Deepa Agrawal vs Anand Agrawal

Sanjay S. Agrawal, J

This appeal has been preferred by the applicant/wife under Section 19(1) of the Family Courts Act, 1984 questioning the legality and propriety of the judgment and decree dated 16.10.2019 passed by the learned Judge, Link Family Court, Sakti, District Janjgir-Champa (C.G.) in Civil Suit No.60-A/17, whereby the learned trial Court has rejected the application filed by the applicant seeking dissolution of marriage on the grounds enumerated under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act, 1955'). The parties to this appeal shall be referred hereinafter as per their description before the trial Court.

Briefly stated the facts of the case are that the marriage of the applicant/wife was solemnized with non-applicant/husband on 09.05.2004 in accordance with Hindu rites and rituals and thereafter, she started living with her husband in the matrimonial home at village Kunkuri and out of their wedlock, a daughter Kumari Samriddhi Agrawal was born on 29.03.2005, while a son Adarsh Agrawal on 15.06.2008. According to the applicant, she was subjected to cruelty by her husband and mother-in-law, namely, Laxmi Bai as they demanded ornaments and cash amount of Rs.5,00,000/- soon after the birth of son Adarsh. It is alleged further in the petition that her husband and mother-in-law assaulted her and both of her children in the month of December, 2014 and were kicked out from the house as she failed to fulfill their undesirable demand. Further contention of her is that she was brought back by her father Vijay Kumar to her matrimonial home at village Kunkuri in the month of January, 2015 as her husband assured to keep her in dignified manner without making demand and it was pleaded further that since the assurance was given by him as such, therefore, no report with regard to the alleged incident occurred earlier was lodged. But, later on, she was again assaulted by her husband and mother-in-law in the month of February, 2015 for non-fulfilling the alleged demand of the ornaments and cash amount and was forcefully kicked out from the matrimonial home and since then, she is living with her father in the parental house at Sakti along with her children, which led to the filing of the petition seeking dissolution of marriage on the ground of cruelty and desertion.

While denying the aforesaid claim, it was pleaded by the non-applicant/husband that the applicant was never subjected to cruelty owing to non-fulfillment of the alleged demand of ornaments and cash amount of  Rs.5,00,000/- as alleged by her nor was ever assaulted either in the month of December, 2014 or in the month of February, 2015 as alleged by her in the petition. According to the non-applicant/husband, she after the solemnization of the marriage insisted him to live at her parental house at Sakti only and was adamant not to reside at her in-laws house at village Kunkuri and has voluntarily left the house along with her children while taking her clothes and ornaments etc. It was contested further on the ground that the entire allegations as made by the applicant/wife in the claim petition are frivolous and concocted and has been made in order to get the decree for dissolution of marriage. The claim of her is, therefore, liable to be dismissed.

In support, the applicant has examined herself as AW-1, her neighbour, uncle and father, namely, Ramesh Kumar Agrawal (AW-2), Vimal Kumar Goyal (AW-3) and Vijay Kumar Goyal (AW-4) respectively, while the non-applicant has examined himself as NAW-1 and one Ravindra Agrawal (NAW-2) in rebuttal.

Based upon the aforesaid pleadings of the parties, the trial Court has framed the following issues:-

A- Whether the applicant was subjected to cruelty by her husband owing to the alleged demand of dowry?

B- Whether the applicant was deserted by her husband without any reasons being assigned two years prior to the institution of the claim petition?

C- Whether the applicant is entitled to get a decree for dissolution of marriage?

D- To what relief and costs?

After considering the evidence led by the parties, it was held by the trial Court that in absence of any cogent and reliable evidence led by her, it cannot be said that she was either subjected to cruelty owing to the alleged demand of dowry or was deserted by her husband as alleged. In consequence, her claim seeking dissolution of marriage on both the grounds has been dismissed and, being aggrieved, the instant appeal has been preferred by her.

Learned counsel appearing for the applicant submits that the finding of the Court below holding that the applicant was neither subjected to cruelty owing to the alleged demand of dowry nor was deserted by her husband is apparently contrary to law. While inviting attention to the statements of the applicant and her witnesses, it was submitted that although the report was not lodged with regard to the alleged incident, but the evidence led by her was sufficient to hold that she was not only subjected to cruelty but was kicked out forcefully by her husband from the matrimonial house, and therefore, the Court below ought to have granted a decree of divorce on both the grounds.

On the other hand, learned counsel appearing for the non-applicant has supported the impugned judgment and decree as passed by the Court below.

We have heard learned counsel for the parties and perused the record carefully.

The petition seeking dissolution of marriage was filed by the applicant/wife basically on two grounds, namely, cruelty and desertion. In order to establish the ground of cruelty, it was pleaded by the applicant that soon after the birth of son, she was assaulted in the month of December, 2014 and then in the month of February, 2015 by her husband and mother-in-law as she failed to fulfill their demand of ornaments and cash amount of Rs.5,00,000/-. Although, the applicant has pleaded as such and has adduced oral evidence to this effect, but merely on the basis of her bald statement, it is difficult to hold that she was ever assaulted by her husband and mother-in-law or was subjected to cruelty owing to failure in fulfillment of their desire, as alleged by her in absence of any cogent and reliable evidence led by her. The marriage of the parties was solemnized on 09.05.2004 and no allegation with regard to the cruelty for non-fulfilling the demand of dowry was ever made till the birth of son Adarsh Agrawal, who was born on 15.06.2008. Therefore, it appears that no allegation as such was made for the completion of considerable point of more than four years of their marriage and was alleged to have been made for the first time only after the birth of son. In any case, had she been subjected to cruelty as alleged by her against husband and mother-in-law, a report to this effect must have been lodged by her. No cogent and plausible reasons as to why the report has not been lodged with regard to the incident occurred in the months of December, 2014 and February, 2015, were offered, except the bald statement as observed herein-above. Therefore, it cannot be said that she was ever subjected to cruelty so as to obtain a decree for dissolution of marriage on the ground enumerated under Section 13(1)(i-a) of the Act, 1955.

In so far as the ground of desertion is concerned, what has been stated by the applicant/wife that she was assaulted badly by her husband and mother-in-law in the month of February, 2015 and, therefore, she was compelled to live separately from the matrimonial house since then. This is, however, a very weak kind of her explanation to believe that owing to the alleged ill treatment, she was forced to live separately. No cogent and reliable evidence has been led by her to this effect as well. Besides, pertinently to be noted here further at this juncture, the evidence of the applicant's own witness, namely, Ramesh Kumar Agrawal (AW-2), who at para 12 of his testimony, deposed specifically that the applicant herself does not want to live at village Kunkuri and that was the reason why she has applied for a decree for dissolution of marriage. In view thereof, it is difficult to hold that she was deserted by her husband since February, 2015 so as to obtain a decree for dissolution of marriage on the ground enumerated under Section 13(1)(i-b) of the Act, 1955.

Before parting with the matter, it is to be noted that since the minor children are residing with their mother and it is the moral and legal obligation of the non-applicant/husband to maintain them. Therefore, it would be appropriate to direct him to maintain his minor children in a proper manner. We, accordingly, direct him to make payment of maintenance for both of his children (Kumari Samriddhi Agrawal and Adarsh Agrawal) of Rs.7,500/- per month each. The non-applicant/husband shall make the payment of Rs.7,500/-per month payable each of them in the bank account of the applicant/wife, with whom, they are living as on date. The payment shall start from the date of their respective birth and we grant liberty to them (minor children) to seek enhancement of the compensation in accordance with law by filing an appropriate application before the Magistrate, if so advised.

With the aforesaid direction, the appeal stands dismissed.

A decree be drawn accordingly.