Chattisgarh High Court
Yashwant Sahu vs Smt. Abha Sahu on 22 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 279 of 2018
• Yashwant Sahu S/o R P Sahu Aged About 34 Years R/o House No.
377, Sunder Nagar, Raipur, District- Raipur Chhattisgarh.
---- Appellant
Versus
• Smt. Abha Sahu W/o Yashwant Sahu Aged About 33 Years D/o M L
Sahu, R/o Bungali Para, Near Sai Mandir, Old Sarkanda, Bilaspur,
District Bilaspur Chhattisgarh.
---- Respondent
FAM No. 299 of 2018
• Smt. Abha Sahu W/o Yashwant Sahu Aged About 33 Years D/o Shi
M. L. Sahu, R/o Near Sai Mandir, Bengali Para, Purana Sarkanda,
District Bilaspur, Chhattisgarh.
---- Appellant
Versus
• Yashwant Sahu S/o R. P. Sahu Aged About 34 Years R/o House No.
377, Sunder Nagar, Raipur, District Raipur, Chhattisgarh.
---Respondent
For Appellant in FAM No.279/2018 : Shri VR Tiwari, Sr. Advocate with
Shri Ashish Gupta, Advocate
For Respondent in FAM No.279/2018:Shri Bharat Gulabani, Advocate
For Appellant in FAM No. 299/2018 :Shri Bharat Gulabai, Advocate
For Respondent in FAM No.299/2018:Shri VR Tiwari, Sr. Advocate with
Shri Ashish Gupta, Advocate
Hon'ble Justice Shri Goutam Bhaduri
Hon'ble Justice Shri N.K. Chandravanshi
Order On Board
Per Goutam Bhaduri, J
22.11.2022 Heard.
1. Since both the appeals arise out of Judgment dated 27.10.2018 passed by Family Court, Bilaspur in Civil Suit No. 2 19-A/2016, they are being heard and disposed of by a common order.
2. The Appeal No.279/2018 has been filed by the husband against the dismissal of decree of divorce, whereas Appeal No.299/2018 has been filed by the wife for return of Shridhan.
3. Brief facts of this case, are that, the appellant and the respondent were married on 15.02.2013, thereafter they started living at Pune, Maharashtra. It is alleged by the husband that in the month of August 2014, while they were returning to Raipur, the husband got down at Raipur, whereas, the wife came to Bilaspur at her parental place and since 2014 she is living with her parents. It is further stated that certain photographs and communication were retrieved from the lap top and face book of the wife by the husband, wherein she was seen in obscene position with other males outside the marriage. Therefore, it amounts to cruelty. It is further alleged that even after marriage, the wife continued her relation with other males. It is further pleaded that false report was lodged by the wife against the family members of the husband under Section 498-A IPC, which also amounts to cruelty. Therefore, for those reasons, the husband is entitled for divorce.
4. Whereas, the wife has contended that after the marriage she was subjected to torture for demand of dowry by the husband and only on presumption and doubt, character of the wife has 3 been assassinated. It is further stated by her that because of the fact that Rs. 2 lakh dowry was not paid, the wife was forced to leave the matrimonial house and the Shridhan, i.e. car, laptop, documents and ornaments have been in the possession of the husband which he is not returning. It is further stated that she has never deserted her husband and she is ready to continue with her matrimonial relation and prayed for dismissal of the application for divorce.
5. The learned Court below framed two issues about cruelty and desertion. With respect to cruelty, it has not been proved and in respect of desertion, it has not been proved that the wife deserted the husband before two years of filing of divorce petition, therefore, that would not be maintainable. Being aggrieved by such judgment and decree, present application.
6. Learned counsel for the appellant/husband, referring to the order of acquittal dated 14.9.2021 passed by Judicial Magistrate First Class, in criminal trial, would submit that the acquittal was recorded in favour of the husband and entirety of the judgment would show that all the evidence were considered on merit which was adduced at behest of the wife, therefore, the averments would amount to cruelty. Referring to the articles and photographs and communication retrieved from the laptop and face book of the wife would go to show that the wife was in 4 relation with other males outside the marriage which also amounts to cruelty towards the husband by the wife. He would further submit that though the wife has stated that social meeting took place on 22.02.2015, but finding of the court below was that no such meeting ever took place which would show that the wife has deserted the husband without any valid reason. Under these circumstances, the husband is entitled for divorce. So far as return of Shridhan and other articles is concerned, learned counsel would submit that finding of the learned trial Court is that those laptop and car may be required for subsequent criminal proceeding, which is well justified. Consequently, appeal preferred by the wife also has no force and the same deserves to be dismissed.
7. Per Contra, learned counsel for the respondent/wife would submit that the wife was not being given adequate amount to survive for daily life though she was taking care of child with her and that those persistent acts amounts to cruelty. In respect of demand of return of Shridhan, i.e. car, laptop etc. it is stated the admission exists on the part of the husband that those goods belongs to the wife. He would further submit that admission of father of the appellant/husband would further show that amount of Rs.18 lakhs was paid by the parents of the wife to purchase house at Pune, which is also required to be reimbursed to the 5 wife. Under these circumstance, dismissal of return of the goods by the learned trial Court, is unjustified.
8. We have heard learned counsel for the parties at length and perused the evidence on records.
9. During the pendency of this appeal, an order dated 14.9.2021 has been placed, passed in Criminal Case No.3491/2016 by the Judicial Magistrate First Class, Bilaspur, whereby acquittal order was passed in favour of the husband pursuant to criminal trial under Section 498-A read with Section 34 IPC started on complaint of wife.
10. Marriage in between the parties on 15.02.2013 is not in dispute. According to the husband, after marriage, certain objectionable photographs and communications in respect of the wife were retrieved from the laptop and face book of the wife, which have been placed on record. Ex-A/1, A/2, A/3, A/4, A/5 are the communications which would show that these communications are of 20th June, 2011 & 5th April 2011. As against those facts, with passage of time, the marriage in between the parties was in the year 2013, therefore, it would prima facie show that those communications were before the marriage . In respect of Articles A/1, A/2, A/3, A/4, A/5 and A/6, which are the photographs, they do not have any separate date or having been proved by its negative or other means. Those photographs when 6 were confronted to the wife, she has denied the background of it and also stated that those photographs are edited photographs. Therefore, in absence of any other supportive or corroborative evidence, it is not clear when those photographs were clicked, wherein presence of the wife appears to be in group. Those photographs also do not establish the fact that after the marriage she was in relation with other male members. Even otherwise, even if photographs are admitted, those photographs do not lead to form a prima facie opinion that the wife was in relation with the people outside the marriage. The photographs are general in nature. Articles 1 to 20 are the photographs, which do not depict any obscene gesture. Therefore, finding of the learned court below that those photographs cannot be termed as obscene, appears to be correct.
11. The husband has averred that false allegations of demand of dowry was made by the wife towards entire family of husband, wherein entire family has been inculpated. In the cross examination of the wife, suggestion was given to her wherein she has denied the suggestion that she has made any false report under Section 498A IPC. So she stands with her report. In the cross examination she further stated that after the divorce case was filed by the husband, she was asked to get dismiss her complaint under Section 498A IPC. She was confronted by the 7 counsel that she never made any report for demand of dowry earlier at Mahila Thana, before the notice of divorce was filed, in reply to it, she denied it but volunteered that she made a report but her husband had filed a case for divorce. So report to the police for demand of dowry was made. Perusal of the counseling papers, which are placed as part of Ex-A/17 shows that after the report to police when counseling was conducted she had not made allegations of any demand of dowry. Perusal of the record of the Court below would show that appellant/husband Yashwant Sahu, Dr. Punit Seth, Ramesh Prasad Sahu (father-in-law), Smt. Uma Sahu (mother-in-law) and Smt. Pushpanjali Seth were arrested under Section 498 A read with 34 IPC and order dated 30.8.2016 passed in CrMP N0.926/2016 would show that further proceedings in respect of the trial against all the above, except husband Yashwant Sahu, was stayed. Subsequently, the husband is acquitted vide order dated 14.9.2021 of the charges under Section 498-A IPC. Perusal of the order shows that the learned Magistrate after evaluation of the evidence, doubted the statement made by the prosecution witnesses and the complainant/wife and eventually acquitted the husband. It is stated that this acquittal order is the subject of appeal before this Court. Be that as it may, as on today, the husband/appellant stands acquitted of the charges under Section 498A IPC. 8
12. Further the Supreme Court in the matter of Rani Narasimha Sastri v. Rani Suneela Rani [(2020) 18 SCC 247] observed that when the prosecution was launched against the husband on a complaint made by the wife under Section 498A IPC, making serious allegations in which the husband and his family members were constrained to undergo trial which ultimately resulted into acquittal, then in such case it cannot be accepted that no cruelty was meted out on the husband, therefore he can make a ground for grant of decree of dissolution of marriage under Section 13(1) (i-a) of the Hindu Marriage Act. In the instant case, things as stand today would show that the respondent/wife knowingly and intentionally filed a complaint which resulted into acquittal and she maintained her statement in the examination and cross- examination that she had not made any false complaint. Thus, those statements have been negated at present by judicial verdict. Perusal of the order of the Judicial Magistrate would also show that in the order, though the evidence of prosecution was discussed at length to test the veracity of statement of prosecution witnesses, at the last stage, it has been observed that the benefit of doubt has been given to the husband for acquittal. Therefore, in our view that solitary observation by the Court cannot be read in isolation to the other discussions made by the court on merits.
13. In case of Raj Talreja vs Kavita Talreja AIR 2017 SC 2138 9 the legal position as to when a false complaint would amount to cruelty was also examined, as below:
"11. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act, 1955 (For short the Act). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty."
14. In the aforesaid legal position, we are of the view that on a complaint made by the wife, the entire family of the husband was inculpated in the criminal trial, which would definitely have the effect of lowering their reputation in the society and will also have an adverse affect in the social standing of the family as it results into isolation of the family, who faced criminal trial before the Court. Therefore, before making such allegations, regard must be had to social status, educational level of the parties and the society they move-on, otherwise such allegations would amount of 10 cruelty.
15. As per the evidence on record, after August 2014, both the parties are living separately. No efforts have been made from either of the parties to reconcile. It is stated that as many as more than 25 cases are against each other and circumstances shows that reconciliation between the parties is far remote resulting into irretrievable break-down of marriage which is beyond repair. Taking into the totality of the facts, for the reasons stated above, we are inclined to pass decree of divorce and it is ordered that marriage in between the parties dated 15.02.2013 shall be dissolved by a decree of divorce on the ground of cruelty.
16. Coming back to return of goods to the wife, she made an application before the Court below under Section 27 of the Hindu Marriage Act, during the pendency of the case for return of her car i10 bearing registration No.MH 14 DA 7735 and Laptop HP model. The learned trial Court has observed that the said car and the laptop may be required in evidence by the husband in the criminal case. As of now, criminal case stands concluded by order dated 14.9.2021, wherein, the husband has been acquitted for the offence under Section 198A IPC. Apart from it, if the goods belong to the wife and parties are litigating and have lost faith on each other, then the husband could not have retained the same for any ground what so ever when the ownership belongs to the 11 wife. In the facts of the case, since considerable time has passed, we direct the husband to return the car and the laptop to the wife with an additional depreciation value of Rs.3 lakh further. Further it is stated that wife and the child are getting maintenance of Rs.6,000/- each, total Rs.12,000/-. It has been stated that both the parties are not working at present. It is stated that already Rs.6,000/- each is granted to the wife and the child. Taking into consideration the fact that both are educated and other circumstances, we deem it proper to increase the maintenance to the wife to the extend of Rs.12,000/- per month and Rs.6,000/- per month to the child.
17. Both the appeals are accordingly disposed of.
18. The decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (NK Chandravanshi)
Judge Judge
Bini