Chattisgarh High Court
Smt. Saroj vs Videsh Kumar on 17 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1 / 11
2025:CGHC:3198-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 17-12-2024
Judgment delivered on : 17-01-2025
FA(MAT) No. 39 of 2020
Smt. Saroj W/o Videsh Kumar Sahu, aged about 28 years, R/o Village
Pendri, Ward No.20, Tahsil & District Rajnandgaon (CG)
---- Appellant/Defendant
versus
Videsh Kumar S/o Shri Chandra Shekhar Sahu, aged about 30 years,
Caste - Teli, Village - Pendri, Ward 20, Tahsil & District Rajnandgaon
(CG)
---- Respondent/plaintiff
For Appellant : Mr. Aditya Bhardwaj, Advocate.
For Respondent : None.
Hon'ble Smt. Justice Rajani Dubey, J
Hon'ble Shri Justice Bibhu Datta Guru, J
C A V Judgment
Per Rajani Dubey, J
Challenge in this appeal under Section 19(1) of the Family Courts Act, 1984 is to the legality and validity of the judgment and decree dated 26.6.2019 passed by Family Court, Rajnandgaon in Civil Suit No.121-A/2017 whereby the application under Section 27(1)(B)(D) 2 / 11 of the Special Marriage Act, 1954 filed by the respondent/plaintiff has been allowed and consequently, the marriage of the parties solemnized on 7.7.2008 has been dissolved.
02. The admitted fact is that marriage of the appellant with the respondent was solemnized on 7.7.2008 before the District Marriage Officer, Rajnandgaon and from their wedlock, one daughter was born who is living with the appellant.
03. The respondent/plaintiff filed an application under Section 27(1) (B)(D) of the Special Marriage Act, 1954 with the averments that after marriage, behaviour of the appellant towards the respondent and his family members was ignorant and cruel; she started pressurizing the respondent for living separately from his parents and even when the respondent was living separately at Kaurinbhata, Rajnandgaon in a rented accommodation, she used to pick up quarrel on trivial issues and started going to her parental house every now and then. After birth of a daughter, she lived with the respondent only for six months and thereafter, on the pretext of seeing her parents, she left the rented accommodation of her own and started living at Village-Pendri, Rajnandgaon. Though the respondent tried his level best to bring her back through intervention of his relatives and friends and also filed an application under Section 22 of the Special Marriage Act before the Family Court, Rajnandgaon for restitution of conjugal rights but despite issuance of several notices and even after publication of notice in 3 / 11 newspaper, she deliberately remained absent. Ultimately, being fed up with the conduct of the appellant, he withdrew the said application on 28.8.2010. She is deliberately living separately from the respondent for the last 7-8 years and therefore, he prayed for grant of a decree of divorce on the ground of cruelty and desertion.
04. The appellant/defendant in her written statement contended that as she is of Satnami caste and the respondent is of Sahu caste, he did not ever take her to his home and was residing separately with her. After birth of the daughter, she was living with him at Karuinbhata. However, after some time he stopped living with her there, he also did not pay any attention to the daughter, stopped paying the rent and giving her money, therefore, she was compelled to leave the said accommodation and live at her parental house. She stated that she neither received any notice from the Court nor has any knowledge about publication of notice in the newspaper. The respondent never took any step to keep her with him. Theirs was a love marriage. After marriage, they lived together for two years in Jagdalpur (CG). The respondent has two mothers, the biological mother living at Village- Pendri and step mother in Jagdalpur with his father. She being a member of scheduled caste, the respondent never took her to either of his houses. After return from Jagdalpur, they lived for four years in rented accommodation and in the year 2009 he went away saying that he is going to Jagdalpur and thereafter stopped visiting her and giving her money for daily expenses which forced her to live at her parental 4 / 11 house. As the respondent got government employment, he wanted to get rid of her and contract second marriage, therefore, on false allegations he filed the instant application. She stated that though she wants to live with the respondent, however, if the Court finds that there is no possibility of restitution of conjugal rights between the parties, the respondent be directed to give Rs.20 lacs as permanent alimony for the maintenance of the appellant and the minor daughter.
05. Based on the pleadings of the respective parties, the learned Family Court framed issues and after appreciation of oral and documentary evidence, allowed the application of the respondent/plaintiff on the ground of desertion by the impugned judgment and decree dissolving their marriage solemnized on 7.7.2008. Hence this appeal by the appellant/defendant.
06. Learned counsel for the appellant would submit that the impugned judgment and decree are illegal and based on conjecture and surmises. From the conduct of the respondent it is explicit that he did not take the appellant to her matrimonial house because she belongs to scheduled caste community. The appellant never left the house of the respondent of her own. In fact, when the respondent stopped living with her at the rented accommodation and even did not pay the rent and give money to her, she had no option except to leave that house with her daughter for her parental house. He would submit that the appellant had no information about the application under 5 / 11 Section 22 of Special Marriage Act filed by the respondent because no notice was ever served upon her. Even she had no knowledge about publication of notice in the newspaper as no newspaper comes to her parental house. As the respondent has got government job, he wants to perform second marriage and get rid of the appellant and the daughter, therefore, on false grounds he filed the suit for a decree of divorce. Learned trial Court did not appreciate the oral and documentary evidence properly as well as conduct of the respondent towards the appellant, hence the impugned judgment and decree are liable to be set aside.
07. None appears for the respondent despite service of notice.
08. Heard learned counsel for the appellant and perused the material available on record.
09. It is not disputed before the learned Family Court that marriage of the parties was solemnized on 7.7.2008 and from their wedlock, one daughter was born.
10. The respondent/husband filed an application under Section 27(1) (B)(D) of the Special Marriage Act on the ground of cruelty and desertion. He examined himself as PW-2 and one witness Bhagichand Sai as PW-1 whereas the appellant/wife examined herself as DW-1 and her mother Smt. Keshari as DW-2.
11. PW-1 Bhagchand Sai states that when wife of the respondent left 6 / 11 his home without informing anyone, the respondent tried his level best to bring her back but she did not return. In cross-examination he admits that he does not remember the dates when the respondent went to the parental house of the appellant for bringing her back.
12. PW-2 Videsh Kumar, husband, states that the appellant/wife left his home without any sufficient cause. He made many efforts to bring her back and ultimately filed an application under Section 22 of the Special Marriage Act for restitution of conjugal rights but she did not receive any of the notices of that case and even after publication of notice in the newspaper on 3.6.2010, she did not turn up before the Family Court, so after some time he withdrew his application on 28.8.2010 and filed the present petition for divorce. In cross- examination he denied the suggestion that he is not willing to keep his wife because she is of different caste. He also denied the suggestion that he deliberately kept her separately to make a ground for divorce.
13. The appellant/wife (DW-1) states in her affidavit under Order 18 Rule 4 of CPC that her husband kept her in a rented accommodation and after getting job in police department he stopped visiting her at Kaurinbhata and also stopped paying rent and money for household expenses, so she went to her parental house. She states that she is still willing to live with her husband. In cross-examination she admits that she has no knowledge as to since when her husband is working in police department and that no meeting was convened in the village for 7 / 11 their reunion. She also admits that she filed an application seeking maintenance after the plaintiff filed an application for divorce. She further admits that after going to her parental house at Pendri, she never lived with her husband. She states that she has been living at her parental house at Pendri for the last 07 years.
14. DW-2 Smt. Keshari, mother of the defendant, admits that the appellant/wife after living at Kaurinbhata for about one and a half years came back to live with her. She then volunteers that as he deserted her, so she came to Pendri. She admits that no social meeting was ever convened for sending her back to the matrimonial house. She states that she has no knowledge whether any application was filed by the respondent for bringing the appellant back.
15. It is clear from the statement of wife that she did not make any effort to go back to her husband and that she went to her parental house of her own. The Hon'ble Supreme Court in the matter of Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73, observed in paras 6 & 9 of its judgment as under:
"6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such 8 / 11 feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.
9. Following the decision in Bipinchandra case [AIR 1957 SC 176] this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one 9 / 11 spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation."
16. The Hon'ble Supreme Court in the case of Debananda Tamuli Vs. Kakumoni Kataky reported in (2022) 5 SCC 459 observed in para 7 of its judgment as under:
"7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting 10 / 11 spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976. The said Explanation reads thus:
"13. Divorce.-- (1) ............
3[Explanation.--In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."
17. Upon minute appreciation of oral and documentary evidence on record, the learned trial Court found that the husband tried to bring his wife back to his house many a time and even filed an application for restitution of conjugal rights but the wife remained adamant and she did not appear before the Family Court despite issuance of notices as also publication of notice in the newspaper. It is an admitted position in this case that since 2009 the parties are living separately. Looking to the overall evidence and conduct of the parties, the learned trial Court observed that the wife is living separately without any just and reasonable cause. It is also clear that the plaintiff's job is at another 11 / 11 place and the wife never resided with him for a considerable period. Therefore, the learned trial Court found that Issue No.1 regarding cruelty is not proved against the wife but issue No.2 regarding desertion is duly proved against her and granted decree of divorce in favour of the husband on that ground. We find no good ground to interfere with this finding of the learned Family Court.
18. As regards permanent alimony, it is clear that the husband is working in police department and he also admits that he is paying maintenance to his wife and daughter. Therefore, in the given facts and circumstances of the case, a permanent alimony of Rs.10,000,00/- (Rupees Ten Lakhs Only) is awarded in favour of the appellant/wife.
19. In the result, the appeal is allowed in part. The impugned judgment and decree of learned Family Court are hereby affirmed. The respondent/husband is directed to pay a total sum of Rs.10 lacs as permanent alimony to the appellant/wife within a period of three months from the date of passing of this judgment.
A decree be drawn up accordingly.
Sd/ Sd/
(Rajani Dubey) (Bibhu Datta Guru)
Judge Judge
Digitally
MOHD signed by
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan