Kishore Kumar Sahu vs Smt. Kusum Bai

T.P. Sharma, J.—This first appeal u/s 19(1) of the Family Courts Act, 1984 (in short ''the Act, 1984'') is directed against the judgment and decree dated 11.12.2006 passed by the Third Additional Principal Judge, Family Court, Durg, in Case No. 27A/2006 whereby & whereby learned Third Additional Principal Judge has dismissed the suit for divorce filed on behalf of the Appellant.

Brief facts leading to filing of this appeal as per pleading of the parties are that the Appellant and the Respondent are legally wedded wife and husband. Marriage was performed on 25.4.1993. Both the parties have discharged their marital obligation. On 4.10.1994 Respondent gave birth to one child which was abnormal and after sometime, child died. As a result of marital obligation, the Respondent delivered two child namely, Ravishankar Sahu and Murli Manohar Sahu. The Appellant is a member of joint family and was residing with his other family members, but the Respondent was not agree to live with joint family of the Appellant and used to go to her maternal house frequently. In the year 2001 without any cause, the Respondent went to her maternal house and refused to come back. The Appellant filed an application before the Sub Divisional Magistrate, Patan in which the Respondent has made false allegation against the Appellant and refused to go with him. The Respondent is a woman of timid mind and her behavior with the Appellant is not proper. She is in habit of insulting and defaming the Appellant. She used to compel the Appellant to leave his joint family house and members. Finally on 19.5.2005, she quarreled with the Appellant and his family members and left her matrimonial house without there being any cause. The Appellant has tried his level best to compromise, but he did not succeed. Behavior of the Respondent is cruel with the Appellant and on the basis of cruelty, the Appellant has filed a suit for divorce u/s 13(1)(A) of the Hindu Marriage Act, 1955 (in short ''the Act, 1955'').

The present Respondent has contested the suit and has admitted marriage, delivery of children but specifically alleged that she has not committed any cruelty upon the Appellant, but the Appellant and his relatives used to commit cruelty and torture upon her and always used to demand of dowry. They were not satisfied with the dowry given by the parents of the Respondent. The Appellant always used to demand Rs. 2,00,000/- from the Respondent which was not possible for her. The Appellant has taken signature in some papers and has ousted the Respondent from his house. She is ready to live with the Appellant and discharge her marital obligation with dignity, but the Appellant is not ready to discharge his marital obligation.

On the basis of averments made by the parties, issues were framed and after affording an opportunity of hearing to the parties, the suit for divorce was dismissed by the Third Additional Principal Judge, Family Court, Durg.

We have heard learned Counsel for the parties and perused the judgment and decree impugned and record of the Court below.

Learned Counsel for the Appellant vehemently argued that the Respondent is a woman of timid mind. She is not ready to live with the Appellant in his joint family house along with other members of the family. She used to compel the Appellant to live separately from his joint family house and members. Her behavior is cruel and she used to commit cruelty upon her husband/Appellant. She is in habit to leave the house of the Appellant frequently without any cause and when the Appellant tried to call her back, then she refused. The Appellant has never demanded any dowry or money. Marriage was performed in Adarsh Vivah without any demand or acceptance of dowry.

On the other hand, learned Counsel for the Respondent supported the judgment and decree impugned and argued that the Appellant and the Respondent are legally wedded wife and husband. The Respondent has discharged her marital obligation and she is ready to discharge her marital obligation. She was living with the Appellant, but the Appellant and her relatives used to commit cruelty and torture upon her in connection with demand of dowry of Rs. 2.00,000/- and has ousted her and finally the Appellant ousted the Respondent, therefore, she is residing in her parents house and still she is ready and willing to discharge her marital obligation and ready to live with the Appellant and to nurse her minor child.

In order to appreciate the contentions of the parties, we have examined the evidence adduced on behalf of the parties. Lawful marriage between the parties is not disputed. Birth of children out of wedlock of the parties is also not disputed. The claim of divorce is based on the ground of cruelty said to have been committed by the Respondent. The Appellant has examined himself, filed an affidavit and has supported his pleading. In his cross-examination, he has specifically admitted that he is a member of joint family. In para-11 of his cross-examination he has deposed that 6 times without informing him, the Respondent went to her parents house and when they went to the parental house of the Respondent for taking her back, then she put a condition that the Appellant should leave his family members, then only she will live with him. He has denied the adverse suggestion of commission of the cruelty by himself and his other family members. In para-6 of his affidavit, he has deposed that whenever he tried for physical relation then she used to refuse and sometime he used to criminal force and she has not discharged her marital obligation since last two years. His witness Nirasha Bai (PW-2), neighbour of the Appellant, has deposed that the Respondent used to misbehave with the Appellant and used filthy language and whenever some persons tried to intervene, then she also misbehaved and quarreled with them. In para-6 of her cross-examination, she has admitted that she is neighbourand she has heard quarreling sound of the Respondent with high frequency and quarreling sound of mother and sister-in-law of the Appellant with low frequency. Jaya Dutta (PW-3) friend of the Appellant, has supported the version of the Appellant. He has deposed that on 19.5.2005 he was called by son of the Appellant, at that time, the Respondent was not present and has gone to the house of her father''s elder brother namely, Jethu Ram Sahu. He along with other persons went to the house of Jethu Ram Sahu and inquired the matter where the Respondent refused to come back to the house of the Appellant, then father of the Appellant told the Respondent that if she is not ready to live with the Appellant, then she give in writing and then at the instance of the Respondent, letter (Ex-P/2) was prepared in which she signed. He has deposed that he has tried to convince the Respondent, but she was not ready to live with the Appellant. He has denied the adverse suggestion that Ex. P/2 was written at the instance of the Appellant and his father and they have taken signature of the Respondent and Jethu Ram without disclosing the contents of documents.

All allegations made by the Appellant and his witnesses were denied by the Respondent in her evidence on affidavit and has deposed that the Appellant and his relatives used to commit cruelty and torture and used to quarrel, then she requested the Appellant with a view to avoid the dispute, he should live separately from her relatives, but the Appellant was not ready. The Appellant has deliberately and will fully left her and has tiled an application before the Sub Divisional Magistrate. Patan. She has deposed that she has never gone to her parental house without wishes of her husband and relatives of her husband. She has admitted in para 12 of her cross-examination that her husband family is big family, consisting 13 members and her husband always permits to go her parental house in festivals and other occasions. She has admitted in para 13 of her cross-examination that her husband has filed an application before the Sub Divisional Magistrate, Patan where she appeared and explained that her husband used to beat her, therefore, she will not go with her husband. She has admitted that she is residing separately since 19.5.2005 from her husband, but has denied the suggestion that the Appellant has not demanded Rs. 2,00,000/-. She has specifically admitted in para-16 of her cross-examination that she is not ready to live with her husband along with his family members, but if the Appellant leaves his family and joint family house, then she is ready to live with her husband. Factum of cruelty and torture has also been supported by the Respondent witness Agar Singh, father of the Respondent. He has denied the suggestion that due to heavy work in in-laws house of the Respondent, she is not able to work in her in-laws house and therefore, she used to leave her matrimonial house frequently.

The claim of decree of divorce is based on the ground of cruelty and desertion available u/s 13(1)(ia) and (ib) of the Act, 1955 which reads as under:

Divorce.--(1) Any marriage soleminised, whether before or after the commencement of this Act may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--

(i) xxx xxx xxx xxx

(ia) has after the soleminisation of the marriage, treated the Petitioner with cruelty; or

(ib) has deserted the Petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

xxx xxx xxx xxx

The Appellant has deposed in paras 3,4,5 and 6 of the evidence on affidavit relating to following cruelty:

(a) She has levelled false allegation of beating,

(b) She insulted the Appellant before his family by using abusive words, ? - ?,

(c) Whenever he took the Respondent in social function, then in public places and in social function she used to insult the Appellant by using abusive words, ? - ?,

(d) She was residing with the Appellant since two years, but she has not cooperated for physical relation and when the Appellant tried for physical relation, then she twisted his male organ and she has not cooperated for physical relation since last two years.

In para-16 of his cross-examination, the Appellant has admitted that he has taken the Respondent to Dongargarh, to his relatives house at the time of marriage and one time at Raipur, but she has not used any filthy language, but when they came to their house then she used to abuse and that too after one or two months when any occasion arises. He has also admitted in para-16 that during joint residence with the Respondent, she has never refused for physical relation.

The Appellant has stated in para-13 of his evidence that serious quarrel between him, the Respondent, his brother, sister-in-law and mother has taken place. The Appellant has also deposed that the Respondent has tried to assault him and she broke bangles, mangulsutra and washed sindoor, but the Appellant has admitted that just after the incident the Respondent went to her father''s elder brother house, at that time she was weeping. He immediately sent her mother for calling the Respondent back whom she answered that she will come after sometime. Again he sent to his elder son Ravishankar whom she also told that she will come after sometime, but when he along with his father went to the house of the elder brother of the father of the Respondent, then she refused to come. These statements/ admission of the Appellant in para-16 of his evidence are sufficient to suffice the allegation of cruelty and para-13 of evidence/admission of the Appellant shows that the Respondent has not committed torture upon the Appellant, but the Appellant and their relatives has committed torture upon her and as a result she went to the house of her father''s elder brother. Despite this, she has not insulted or condemned the mother of the Appellant or his son and simply she told that she will come after sometime. These statements are sufficient to show that the present Respondent has not committed any cruelty upon the Appellant. She has not deserted the Appellant without any cause.

The Respondent has admitted in her evidence that she is not ready to live with the Appellant along with his joint family consisting 13 members but she is j ready to live with the Appellant separately from the family of the Appellant. The allegation of cruelty made by the Appellant and disproved by the Appellant himself shows that the Appellant had filed a petition for decree of divorce without any ground available u/s 13 of the Act, 1955. The Appellant has not filed any petition for restitution of conjugal rights, but reason best known to the Appellant that he has deliberately deleted alternate claim of restitution of conjugal rights I originally made in his plaint.

After appreciating the evidence available on record, the Court below has dismissed the suit for dissolution of marriage by decree of divorce.

For the foregoing reasons, we are of the considered view that the Third Additional Principal Judge, Family Court, Durg has not committed any illegality or infirmity in dismissing the petition for dissolution of marriage by decree of divorce. We do not find any merit in the appeal. The appeal is liable to be dismissed and it is hereby dismissed. No order as to costs.

Decree be drawn up accordingly.