Chattisgarh High Court
Smt. Jyoti Sharma vs Yogesh Sharma on 5 December, 2023
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 107 of 2022
Smt. Jyoti Sharma W/o Yogesh Sharma Aged About 37 Years
Present Address - Near Indira Vihar, Near Choubey Colony Sarkanda Bilaspur
P.S. Sarkanda, Tahsil and District Bilaspur Chhattisgarh. --- Appellant
Versus
Yogesh Sharma S/o Omkar Sharma Aged About 39 Years R/o Shakti Chowk,
Rajkishore Nagar P.S. Sarkanda Tahsil and District Bilaspur Chhattisgarh.
--- Respondent
FA(MAT) No. 73 of 2022
Smt. Jyoti Sharma W/o Yogesh Sharma, Aged About 37 Years
Present Address- Near Indira Vihar, Near Choubey Colony Sarkanda Bilaspur
P.S. Sarkanda, Tahsil And District Bilaspur (Chhattisgarh) --- Appellant
Versus
Yogesh Sharma S/o Omkar Sharma Aged About 39 Years
Presently R/o Shakti Chowk, Rajkishore Nagar P.S. Sarkanda Tahsil And
District Bilaspur (Chhattisgarh) --- Respondent
For the Appellant : Mr. H.V. Sharma, Advocate
For the Respondent : Mr. Achyut Tiwari, Advocate.
Hon'ble Shri Justice Goutam Bhaduri, Judge &
Hon'ble Shri Justice Deepak Kumar Tiwari Judge
Judgment on Board
(05.12.2023)
Per Deepak Kumar Tiwari, J
1) Both the appeals have arisen out of a consolidated judgment and decree dated 30th March 2022 passed by the Additional Principal Judge, Family Court Bilaspur whereby the Civil Suit filed by the wife u/s 9 of the Hindu Marriage Act (for short "HMA") for restitution of conjugal rights bearing C.S. No.108-A/2016 was dismissed whereas the civil suit filed by the husband u/s 13 (1)(i-a) (i-b) of HMA bearing C.S. No. 16-A/2018 was allowed. Since the facts and pleadings are almost similar in both the Page 2 of 11 appeals, they are decided by this common judgment.
2) It is an admitted fact that the parties got married on 11 th May 2014 as per the social customs and out of such wedlock no child was born. It is also admitted that prior to the marriage, both the husband and wife were in government jobs and the wife is posted as Project Officer in Women and Child Development Department of State of Chhattisgarh and the respondent husband is also employed in health department of State of Chhattisgarh. It is also not disputed that the wife has filed the petition u/s 9 of the HMA on 23 rd Feb. 2015 and the respondent husband has filed petition for decree of divorce on 9 th January 2018. It is also not disputed that both the husband and wife are living separate since 16 th September 2014 and on 17th September 2014, the wife has made a Police complaint to SHO Sarkanda that she was harassed by her in-laws for bringing less dowry and also made a demand of Car and Rs.5 lakhs and in the night of 16 th September, 2014 at night at 10.30 p.m., the respondent husband and her mother in law started hurling abuses and beaten her on the issue of bringing less dowry. The wife has further made similar complaint on 3 rd August, 2015 to the Superintendent of Police, Bilaspur.
3) The father of the respondent husband has also given intimation about the family dispute before the Family Counseling Center Mahila Thana Bilaspur on 17th Sept. 2014 that in the night of 16 th September, 2014 at about 11 p.m., the appellant wife has created panic by threatening that she will commit suicide and further would inculpate them in dowry harassment and on the same day, she left the matrimonial house and went back to her parental home along with his father.
4) In civil suit No.16-A/2018 filed by the husband, the order sheet dated 03rd January, 2019 shows that the court below has recorded the fact that an application was submitted by the appellant wife Jyoti Sharma on Page 3 of 11 15.10.2018 requesting that the evidence separately given in case of Section 9 of Hindu Marriage Act bearing Civil Suit No.108-A/2016 (mentioned in the order sheet of case no. 200-A/2016) filed by her be included in Case filed by the Husband u/s 13 of HMA and the same evidence be read u/s 13 of HMA. Considering the nature of subject matter and pleadings of the parties, the evidence though recorded separately in each case, both the cases have been consolidated by the court below. Even during the cross-examination of the wife, she has agreed to adopt and read the evidence which was recorded in the other case filed by her u/s 9 of HMA for restitution of conjugal rights.
5) In the petition filed by the husband, it has been pleaded that after the settlement of the marriage, just 3 days prior to marriage of the parties the appellant wife threatened the respondent over phone saying that the number of wedding guests (Baraties) should not be exceeded too much and asked the husband to limit the guests though both the parties have already agreed to such issues. When such fact was intimated by the respondent to the father of the wife, he made an apology about the behaviour of the wife. After solemnization of marriage on 11 th May, 2014, the wife came to the matrimonial house on 12 th May, 2014 and on 14th May, 2014 brother of wife took her back to the parental home and she has returned after 3-4 days to the matrimonial house where she stayed only for 2 to 3 days and by saying to prepare the PSC examination, again returned to her maternal home and she resided there about one month and thereafter again came back to the matrimonial house where she started making quarrels with the husband and in-laws and the wife does not like the visiting of his sisters and their children and also raised an issue to live separate from his parents.
6) It is further pleaded by the husband that she is also not cooperative in sharing the household works and used to threaten to commit suicide Page 4 of 11 and to implicate him in a false case. She also often used to go to the parental house without any information to the husband and in-laws. The father of the wife on 5 th September 2014 dropped her in matrimonial home where she resided only for 9 days and on 16 th September, 2014 and tried to commit suicide and by creating panic at in-laws' house, called her father and went back to her parental house. Thereafter, she never came back to the matrimonial home.
7) The father of respondent wife has given information on 17 th September 2014 to the Family Counseling Center of Mahila Thanka Bilaspur. Thereafter, on various dates counseling was done and in such counseling proceedings held on 20th September 2014 and 23d November 2014, the wife has categorically stated that she is not inclined to join the company of husband. The father of husband has also given information on 23rd November 2014 to SHO Sarkanda and Chairman State Human Rights Commission as the non-applicant wife refused to join the company of husband and in the counseling held in November 2014 also extended threat to send the respondent and his family members to jail. It is further pleaded that the wife has also made complaint u/s 498-A/34 of IPC and Section 12 of the Protection of women from Domestic Violence Act therefore in such background it is very difficult for him to reside with the wife and prayed for grant decree of divorce.
8) The wife has filed written statement and has denied the allegations made in the plaint averments. She states that the respondent husband and his mother, father, and sisters used to harass her for bringing less dowry and they also made comparison of dowry articles which were offered to the cousin of the husband namely Jalas Sharma at the time of his marriage and the in-laws used to quarrel, assault and abuse her in filthy language. She further pleads that the family members of the Page 5 of 11 husband were also creating pressure to add the name in her bank account along with the respondent husband and also demanded to give ATM card of her bank account to them. She has further pleaded that on 16th Sept. 2014 she was harassed and beaten for bringing less dowry as also for other reasons of declining to give her ATM Card and non- fulfillment of demand of Rs.5 lakhs in cash and a Car and they had also broken her mobile. When such fact came to the notice of her father that his daughter was ousted from the matrimonial house, he took her to parental home. She would further submit that she has already filed an application for restitution of conjugal rights and after completion of hearing in that case, the petition for divorce has been filed by the husband only to harass the wife. She would further plead that husband is under the pressure of his father, mother and sisters and due to such pressure, the husband is not willing to bring the wife back. So the prayer is made to dismiss the divorce petition and allow her petition for restitution of conjugal rights.
9) Learned family Court after hearing the submission of the parties and on appraisal of the evidence and facts available on record held that the appellant wife has deserted the husband and allowed the petition filed by the husband by granting decree of divorce in favour of the husband and rejected the restitution petition filed by the wife. Hence both these appeals by the wife.
10) Learned counsel for the appellant wife would submit that after the marriage, the respondent husband as also his family members used to quarrel with the wife for bringing less dowry and also made torture on such issues and after the marriage of cousin brother of the husband namely Jalas Sharma, they started comparing the dowry articles which were offered to Jalas Sharma and raised the demand of Rs.5 lakhs and a Car. He would submit that on 16 th Sept. 2014, the wife was harassed Page 6 of 11 on such issue in a cruel manner and was ousted from matrimonial house. In such circumstances, she has lodged the report to the Police and the wife is always willing to join the company of her husband to save her married life. For the said purpose, she has also filed a petition u/s 9 of the Restitution of Conjugal Rights on 23 rd Feb. 2015. When such matter has reached to final stage, only to frustrate such petition the husband with an ulterior objective filed a baseless petition seeking decree of divorce on 9th January 2018. He submits that the wife has never deserted the respondent husband. He would further submit that a composite order was also not passed in proper manner. He would further submit that on 17th Sept. 2014 when the wife came back to her matrimonial house, she was not allowed to enter in the house. So in such circumstances, she was living separately. He therefore submits that considering these aspects, the judgment passed by the learned Family Court is perverse and prays to allow the appeals of wife and set aside the decree of divorce granted in favour of husband by allowing the restitution petition of wife u/s 9.
11) On the other hand, learned counsel for the respondent would submit that the respondent husband is only the son of his parents and prior to his marriage, his too elder sisters have already been married and they are residing separately in their in-laws' house. He would submit that her both sisters are in government jobs. He would further submit that after the marriage, the wife used to quarrel on various petty issues even by creating pressure to live separate from the parents. He submits that even the respondent husband has agreed to the same and in counseling proceeding held before the Family Counseling Center of Police Station on 20th Sept. 2014 and 23 rd Nov. 2014, the wife had categorically refused to come-back and join the company of the husband and only to harass the husband, she has filed an application u/s 9 of the Restitution of Conjugal Rights. It is further submitted that the wife has filed Page 7 of 11 complaint against the husband, his father and both his married sisters before the CJM Bilaspur which was registered as Case No.1586 of 2015. He further submits that on 16 th Sept. 2014, the wife has herself left the matrimonial house after creating panic and tarnishing the image of the family of the husband in the society. So the trial Court has rightly appreciated the evidence and found that the wife herself is at fault and deserted the husband without rhyme and reason. Hence the decree of divorce granted in favour of the respondent husband is well merited, which does not call for any interference.
12) In order to appreciate the submission put-forth by learned counsel at the bar, we have examined the evidence available on record. It is settled proposition that the burden of proving the case to obtain a decree of divorce is always on the plaintiff who must rely on reliable evidence for the said purpose.
13) In the instant case, the wife admits in her cross examination of Civil Suit No.16-A/2018 that after the marriage she made a complaint case u/s 498-A/34 of IPC against the respondent husband and his close relatives and also filed complaint u/s 12 of The Protection of Women from Domestic Violence Act. She further admits that both are residing separately since 16th Sept. 2014. In the cross examination at Para 15 she denied that during counseling proceeding, she had given the statement that she is not willing to join the Company of the respondent husband. Perusal of the counseling proceedings held on 28 th Sept. 2014 before the Family Counseling Center, Mahila Thana Bilaspur which has been marked as Ex.P-3(C ) in Civil Suit No.16-A/2018 shows that a categorical statement was made by the wife that she is not willing to join the Company of the husband though the husband has made an offer to take a separate house on rent and live separate along with the wife. In spite of such submission, the wife has taken time to consider such Page 8 of 11 proposal. So the next date was fixed for 18 th October 2014. On such date, again the wife has put another condition which was supported by her parents. Since it has been disclosed during the time of marriage that there are two separate houses owned by in-laws, they have performed marriage with the respondent husband and also made a condition that the wife will not incur any expenditure. Even if the husband lost his job then also the expenditure has to be borne by the husband alone and further he has to take a house on rent in a good place for separate living and if he fulfills such conditions then only she will join the company of the respondent.
14) After such counseling proceeding, the wife has filed petition u/s 9 of the HMA for restitution of conjugal rights on 23 rd of February 2015. It is significant that on 17th Sept. 2014, the wife had also made a police complaint at Police Station Sarkanda, in which, she has stated that after the marriage, she was harassed by her in-laws for bringing less dowry and they demanded a Car and Rs.5 lakhs and she further alleged that the incident happened with her in the night of 16 th September at 23.00 hours wherein her mother-in-law and husband assaulted and abused her in filthy language and they had also broken her mobile and pushed her out from matrimonial house and the said fact was informed to the father by Uttam Sharma and neighbor Shrikant Diwan. When her father has reached to the spot he brought her back to the parental house. The wife has also made a similar complaint to the SP on 3 rd August, 2015.
15) On Sept. 2014, the father of the respondent husband had also given intimation of such family dispute before the Family Counseling Center of Police Thana Bilaspur that in the night of 16 th Sept. 2014 at 11.00 p.m. the appellant-wife created a scene and threatened him and his family to trap in dowry harassment and send them to jail and also threatened to commit suicide and she was supported by her father and brother. The Page 9 of 11 said complaint was proved as Ex.N.A-1(C).
16) The respondent husband in the matter of restitution of conjugal rights, in cross examination at para 36 categorically stated that he had tried his level best to save his married life. Even he has also taken a separate house on rent but when the wife has no intention to save her married life and has not responded in proper manner during the counseling proceeding and as she was adamant to such attitude, therefore, in such backdrop, he has an apprehension that she will falsely implicate him in any case. So he is not willing to keep her.
17) The wife in a case filed by her for restitution of conjugal rights at Para 20 of her cross examination admits to fact that the respondent husband has also taken the house on rent and was willing to keep her in the said house but she has not accepted such proposal and at Para 22, she further admits the fact that during counseling proceeding, she put a condition that when there are two houses of her father in law then there is no need to take any house on rent. She further admits at para 23 that though the husband was willing to keep her in a separate house and since a separate house has to be taken with her consent and the house taken by the husband on rent was not proper for the safety reason , she has denied to go in such house.
18) It is an admitted fact that both the husband and wife prior to marriage were working in some job and the wife is posted as a Project Officer in Women and Child Development Department. In her cross examination she deposes that she is not aware of the fact that at the time of settlement of the marriage whether any demand was made from the side of respondent husband. She further submits that the respondent is only son of his parents. She also admits the fact that prior to marriage, she was not aware of such demands of car and money of Rs.5 lakhs. Though the wife has made a serious allegation that the husband and his Page 10 of 11 mother had beaten her on 16 th Sept. 2014 at night, but no medical documents were filed to prove the assault and injuries so caused to her. The wife further admits at para 33 that pursuant to the the complaint case filed by her, the respondent husband and his parents were arrested for the offence punishable u/s 498-A of IPC and were later released on bail.
19) To prove the fact of desertion, Hon'ble the Supreme Court laid down the analogy in Savitri Pandey Versus Premchand Pandey 2002 2 SCC 73 at Para 10 which reads thus :
"10. To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case."
20) Applying the above analogy to the facts of the present case, to prove the desertion, if the married life of the parties is reviewed minutely, it is obvious that the marriage between the parties was solemnised on 11.5.2014 and only after 5 months of marriage, certain conflict occurred between the parties which led to filing of reports by the parties against each other levelling allegations and counter allegations. It is an admitted fact that on 16th Sept. 2014, the wife had gone away to the maternal house and did not return. Thereafter, the subsequent events which happened in the married life would show that family counseling was done in which the husband was inclined to live apart with his parents for the sake of wife despite the fact that he is the only son of his parents. It appears that though the husband has tried his level best to save the Page 11 of 11 married life yet the wife has not turned up to join the company of husband due to her adamant stance.
21) In such circumstances, the fact is clearly emerged that the wife has no intention to join the company of husband and keep her marital life intact and only to harass the husband and in-laws, she has filed petition for restitution of conjugal rights. This fact also remains unrebutted that at the instance of wife, a complaint case was registered u/s 498-A and the husband and his parents were taken into custody. Therefore in such facts situation, we are of the considered view that the decree granted by the court below in favour of the respondent husband is well merited which does not call for any interference by this Court.
22) In the result, both the appeals are liable to be and are hereby dismissed.
A decree be drawn accordingly.
23) Parties are directed to bear their own costs.
Sd/- Sd/-
(Goutam Bhaduri) (Deepak Kumar Tiwari)
Judge Judge
Rao