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Suresh Kumar vs Veena 46 Wps/1504/2005 Lok Nath … on 5 October, 2018

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Judgment Reserved on :03.08.18

Judgment delivered on : 06.10.2018

FAM No. 21 of 2010

 Suresh Kumar S/o Sri Mantram Sao, Aged 34 years, R/o
Hathanipara Ward, Bhatapara, Distt.-Raipur.

—- Appellant

Versus

 Smt. Veena, W/o. Suresh Kumar Sao, Present R/o. Village
Urkura, R/o. Village Urkura, P.O. Beergaon, Tahsil Raipur
District Raipur (CG)

—- Non-applicant

For Appellant : Shri Pankaj Agrawal, Advocate
For non-applicant : Shri Ashok Patil, Advocate

Hon’ble Smt. Justice Rajani Dubey

Per Rajani Dubey, J
C A V Order

This appeal has been preferred under Section 28 of Hindu

Marriage Act by the husband/appellant being aggrieved by the

judgment dated 06.01.2010 passed by Additional District Judge,

Bhatapara, District- Raipur in civil suit No. 11-A/2008 whereby the

learned trial Judge has rejected the application filed by the

husband/appellant under Section 13 (III) of the Hindu Marriage Act

against the wife/non-applicant for a decree of divorce.

2. Heard the appeal on merits as well as on I.A. No. 05/2018 and

I.A. No. 06/2018 which is an application under Order 41 Rule 21 of

CPC for taking additional documents on record.
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3. The undisputed facts of the case are that the marriage of

appellant and non-applicant was solemnized as per Hindu customs

on 25.01.1998 and out of their wedlock, one child was born on

08.12.1998

.

4. The case before the learned trial Court was that appellant had

left the non-applicant at Bilaspur on 10.12.2005 against her will.

Thereafter, non-applicant without the knowledge of appellant,

obtained transfer certificate from the school and took their child to

Urkura, Raipur. Therefore, appellant filed a suit under Guardians and

Wards Act, 1956 before the Court of Civil Judge Class-I, Baloda-

Bazaar for custody of his child. Appellant also filed an application for

restitution of conjugal rights on 20.03.2006 before Principal Judge,

Family Court, Raipur against the non-applicant. In that case non-

applicant and appellant entered into compromise and case was filed

with their compromise and acceptance. Due to the said compromise

the case pending before Civil Judge Class-I was taken back on

06.05.2007 wherein it has also been mentioned that the non-

applicant had lodged a report against appellant at Bhatapara which

was registered as Crime No. 42/2006 under Section 498-A and 323

IPC. During hearing of the bail application before Judicial Magistrate

First Class, the non-applicant had stated that she had no objection

and therefore appellant’s bail application was allowed. Even after

compromise and acceptance before the Hon’ble Family Court, non-

applicant has not returned to appellant/husband for restitution of

conjugal rights. The appellant has personally and socially taken every

possible steps to bring her back but due to ill-advice of her family

members, she refused to reside with the appellant. Therefore, a
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notice was sent through Tailik Sahu Samaj Parikshetra, Terenga

dated 02.07.2006 followed by notice dated 05.07.2006 which the

non-applicant refused to take. So, appellant filed an application under

Section 13(III) of Hindu Marriage Act for divorce.

5. Except for the admitted facts on the application for divorce, the

non-applicant/wife has denied all the facts and pleaded that appellant

and his family members were harassing her mentally and physically

for demand of dowry for which she had filed an application for

compromise on 28.06.2002 before Mahila Thana, Raipur. After

compromise, non-applicant went to her matrimonial house at

Bhatapara but appellant and his family members again started

harassing her mentally and physically for demand of dowry and on

10.12.2005, the appellant, crossing all the limits of humanity, brutally

committed maarpeeth with the non-applicant and left her at her

parental house. Now, appellant wants to re-marry and therefore he

had filed the suit. Appellant knowingly is not performing his duties as

husband and father. On the contrary, non-applicant wants to live with

him and in case of divorce, her life will be ruined as second marriage

for a divorcee is not possible nowadays. So, the non-applicant has

opposed the decree of divorce as sought for by the appellant.

6. After completion of the pleadings of the parties, the learned

trial court framed issues. On behalf of appellant Suresh Kumar (AW-

1), his Uncle Surit Ram (AW-2) and Uttam Kumar (AW-3) were

examined. On behalf of the non-applicant Smt. Veena Sahu (NAW-

1), her father Jagannath Das Sahu (NAW-2) was examined.

7. Learned trial court after hearing the arguments advanced by
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the parties, rejected the application filed by the appellant/husband

under Section 13 (III) of the Hindu Marriage Act, 1956 filed by the

appellant against non-applicant for a decree of divorce. Hence, this

appeal.

8. I have heard learned counsel for the parties and perused the

record minutely.

9. During the appeal both parties filed application for taking the

documents on records i.e. I.A . No. 5 6.

10. Counsel for the parties submit that the documents are certified

copies related to disputes between appellant and non-applicant

which need to be examined to reach at the right conclusion and

therefore the same should be taken on record. Some of the

judgments and orders have been passed after the impugned

judgment and therefore, could not be produced before the trial court.

11. In the matter of Jayaramdas Sons Vs. Mirza Rafatullah Baig

and others, reported in AIR 2004 Supreme Court 3685. Hon’ble

Supreme Court has held that “additional evidence whether oral or

documentary, is not to be admitted in Appellate Court unless a case

for admission thereof is made out by reference to clause (a) or (aa)

of sub-rule (1) of Rule 27 or unless the Appellate Court requires such

evidence to enable it to pronounce judgment or for any other

substantial cause within the meaning of clause (b)”.

12. The documents are related to the disputes between the

parties. As these were not produced before the trial court they could

not be considered by the trial court. Since, the dispute is related to
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family matter, they should first be examined by the trial court.

13. Upon due consideration, the application of appellant under

Order 41 Rule 27 of CPC (I.A. No. 06/2018) dated 23.04.2018 and

application (I.A. No. 05/2018) dated 24.04.2018 of non-applicant are

allowed and the judgment dated 06.01.2010 passed by the Additional

District Judge, Bhatapara, District- Raipur (now Baloda Bazaar-

Bhatapara) is set aside. Documents filed by the appellant and non-

applicant are taken on record as additional evidence. After production

of such documents, trial court shall proceed to hear and decide the

case afresh in accordance with law. Learned trial court shall grant

time to the parties if they want to amend their pleadings, and to give

any additional evidence regarding the documents before proceeding

to hear.

14. Thus, it is made clear that this court has neither touched upon

nor expressed any opinion on the merits of the case. Only production

of additional evidence has been permitted. The trial Court shall be

free to form its own opinion afresh on all the questions of facts and

law arising for decision in the case.

15. The parties, through their respective counsel, are directed to

appear before the trial Court on 12th November, 2018.

Sd/-

(Rajani Dubey)
Judge

Prakash
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