Dr. Arvind Sharma vs Smt. Kiran Sharma

G. Minhajuddin, J.—This appeal has been filed u/s 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 29-6-2010 passed by the Principal Judge, Family Court, Raipur, in Civil Suit No. 400-A/2010, whereby the application filed by the appellant/plaintiff u/s 13 of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of desertion and cruelty by a decree of divorce has been rejected. Facts not in dispute are that marriage between the parties was solemnised on 3-12-1988 at as per Hindu rites and ceremonies and out of their wedlock two issues, i.e., one daughter named Ku. Shrutika Sharma and one son named Shantanu Sharma, who were 18 and 15 years of age at the time of filing of application, were born. An application was filed by the respondent/wife against the appellant/husband for grant of maintenance u/s 125 of Cr.P.C., before the Family Court. The respondent/wife had lodged complaints with the Governor, Chief Minister and at the concerned police station leveling charges against the appellant/ husband regarding commission of physical and mental cruelty by him against her.

Case of the appellant/plaintiff, as projected in the application u/s 13 of the Hindu Marriage Act, 1955, are that marriage between the parties was solemnised on 3-12-1988 and out of their wedlock, daughter Ku. Shrutika Sharma and son Shantanu Sharma were born. Both the appellant and the respondent were discharging their marital obligations towards each other. However, all of a sudden, the respondent/wife started mentally, physically and economically torturing the appellant/husband. Whenever the appellant used to return home, the respondent would not open the door of the house and used to abuse him. She used to deprive him of his marital rights and whenever he used to express his desire to have sexual intercourse, she used to refuse to establish physical relations with him and used to behave in a cruel and derogatory manner. The respondent/wife was always negligent and indifferent towards her in-laws and used to say that she and the appellant cannot reside together under the same roof. The respondent in front of her mother-in-law had broken the mangalsutra and used to tarnish the social and family image of the appellant''s family. The respondent had assaulted the appellant on 9-2-2008 and made her intentions clear that she cannot live with him as husband and wife under the same roof. The respondent with intent to kill the appellant and thereafter, to obtain compassionate appointment, had been administering medicines to the appellant against his wishes, which were injurious to his health and life. However, without any rhyme or reason, she filed an application for grant of maintenance before the Family Court u/s 125 of Cr.P.C., despite the fact that the appellant had never refused or neglected to maintain her (respondent) and his children. The appellant is a Class I Officer and with intent to lower down and blemish his image, that the respondent/wife leveling baseless allegations, had filed complaints before the Governor, Chief Minister and at the police station against him. Since 9-2-2008, the respondent/wife, without any rhyme or reason, is living separately and has deserted the company of the appellant. On the basis of above mentioned conduct of the respondent/wife, the appellant/husband filed an application u/s 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce on the ground of desertion and cruelty.

The respondent/wife has filed written statement, wherein she has denied the allegations levelled against her by the appellant in his application for divorce. She has averred that immediately after solemnisation of marriage on 3-12-1988, the appellant/husband had been treating her with cruelty. He used to level false charges against her with regard to her moral character and of practicing witchcraft. She has averred that on 9-2-2008, the appellant had beaten her and after that she had left the house and is residing separately. She has also averred that complaints made to the Governor, Chief Minister and before the Station House Officer of the police station, were not baseless, but were based on true facts. As per respondent, she was being tortured by the appellant since last 19 years and she is apprehending danger to her life and limb, if she resides with the appellant and therefore, now she does not want to live with the appellant.

Learned Family Court after hearing the respective parties and on close scrutiny of the material available on record, by the impugned judgment and decree rejected the application of the appellant/plaintiff u/s 13 of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of desertion and cruelty.

Heard learned Counsel for the appellant/plaintiff, perused the LCR as also the impugned judgment and decree.

The core question to be decided in this appeal is-- whether the respondent/wife has committed cruelty towards the appellant/husband and is living separately since 9-2-2008 and thereby has deserted the company of the appellant without any just and reasonable cause ?

The appellant/husband in support of his averments made in the application for divorce, has examined himself and his father Dayaram Sharma as P.W. 1 and P.W. 2 respectively. Whereas the respondent/wife in support of her written statement has examined herself and her daughter Shrutika Sharma as D.W. 1 and D.W. 2 respectively. In addition to his, the respondent/wife has filed documents, i.e., medical certificate (Exh. D-1) and photocopy of the complaint made to Police Station, Gol Bazar by the respondent (Exh. D-2).

The appellant has alleged that the respondent used to abuse him and ill-treat him as well as his parents. Whenever the appellant expressed his desire to have sexual intercourse with the respondent, she always refused to establish physical relations with him and used to threaten that she would implicate him in a rape case and has thereby committed cruelty towards him. The respondent, without any rhyme or reason, had filed an application u/s 125 of Cr.P.C. for grant of maintenance and had made complaints to the Governor, Chief Minister as well as at the police station leveling false charges against the appellant of committing mental as well as physical cruelty towards her. The appellant has also alleged that the respondent with intent to kill him had been administering some poisonous substance to him through food, so that after his death she could get compassionate appointment. He has further alleged that the respondent has illicit relations with some persons.

So far as the allegation that the respondent used to abuse the appellant and ill-treat him as well as his parents, is concerned, the appellant has examined his father Dayaram as P.W. 2 to substantiate it. However, the evidence of Dayaram (P.W. 2) does not inspire confidence as according to the appellant, the incident of marpeet and breaking of mangalsutra etc. took place on 9-2-2008, whereas Dayaram (P.W. 2) has stated that the above incident took place on 15-3-2008. Further, the appellant has not stated that when the above incident took place, the respondent used abusive language, whereas Dayaram (P.W. 2) has stated that when the above incident took place, the respondent was abusing the appellant and thereafter, she went away from there alongwith his dog and both the children. However, the appellant has nowhere stated, either in his application u/s 13 of the Hindu Marriage Act, 1955 or in his evidence that any incident took place on 15-3-2008. Therefore, the evidence of Dayaram (P.W. 1) regarding abusing and ill-treatment by the respondent/wife cannot be believed.

On the contrary, the respondent has stated that soon after marriage, the appellant was treating her with cruelty and even when she was pregnant, the appellant used to beat her with hands and fists on some trivial issues. She has further stated that while they were residing at Ambikapur, the appellant has even tried to throttle her with the help of pipe. She has specifically stated that on 17-7-2007 the appellant had beaten her with cricket bat and on 7-12-2007 he had tried to kill her by iron hammer. On account of injuries sustained on 17-7-2007, she had go herself medically examined by Dr. Shailendra Upadhyaya on 18-7-2007, vide Exh. D-1. She has also lodged a complaint with Police Station, Gol Bazar on 9-4-2008 stating therein that the appellant had beaten her. She has filed photocopy of the said complaint as Exh. D-2. Though the aforesaid documents (Exhs. D-1 and D-2) have not been proved by the respondent by examining the doctor and any of the officials from the concerned police station, however, the statement of the respondent finds corroboration from the evidence of her daughter Shrutika Sharma (D.W. 2).

So far as the allegation of refusal on the part of the respondent to have sexual intercourse with the appellant is concerned, it is an admitted fact that marriage between the parties was solemnised on 3-12-1988 and out of their wedlock one daughter named Ku. Shrutika Sharma and Shantanu Sharma were born. Thus, it is clear that there had been discharge of conjugal obligations between the parties. The respondent in her cross-examination has specifically denied that she had ever deprived the appellant of physical relations. The appellant has also failed to adduce any evidence in this regard by way of cross-examining the respondent as to when or on which date, the respondent refused to establish sexual relations with him. Except bald oral allegations of the appellant on this point, there is no evidence on record, on the basis of which it could be inferred that the respondent used to deprive the appellant of physical relation. Moreover, with regard to allegation of threatening by the respondent to implicate the appellant in a false rape case, there is also no evidence on record. Dayaram (P.W. 2), father of the appellant, has also not stated anything in this regard.

So far as filing of application u/s 125 of Cr.P.C. for grant of maintenance is concerned, the learned Family Court after due consideration has allowed the said application and granted interim maintenance in favour of the respondent/wife and her children @ Rs. 8000/- per month vide order dated 28-4-2008.

With regard to making of complaints by the respondent to the Governor, Chief Minister and at the police station, the respondent has admitted that she had made those complaints. However, she has categorically denied that those complaints were false and were made with intention to lower down the social image of the appellant and his family. She has stated that soon after marriage, she was being tortured and harassed by the appellant and she was somehow tolerating all this for the last 19 years and ultimately, having been fed up with the continuous torture and harassment, she had lodged the aforesaid complaints and for the sake of future of her children, had left her matrimonial home and is residing separately with her children.

The appellant has also alleged that with intent to kill him and get compassionate appointment, the respondent was administering sleeping pills/poisonous substance to him through food. It is not in dispute that the appellant is himself a doctor by profession, however, except bald and oral allegation, he has not adduced any evidence in this regard and has not stated as to which medicine was being administered to him.

The appellant has also alleged in his statement that the respondent is having illicit relationship with Manav Kumar Chakravarti. Further, in the cross-examination of the respondent, the appellant has alleged that she is having illicit relationship with Domnic Stuwart and Anil Verma. However, there is not even an iota of pleading in this regard in the application filed by the appellant u/s 13 of the Hindu Marriage Act for dissolution of marriage. The appellant except making bald allegation, has not adduced any other cogent and reliable evidence for proving this allegation. Thus, leveling of false allegation with regard to moral conduct of the wife by the husband is, no doubt, cruelty of highest degree and order.

On the basis of aforesaid discussions of material on record, it is found that the appellant has utterly failed in establishing any of the grounds u/s 13 of the Hindu Marriage Act for grant of a decree of divorce. On the contrary, by leveling false charge with regard to moral character of the respondent/wife in his statement the appellant has committed cruelty of highest order and degree against the respondent. Therefore, on the basis of material on record, it stands proved that for living separately, the respondent/wife has just and reasonable cause. As such, the learned Family Court has not committed any illegality or infirmity in rejecting the application filed by the appellant u/s 13 of the Hindu Marriage Act, 1955, warranting interference by this Court.

In the result, the appeal fails and is accordingly dismissed. The impugned judgment and decree dated 29-6-2010 passed by the Principal Judge, Family Court, Raipur, in Civil Suit No. 400-A/2010 is hereby affirmed. No order as to costs. The Additional Registrar (Judicial) shall draw up a decree accordingly.