Dismissed

Arun Kumar Dewangan v. Smt.Gopikarani Dewangan

Chhattisgarh HC9 Oct 2017FA/109/2006

Case brief

AI extract

What is this about?

The First Appellate Court dismissed the appellant-husband's appeal against the trial Court's order dismissing his divorce petition. The Court held that the appellant's false allegations of infidelity constituted cruelty against him and upheld the lower court's finding due to the appellant's failure to prove the wife's lack of access.

What did the court decide?

The First Appeal filed by the appellant under Section 19(1) of the Family Courts Act, 1984 is dismissed.

Arun Kumar Dewangan Vs Smt.Gopikarani Dewangan — Matrimonial and Divorce | Chhattisgarh HC (2017)

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Ws^^-M^y

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IN THE HIGH COURT OF CHHATTISGARH AT

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BILASPUR B@!

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First APPEAL N0 ^L OF 2006

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~/r A.ppellant

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^run Kumar Dewangan S/o Ram Narayan Dewangan, aged about 32 years, Occupation - Service, R/o Mahamayapara, Raipur, District- Raipur, C.G.

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VE R S US^

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R^spondent ^Smt. Gopikarani Dewangan ^^ ^ W/o Aru-'n Dewangan, Aged about 25 years, Occupation - Service, R/o House of Kirtanlal, Near Bus Stand , at post Dongargaon, Police Station 85 Tahsil- Dongargaon, District ~ Rajnandgaon, C.G. ^ < - MEMO OF FIRST APPEAL UNDER SECTION 9€ J^f *Oi^EfiE=^eB^-01p--eiV ^ROCEDURE READ WITfl ^ S£CM^N 28 OF-yfiS-fHWQ MARRtAGE ACT.-3-9^5^ f-^r^j;^y COU/^TS ^c-r. j 98^.^^

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c^.

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HIGH COURT OF CHHATTISGARI1 AT BILASPUR

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FANo. 109 of 2006

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t^ Arun Kumar Dewangan

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Versus

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Smt. Gopikarani Dewangan

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JUDGMENT FOR CONSIDERATr

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Sd/prashantKumarMishra Judge j^-10-2017

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HON'BLE SHRI ARVIND SINGH CHANDEL. J ^ <?^

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Sd/AMindSinghChandel Judge

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POST FOR JUDGMENT ON ^^OCTOBER, 2017

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Sd//Prashant Kumar Mishra Judge

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NAFR

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HIGH COURT OF CHHATTISGARH. BILASPUR

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FA No. 109 of 2006

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(Arising^outof judgment/order^{dated29.11.2005inCivilSuitNo.75-} A/2005 of the learned 2nd Additional Chief Family Court, Raipur)

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Judgment Reserved On : 23/08/2017 Judgment Passed On : 01/10/2017

Arun Kumar Dewangan

-— Appellant

Versus

Smt. Gopikarani Dewangan

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-— Respondent

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For Appellant : Shri S.I. Ali, Advocate. For Respondent : Shri Vimlesh Bajpayee, Advocate.

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Hon'ble Shri Justice Prashant Kumar Mishra Hon'ble Shri Justice Arvind Sinfih Chandel

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CAVJUDGMENT

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The following judgment of the Court was passed by Prashant Kumar Mishra, J.

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i. This is the plaintiff/husband's appeal under Section 19 (1) of the Family Court'Act, 1984 assailing the impugned judgment and decree passed by the Family Court, Raipur, dismissing his

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application under Section 13 of the Hindu Marriage Act, 1955 (for short'theAct').

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The parties were married at Dongergaon, District Rajnandgaon on 4.5.1993. Divorce petition was presented on 14.1.97 on the pleading that from the very next day of marriage, the wife started pressurizing the appellant to get himself transferred either to Dongergaon or at any other place within district Rajnandgaon. At that time, the appellant was working as AG-III at Hoshangabad. At the time of filing of the divorce petition, the appellant was residing at Raipur, therefore, he pleaded that his parents and siblings are residing at Raipur, therefore, it is not possible for him to reside at Dongergaon or nearby place. The respondent's parents and her brother insisted that the appellant should keep his wife at the place of his posting. Since the suggestions were not meted out, the respondent became aggressive and started raising disputes on trivial matters every now and then. She also used to abuse the appellant and his family members and threatened to commit suicide. The respondent's parents and her brother used to write threatening letters to the appellant. She lodged a false report on 23.3.96 alleging demand of cash amount of Rs.35,000/for purchasing motorcycle and fridge. She also moved an applicadon for grant of maintenance under Section 125 CrPC making false

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allegation that gold, silver and cash were gifted as dowry at the time of marriage. It was specifically pleaded in para-12 of the plaint^{thatthedaughterbornoutofthewedlockon27.6.94isnot} the appellant's daughter, as the appellant had physical relations with some other persons prior to or after the marriage. It was also stated that they went to reside at Hoshangabad on 20.10.93 and boarded the train on 2.11.93 for coming back to Raipur, however, the respondent got down at Dongergaon and lodged a false report that she was made to deboard the train because she is not brining dowry, therefore, when she reaches Raipur, the appellant's parents would become angry.

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The respondent/wife contested the suit on specific averment of demand of dowry and commission of cruelty by the appellanl and his family members. She reiterated the allegation of demand of Rs.35,000/- for purchasing the motorcycle and further demand of a refrigerator. She stated that she was tortured for not bringing sufficient dowry by saying that her parents are Government servants, yet she has not brought sufficient dowry, hence she should meet the demand for purchasing motorcycle and fridge. She would further state that by deceit and misrepresentation, she was persuaded to board the tmin from Hoshangabad to Raipur but before the train could reach Raipur, she was compelled to get down

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at Rajnandgaon Railway Station along with her 4 month's old daughter. While forcing her to get down from the train, the appellant stated that since she has not brought enough dowry, it is not possible for him to take her to Raipur because neither he nor his parents would allow them to reside together. The respondent somehow managed to reach her native place Dongergaon and sent letters and telegram to her husband to take her to Raipur, but the appellant did not attend the request. Finding no other option or solution, the respondent served a legal notice on 12.7.95 to which the appellant replied on 5.8.95 making false allegations. The respondent thereafter lodged a report on 18.12.95. Vide order dated 5.2.97 the respondent and her daughter have also been allowed maintenance by the magisterial Court under Section 125 CrPC.

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Based on the documentary evidence including the letters written by the parties to each other and oral evidence led by the parties, the trial Court concluded that the appellant has failed to establish that the respondent/wife has committed cruelty within the meaning of said term in the context of cruelty as marital offence as provided under Section 13 (l)(ia) of the Act.

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We have heard learned counsel for the parties at length and perused

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^a^-c<br>'% J

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the record.

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We shall consider the issue as to whether the respondent/wife has committed cruelty on the appellant in the light of law laid down by the Supreme Court as to when mental offence of cruelty is said to be committed by one or the other spouse, as held in'Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511; Dr. N.G. Dastane Vs. Mrs. S. Dastane, (1975) 2 SCC 326; V. Bhagat Vs. D. Bhagat (Mrs.), (1994) I SCC 337; Sirajmohmedkhan Janmohamadkhan Vs. Hafizunnisa Yasinkhan andAnother, (1981) 4 SCC 250; Savitri Pandey Vs. Prem Chandra Pandey, (2002) 2 SCC 73; Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC 619; Parveen Mehta Vs. Inderjit Mehta, (2002) 5 SCC 706; Chetan Dass Vs. Kamla Devi, (2001) 4 SCC 250; A. Jayachandra Vs. Aneel Kaur, (2005) 2 SCC 22; Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558; Sujata Uday Patil Vs. Uday Madhukar Patil, 2007 AIR SCW 896; Manisha Tyagi Vs. Deepak Kumar, AIR 2010 SC 1042 and Ramchander Vs. Ananta, (2015) 11 SCC 539.

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In his deposidon, the appellant has made allegation on the respondenVwife that daughter Garima is not his daughter and that the respondenf/wife was pregnant even before marriage. However, when the wife was cross-examined by suggesting that the daughter

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I^:

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given birth to by her does not belong to .the appellant, she categorically stated in para-27 of the deposition that she is ready for DNA test. Despite this, the appellant did not agree or moved the application before the trial Court nor made any prayer for DNA test of himself and the daughter. Under Section 112 of the Evidence Act, there is presumption of paternity of a child who is born to the married couple during subsistence of their marriage. Burden to prove that during previous 9 months from the date of delivery the husband had no access to the wife, lies heavily on the husband which, according to us, in view of the evidence on record, the appellant has failed to discharge to prove that he had no access to the wife during the said period. {See Goutam Kundu Vs. State ofWest Bengal andAnother, (1993) 3 SCC 418}

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If the appellant makes false allegation on the character of the wife and fails to prove the same by not taking steps for DNA test despite the wife having agreed for it, the allegation of commission of cruelty is just other way true. It is the appellant who can be said to have committed cruelty on the respondent by casting aspersion on the wife's character.

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Insofar as the plea concerning the appellant's acquittal in criminal \

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case causing cruelty upon him, it is to be noted that in K. Srinivas

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Rao Vs. D.A. Deepa , the Supreme Court referred its previous decisions in the matters of V. Bhagat (Supm), Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate and Naveen Kohli (Supra) wherein the wife had made reckless allegations on the husband and his family members calling them lunatics or inchaste or of indecent familiarity, whereas in the case at hand, it was the appellant who had made false allegations on the respondent/wife suggesting that she is unchaste or has committed adultery by alleging that daughter Garima is not born out of their relationship. It is not a case where such allegation was made by the wife on the husband. Moreover, the offence registered against the husband and his parents eventually ended in their conviction by the trial Court which was set aside in appeal by judgment dated 27.12.2007 in Cr.A. No.99/2007 rendered by the Sessions Judge, Raipur. A perusal of the judgment passed by the Sessions Court would clearly indicate that the same is based on perverse finding.

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In a recent judgment in the matter of Raj Talreja Vs. Kavita Talreja {2017 SCC Online SC 462}, the Supreme Court has held that mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint-or after trial the accused is acquitted may not be a

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2AIR2003SC2462

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12013AIRSCW1396

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ground to treat such accusation of the wife as cruelty within the meaning of the Hindu Marriage Act, 1955.

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ii. Having considered the entire material available on record, we have not found that the judgment rendered by the trial Court suffers from any such illegality or perversity warmnting interference by this Court.

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Accordingly, the Appeal being bereft of any substance desen/es to

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be and is hereby dismissed.

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Sd/Sd/Arvind Singh Chandel Prashant Kumar Mishra Judge Judge

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Barve

Arun Kumar Dewangan v. Smt.Gopikarani Dewangan

Case brief

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What did the court decide?

Arun Kumar Dewangan v. Smt.Gopikarani Dewangan

Case brief

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