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Smt. Sarita Bai vs Sonu Ram Jangde 35 Fam/49/2018 … 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. 182 of 2015
 Smt. Sarita Bai D/o Sant Ram Baghel, Aged About 28 Years W/o
Sonu Ram Jangde, R/o Village Aara, Tahsil, P.S. And District
Jashpur, Chhattisgarh
—-Appellant
Versus
 Sonu Ram Jangde S/o Chaitram Jangde, Aged About 33 Years
R/o Village Dhardei, Tahsil Pathariya, District Mungeli,
Chhattisgarh
—- Respondent

For appellant : Shri Harish Kunitya, Advocate
For respondent : Shri M.K. Sinha, 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 26.09.2015 passed by the Additional District Judge,

Mungeli in Civil Suit No. 20-A/2013 vide Annexure A-1 whereby

and whereunder the trial Court allowed the divorce petition filed

by respondent-husband under section 13 of the Hindu Marriage

Act, 1955 (in brevity ‘the Act,1955’) and dissolved the marriage

solemnized between him and appellant-wife.

2. This is admitted by appellant that marriage of both the

parties solemnized in May, 2007 in accordance with customary

rites and rituals, now she is living in her maternal house.

3. In brief, the respondent’s case is that in May, 2012 his

father-in-law had taken appellant for some family function at her
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maternal house. Thereafter, he tried to bring her back but she

refused to come with him. He deprived him of his conjugal rights.

Appellant is giving threatening to implicate him in false case.

4. In nutshell, the appellant’s case is that a murder case was

registered against respondent, he was jailed in that case thus she

had gone to her maternal house. After the acquittal, he came out

of the jail, but, did not try to take her back to his house.

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

judgment and decree. Being aggrieved, appellant preferred this

appeal.

6. Shri Harish Khutiya, 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.

7. Shri M.K. Sinha, 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 after solemnization of the marriage appellant

treated respondent with cruelty ?

(2) Whether respondent is entitled to get the decree of divorce

for dissolution of the marriage on the ground of cruelty ?

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(3) 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 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 judgment in this appeal.

10. AW1 Sonu Ram Jangde in para 2 and 3 of his statement

given on oath says that he had gone so many times to appellant’s

maternal house but she did not come with him. He is deprived of

his conjugal rights.

11. AW2 Santram says in para 3 that respondent had gone so

many times in appellant’s maternal house but she did not come

with him.

12. AW3 Jashpal Singh who is the younger brother of

respondent says in para 3 that respondent had gone so many

times to appellant’s maternal house but she did not come with

him.

13. NAW1 Smt. Sarita Bai Jangde and NAW2 Sant Ram

Baghel who is the father of respondent, say in para 3 of their

statements given on oath that after getting release from the jail
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respondent did not come to take back appellant with him.

14. 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.”

15. 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.”

16. AW1 Sonu Jangde does not say as per his case that

appellant is giving threatening to falsely implicate him in a case.

AW3 Jashpal Singh says in para 6 during his cross examination

that they never went to take back appellant from her maternal

house.

17. Respondent has not examined any neighbour of the

appellant’s maternal house or any person of that locality who
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could state that allegedly respondent had come to bring her back

and she had refused to go with him, allegedly she had given

threatening to falsely implicate him. He has not proved any letter

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 failed to prove any document of their

community wherein said facts have been mentioned. He has

failed to prove any notice given by him to her wherein said facts

have been mentioned. For not doing so, no explanation has been

offered by respondent.

18. Looking to the above mentioned 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 respondent’s case and in favour of the

appellant’s case regarding this point for determination.

19. After appreciation of the evidence discussed herebefore

this Court disbelieves on aforesaid statements of para 2 and 3 of

AW1 Sonu Ram Jangde, para 3 of AW2 Sant Ram and AW3

Jashpal Singh and believes on aforesaid statements of para 3 of

NAW1 Smt. Sarita Bai Jangde and NAW2 Sant Ram Baghel.

20. After appreciation of the evidence discussed herebefore

this Court finds that, respondent failed to prove that after

solemnization of the marriage appellant treated him with cruelty.

Thus, this Court decides point for determination No.1 accordingly.

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

21. Respondent failed to prove ground of cruelty, thus he is not
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entitled to get a decree of divorce on the ground of cruelty. Thus,

this Court decides point for determination No.2 accordingly.

22. As per the Section 13 (1)(i-b) of the Act, 1955 a marriage

may be dissolved by a decree of divorce on the ground that

respondent has deserted the petitioner for a continuous period of

not less than two years immediately preceding the presentation of

the divorce petition, without reasonable cause and without the

consent or against the wish of him / her.

23. In the case in hand, the trial Court has granted the decree

of divorce on the ground that appellant has deserted respondent.

24. In the case in hand, this is the respondent’s case that

appellant had left his house in May, 2012. He has filed divorce

petition on 11.06.2013. Meaning thereby, respondent has filed

divorce petition within two years from May, 2012. Thus, in these

circumstances, as per the provisions of Section 13 (1)(i-b) of the

Act, 1955, the ground of desertion was not available to

respondent at the time of the filing of the divorce petition. Thus,

the trial Court has committed gross illegality while granting the

decree of divorce on ground of desertion.

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

25. This has been earlier decided that appellant failed to prove

ground of cruelty. The trial Court committed gross illegality while

granting the decree of divorce on ground of desertion, because

this ground was not available to respondent at the time of filing of

the divorce petition. Thus, this Court allows the appeal and

hereby set aside impugned judgment and decree of the trial
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Court. Accordingly, divorce petition filed by respondent is

dismissed.

26. Respondent shall bear his own costs and costs of appellant

also.

27. A decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
Judge

kishore

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