Shiv Kumar Chandrakar vs Shashikala alias Devyani

V.K. Shrivastava, J.—This appeal is directed against the judgment and decree dated 26-7-1993 passed by the 3rd Additional District Judge, Raipur in Civil Suit No. 159/1991, by which the petition filed by the appellant for restitution of conjugal rights or in alternate, decree of divorce, has been dismissed.

Facts material for disposal of this appeal are that appellant and respondent were married on 30-6-1971 according to Hindu Rights, at Raipur and out of their wedlock, a daughter was born. They lived together upto August, 1971, thereafter, without having sufficient cause, respondent left her matrimonial home and is living separately since then, and despite various efforts of the appellant, she is not coming back to join her matrimonial house. Therefore, appellant filed an application for restitution of conjugal rights, or in alternate, for grant of divorce.

Respondent in reply, pleaded that she was constrained to live separately as a result of cruel behaviour of her husband and in-laws. Appellant has contacted second marriage and is staying with her, with whom he has two children. Earlier to this application, appellant in the year 1974 had filed a petition for judicial separation against the respondent and the same was dismissed by the District Judge and also by the Hon''ble High Court in Appeal No. 3/75, on 16-2-1978. This petition has been filed on the same facts as such, it is not maintainable. Respondent has obtained an order against the appellant for maintenance and only to escape from his liability, the appellant has filed this application.

Learned Trial Court after due appreciation of the evidence, held that the appellant himself has deserted the respondent since August, 1971 and has kept a woman, with whom he has children. Therefore, by the impugned judgment and decree, dismissed the petition filed by the petitioner.

Heard learned Counsel for both the parties and perused the record.

Appellant earlier filed an application u/s 10 of the Hindu Marriage Act, for grant of judicial separation against the respondent. Learned Court after evaluating the evidence, determined that Smt. Shashikala Chandrakar - respondent has not deserted her husband/appellant. The said judgment and decree was challenged before the High Court. Hon''ble High Court of Madhya Pradesh in First Appeal No. 3/75, by judgment dated 16-2-1978, dismissed the appeal filed by the husband/appellant holding that respondent, the wife had just cause for not resuming cohabitation with the petitioner. The said judgment has not been challenged and as such the finding against the appellant regarding desertion has become final. Once an issue of desertion between same parties has been decided then, the same issue cannot be agitated again in subsequent suits as the bar envisaged u/s 11 of the CPC applies.

Shashikala Chandrakar (NAW 1) in her evidence deposed that the appellant has contacted second marriage with Premlata and resides with her. Out of their wedlock, three children are there. Her oral evidence has been supported by Exhibit NA/4. Except Shivkumar Chandrakar (A.W. 1), no other evidence has been adduced from the side of appellant to contradict the evidence of Shashikala Chandrakar (NAW 1). Learned Trial Court very fairly appreciating the evidence, held that the appellant has kept a woman, with whom he has children.

Shivkumar Chandrakar (AW. 1) deposed that on 30-8-1971, respondent without any notice, left his house and thereafter did not turn up. Sashikala Chandrakar (NAW 1) in her evidence deposed that when she was living with the appellant, she was beaten and was mentally tortured. Appellant himself expelled her from his house and thereafter never came even to see her and now he has contacted second marriage.

On the principle of preponderance of probabilities, the evidence of Sashikala Chandrakar (NAW 1) to the extent that appellant has kept a woman and she left her matrimonial house because of ill behaviour by the appellant against her, was acceptable, therefore, the finding of learned Trial Court that the appellant himself has deserted the respondent, does not appear to be incorrect.

The appellant vehemently contended that Sashikala Chandrakar (NAW 1) in her evidence stated that the appellant has contacted second marriage, therefore, she wants divorce and she also does not want to stay with the appellant, therefore, appellant is entitled for the relief prayed for. On the contrary, learned counsel for the respondent vehemently opposed and contended that evidence as a whole is to be read and ingredients for grant of divorce should be established, in that case only any decree for divorce can be granted. For grant of divorce, it is necessary that grounds mentioned u/s 13 of the Hindu Marriage Act should be proved and for restitution of conjugal right it must be proved that the opposite party without sufficient cause has left. In the instant case, it has been established that respondent has not deserted the appellant and having sufficient cause she is living separately from her husband. Without any pleading, statement of Sashikala Chandrakar (NAW 1), who says that she is also wiling to give divorce is neither admissible nor it can be acted upon.

In the result, no interference is called for in the impugned judgment and decree, hence, the appeal is liable to be dismissed and is accordingly dismissed.

Appellant shall pay the cost of the appeal to respondent. Counsel fee as per rule.