1 - Smt. Mamta Yadav, W/o Dinesh Yadav, Aged About 22 Years, D/o Shri v. 1 - Dinesh Yadav, S/o
Case Details
1 2025:CGHC:13851-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 12.02.2025 Judgment delivered on: 22.03.2025 FA(MAT) No. 49 of 2023 1 - Smt. Mamta Yadav, W/o Dinesh Yadav, Aged About 22 Years, D/o Shri Purno Yadav, Occupation- Labour/agriculture, R/o Village- Basantala, Tahsil- Kunkuri, District- Jashpur, Chhattisgarh (Defendant/non-Applicant) ... Appellant versus 1 - Dinesh Yadav, S/o Shri Hirashchandra Yadav, Aged About 23 Years, Occupation- Labour, R/o Village- Bachhranav, Tahsil- Bagicha, District- Jashpur, Chhattisgarh (Plaintiff/applicant) ... Respondent For Appellant : Mr. Shiv Sewak, advocate on behalf of Mr. Dinesh For Respondent : None Yadav, Advocate Hon’ble Smt. Justice Rajani Dubey, Hon’ble Shri Justice Sachin Singh Rajput CAV Judgment Per Rajani Dubey, J. 2 1. This appeal filed under Section 19 (1) of the Family Courts Act, 1984 has been preferred by the defendant/wife against the judgment and decree dated 25.11.2022 passed by learned Judge, Family Court, Jashpur, District- Jashpur (C.G.) in Civil Suit No. 15-A/2020 whereby the application preferred under Section 13(1)(1-क) of the Hindu
Legal Reasoning
Marriage Act, 1955 by the plaintiff/ husband seeking decree of divorce, was allowed and consequently, the marriage of the parties solemnized on 12.05.2017 has been dissolved. The parties to this appeal shall be referred herein as per their description before the learned Family Court. 2. Before learned trial Court, it is an admitted fact that the marriage between the parties was solemnized on 12.05.2017 as per Hindu rites and rituals at Village- Basantala, Tahsil- Kunkuri, District- Jashpur (C.G.). 3. Plaintiff/husband filed application under Section 13(1) (1-क) of Hindu Marriage Act seeking decree of divorce before the trial Court on the ground that the marriage of both the parties was solemnized on 12.05.2017. After marriage, the defendant/wife used to go to her maternal home repeatedly without permission and consent of the plaintiff/husband and her father. When the plaintiff/husband went to bring her, the defendant/wife used to insult the plaintiff/husband in front of everyone and sent him back many times. Plaintiff/husband had come to Jashpur to appear in the final year examination of ITI. At that time, the plaintiff/husband asked the defendant/wife to stay in Jashpur but she refused to stay there. After a few days, the defendant/wife blocked the plaintiff/husband on phone. After giving the ITI examination, the plaintiff's family brought her back but the defendant/wife went to her maternal home without informing anyone. In the said time period, the 3 defendant did not establish marital relations with the plaintiff. The plaintiff was residing in Jashpur to pursue DCA. At that time also, on his request, the defendant/wife came to Jashpur to stay with him. After one or two days, when she asked him to go to her maternal home, then plaintiff refused. Thereafter, the defendant/wife tried to tear his mark sheet and threw the plaintiff's mobile on the ground, extending threat to commit suicide. Due to which, the plaintiff/husband was forced to leave the defendant/wife at her maternal home. After the plaintiff's examination, upon informing the defendant's brother Lalit Yadav, the defendant/wife did not come with him and she stayed at her maternal home for four to five months. On trying to bring her back, the defendant/wife threatened the plaintiff/husband to implicate him in a false case. In September 2019, the plaintiff/husband went to bring the defendant/wife back with his father and family. In village Basantala, the defendant, his brother and father beat up the plaintiff and his father and held them hostage and got the plaintiff’s sign on a blank paper. As per the meeting, the plaintiff/husband agreed to live and commute with the defendant/wife from his village Vachhraon to Jashpur. There also, the defendant/wife refused to maintain marital relations with the plaintiff/husband. The defendant/wife told the plaintiff/husband that she is living with him under the pressure of her parents. The defendant/wife does not open the door when the plaintiff comes from outside. Due to which, the plaintiff has to sleep outside the house. In October 2019, the defendant went to her maternal home without informing anyone. Her brother threatened to kill the plaintiff/husband. Any incident can happen to the plaintiff and his family. Therefore, the plaintiff/husband is entitled 4 to get a decree of divorce from the defendant/wife and marriage of the plaintiff and the defendant solemnized on 12.05.2017 may be dissolved. 4. In her written statement, wife/defendant denying the adverse allegation levelled by the husband/plaintiff, stated that after marriage the plaintiff/husband never brought the defendant/wife to his place, he used to leave her on the way and go away. The plaintiff had brought the defendant to his relative's place in Jashpur. But on her request, he did not take a separate room. The plaintiff/husband himself does not want to keep the defendant/wife with him and wants to marry again. The plaintiff/husband blocked the phone number of the defendant/wife. The plaintiff/husband used to live in Jashpur and the defendant/wife was dropped at her in-laws' village Bachhrao. The plaintiff did not establish marital relationship with the defendant. On 22.10.2018, the plaintiff came to village Basantala with his father. The parties were made understand in the meeting and the proceeding of which was reduced in writing. The plaintiff has filed a suit with the intention of separating the defendant from him. The defendant does not want to dissolve her marriage. Therefore, she prayed to reject the application filed by the husband. 5. On the basis of pleadings made by both the parties, learned trial Court framed the issues and after appreciating oral and documentary evidence, by its judgment and decree dated 25.11.2022, allowed the application filed by the plaintiff/husband. Hence, this appeal has been filed by the defendant/wife. 6. Learned counsel for the appellant/wife submits that the learned trial Court passed the impugned order against the settled principle of law 5 hence it is illegal, erroneous and contrary to law. The learned Family Court has committed grave error in not properly considering the averment inter-alia, documents and evidence adduced by the non- applicant/wife. The finding recorded by the Family Court is based on surmises and conjectures and is contrary to the evidence on record and law. The learned Family Court has seriously erred by not considering the fact that appellant/wife has assigned cogent reason to live separately from the house of respondent/husband which is not appreciated by the learned Family Court. The learned Family Court has committed grossly erred in recording the findings that the appellant was resided separately from the house of the respondent by without sufficient reason. Respondent/husband utterly failed to prove cruelty and desertion against the appellant/wife but the learned Family Court did not appreciate the oral and documentary evidence properly and passed the impugned judgment. The appellant/wife repeatedly submitted that she wants to live with the respondent/husband but the family members of the respondent/husband were not ready to bring the appellant in the house of the respondent. The learned Family Court did not appreciate all these aspects and passed the decree of divorce which is liable to be set aside. He further submits that the appellant/wife has been living separately from the husband since long and she has no any source of income to maintain herself financially. However, while passing the decree of divorce, the learned Family awarded alimony of Rs. 2 lacs in favour of the appellant/wife but the alimony awarded by learned Family Court is on lower side and is not sufficient for the appellant/wife to maintain herself properly. Hence, the 6 impugned judgment and decree are liable to be set aside and amount of permanent alimony may be enhanced. 7. On the other hand, learned counsel for the respondent/husband supports the impugned judgment and submits that the learned Family Court minutely appreciated oral and documentary evidence and rightly passed the decree of divorce in favour of the husband. The impugned judgment and decree passed by the learned Family Court are well merited and do not call for any interference by this Court. 8. Reliance has been placed on this Court’s judgment dated 17.01.2025
Legal Reasoning
passed in FA (MAT) No. 39 of 2020 in the matter of Smt. Saroj Vs. Videsh Kumar. 9. Heard counsel for the parties and perused the material placed on record. 10. It is an admitted position in this case that the marriage of the appellant with the respondent was solemnized on 12.05.2017 at Village- Basantala, Tahsil- Kunkuri, District- Jashpur (C.G.). 11.Before the Family Court, respondent/husband filed application under Section 13(1) (1-क) of Hindu Marriage Act seeking decree of divorce against the appellant/wife. Learned Family Court framed 5 issues on the basis of pleadings of both the parties. The relevant issues reads as under:- ्ቅ. 01. वा(cid:4)द्ቚश्न क्या(cid:4), ्ቚनि(cid:15)वा(cid:4)निदन(cid:16) निवावा(cid:4)ह क(cid:18) पश्चा(cid:4)(cid:15) सस(cid:22)रा(cid:4)ल स(cid:18) नि(cid:26)न(cid:4) (cid:26)(cid:15)(cid:4)या(cid:27) मा(cid:4)याक(cid:18) चाल(cid:16) जा(cid:4)(cid:15)(cid:16) थी(cid:16) औरा अक(cid:4)राण निवावा(cid:4)द करा वा(cid:4)द(cid:16) क" ्ቚ(cid:15)(cid:4)नि#(cid:15) करा(cid:15)(cid:16) ह$? निनष्क्ቧ(cid:12) ्ቚमा(cid:4)निण(cid:15) 02. क्या(cid:4) वा(cid:4)द(cid:16) स(cid:18) ्ቚनि(cid:15)वा(cid:4)निदन(cid:16) द(cid:4)म्पत्या स’(cid:26)’ोሩ) क(cid:4) निनवा(cid:12)हन ्ቚमा(cid:4)निण(cid:15) 7 न करा शा(cid:4)रा(cid:16)रिराक स’(cid:26)’ोሩ (cid:26)न(cid:4)न(cid:18) स(cid:18) इं’क(cid:4)रा करा(cid:15)(cid:16) ह$? अथीवा(cid:4) क्या(cid:4) वा(cid:4)द(cid:16) द-सरा(cid:4) निवावा(cid:4)ह करान(cid:4) चा(cid:4)ह(cid:15)(cid:4) ह$? अथीवा(cid:4) क्या(cid:4) स्वाया’ वा(cid:4)द(cid:16) द(cid:4)म्पत्या स’(cid:26)’ोሩ निनवा(cid:12)हन स(cid:18) मा(cid:22)ह फे(cid:18) रा ल(cid:18)(cid:15)(cid:4) ह$? 12. It is clear from the pleadings of the parties and above issues that the appellant filed the application under Section 13(1) (1-क) of Hindu Marriage Act seeking decree of divorce against the appellant/wife on the ground of cruelty and desertion. He examined himself as A.W.-1, his father Heerachandra Yadav as A.W.-2, other witnesses Mahesh Yadav as A.W.-3 and Smt. Mamta Yadav as A.W.-4 to prove his case against the appellant/wife whereas to prove her defence before the learned Family Court, appellant/wife examined herself as N.A.W.-1. 13. Respondent/husband- Dinesh Yadav (A.W.-1) states in his affidavit under Order 18 Rule 4 of CPC that after marriage, the appellant/wife did not want to live with him and repeatedly went to her parental home without taking permission or consent from him. She argued saying that if she is not allowed to go her parental home then she would commit suicide by jumping into a well. 14. His father- Heerachandra Yadav (A.W.-2), Mahesh Yadav (A.W.-3) and Smt. Kiran Yadav (A.W.-4) support the case of the respondent/husband and they also stated that on 22.10.2018, a social meeting was held in Village – Basantala regarding married life. 15. Appellant/wife (N.A.W.-1) admitted this fact that quarrel took place between her and the respondent and during this period, she came to her maternal home and thereafter, respondent went to her maternal 8 home to bring her back. She also admitted that her husband/respondent informed her parents and brother about the dispute between them. She further admitted that after some conversation took place between both the family members, the respondent/husband went to her parental home to bring her back. In para 13 of her cross-examination, she admitted that her husband/respondent brought her to Jashpur to keep her with him. She was living with her husband/respondent. In para 14, she admitted that she put a condition that she would go only when social meeting would be held. 16. In para 15, she states that, “ ……...स्वा(cid:15)0 कह(cid:4) निक अक्टु(cid:22)(cid:26)रा 2018 मा(cid:27) (cid:26)$ठक ह3आ थी(cid:4)। याह कहन(cid:4) सह(cid:16) ह$ निक मा(cid:18)रा(cid:18) पनि(cid:15) क(cid:18) स(cid:4)थी सस(cid:22)रा औरा प(cid:22)रु्ቧ सदस्या आया(cid:18) थी(cid:18)। याह कहन(cid:4) सह(cid:16) ह$ निक उस (cid:26)$ठक मा(cid:27) मा(cid:18)रा(cid:18) परिरावा(cid:4)रा क(cid:18) ल"ग औरा ग(cid:4)’वा क(cid:18) ल"ग उपቝኌस्थी(cid:15) थी(cid:18)। याह कहन(cid:4) सह(cid:16) ह$ निक उ्ሹ (cid:26)$ठक मा(cid:27) मा(cid:18)रा(cid:18) पनि(cid:15) समा(cid:4)जा क(cid:18) स(cid:4)मान(cid:18) याह (cid:26)"ल(cid:18) थी(cid:18) निक मा; अपन(cid:18) पनि(cid:15) क(cid:4) सम्मा(cid:4)न नह< करा(cid:15)(cid:16) एवा’ अपन(cid:18) मा(cid:4)याक(cid:18) मा(cid:27) ह(cid:16) राहन(cid:4) चा(cid:4)ह(cid:15)(cid:16) ह> ’ (cid:15)थी(cid:4) द(cid:4)म्पत्या स’(cid:26)’ोሩ निनभा(cid:4)न(cid:4) नह< चा(cid:4)ह(cid:15)(cid:16)। याह कहन(cid:4) गल(cid:15) ह$ निक याह (cid:26)(cid:4)(cid:15) (cid:26)"ल(cid:15)(cid:18) ह(cid:16) वाह(cid:4)’ निवावा(cid:4)द ह" गया(cid:4) थी(cid:4)। याह कहन(cid:4) गल(cid:15) ह$ निक उ्ሹ (cid:26)(cid:4)(cid:15) स(cid:22)न(cid:15)(cid:18) मा(cid:27) उ्ቇ ह" गया(cid:16) थी(cid:16)। याह कहन(cid:4) गल(cid:15) ह$ निक मा(cid:18)रा(cid:18) भा(cid:4)ई औरा निप(cid:15)(cid:4) वा(cid:4)द(cid:16) औरा उसक(cid:18) निप(cid:15)(cid:4) क(cid:18) स(cid:4)थी मा(cid:4)राप(cid:16)टु निकया(cid:18) थी(cid:18)। मा; नह< जा(cid:4)न(cid:15)(cid:16) निक वा(cid:4)द(cid:16) क(cid:18) निप(cid:15)(cid:4) क(cid:18) सिसरा परा मा(cid:4)राप(cid:16)टु स(cid:18) चा"टु आया(cid:4) थी(cid:4)। याह कहन(cid:4) गल(cid:15) ह$ निक (cid:26)$ठक मा(cid:27) ह(cid:16) मा(cid:18)रा(cid:18) निप(cid:15)(cid:4) एवा’ भा(cid:4)ई वा(cid:4)द(cid:16) क" क(cid:4)गजा मा(cid:27) हस्(cid:15)(cid:4)्ቌरा करान(cid:18) क(cid:18) सिलया(cid:18) द(cid:26)(cid:4)वा (cid:26)न(cid:4) राह(cid:18) थी(cid:18)। याह कहन(cid:4) गल(cid:15) ह$ निक मा(cid:18)रा(cid:18) भा(cid:4)ई न(cid:18) जा(cid:4)न स(cid:18) मा(cid:4)रान(cid:18) कD ोሩमाकD द(cid:16) थी(cid:16)।” 9 In para 18, she admits that there is no communication between them since 2019. Her husband/respondent did not remarry even after so many days. 17. Learned trial Court minutely appreciated all oral and documentary evidence and found that wife committed cruelty and she deserted her husband without any sufficient cause. 18.Relying upon the decision of Hon’ble Supreme Court in the matter of Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73, this Court vide judgment dated 17.01.2025 in the matter of Smt. Saroj Vs. Videsh Kumar passed in FA(MAT) No. 39 of 2020 observed in paras 15 and 16 as under:- “15…………...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 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 10 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 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). 11 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 spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on 12 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." 19. In light of above, in present case also, it is clear that the respondent/husband tried to bring his wife back to his house several times but wife remained adamant. It is also admitted by the wife that as she wants to live separately, the husband brought her to Jashpur and lived there. Despite that, she left the husband. Thus, the factum of desertion for a continuous period and cruelty has been established in this case. The learned Family Court also minutely appreciated oral and documentary evidence of both the parties and passed the decree of divorce in favour of the husband. We do not find any good ground to interfere with the impugned judgment passed by learned Family Court. 13 20. As regards permanent alimony, the learned Family Court has awarded Rs.2 lacs as permanent alimony to wife/appellant but the paramount consideration for granting permanent alimony, a court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to the reasonable expenses for his own maintenance and others whom, he is obliged to maintain under law and statute. Further, taking note of the fact that the amount for maintenance fixed for wife should be such, as she can live in reasonable comfort considering her status and mode of life when she was used to live with her husband. It is also the duty of the court to see that the amount so fixed, cannot be excessive or affect the living condition of other parties. Apart from the wife maintaining herself, she has also to bear all her future medical expenses besides attending to the requirements at her family end; considering the fact that there is no chance of re-union and looking to the facts and circumstances of the case, we feel it appropriate to enhance the permanent alimony from Rs. 2 lacs to Rs. 5 lacs in favour of the appellant/wife. 21.
Decision
In the result, the appeal is allowed in part, the impugned judgment and decree passed by learned Family Court are hereby affirmed. The respondent/husband is directed to pay additional amount of Rs. 3 lacs as permanent alimony to the appellant/wife within a period of three months from the date of passing of this judgment. The amount of Rs. 2 lacs awarded by learned Family Court as permanent alimony shall be adjusted accordingly. 22. Let a decree be drawn up accordingly. Sd/- (Rajani Dubey) Judge Sd/- (Sachin Singh Rajput) Judge Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV