Kalyan Banjare vs Smt. Gonda Bai

Gulam Minhajuddin, J.—This appeal has been filed u/s 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 5.8.2011 passed by First Additional Principal Judge, Family Court, Raipur (CG), in Civil Suit No. 130A/09, whereby the application filed by the appellant/plaintiff u/s 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce on the ground of desertion has been rejected. It is not in dispute that marriage between the parties was solemnized as per Hindu rites and ceremonies and after marriage they had resided together as husband and wife and after that they are residing separately since long.

Case of the appellant/plaintiff, in brief, is that marriage between the parties was solemnized as per Hindu rites and ceremonies in the year 1968-69 at Village-Saddu, Distt. Raipur and till 1982-83 the respondent/wife resided with the appellant at Tilda. Out of their wedlock a son named Rajesh was born. After 2-3 years from the birth of son Rajesh, i.e. 26-27 years back from 2.11.2009, the date of filing of the application for divorce, the respondent without any just or reasonable cause left her matrimonial home and since then is residing separately from the appellant/husband. Despite all efforts being made by the appellant, the respondent did not return to her matrimonial home, on account of which the appellant convened a meeting of the community, in which, as per customs prevailing in their community, marriage between the parties was dissolved.

The respondent/wife moved an application u/s 125 of Cr.P.C. for grant of maintenance, which was allowed and the appellant/husband was ordered to pay maintenance @ Rs. 2500/- per month to the respondent/wife. Subsequently, the respondent/wife had also moved an application before the concerned Court for enhancing the amount of monthly maintenance and the same is pending before the Court. The respondent/wife without any just and reasonable cause, of her own accord, had left the house of the appellant/husband about 27-28 years back and since then is residing separately and thereby has deserted the appellant. On this ground, the appellant/husband moved an application u/s 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce.

As per the case of the respondent/wife, marriage between the parties was solemnized not in the year 1968-69, but in the year 1970-71 and she had lived with the appellant/husband not only up to 1982-83, but up to 1988-89. Out of their wedlock, not only a son named Rajesh, but also a daughter named Dharmin were born. The appellant/husband had been physically and mentally ill-treating the respondent/wife because he had kept another lady as his wife. On account of ill-treatment that the respondent/wife was compelled to leave her matrimonial home alongwith her two children to save their life and since then is residing at her parents'' house. Her parents had tried their level best for reconciliation between the appellant and the respondent, but the appellant refused to keep the respondent and the children with him as he was living with his second wife. As such, the respondent/wife had not left her matrimonial home without any just or reasonable cause, but on account of ill-treatment of the appellant/husband, she was compelled to leave her matrimonial home alongwith her two children. The appellant/husband is working on the post of Lineman, Assistant Grade-11, in the Chhattisgarh State Electricity Board and is drawing salary of Rs. 28,991/- per month, but despite that the appellant/husband is not paying the amount of maintenance to the respondent/wife in compliance of the order of the Family Court. The appellant/husband has deliberately not mentioned about their daughter Dharmin @ Rajeshwari in his plaint. It is only with intent to deprive the respondent/wife and her two children of their rightful claim that the appellant/husband had Mala fidely instituted a suit for dissolution of marriage by a decree of divorce. The respondent/wife has averred that the appellant/husband is not entitled for a decree of divorce because he had been guilty of treating the respondent/wife and her two children with cruelty and compelling them to leave the house of the appellant because of his second wife.

Learned Family Court, after hearing learned counsel for the parties, considering the material available on record, by the impugned judgment and decree rejected the application of the appellant/husband u/s 13 of the Hindu Marriage Act.

Heard learned counsel for the appellant, perused the record of the Family Court as also the impugned judgment.

In support of his arguments, learned counsel for the appellant/husband has placed reliance on the judgments of the Hon''ble Supreme Court in the matters of Satish Sitole Vs. Smt. Ganga, ; Samar Ghosh Vs. Jaya Ghosh, 1; Geeta Jagdish Mangtani Vs. Jagdish Mangtani, ; and judgment of this Court in the matter of Smt. Vijaya Laxmi Soni Vs. Raj Kumar Soni, . He has also submitted photocopies of the aforesaid judgments.

The core question to be decided in this appeal is-whether the respondent/wife had left her matrimonial home without just and reasonable cause and had thereby deserted the company of the appellant/husband?

To substantiate the averments made in the application u/s 13 of the Hindu Marriage Act, 1955, the appellant/husband had examined himself and Janki Bai as PW-1 and PW-2 respectively. On the other hand, the respondent/wife in order to substantiate the averments of the written submission had examined herself, Umabai and Anita as DW-1, DW-2 and DW-3 respectively.

In respect of desertion by the respondent/wife, the appellant/husband Kalyan Banjare (PW-1) has stated that their marriage was solemnized in the year 1968-69 as per Hindu rites and ceremonies at Village-Saddu, Distt. Raipur and after that they had resided together as husband and wife and out of their wedlock son named Rajesh was born. He has further stated that after the birth of their son Rajesh, they are living separately since 1982-83. When son Rajesh was about 2 years old, the respondent/wife had left the house of the appellant without any just and reasonable cause. He (appellant) had neither ever quarreled with the respondent nor had beaten her. As per statement of the appellant/husband, behaviour of the respondent/wife towards the appellant was not good, she was always quarreling with him and was insulting him, and after leaving her matrimonial home, she had gone to Delhi after marrying another man. He has admitted that there had been divorce between them before the members of their community as per the customs prevailing in their community.

On the other hand, the respondent/wife in her statement has stated that out of their wedlock, a son named Rajesh and a daughter named Dharmin @ Rajeshwari were born and the appellant/husband after bringing another woman, named Ganeshiya Bai, as his wife, was ill-treating the respondent and her children and thrown them out of the house, on account of which she was compelled to reside separately from the appellant at her parents'' house since last 15 years. Respondent/wife Gonda Bai (DW-1) has further stated that all efforts were made by her parents and brother for resolving the disputes between the appellant and the respondent and for dropping the respondent at her matrimonial home, but the appellant refused to keep her as his wife, on account of which there was no option left with her, except to reside separately.

The respondent/wife (DW-1) has further stated that her husband (appellant) is an employee of Chhattisgarh State Electricity Board and is getting handsome salary, but despite that he had not given any amount for the maintenance of the respondent and her children. The respondent herself had performed marriages of her son and daughter by taking some amount from her parents and the respondent has no source of income to maintain herself. She has also stated that despite there being an order of maintenance passed by a competent Court in her favour, the amount of maintenance is not being given to her by her husband (appellant).

The statement of the respondent/wife (DW-1) finds corroboration from the statement of Umabai (DW-2). The appellant/husband has himself admitted in para-5 of his statement that he has married another woman. The appellant has not mentioned anywhere that he is also having a daughter named Dharmin @ Rajeshwari through his first wife (respondent), and the statement of respondent/wife Gonda Bai (DW-1) on this point has not been challenged by the appellant/husband in her cross-examination.

Though appellant/husband Kalyan Banjare (PW-1) has stated that after leaving his house, the respondent having married another man had gone to Delhi, but this fact has not been pleaded by the appellant in his application for divorce u/s 13 of the Hindu Marriage Act. As such, in the absence of pleading, as per provisions of Order 6 Rule 2 of the CPC, no amount of evidence can be looked into. The fact of divorce having taken place as per customary mode has been alleged by the appellant/husband and denied by the respondent/wife. The appellant/husband (PW-1) has stated that his wife (respondent) did not return back despite all efforts, their marriage was dissolved before the members of their community as per custom prevailing in their community and to substantiate it, only Janki Bai has been examined as PW-2. In addition to this, no other cogent evidence has been adduced by the appellant/husband for proving the fact that the marriage between the parties was dissolved before the members of their community as per customary mode. As such, the fact of marriage having been dissolved previously by customary mode cannot be said to have been proved. There is a clear admission of the appellant/husband Kalyan Banjare (PW-1) that he had married another lady and is residing with her. Thus, in view of this admission of the appellant, coupled with other evidence on record, it stands proved that the respondent had not left her matrimonial home without any just and reasonable cause, but it was only after the appellant/husband kept another lady as his second wife and started ill-treating the respondent and her children, that the respondent/wife was compelled to leave her matrimonial home alongwith her children and to reside at her parents'' house separately. Thus, from the evidence adduced by the parties, it cannot be said that the appellant/husband has been successful in establishing any ground u/s 13 of the Hindu Marriage Act, 1955 for obtaining a decree of divorce for dissolution of marriage.

It has been argued on behalf of learned counsel for the appellant that the appellant/husband and the respondent/wife are residing separately since long and as such, there are no chances of their reunion as the marriage has broken down irretrievably and therefore, the marriage between the parties be dissolved by a decree of divorce.

Admittedly, irretrievable break down of marriage is not one of the grounds u/s 13 of the Hindu Marriage Act, 1955 for grant of a decree of divorce. All the judgments of the Hon''ble Apex I Court, on which reliance has been placed by learned counsel for the appellant, pertain to grant of decree of divorce on the ground of irretrievable break down of marriage. In all those cases, the Hon''ble Supreme Court has exercised powers under Article 142 of the Constitution of India, 1950 and the said power is possessed only by the Hon''ble Supreme Court and by no other Courts. This position has been made clear by the Hon''ble Supreme Court in its judgment in the matters of Anil Kumar Jain Vs. Maya Jain, wherein in para-29 it has been held thus:

In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether u/s 13 or 13-B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceedings under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable breakdown of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the Civil Courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955.

Thus, on close scrutiny of the evidence available on record, we are of the opinion that the appellant/husband has not been able to make out his case for procuring a decree of divorce u/s 13 of the Hindu Marriage Act, 1955 and the learned Family Court has not committed any illegality or infirmity in passing the impugned judgment and decree rejecting the application of the appellant/husband.

In the result, the appeal being without any substance deserves to be and is hereby dismissed. No order as to costs. Additional Registrar (Judicial) is directed to draw up a decree accordingly.