Chattisgarh High Court
Smt. Teena @ Rashmi Choudhary (Rathi) vs Sourabh Soni on 4 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
F.A. (M) No. 89 of 2019
Judgment Reserved on : 12.12.2022
Judgment Delivered on : 04.01.2023
Smt. Teena @ Rashmi Choudhary (Rathi), W/o Sourabh Soni, D/o
Shri Lokesh Khushalchand Choudhary, aged about 32 years, R/o
Pushplok Shiv Nagar, Doubling Colony, Gondia (Maharashtra)
---Appellant/Wife-Defendant
Versus
Sourabh Soni, S/o Shri Tarachand Soni, aged about 36 years, R/o
Ramadhin Marg, Rajnandgaon, District Rajnandgaon (C.G.)
---- Respondent/Husband-Plaintiff
For Appellant : Mr. Kalpesh Ruparel, Advocate.
For Respondent : Mr. Chetan Singh Chouhan, Advocate
on behalf of Mr. Ashish Surana, Adv.
Hon'ble Shri Justice Goutam Bhaduri
Hon'ble Shri Justice N.K. Chandravanshi
CAV JUDGMENT
Per N.K. Chandravanshi, J.
1. This is an appeal preferred by appellant/wife against the judgment & decree dated 08.02.2019 passed by Family Court, Rajnandgaon in Civil Suit No. 24-A/17 whereby decree of divorce has been granted against her on the ground of cruelty and desertion.
2. Essential facts leading to filing of this appeal are that 2 respondent/husband filed an application under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 (for short "Act, 1955") for grant of decree of divorce alleging therein that his marriage was solemnized with the appellant/wife on 15.06.2022 as per Hindu rituals and customs, thereafter, they were residing in his house at Rajnandgaon. After few months of marriage, conduct & behaviour of the wife got changed and she started quarelling with mother of the respondent/husband and also insulted and humiliated her about the domestic works. Despite several efforts made by husband to suggest her to not to do so, instead of changing her behaviour, her conduct and attitude more deteriorated and she also threatening them to implicate in dowry case. The husband in order to save his marital life and being affectionate with the wife, despite opposition of his parents, in the month of August, 2014, he went alongwith wife to her paternal house at Gondia (Maharashtra) as per wish of the wife. He lived there against his self respect for about 3 months, during that period wife and her father used to torture and humiliate him and insisted him to purchase a flat worth Rs.40,00,000/- at Rajnandgaon and deposit the amount by way of Fixed Deposit in her name and when he shown his inability to do so, appellant/wife misbehaved with him and ousted him from her parental home, thereafter, he is residing alongwith his parents. 2.1 It is further pleaded that 2 ½ year prior to filing aforesaid application, wife has deserted him by causing him mental cruelty 3 on various counts. The appellant/wife has not taken any interest in person or through Society to resume their matrimonial relation, which shows her intention that she wants to become free from matrimonial tie by way of divorce. It is further pleaded that the husband has come to know that about two years prior to their marriage, wife has performed love marriage with her fiance and also has conceived from their cohabitation, which was subsequently terminated by her and, thus, the wife has cheated the husband/respondent by concealing this fact and fraudulently performed the marriage with him. Since bitterness, indifference and decent had increased to the extent between them that it was not possible to lead marital life further, therefore, on 10.01.2017, respondent/husband sent legal notice to settle their dispute by dissolving their marriage, despite that she did not take any interest, rather on 16.01.2017, she abused and threatened the respondent to implicate him in dowry case over phone. In this regard, respondent/husband made complaint to the Superintendent of Police, Rajnandgaon & Gondia also. On the basis of aforesaid facts, husband/respondent sought decree of divorce on the ground of cruelty and desertion.
3. In reply, appellant/wife denied all the allegations levelled against her and pleaded that neither she insulted or humiliated her husband & mother-in-law nor insisted him to purchase flat or deposit money by way of Fixed Deposit in her name, rather since 4 her mother-in-law has inherited the property from her parental side, therefore, she always humiliated and insulted her. The husband and his family members belonged to well to do family, despite that dowry was demanded by them, therefore, wife's father had given Rs.9,00,000/- to them and also wife used to bring various articles including money on various occasions of festivals. On 03.07.2013, she delivered their son at her parental place, but her in-laws did not come to see their grand son. She has further pleaded that her mother-in-law is not only orthodox but she also used to play witchcraft and black magic and sometimes it runs up to 24 hours. During that period, touching anything or entry of any outsiders etc. was being restricted. When wife resisted the same, then she was insulted and also beaten by holding hairs. She was also threatened that on being revealed the same to anyone, then, she would be burnt alive. She (mother-in-law) also threatened her that she would kill her alongwith her parental family by contract killing. Even father of husband was also being tortured by her mother-in- law. She has further pleaded that her mother-in-law alongwith her daughter (Nanad) always used to torture the appellant/wife on petty issues. She has further pleaded that she has not concealed her earlier marriage, rather all the documents alongwith order dated 17.04.2008 (total seven pages) were handed over to respondent/husband and after seeing all these documents, he accepted to perform marriage. According to appellant/wife, since 5 2.8.2013, she has been ousted by parents of respondent/husband and they also asked her that they will get divorced anyhow on the basis of their high influence, but the appellant/wife is not ready to get divorce and she wants to lead her marital life with respondent/husband.
4. On the basis of averments made by the parties, the issues were framed and after affording due opportunity of hearing to both the side, learned Family Court decided both the issues in favour of respondent/husband and granted decree of divorce on the ground of cruelty and desertion. Hence, this appeal has been filed by the appellant/wife.
5. Learned counsel appearing for the appellant/wife would submit that vide impugned judgment, decree of divorce has been granted on the ground of cruelty and desertion, but neither it has been pleaded nor proved that which type of cruelty was caused by the wife with the husband or his family members, only saying that cruelty has been caused by the wife is not sufficient in this regard, specific conduct and behaviour of wife should be pleaded and proved. It is further submitted that only alleging on wife that she quarreled with mother-in-law, insulted and humiliated her or husband, is not sufficient to assume mental cruelty by wife towards husband to the extent for granting decree of divorce, as father of respondent/husband himself has admitted in his cross-examination that some sort of quarrel happened between appellant/wife and her 6 mother-in-law. Even, except the statement of respondent/husband and his father that the wife has ever insisted husband to purchase flat worth Rs.40 lakhs at Rajnandgaon or deposit the amount in her name by way of fix deposit, there is no other independent witnesses or evidence to support/prove their averments, which has specifically been denied by the wife.
5.1 Learned counsel for the appellant/wife would further submit that learned Family Court has granted decree of divorce on those grounds, which have not been pleaded and proved by respondent/husband and those allegations are made by wife to show that why she is residing separately. Hence, granting decree of divorce on the basis of those grounds, which have not been pleaded and proved by husband, cannot be sustained. In this regard, he relied on the judgment of the Supreme Court in the matter of Suman Singh v. Sanjay Singh 1.
5.2 It is further submitted that in the month of August, 2014, husband and wife both left for Gondia and resided their for about three months, thereafter, husband himself left the company of wife without any reason and, thereafter, he has not made any effort to resume their marital life, whereas, appellant/wife has filed an application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights in the Court of Civil Judge, Senior Division, Gondia bearing H.M.P. No. 39 of 2018, as she is still 1 (2017) 4 SCC 85 7 ready to resume her marital life with respondent/husband. In reply dated 22.06.2018 (Ex.D-8C) filed by husband, he has admitted that he is ready to lead marital life with appellant/wife, despite that he has filed divorce petition, therefore, desertion has not been made by the wife, rather it is on the part of respondent/husband, hence, granting decree of divorce in favour of respondent/husband on both the counts i.e. cruelty and desertion, is baseless, perverse and erroneous and, therefore, it is liable to be set aside.
6. Per contra, learned counsel for the respondent / husband would submit that conduct and behaviour of wife was not well towards husband and his parents, she always used to misbehave and humiliate them. This fact also shows from complaint made by her against the respondent and his parents under Section 406 read with Section 34 of the IPC at police station, which has been registered and pending before the concerned Court. It is further submitted that alleging upon mother-in-law to play witchcraft / black magic and also alleging greedy to the parents of respondent / husband, as has been pleaded by appellant/wife in her written statement and has also made complaint (Ex. D4C) in this regard to Superintendent of Police and SHO, Rajnandgaon is also an act of mental cruelty committed by her to the respondent/husband because levelling such allegation on mother of-course caused mental torture to the husband. It is further submitted that wife did not want to live with her in-laws and, 8 therefore, she used to insist the husband to purchase flat and thereby pressurizing him to live separately from his parents. To live peaceful life with wife, husband leave his parents and residing at Gondia alongwith wife, despite that due to insult and humiliation meted out to the husband by wife and her father, he could not live there and, thereafter, wife did not resume her marital life with husband/respondent, therefore, judgment & decree passed by the Family Court granting decree of divorce in favour of respondent/ husband does not suffer any infirmity or perversity warranting interference of this Court, hence, the same is liable to be dismissed. To substantiate his submissions, he relied upon the judgment of the Supreme Court in the cases of Samar Ghosh v. Jaya Ghosh 2 & K. Srinivas Rao v. D.A. Deepa 3.
7. We have heard learned counsel for the parties and perused the impugned order, record of the court below and other material available on record with utmost circumspection.
8. Respondent/husband filed an application seeking divorce alleging conduct and behaviour of the appellant/wife, as the same was not respectable towards him and his parents, because she used to insult and humiliate them and thereby caused mental cruelty to him and also that she has deserted him since about November, 2014. Appellant/wife has also admitted in her cross- examination (paragraph 15) that since 22.11.2014, she is living 2 (2007) 4 SCC 511 3 (2013) 5 SCC 226 9 apart from the husband/respondent. The grounds mentioned by respondent/husband in his application are as below :-
(I) After few months of marriage, conduct and behaviour of wife changed and she started quarreling, insulting and humiliating, mother of husband about domestic works.
(II) On being explained by husband and his father, her behaviour and attitude did not change and her arrogancy increased day by day and she also used to threaten them to implicate in dowry case.
(III) To save marital life and having affectionate with the wife, respondent/ husband went to Gondia, which is parental place of wife and lived there for about three months, but she and her father tortured her mentally and insulted him by saying to purchase flat worth Rs. 40 lakhs and deposit amount by way of Fixed Depoxit in her account and when he shows his inability to do so, then wife misbehaved with him and ousted him from her parental home.
(IV) Wife has deserted him, 2 ½ year prior to filing of application seeking divorce, which was filed on 22.02.2017.
(V) That, wife has performed marriage with respondent, fraudulently by cheating him, as she had not disclosed about her earlier marriage and pregnancy therefrom.
10
9. Husband - Saurabh Soni (PW-1), in his deposition, has reiterated the aforesaid facts to prove cruelty on the part of the wife, which has also been supported by his father - Tarachand Soni (PW-2). But to substantiate their allegations in respect of alleged misconduct, misbehaviour or arrogant attitude of wife, neither they have pleaded any fact / act of the wife nor have stated in their deposition, which can be considered as to whether the same, constitutes cruelty up to the level to grant decree of divorce, as has been observed by Hon'ble Supreme Court in the case of Samar Ghosh (supra) and K. Sriniwas Rao (supra) and various other cases. Because it has been held by the Apex Court in the case of Gurbux Singh v. Harminder Kaur 4 that mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of decree of divorce on the ground of cruelty.
10. Although, Saurabh Soni (PW-1) and his father Tarachand Soni (PW-2) have alleged that wife used to threat them to implicate in dowry case, but it has not been pleaded and proved that criminal case in respect of harrassment for dowry under Section 498 -A of the IPC has been lodged by wife against them. Wife - Teena @ Rashmi Choudhary (DW-1) has admitted in her cross-examination that she has lodged criminal case, which has also been admitted by her father - Shri Lokesh Khushalchand 4 AIR 2011 SC 114 11 Chaudhary (DW-2), which is said to be the case under Section 406/34 of the IPC, but even this fact has also not been pleaded and proved by respondent/husband that wife has lodged false and fabricated criminal case against them.
11. Learned Family Court has also taken into consideration in the impugned judgment that wife in her statement has levelled allegation against mother of husband that she used to play witchcraft / black magic and, in this regard, she has also made complaint (Ex.D-4c) to the police but husband has not sought decree of divorce on this ground, as he has neither pleaded nor stated in his deposition, nor find place in his father's statement that wife used to level false allegations upon her mother-in-law that she used to play witchcraft / black magic.
12. Respondent/ husband - Sourabh Soni (PW-1) has deposed in his statement that when he was living with appellant/wife at her parental place - Gondia, then she and her father used to insist him to purchase a flat worth Rs.40 lakhs to live separately from his parents and also deposit money by way of Fixed Deposit in her bank account. His statement has also been supported by his father - Tarachand Soni (PW-2), but these facts have been denied by appellant/wife and she has stated that she is ready and willing to live in the joint family. In such a situation, respondent/husband ought to have adduced some other reliable evidence to prove his statement that wife was pressurizing him to live separately from 12 his parents, but he has not stated anything like he has made complaint to the police or their Social Forum or elsewhere in this regard. Hence, it cannot be held proved that wife was pressurizing husband to live separately from his parents.
13. Although, evidence of both the parties shows, that for about three months, appellant/wife & respondent/husband lived together at parental house of wife at Gondia (Maharashtra), but merely for this reason, it cannot be held that he was compelled by wife to live apart from his parents.
14. In the case of Suman Singh v. Sanjay Singh (supra), their Lordships of the Supreme Court held that in the case of decree of divorce burden rests on claimant to prove and plead grounds to grant decree for the same and the decree of divorce could not be granted on the grounds, which was neither pleaded nor proved. Paragraph 20 & 21 of the judgment read as under :-
"20. We are also not impressed by the submission of the learned counsel for the respondent that since the appellant had made allegation against the respondent of his having extra-marital relation and hence such allegation would also constitute an act of cruelty on the part of the appellant entitling the respondent to claim decree for dissolution of marriage.
Similarly, we are also not impressed by the submission of learned counsel for the respondent that since both have been living 13 separately for quite some time and hence this may be considered a good ground to give divorce.
21. In the first place, the respondent did not seek a decree of dissolution of marriage on these grounds. Second, the grounds of cruelty taken by the respondent in his petition does not include these grounds. Third, even if some stray allegations were made by the wife in her pleading/evidence as were relied upon by the learned counsel are of no relevance because, as mentioned above, these ground were not pleaded in the petition by the respondent for seeking a decree of divorce and nor were put in issue; and lastly, the burden being on the respondent, the same could be discharged by the respondent by pleading and then proving. It was not so done. It is for these reasons, we cannot accept the aforementioned two submissions for affirming the decree of divorce."
15. Since lodging criminal case under Section 406/34 of the IPC and allegations on mother-in-law with regard to playing black magic/witchcraft, as has been levelled by wife, has not been pleaded and proved by husband in the application seeking decree of divorce, hence, it could not be taken as a ground of cruelty against the wife. It has also not been proved by adducing cogent evidence by respondent/husband that he was pressurized by appellant/wife to purchase a Flat and to deposit money by way of 14 Fixed Deposit, therefore, finding recorded by learned Family Court in paragraph 31 of the impugned judgment with regard to cruelty meted out to the husband by the wife is not found to be sustainable.
16. Perusal of order-sheet dated 20.09.2017 of the record of court below would reveal that on application filed by respondent/husband under Order 11, Rule 12 of the CPC, appellant/wife had produced all the relevant documents with regard to her earlier marriage and settlement. Wife or her father have also not been cross-examined by respondent/husband to the effect that they had concealed earlier marriage of wife, therefore, allegation made by respondent/husband that appellant/wife had concealed her earlier marriage and performed marriage with him fraudulently is not found to be correct, which has also not been taken into consideration by the learned Family Court.
17. So far as allegation of desertion is concerned, it is evident from pleadings and evidence of both the parties that since November, 2014, both the parties are living apart. It has also been proved from evidence of both the parties that in the month of August, 2014, appellant and husband had gone to Gondia and resided there for about three months at parental place of appellant/wife and in the month of November, 2014, husband left the company of appellant/wife, thereafter, they are living apart. 15
18. It is settled law that 'desertion' means the intentional abandonment of one spouse by the other, without the consent of the other and without a reasonable cause, therefore, the parties claiming decree of divorce on the ground of desertion is required to be proved following conditions:-
(A) Desertion of petitioner by opposite party without reasonable cause and without consent or against wish of the petitioner.
(B) Desertion by willful negligence of petitioner should be established or to say by desertion, the party deserting has intention to end the marital tie.
19. In the instant case, both the parties left Rajnandgaon and living at Gondia for about three months, thereafter husband has left the company of wife. Thus, in the fact situation of the instant case, it is found that wife has not deserted husband, rather husband has deserted wife. Despite that, if it is taken into consideration that respondent/ wife was obliged to join company of the husband, even then, in the instant case, as has been submitted by learned counsel for the appellant/wife that she has filed an application under Section 9 of the Act, 1955 against husband in the Court of Gondia (Maharastra) and husband has filed reply (Ex.D-8c) wherein he has admitted that he is always ready and willing to keep wife, if she wants to live at Rajnandgoan, though he has filed divorce petition in Family Court, Rajnandgaon. 16
He has also admitted in reply (Ex.D-8c) that he is ready to lead marital life alongwith appellant/wife, despite that husband has not proved any fact that he has ever made any effort to bring wife back to resume their marital life, rather it is proved that wife has not only filed application under Section 9 of the Act, 1955 to resume their marital life, but she has also admitted in her deposition that she still wants to lead her marital life with respondent/husband and she has not deserted him. Her statement has also supported by her father - Lokesh Khushalchand Choudhari (DW-2). Thus, it is found that, desertion is not from the part of wife, rather it is from the part of husband. Hence, the finding recorded by learned Family Court in this regard that wife has deserted husband is also not found to be in accordance with the evidence available on record.
20. For all the aforesaid reasons, we are of the considered opinion that the impugned judgment and decree of divorce dated 08.02.2019 passed by Family Court, Rajnandgaon in Civil Suit No. 24-A/17 passed in favour of respondent/husband is not sustainable and the same deserves to be and is accordingly set aside/quashed. The appeal accordingly stands allowed. Let a decree be drawn up accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (N.K. Chandravanshi)
Judge Judge
Amit
17