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Smt.Shiv Kumari Kashyap vs Manharan Lal Kashyap 24 … on 24 April, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 17.04.2018
Pronounced on 24.04.2018

First Appeal (M) No. 26 of 2006

• Smt Shivkumari Kashyap, aged about 21 years, wife of Shri Manharan Lal
Kashyap, D/o Shri Gendlal Kashyap, Resident of Village Sarvan Devri,
Police Station Ratanpur, Tahsil Kota, District Bilaspur (CG)
—- Appellant
Versus
• Manharan Lal Kashyap, aged about 23 years, son of Shri Amirchand
Kashyap, Resident of Village Saral Patera, Police Station and Tahsil
Lormi, District Bilaspur (CG)
—- Respondent

———————————————————————————————————-
For Appellant : Shri P.P. Sahu, Advocate
For Respondent : None appears

———————————————————————————————————–

SB : Hon’ble Shri Justice Sharad Kumar Gupta
CAV Judgment

1) Challenge in this appeal is levied to the judgment and decree

dated 03.11.2006 of the Second Additional District Judge, (FTC)

Mungeli, District Bilaspur CG passed in Civil Suit No.9-A/2005,

whereby and whereunder he allowed the divorce petition filed by

respondent-husband under Section 13 of the Hindu Marriage Act,

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

2) This is admitted by appellant-wife that marriage of both parties

was solemnized on 11.05.2003 in village Sakhandevri in accordance

with Hindu rites and rituals, after the marriage respondent had
fam 26 of 2006

2

brought her to his house after Gauna (a custom after marriage), she

had signed on the stamp paper, she had lodged a report regarding

demand of dowry against respondent and his family members, the

charge-sheet is pending before the JMFC, Mungeli, she has filed an

application under Section 125 Cr.P.C. before the Family Court,

Bilaspur. Now, she is living separately from him.

3) In brief, the respondent’s case is that on honeymoon appellant

prevented him to commit sexual intercourse and there is no physical

relation between them. When he went to Delhi, appellant told his

father that she wants to live with her lover Jamuna Prasad and if

she is not permitted to go then she will falsely implicate his entire

family in dowry case. Despite of the advice, appellant left his house.

She lodged the aforesaid report on 10.01.2005. Now, she is living

with her lover Jamuna Prasad.

4) After conclusion of the trial, the trial Court pronounced

judgment and decree as aforesaid. Being aggrieved appellant

preferred this appeal.

5) Shri P.P. Sahu, counsel for appellant vehemently argued that

the trial Court has not appreciated the evidence properly.

Respondent failed to establish the ground of cruelty. He himself is a

wrongdoer as he performed the second marriage. The trial Court

ignored this fact that a wrongdoer could not take advantage of his

own wrong. Thus, the impugned judgment and decree may be set

aside.

fam 26 of 2006

3

6) None appeared for respondent though served.

7) In brief, the appellant’s case is that she had discharged her

marital obligation. Marriage was consummated. Respondent and

his family members were harassing her on account of demand of a

motor cycle and Rs. 45000/- as dowry. Respondent and his family

members after pressurizing, got her signature on the stamp paper. It

was not given to her for reading. After ousting her, he has performed

second marriage with Vimla on 23.12.2004.

8) Points for determination :-

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

(1) Whether after solemnization of the marriage, appellant has

treated respondent with cruelty ?

(2) Whether respondent is a wrongdoer ?

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

ground of cruelty ?

(4) Relief and costs.

Point for determination No.1 – Findings with reasons :-

9) The said affidavit is marked as Ex. A1.

10) AW1 Manharan Lal Kashyap says in para 4 of his statement

given on oath that appellant had voluntarily executed aforesaid

affidavit.

fam 26 of 2006

4

11) AW2 Laxmi Sevak Pathak, Advocate and Notary says in para

1 and 2 of his statement given on oath that appellant had come

along with written affidavit. She was physically sound and after

reading, hearing and understanding the contents of the affidavit she

had singed.

12) AW3 Kumhi says in para 1 of his statement given on oath that

appellant after reading, hearing and understanding the contents of

the affidavit had singed on it in his presence.

13) NAW1 Smt. Shivkumari Kashyap says in para 7 of her

statement given on oath that respondent and his family members

got her to sign on the stamp paper against her wish after beating

and pressurizing her. Stamp paper was not given to her for reading.

14) There is no such evidence in record on strength of which it

could be said that AW2 Laxmi Sevak Pathak, AW3 Kumhi Yadav,

had stated aforesaid statements because they were interested with

respondent or prejudiced with appellant.

15) Appellant has not examined any person, whom she had

immediately intimated after the execution of Ex.A1 that allegedly

after beating and pressurizing, her signature had been taken on

Ex.A1. Moreover, she has not proved any letter wherein said fact

has been mentioned. Moreover, she has not examined any report

lodged by her in any police station wherein said fact has been

mentioned. Moreover, she has not proved any document of their

community wherein said fact has been mentioned. Moreover, she
fam 26 of 2006

5

has not proved any notice given by her to him wherein said fact has

been mentioned. Moreover, she has not initiated any legal

proceeding to cancel the Ex.A1. For not doing so she has not

offered any explanation. In these circumstances, this Court believes

aforesaid statements of para 4 of AW1 Manharan Lal Kashyap, para

1 and 2 AW2 Laxmi Sevak Pandey, para 1 of AW.3 Kumhi Yadav,

and disbelieves the aforesaid statement of para 7 of NAW1 Smt.

Shivkumari Kashyap.

16) After appreciation of the evidence discussed herebefore, this

Court finds that appellant has executed Ex.A1 voluntarily, knowingly,

understandingly the contents of Ex.A1.

17) AW1 Manharan Lal Kashyap says in para 2 and 3 of his

statement given on oath that, on honeymoon appellant prevented

him to commit sexual intercourse and there is no physical

relationship between them. When he went to Delhi appellant told his

father that she wants to live with her lover Jamuna Prasad.

18) NAW1 Smt. Shivkumari Kashyap says in para 3 and 5 of her

statement given on oath that she had discharged her marital

obligation. She never told that she will live with Jamuna Prasad.

19) NAW2 Gend Ram Kashyap who is the father of appellant says

in para 1 of his statement given on oath that his daughter had led

the conjugal life with respondent.

fam 26 of 2006

6

20) NAW3 Puna Ram Kashyap who is the uncle of appellant says

in para 2 of his statement given on oath that appellant had led the

conjugal life with respondent.

21) Shri P.P. Sahu, counsel for appellant cited Savitri Pandey Vs

Prem Chandra Pandey {AIR 2002 SC 591}, whererin in para 6

Hon’ble Supre Court has held as follows :

“6.Treating the petitioner with cruelty is a ground for
divorce under Section 13(1)(ia) of the Act. Cruelty has
not been defined under the Act but in relation to
matrimonial matters it is contemplated as a conduct of
such type which endangers the living of the petitioner
with the respondent. Cruelty consists of acts which are
dangerous to life, limb or health. Cruelty for the purpose
of the Act means where one spouse has so treated the
other and manifested such feelings towards her or him
as to have inflicted bodily injury, or to have caused
reasonable apprehension of bodily injury, suffering or to
have injured health. Cruelty may be physical or mental.
Mental cruelty is the conduct of other spouse which
causes mental suffering or fear to the matrimonial life of
the other. “Cruelty”, therefore, postulates a treatment of
the petitioner with such cruelty as to cause a
reasonable apprehension in his or her mind that it
would be harmful or injurious for the petitioner to live
with the other party. Cruelty, however, has to be
distinguished from the ordinary wear and tear of family
life. It cannot be decided on the basis of the sensitivity
of the petitioner and has to be adjudged on the basis of
the course of conduct which would, in general, be
dangerous for a spouse to live with the other.”

fam 26 of 2006

7

22) He further cited Ravi Kumar Vs Julmidevi {(2010) 4 SCC
476} wherein in para 14, Hon’ble Supreme Court has held as
follows:

“14. Looking to the materials which have come on
record in this case, it is clear that the wife had sufficient
ground to live separately. In this case, the evidence of
the daughter is very crucial. The daughter in her
evidence categorically stated that her father used to
beat her mother. She denied that her mother abused
her father but she repeatedly deposed that her father
used to beat her mother and the reasons of which are
not known to her.

23) 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.”

24) 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
fam 26 of 2006

8

by using filthy and abusive language leading to constant
disturbance of mental peace of other party.”

25) In Ex.A1 this is specifically mentioned that there is no sexual

relationship between appellant and respondent. She had a love

affair with someone else. Marriage was not consummated. She is

leaving her in-laws house voluntarily on 28.04.2004. This has been

earlier decided that appellant had executed Ex.A1 voluntarily,

knowingly, understandingly the contents of Ex.A1. Thus, this Court

believes on aforesaid statements of para 2 and 3 AW1 Manharan

Lal Kashyap and disbelieves on aforesaid statements of para 3, 5 of

NAW1 Smt. Shivkumari Kashyap, para 1 of NAW2 Gend Ram

Kashyap, para 2 of NAW3 Puna Ram Kashyap.

26) After the appreciation of the evidence discussed herebefore

this Court finds that from the honeymoon till leaving the house of the

respondent, appellant had prevented respondent to commit sexual

intercourse with her, she has a love affair with someone else. These

acts amount to cruelty.

27) AW1 Manharan Lal Kashyap says in para 3 that appellant had

told that if she is not permitted to go with her lover Jamuna Prasad

then she will falsely implicate him and his entire family members in a

dowry case.

28) NAW1 Smt. Shivkumari Kashyap says in para 6 that

respondent and his family members were demanding a motor cycle

and Rs. 45000/- cash as dowry.

fam 26 of 2006

9

29) NAW2 Gend Ram Kashyap says in para 2 that one week after

Gauna respondent and his family members demanded a motorcycle

and Rs. 45000/- cash as dowry.

30) NAW3 Puna Ram Kashyap says in para 3 that one week after

Gauna respondent and his family members demanded a motorcycle

and Rs. 45000/- cash as dowry.

31) NAW4 Narayan Patel says in para 3 of his statement given on

oath that 2-3 months after Gauna respondent and his family

members started demanding dowry.

32) NAW5 Dindayal Sahu says in para 2 of his statement given on

oath that respondent was demanding dowry.

33) Appellant has not examined any neighbour of respondent who

could state that respondent and his family members were allegedly

demanding a motorcycle and cash Rs. 45000/- as dowry. She has

not proved any letter wherein said fact has been mentioned. She

has not proved any report lodged by her in any police station

immediately after the demand. She has not proved any document

of their community wherein said fact has been mentioned. She has

not proved any notice given by her to respondent wherein said fact

has been mentioned. For not doing so there is no explanation

offered by appellant. Appellant has lodged aforesaid report after

leaving the respondent’s house. In these circumstances, this Court

believes on aforesaid statement of para 3 of AW1 Manharan Lal

Kashyap and disbelieves on aforesaid statements of para 6 of
fam 26 of 2006

10

NAW1 Shivkumari Kashyap, para 2 of NAW2 Gend Ram Kashyap,

para 3 of NAW3 Puna Ram Kashyap, para 3 of NAW4 Narayan

Patel, para 2 of NAW5 Dindayal Sahu.

34) After appreciation of the evidence this Court prima facie finds

that aforesaid allegation and report are without any concrete ground,

and are baseless. Levelling such allegation and lodging such report

themselves amount to cruelty.

35) In these circumstances, this Court finds that aforesaid judicial

precedents laid down in Savitri Pandey (Supra), G.V.N. Kameswara

Rao(Supra), Prabhash Saxena (Supra) are applicable against

appellant regarding this point for determination and appellant does

not get any help from the aforesaid judicial precedent laid down in

Ravi Kumar (Supra).

36) After appreciation of the evidence discussed herebefore, this

Court finds that appellant had treated respondent with cruelty by

preventing him to commit sexual intercourse with her, by saying that

she has love affair with someone else, by making false allegation of

demand of dowry and lodging a false report. Thus, this Court

decides point for determination No.1 accordingly. This finding will not

be binding in any criminal proceeding.

Point for determination No.2 – Findings with reason s :-

37) The trial Court has not framed issue regarding ‘wrongdoer’

though the trial Court ought to have done it. The evidence available

on record shows that appellant and respondent have adduced
fam 26 of 2006

11

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.

38) NAW1 Smt. Shivkumari Kashyap says in para 8 that

respondent has remarried with Vimla @ Mithla.

39) NAW3 Puna Ram Kashyap says in para 4 that respondent

remarried with Vimla @ Mithla and living with her.

40) NAW5 Dindayal Sahu says in para 2 that he has seen that

respondent is living with his second wife.

41) As per the copy of the order sheet of the Family Court,

Bilaspur dated 25.08.2006 Ex.NA1 respondent had admitted that he

has kept one woman named Mithla. In this circumstance, this Court

believes aforesaid statements of para 8 of NAW1 Smt. Shivkumari

Kashyap, para 4 of NAW3 Puna Ram Kashyap, para 2 of NAW5

Dindayal Sahu.

42) After appreciation of the evidence discussed herebefore this

Court finds that respondent has contracted second marriage with

Vimla @ Mithla. Thus, this Court finds that respondent is a

wrongdoer. Thus, this Court decides point for determination No. 2

accordingly.

fam 26 of 2006

12

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

43) It would be pertinent to mention the relevant portion of Section

23 (1) (a) of the Act, 1955 which reads as under:-

“23. Decree in proceedings –

(1) In any proceeding under this Act, whether defended or not,

if the court is satisfied that –

(a) any of the grounds for granting relief exists and the

petitioner [except in cases where the relief is sought by

him on the ground specified in sub-clause (a), sub-

clause (b) or sub-clause (c) of clause (ii) of section 5] is

not in any way taking advantage of his or her own

wrong or disability for the purpose of such relief, then

and in such a case, but not otherwise, the Court shall

decree such relief accordingly.”

44) This has been earlier decided that appellant has subjected

respondent with cruelty.

45) Shri P.P. Sahu, counsel for appellant cited Nazario Alfred

Magalhaes Vs Smt. Maria Fatima Varela {AIR 2005 Bombay

380} whererin in para- 14, Hon’ble Bombay High Court has held as

follows :

“14. The husband in the present case is the wrongdoer.

He is living in adultery. He wants to take advantage of

his own wrong. In this backdrop the finding of the

learned trial Judge that the husband has miserably
fam 26 of 2006

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failed to prove the animus deserendi and his case of

desertion in the context of the prevailing law is not at all

established cannot be faulted.”

46) This has also been earlier decided that respondent is a

wrongdoer, thus, looking to this circumstance and looking to the

aforesaid provisions of Section 23(1)(a) of the Act, 1955, looking to

the judicial precedent laid down in Nazario Alfred Magalhaes

(Supra) this Court finds that respondent cannot take advantage of

his own wrong and he is not entitled to get the decree of divorce on

the ground of cruelty. Thus, this Court decides point for

determination No. 3 accordingly.

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

47) After complete appreciation of the evidence discussed herein

before, this Court allows the appeal and set aside the judgment and

decree of the trial Court to the above extent.

48) Parties shall bear their own costs.

49) A decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
JUDGE

padma/kishore

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