Suvarna Awadhiya W/o Vikas Awadhiya Aged About 38 Years R/o 29/121, Awadhiya Para, Purani-Basti v. Vikas Awadhiya S/o
Case Details
1 2025:CGHC:15825-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on : 25-02-2025 Judgment delivered on : 04-04-2025 FAM No. 258 of 2019 Suvarna Awadhiya W/o Vikas Awadhiya Aged About 38 Years R/o 29/121, Awadhiya Para, Purani-Basti, District-Raipur Chhattisgarh ... Appellant/defendant versus Vikas Awadhiya S/o Shri Motichand Awadhiya Aged About 42 Years R/o N/109, Shyama Prasad Mukharji Ward, Boriyakala P.S. Tikrapara, District- Raipur Chhattisgarh ... Respondent/plaintiff For Appellant :: Ms. Ruchi Nagar, Advocate on behalf of Mr. Pragalbha Sharma, Advocate. For Respondent
Legal Reasoning
: Mr. Akash Ku. Kundu, Advocate. Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Sachin Singh Rajput, JJ C A V Judgment Per Rajani Dubey, J Challenge in this appeal under Section 19 of the Family Courts Act is to the legality and validity of the judgment and decree dated 3.7.2019 passed by First Additional Principal Judge, Family Court, Raipur in HMA No.508/2016 2 whereby the application filed by respondent/plaintiff under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act of 1955") for decree of divorce on the ground of cruelty has been allowed. 02. The respondent/husband filed an application under Section 13 of the Act of 1955 with the averments that his marriage was solemnized with the appellant on 3.7.2003 and from their wedlock one son Varesh Kumar was born on 13.1.2005. It was pleaded that after marriage, the appellant/wife started quarreling with the respondent for living separately. She used to suspect that the respondent/husband has illicit relations with his sister-in-law (QqQsjh HkkHkh). Even while he was living separately with her in a rented accommodation, there was no change in her conduct and she continued to ill- treat him, suspect his character and also beat him. In April, 2008 she sent his son Varesh to her parental home without his permission. Being fed up with her cruel conduct, he started living separately from her since April,2008 but continued to pay rent of the house where she was living. However, in 2010 she lodged a false report against him and during counseling proceedings, refused to live with him. Hence he prayed for grant of a decree of divorce on the ground of cruelty. 03. The appellant/wife in his written statement denied all the adverse averments and stated that she never treated the respondent/husband with cruelty and also never suspected his fidelity. In fact, he used to demand Rs.5 lacs and torture her therefor. On account of his torturous conduct and illicit relations with his sister-in-law (Bhabhi), she has been living separately. She also stated that the respondent/husband has married one Tara Sahu and is living with her and therefore, there is no possibility of reunion between the parties. She stated that decree of divorce be granted only on the condition 3 that he would make suitable arrangement for the accommodation and maintenance of the wife and son and comply with the provisions of Section 25 of the Act of 1955. 04. Based on the pleadings of the respective parties, learned Family Court framed two issues and after appreciation of oral and documentary evidence on record allowed the application of the respondent/husband under Section 13 of the Act of 1955 by the impugned judgment and decree. Hence this appeal by the appellant/wife. 05. Learned counsel for the appellant/wife would contend that the impugned judgment and decree are perverse and not sustainable in law. Learned Family Court ought to have appreciated the fact that illicit relationship by its nature is very discreet, hence no direct evidence is available. It should have decided the matter on the principle of preponderance of probability and considered the entire factual matrix. It has also erred in deciding the issue pertaining to permanent alimony to be awarded under Section 25 of the Act of 1955. Learned Family Court failed to take into account the fact that the appellant has no source of income or permanent place of abode and that she has a child to be brought up. She has been awarded a paltry sum of Rs.3,500/- pm towards permanent alimony which, by no means, can be said to be just and reasonable. Looking to the basic requirements of the appellant and the responsibility of upbringing the child, a lumpsum amount ought to have been awarded apart from monthly amount. Reliance has been placed on the decision of the Hon’ble Apex Court in the matter of Pravin Kumar Jain Vs. Anju Jain reported in MANU/SC/1314/2024 : 2024 (4) CCC 366. 4 06. On the other hand, learned counsel for the respondent/husband supporting the impugned judgment and decree submits that the appellant filed affidavit on 11.2.2025 where she stated certain facts without any proof or contrary to facts on record. She herself had admitted that she was living in the ancestral property of the respondent till December 2024, however, she further states that she is living with her brother but claims expenses on rent. The judgment relied upon by the appellant in the case of Pravin Kumar Jain (supra) is of no help to her because in the said matter income of the husband was undisputedly Rs.4 lacs per month whereas in the present case, nothing as such is established and the respondent is a private self-employed computer repairer. During mediation proceedings she also stated to have taken personal loan of Rs.3 lacs but did not submit any proof thereof. Learned Family Court minutely appreciated the oral and documentary evidence and decreed the suit in favour of the respondent/husband. As such, there being no illegality or infirmity in the impugned judgment and decree, the present appeal is liable to be dismissed. 07. Heard learned counsel for the parties and perused the material available on record. 08. It is an admitted position in this case that marriage of both the parties was solemnized on 3.7.2003 and from their wedlock one son Varesh was born on 13.1.2005. The respondent/husband filed an application under Section 13 of the Act of 1955 against the appellant/wife for divorce on the ground of cruelty. 09. The appellant/wife in para 10 of her written statement alleges that the respondent/husband has illicit relations with his sister-in-law and he has married one Tara Sahu. In para 13 she states that in these circumstances it is 5 very difficult for her to live with her husband and therefore, she is ready for divorce on the condition that the husband makes proper arrangement for accommodation and maintenance of herself and her son and give a lumpsum amount of maintenance as also comply with the provisions of Section 25 of the Act of 1955. 10. The respondent/husband filed certified copy of the judgment dated 13.3.2015 (Ex.P/1C) whereby the respondent/husband and co-accused (sister-in-law of the respondent/husband) were acquitted by learned trial Court of the charge under Section 498A/34 of IPC. 11. The appellant/wife admitted in cross-examination in para 16 that she filed a dowry case against her husband and his sister-in-law where she alleged his illicit relation with his sister-in-law. She volunteers that she has no proof of this illicit relationship. She admits that in the said dowry case the respondent and the co-accused were acquitted and she did not appeal against the said judgment. In para 19 she states that her husband has illicit relation with one Tara Sahu. In para 20 she admits that she wants lumpsum amount of maintenance from her husband. 12. Learned Family Court after appreciation of oral and documentary evidence adduced by the parties came to the conclusion that the husband has proved cruelty on the part of the wife and accordingly allowed his application under Section 13 of the Act of 1955. 13. The Hon’ble Supreme Court in the matter of Narendra Vs. K. Meena reported in (2016) 9 SCC 455 held in paras 15 and 16 of its judgment as under:- “15. With regard to the allegations about an extra-marital affair with the maid named Kamla, the reappreciation of the evidence by the 6 High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the respondent wife had levelled allegations with regard to an extra-marital affair of the appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the appellant, there is nothing to substantiate the allegations levelled by the respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one's character of having an extra-marital affair is quite tortuous for any person-be it a husband or a wife. 16. We have carefully gone through the evidence but we could not find any reliable evidence to show that the appellant had an extra- marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the appellant with the maid named by the respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra- marital life to be quite serious and that can surely be a cause for mental cruelty.” 14. In the matter of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511, the Honb’le Apex Court held in point No. (xiv) of para 101 as under:- “101………... (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 7 15. In the present case also, it is clear that the respondent/wife in her written statement as also in Court statement levelled some allegations of her husband having illicit relations with his sister-in-law as well as with one Tara Sahu but the same were not proved by any oral or documentary evidence. She herself admits that she has no proof of such allegation. It is also an admitted position in this case that the parties are living separately since 2008. Thus, keeping in view the aforesaid judgments of the Hon’ble Supreme Court, the overall evidence on record and conduct of the appellant/wife, we are of the opinion that the learned Family Court has committed no illegality or infirmity in allowing the application of the respondent/husband under Section 13 of the Act of 1955 by the impugned judgment and decree. 16. As regards permanent alimony, learned counsel for the appellant submits that the appellant/wife wants Rs.10 lacs as permanent alimony, however, the Family Court allowed her a meager amount of Rs.3500/- pm only. As per direction of this Court, both the parties have filed their affidavits which go to show that the respondent/husband is engaged in computer repairing work whereas the appellant/wife is not working anywhere. In para 14 of the impugned judgment it is observed by learned Family Court that though the husband is ready to give a flat worth Rs.5 lacs to the wife in lieu of permanent alimony but she is not willing to take it. Thus, having regard to the facts and circumstances of the case, the socio-economic status of the parties and the cost of present day standard of living, we deem it appropriate to grant a sum of Rs.8 lacs towards permanent alimony to the appellant/wife. Ordered accordingly. 8 17. On the basis of aforesaid discussions, we find no substance in this appeal and it is dismissed as such with modification in the impugned judgment and decree to the above extent only. Let a decree be drawn up accordingly. Sd/ (Rajani Dubey) Judge Sd/ (Sachin Singh Rajput) Judge Digitally signed by MOHD AKHTAR KHAN Date: 2025.04.05 10:06:06 +0530 MOHD AKHTAR KHAN Khan