Krishna Kumar Dhuri vs Smt. Santoshi Bai

Hon''ble Shri G. Minhajuddin, J.—This appeal has been filed u/s 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 24-03-2011 passed by the Family Court, Bilaspur in Civil Suit No. 55-A/2008 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 cruelty and desertion, has been rejected. The undisputed facts are that the appellant/plaintiff and the respondent/defendant were married on 30-03-2004 as per the Hindu rites and ceremonies and the Gouna was performed on 06-06-2004 after which the respondent/wife started living with her husband/appellant/plaintiff at Sarkanda, Bilaspur. This is also not in dispute that on 19-02-2005, the respondent/wife left her matrimonial home after which an application for divorce u/s 13 of the Hindu Marriage Act, 1955 was filed by the appellant/husband before the Family Court, Bilaspur and the same was dismissed as withdrawn on 23-04-2005 on the basis of compromise .It is also not in dispute that since 25-04-2005, the respondent/wife is living separately at her parent''s house. Rests of the facts are disputed.

The case of the appellant/plaintiff is that his marriage was solemnized on 30-03-2004 and after performance of Gouna, respondent/wife had lived with the appellant/husband at her matrimonial home at Sarkanda, Bilaspur till 19-02-2005. All of a sudden, the respondent/wife left her matrimonial home on 19-02-2005 without any just and reasonable cause, on account of which the appellant had filed an application for divorce before the Family Court, Bilaspur on 22-02-2005. After filing of application, the respondent/wife filed an application before the Pariwar Paramarsh Kendra, Raipur before which a compromise was arrived at and the divorce application was dismissed as withdrawn on the basis of the said compromise on 23-04-2005. On the same date, the respondent/wife fell ill, on account of which she was admitted by the appellant/husband at Shaila Nursing Home, Bilaspur and as the appellant/husband had to attend the proceedings pending before Pariwar Paramarsh Kendra, Raipur on 25-04-2005, and after attending the same when the appellant returned back to Bilaspur, he found that the respondent after getting discharged herself had gone alongwith her parent without informing the appellant or his mother. After that the respondent without any basis lodged an FIR against the appellant and his mother for offence u/s 498A of I.P.C. and under the Dowry Prohibition Act, 1961. The appellant had to obtain the order of anticipatory bail from the High Court in the Criminal Case which was instituted on the basis of said FIR, the appellant was convicted by the Trial Court but his mother was acquitted and on appeal being filed by the appellant, the same has been allowed and the appellant has also been acquitted of the alleged offence. As such, the respondent has committed cruelty against the appellant and his family members and has deserted his company without any just and reasonable cause. On this ground, application for divorce u/s 13 of the Hindu Marriage Act, 1955, was filed.

Case of the respondent/wife is that since from the very inception, the appellant as well as his mother were demanding a gold chain and a Hero Honda motorcycle in dowry and were always harassing and torturing her for the same. On 19-02-2005, the appellant as well as his mother has beaten her in connection with demand of dowry and driven out of the house on account of which she had informed her parent on telephone who had come and had taken her alongwith them to their house. Immediately after that, the appellant with the intention to save himself had filed an application for divorce before the Family Court, Bilaspur on 22-02-2005 and the respondent has also filed a complaint against the appellant before the Pariwar Paramarsh Kendra, Raipur for an amicable settlement, a compromise was arrived at and on the basis of the same the divorce application was got dismissed as withdrawn on 23-04-2005. After the dismissal of the divorce application on the basis of said compromise, the respondent fell ill on 23-04-2005 itself and the appellant had refused to provide medical treatment to her, on which on being informed the father of the respondent, who on that date was staying at Bilaspur at his friend''s house, had come to the respondent''s matrimonial home and had admitted her at Shaila Nursing Home, Bilaspur. The appellant as well as his mother had not even come to the hospital to see her and subsequently the respondent was discharged on 25-04-2005 and the entire expenses was borne by her parent. After being discharged, the respondent''s parent had taken her to her matrimonial home with an intention to drop her there but the appellant as well as his mother refused to keep her, on account of which she was taken by her parent to their house and since then she is residing at her parent''s house. The respondent, on account of torture and harassment meted out to her by the appellant and his mother, had lodged an FIR against the appellant and his mother, and has also filed an application u/s 125 of the Cr.P.C. for grant of maintenance as the appellant was not providing the same. FIR was lodged by the respondent against the appellant and his mother on the true grounds such as the respondent has neither treated the appellant and his mother with cruelty nor has deserted his company without any just and reasonable cause but has been compelled to live with her parent.

The Trial Court after affording an opportunity of hearing to the parties and of adducing evidence, has rejected the application for divorce tiled by the appellant/husband vide impugned judgment and decree dated 24-03-2011, against which the present appeal has been filed.

We have heard learned Counsel appearing for the parties and perused the LCR as well as the impugned judgment and decree.

The core question, to be decided in this appeal, is whether the respondent/wife had treated the appellant and his family members with cruelty and has deserted the company of the appellant/husband without just and reasonable cause.

This is not in dispute that after the solemnization of marriage on 30-03-2004 and after performance of Gouna solemnized on 06-06-2004, the respondent/wife had lived with the appellant/husband till 19-02-2005 at her matrimonial home at Sarkanda, Bilaspur. After the Gouna solemnized on 06-06-2004 and till 19-02-2005, the appellant/husband had not alleged any act of cruelty on the part of respondent/wife. According to appellant/husband (Krishna Kumar Dhuri/PW-1) and his mother (Shakuntala/PW-2), the respondent/wife had left her matrimonial home on 19-02-2005 without any just and reasonable cause and had gone to her parent''s house. Contrary to this, the respondent/wife (Santoshi Bai/DW-1) and her father (Mohan/DW-2) have stated in connection with demand of dowry, the respondent was beaten and driven out of the house by the appellant and his mother, on account of which after calling her father the respondent proceeded to his parent''s house. This is not in dispute that immediately after two days, the appellant/husband on 22-02-2005 had moved an application for divorce before the Family Court, Bilaspur without making any efforts for bringing his wife/respondent back to her matrimonial home whereas the respondent had moved an application against the appellant before Pariwar Paramarsh Kendra, Raipur for settling the dispute and on the basis of compromise arrived at, the application for divorce was dismissed on 23-04-2005 as withdrawn. From this admitted position it is clear that on 19-02-2005 when the respondent had left her matrimonial home, the appellant had made no efforts for restitution of conjugal rights but within a period of 48 hours had filed an application for divorce. This shows that the appellant/respondent was, from very inception, trying to get rid of his wife/respondent whereas the respondent by approaching the Pariwar Paramarsh Kendra, Raipur had made efforts for settling the dispute. As such, it cannot be said that on 19-02-2005 the respondent had left her matrimonial home without any just and reasonable cause because had she left the matrimonial home without any just and reasonable cause and without any intention to returning back, then immediately she would not have approached the Pariwar Paramarsh Kendra, Raipur for settling the dispute.

Respondent/wife (Santoshi Bai/DW-1) as well as her father (Mohan/DW-2) has stated that after the dismissal of the divorce petition as withdrawn on 23-04-2005 on the basis of compromise, the respondent had fell ill but the appellant had not arranged for her treatment, on account of which she was admitted in Shaila Nursing Home, Bilaspur by her father and when after discharge from hospital on 25-04-2005 the respondent was taken by her parent with the intention to drop her at her matrimonial home, the appellant as well as his mother had refused to keep her, on account of which her parents had taken her to their house and since then she is residing there. It is not in dispute that till 25-04-2005, no report was lodged by the respondent/wife against the appellant and his mother and on the contrary the respondent had approached Pariwar Paramarsh Kendra, Raipur for settling the dispute between them. When the respondent/wife had got the matter compromised and had gone to parent''s house on 23-04-2005, there was no reason for her not to return to her matrimonial home after being discharged from the hospital on 25-04-2005. It is only when the appellant and his mother had refused to keep her on 25-04-2005, the respondent had returned to her parent''s house and after that an FIR was lodged by her against the appellant and his mother for offence u/s 498A of the I.P.C. It is also not in dispute that the respondent had moved an application u/s 125 of the Cr.P.C. for grant of maintenance and the Family Court, Bilaspur has passed an order granting maintenance in favour of the respondent and against the appellant @ Rs. 1,000/- per month. It is not in dispute that in the Criminal Case, for offence u/s 498A of I.P.C., the appellant was convicted but his mother was acquitted by the Trial Court and on appeal the appellant has also been acquitted of the said offence only on account of the fact that the appellant and his mother have been acquitted of the offence u/s 498A of I.P.C. It cannot be conclusively said that the report lodged by the respondent was totally false and baseless. The appellant has not examined any independent witness on the point that the respondent was treated the appellant and his mother with cruelty and had left her matrimonial home without any just and reasonable cause. On the contrary, the respondent, in addition to her father (Mohan/DW-2) had examined independent witness who had deposed that the appellant had not arranged for the respondent''s treatment, on account of which she was got admitted and treated by her father. As such from the evidence adduced and the conduct of the appellant/husband coupled with preponderance of probability, it stands proved that neither the respondent had treated the appellant and his family members with cruelty nor had left her matrimonial home without just and reasonable cause but is living at her parent''s house out of compulsion on being refused by the appellant and his mother to keep her at her matrimonial home.

In view of the above, the Trial Court committed no illegality or impropriety in passing the award and the same is hereby affirmed.

In the result, the appeal being devoid of substance, deserves to be and is accordingly dismissed. The judgment and decree passed by Family Court, Bilaspur in Civil Suit No. 55-A/2008 dated 24-03-2011 is affirmed.

No order as to costs. A decree be drawn up accordingly by the Additional Registrar (Judicial).