since back 4-5 years.
4

12) As per the statement of para 1 given on oath of AW3 Baldu

Ram Kaushik, respondent is living separately from appellant since

4-5 years back.

13) AW4 Prasadi Ram who is the maternal uncle of appellant

says in para 1 of his statement given on oath that respondent is

living separately from appellant since 5-6 years ago.

14) AW5 Ramanuj Kaushik, who is the paternal uncle of appellant

says in para 5 of his statement given on oath that the respondent is

living separately from appellant since 5-6 years back.

15) NAW1 Smt. Mongra Bai says in para 2 during her cross

examination that she is living in her maternal house since back one

year.

16) NAW2 Ghuruwa Ram, NAW3 Shobha Ram say in para 3 of

their statements given on oath that respondent is living in her

maternal house since back one year.

17) Respondent has not specifically and strongly pleaded in her

reply that allegedly she is living in her maternal house one year prior

only. For not doing so, no explanation has been offered by her. In

these circumstances, this Court believes aforesaid statements of

para 5 of AW1 Sanjeev Kumar Kaushik, para 1 of AW2 Mohan Lal

Kaushik, para 1 of AW3 Baldu Ram Kaushik, para 1 of AW4 Prasadi

Ram, para 1 of AW5 Ramanuj Kaushik in this reference that

respondent is living separately from him for a continuous period of

not less than two years immediately preceding the presentation of

the divorce petition and disbelieves aforesaid statements of para 2
5

of NAW1 Smt. Mongra Bai, para 3 of NAW2 Ghuruva Ram, para 3

of NAW3 Shobha Ram in this reference that respondent is living

separately from appellant for a continuous period of less than two

years immediately preceding the presentation of the divorce petition.

18) After the appreciation of the evidence discussed herebefore

this Court finds that respondent is living separately from appellant

not less than two years immediately preceding the presentation of

the divorce petition.

19) AW1 Sanjeev Kumar Kaushik says in para 2 and 3 of his

statement given on oath that, few days after Gauna she was making

indecent comments, she had refused to do domestic works, she

was misbehaving with him. She used to give harmful liquid to him

by mixing it in his meals.

20) AW2 Mohan Lal Kaushik and AW5 Ramanuj Kaushik say in

para 1 and 2 of their statements given on oath that respondent was

making quarrel with appellant on account of petty matters, appellant

had told him that she used to give harmful liquid to him by mixing it

in his meals.

21) NAW1 Smt. Mongra Bai says in para 1, 2 and 4 of her

statement given on oath that, she was harassed on account of

bringing cheap quality utensils in dowry. After getting the job, he

started harassing more, he was preventing her to come in his

residence at service place. He was not coming to see her in his

parental house even in 6-8 months interval. During her operation of

uterus, he did not come to see her.

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22) 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.”

23) 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.”

24) 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.”

7

25) 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.”

26) AW- 1 Sanjeev Kumar Kaushik says in para- 7, 8 and 10

during his cross examination that, he was going to his parental

house once or twice during the festivals in a month. He had not

kept respondent with him. At the time of her operation of the uterus,

he did not go to see her.

27) AW2 Mohanlal Kaushik says in para 5 during his cross

examination that behaviour of respondent was good when she had

resided in parental house of appellant.

28) AW4 Prasadi Ram Kaushik says in para 6 during his cross

examination that during residing in parental house of appellant,

behaviour of respondent was proper.

29) AW5 Ramanuj Kaushik says in para 4 during his cross

examination that behaviour of respondent was proper in village

Mungelidih. Due to child marriage, disaffection was present

between appellant and respondent.

8

30) Appellant has not proved any letter wherein it has been

mentioned that allegedly few days after Gauna she was making

indecent comments, she had allegedly refused to do domestic

works, she was allegedly misbehaving with him. She allegedly used

to give harmful liquid to him by mixing it in his meals. He has not

proved any document of their community, wherein said facts have

been mentioned. He has not proved any report lodged by him in

any Police Station wherein said facts have been mentioned. He has

not proved any notice wherein said facts have been mentioned.

Looking to these circumstances, this Court finds that aforesaid

judicial precedents laid down in GVN Kameswara Rao (supra) and

Prabhash Saxena (supra) are applicable against the appellant’s

case regarding point for determination No. 1, and this Court

disbelieves aforesaid statements of para- 2 and 3 of AW 1 Sanjeev

Kumar Kaushik, para 1 and 2 of AW 2 Mohanlal Kaushik, para1 and

2 of AW 5 Ramanuj Kaushik and believes aforesaid statement of

para 1, 2 and 4 of NAW1 Mongra Bai in this reference that allegedly

she has not committed any cruelty with appellant.

31) AW3 Baldu Ram Kaushik says in para 1 and 2 of his

statement given on oath that a meeting of Lodhi community was

held, wherein respondent had refused to come back to the

appellant’s house.

32) NAW2 Ghuruwa Ram and NAW3 Shobha Ram, say in para 2

of their statements given on oath that in the meeting of the Lodhi

community, appellant did not come nor is taking back respondent.
9

33) This is not the appellant’s case that he had allegedly called a

meeting of the Lodhi community, wherein respondent had refused to

live with him. Thus, this Court disbelieves the aforesaid statements

of para 1 and 2 of AW 3 Baldu Ram Kaushik and believes aforesaid

statements of para 2 of NAW2 Ghuruwa Ram and NAW3 Shobha

Ram.

34) Looking to the above mentioned facts and circumstances of

the case, this Court finds that appellant does not get any help from

the aforesaid notice.

35) Looking to the above mentioned facts and circumstances of

the case, it could not be said that respondent is living separately

from appellant without any just and sufficient cause.

36) Looking to the aforesaid facts and circumstances, this Court

finds that aforesaid judicial precedents laid down in Gurinder Singh

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

appellant regarding point for determination No.2.

37) 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.

38) After appreciation of the evidence discussed hereinbefore,

this Court finds that appellant has failed to prove that after

solemnization of the marriage, respondent treated him with cruelty,
10

she has deserted him for a period of not less than two years

immediately preceding the presentation of the petition without

consent or against his wish. Thus, this Court decides points for

determination No. 1 and 2 accordingly.

Point for determination No.3 – Findings with reasons :-

39) This has been earlier decided that appellant has failed to

prove the ground of cruelty and desertion.

40) Shri Bharat Rajput, counsel for appellant cited para- 15 of a

Division Bench judgment of this Court in Smt Vijaya Laxmi Soni vs

Rajkumar Soni {2009 (2) CGLJ 72}, relevant portion of which is

given below :

“15 ….Though the learned Court below was empowered
to pass a decree of judicial separation in accordance
with Section 13A of the Act, 1955 in case of petition for
dissolution of marriage by a decree of divorce under
Section 13 of the Act, 1955, however, it is not a case
where it was necessary to pass a decree of judicial
separation. When reunion or restitution of conjugal
rights becomes impossible between the parties,
dissolution of marriage by a decree of divorce is the
only effective remedy for the welfare of the parties.”

41) In the case in hand appellant failed to prove the ground of

cruelty or desertion. In the case in hand there is no situation that

whether appellant is entitled either judicial separation or divorce. In

other words, appellant has no option. Thus, appellant does not get

any help from the aforesaid judicial precedent pronounced in Smt.

Vijaya Laxmi (supra).

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42) After appreciation of the evidence, this Court finds that

appellant is not entitled to get decree of divorce on the ground of

cruelty and desertion. Thus, this Court decides point for

determination No.3 accordingly.

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

43) After complete appreciation of the evidence discussed herein

before, this Court finds that the appeal is devoid of merit and

deserves to be set aside. Thus, the impugned judgment and decree

of the trial Court are hereby affirmed as to the aforesaid extent. The

appeal is hereby dismissed.

44) Appellant shall bear his own costs as well as costs of the

Respondent.

45) A Decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
JUDGE

kishore padma

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