Sonia Jangde Vs Birbhan Singh Jangde

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2024:CGHC:48166-DB

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA (MAT) No. 180 of 2023

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Judgment Reserved on : 13/11/2024 Judgment Delivered on : 06/12/2024

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Sonia Jangde, W/o Birbhan Singh Jangde, D/o Hariprasad Patre, currently aged about 33 years, currently R/o village navagaon Thelka, P.S. Fasterpur, District Mungeli (C.G.).

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---- Appellant / Defendant

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Versus

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Birbhan Singh Jangde, S/o Nohardas Jangde, Currently aged about 36 years, R/o village Darri, Post Temri, P.S. Nandghat, District Bemetara (C.G.)

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---- Respondent / Plaintiff

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For Appellant : Mr. Pankaj Singh, Advocate. For Respondent : Mr. Rishi Rahul Soni, Advocate.

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Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Bibhu Datta Guru

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(C.A.V. Judgment)

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Per Rajani Dubey, J.

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The present appeal under Section 19(1) of the Family Courts Act, 1984 has been preferred by the defendant/wife against the judgment and decree dated 16.02.2023 passed by the Judge,

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Family Court, Bemetara (C.G.), in Civil Suit No.75A/2022 whereby, application preferred by the plaintiff/husband filed under Section 13 of the Hindu Marriage Act was allowed. The parties to this appeal shall be referred herein as per their description before the Court below.

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Briefly stated fact of the case are that the plaintiff/husband instituted a suit claiming decree for dissolution of marriage on the grounds enumerated under Section 13 of the Hindu Marriage Acrt, 1955 (for short ‘the Act, 1955’). It is pleaded in the application that his marriage with the defendant/wife was solemnized on 02.05.2017 according to Hindu customs. According to the plaintiff/husband, the defendant/wife behaved properly in her in-laws’ house for about 06 months and thereafter she started living in her father’s house. After some time of marriage, the defendant’s behaviour towards the plaintiff kept changing. It is further pleaded that the defendant started quarreling with the plaintiff and his parents over trivial issues and pressurized him to part away from his parents. He made understand the plaintiff but with time her behavior became cruel. The defendant used to go out every 15-20 days without informing the plaintiff saying that she was going to her father’s house, and on refusal, she used to quarrel with him. It was also pleaded that when the plaintiff used to go to his in-laws' house in the beginning, his in-laws used to insult him. He kept tolerating everything to save the family from dispute. When the defendant used to return from her maternal home to her in-laws' house, her behavior used to become even more atrocious and she used to

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quarrel over trivial issues. The defendant used to go back to her maternal home after staying there for some time. It is also pleaded that on 15.04.2019, the defendant went to her parental house with her all belongings without permission of the plaintiff and since then she is living with her father at village Navagaon. Thereafter, after few days, the plaintiff went to Navagaon to take the defendant, but she refused to come. The plaintiff told the above to his father, then the plaintiff's father went to Navagaon along with the prominent people of village Darri to bring the defendant back, even then the defendant refused to come without any justifiable reason. Thereafter, the plaintiff made a complaint in this regard in Police Station Maro, Nandghat (Woman Cell) Bemetara, and in counseling the defendant agreed to come with plaintiff but when the plaintiff went to take her, she refused to come with him. Thereafter, on 01.07.2019, the plaintiff filed a suit against the defendant for restitution of conjugal rights wherein, the learned Family Court passed the judgment and decree on 23.11.2019 in favour of the plaintiff, but the defendant did not follow the order of learned Family Court and has not restored the marital relations till date. Thereafter, the defendant filed an application under Section 125 Cr.P.C. before the Principal Judge, Family Court, Mungeli, in which order was passed to give Rs.5000/- per month as maintenance, which is being complied with by the plaintiff regularly. It is also pleaded that during the pendency of application filed under Section 13 of the Act, 1955, the defendant had filed an application under the Domestic Violence Act before the Chief Judicial Magistrate

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Mungeli with malafide intention just to harass the plaintiff and his family members. The defendant deserted his company from 2019 without any reason, therefore, he is entitled to get a decree for dissolution of marriage under the Act, 1955.

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The defendant, in her reply, denied all the allegations and stated that on 15.04.2019, the plaintiff himself mentally and physically tortured the defendant and ousted her from the house saying that after one year, no child has been born and she did not bring any dowry in the marriage and her health was not good. The plaintiff had never gone to the defendant's village Navagaon to bring her back, nor did her father refused to send the defendant. The plaintiff himself had been evading the matter by visiting the defendant's village Navagaon Thelka many times and establishing marital relations with her at night saying that he would take her after few days. In the counseling, the defendant expressed her desire to go home and said that she would come to the plaintiff's house after informing her parents, but the plaintiff refused to come to take her. It was also stated that the defendant sent a notice through the Advocate for restitution of conjugal right. Before the defendant filed the maintenance application, the plaintiff continued to have marital relations with her and kept concealing the fact that he was not having relations with any other woman. The plaintiff has performed marriage with another woman and is living a married life with her. The plaintiff and his family members harassed her and stopped talking with her, used to send her alone to her maternal home, the plaintiff never came to take her, she used to come to her in-laws' house on her own

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wish. It was also stated that while the defendant was living separately in her maternal home, the plaintiff had been establishing marital relations, he used to stay with her at night in in-laws' house. It has been contended that the plaintiff did not comply with the order passed in an application filed under Section 9 of Act, 1955. That apart, no action was taken by the plaintiff during the pendency of the domestic violence case and maintenance cases, nor did he appear during the hearings of the case on a given date. The plaintiff is currently living a married life with another woman. The plaintiff has grossly neglected the defendant. Therefore, the suit may be dismissed.

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The learned Family Court, after examining oral and documentary evidence, allowed the application of plaintiff holding that the plaintiff has been successful in proving that the defendant has deserted him two years before filing the suit. It was also proved that after the decree of restitution of conjugal rights was passed in favour of the plaintiff, the defendant did not comply with the order and since the conjugal rights were not restored even after one year of the said decree, after the expiry of that period, the plaintiff becomes entitled to get a decree of divorce. It was also proved that keeping the plaintiff deprived of conjugal rights by the defendant for a long period comes within the cruelty towards the plaintiff. Hence, the present appeal by the defendant.

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Learned counsel for the appellant submits that the impugned judgment and decree suffers from grave illegality and impropriety. The learned Family Court miserably failed to appreciate facts and circumstances of the case, which clearly

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highlights that cruelty was committed against the defendant-wife by plaintiff-husband and his family members and that the defendant despite her wishes was forced to stay away from matrimonial home. Learned counsel further submits that the learned Family Court has gone wrong in holding that the defendant-wife has deserted the plaintiff-husband in terms of Section 13(1)(i-b) of the Act, 1955, but it is clear that the cruelty and ill-treatment meted out against the defendant-wife and she was compelled to stay away from her matrimonial home despite her repeated expression of interest to resume her matrimonial life. Learned counsel also submits that the learned Family Court contrary to the pleading and evidence, has gone wrong in holding that the defendant-wife driven away from her matrimonial home on 15.04.2019 for the reason of her failure to bear a child to respondent and further of her failure to meet the dowry demands of plaintiff and his family members. The learned Family Court in contravention to the pleadings and evidence, has failed to hold that respondent has committed mental cruelty upon the appellant and had made no endeavor to bring appellant back to her matrimonial home and has, in fact, prevented her from resuming her matrimonial home. No clinching evidence has been adduced by the plaintiff-husband and the learned Family Court failed to appreciate the evidence adduced by the defendant-wife pertaining to exploitation and harassment meted out to her by plaintiff-husband and his family members.

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Learned counsel also submits that the impugned judgment and decree suffers from wrong appreciation of fact and evidence and

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further suffers from grave non-application of mind by the learned Family Court. It has committed grave mistake in law by allowing the plaintiff-husband to succeed not on the strength of his own case but on the perceived weaknesses in the case of the appellant herein. Therefore, the impugned judgment and decree is liable to be set aside.

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On the other hand, learned counsel for respondent supporting the impugned judgment and decree submits that the learned Family Court minutely appreciated oral and documentary evidence. The impugned judgment and decree is well merited and no interference is required by this Court.

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We have heard learned counsel for the parties and perused the material available on record.

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It is apparent from the record of the learned trial Court that the plaintiff-husband had filed an application under Section 13 (1) (ia) of the Act, 1955 against the defendant-wife for dissolution of marriage by decree of divorce on the ground of cruelty & in order to prove cruelty, the learned trial Court on the basis of pleadings of both the parties framed issues, which are reproduced herein as under :-

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“1D;k izfrokfnuh us nkok izLrqr djus ds vO;ofgr iwoZ de ls de 02 o"kZ dh fujarj dkykof/k rd oknh dks vfHkR;Dr j[kk gS \

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2- D;k izfrokfnuh us oknh ds lkFk nkos esa mYysf[kr vk/kkjksa ij ’kkjhfjd ,o a ekufld #i ls izrkfMr dj d z `jrk dk O;ogkj fd;k gS \

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3- D;k oknh us izfrokfnuh dks tokcnkok esa mYysf[kr vk/kkjksa ij ‘’kkjhfjd ,oa ekufld #i ls izrkfMr dj d z `jrk dk O;ogkj fd;k gS \

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4- D;k oknh] izfrokfnuh ls fookg & foPNsn dh vkKfIRk izkIr djus dk vf/kdkjh gS \

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The learned Family Court, after appreciation of oral and documentary evidence, recorded its finding that the Issue Nos. 1, 2 and 4 proved by the plaintiff-husband and Issue No.3 as not proved by the defendant-wife.

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The plaintiff/husband in support of his claim examined himself as PW/1 and two other witnesses namely Dewadas (PW/2) and Nandlal Jangde (PW/3). The defendant-wife also examined herself as DW/1 and three other witnesses namely Bhuwan Prasad Ogre (DW/2), Anendra Kumar Patre (DW/3) and Hari Prasad Patre (DW/4).

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Plaintiff/husband, in support of his application, has filed an affidavit under Order 18 Rule 4 of C.P.C. In cross-examination, upon showing photograph (Ex.D/1), he admitted that he did not know the woman in the photograph and said that he was unaware that the name of woman was Reena Tandon and denied that he has married said Reena Tandon. He has also denied all suggestions of defendant/wife that he demanded motorcycle, gold and silver as dowry. In his evidence on affidavit, he has stated that he filed an application under Section 9 of the Act, 1955 for restitution of conjugal right and the learned Family Court in Civil Suit No.62-A/2019 by judgment dated 23.11.2019 allowed his application and directed the defendant/wife to live with him but the defendant/wife did not come to his house and did not follow the judgment and decree of the learned Family

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Court.

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Dewadas (PW/2) has also supported the statement of plaintiff/husband. The plaintiff/husband has only filed evidence on affidavit of Nandlal Jangde (PW/3) under Order 18 Rule 4 of CPC and his cross-examination was not done before the learned Family Court.

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The defendant/wife has pleaded in her written statement that she was willing to live with plaintiff/husband but in para 13 and 14 of her cross-examination, she admitted that in case of Section 9 of Act, 1955, she appeared in counseling and decree was passed by the learned Family Court in favour of the plaintiff/husband but she voluntarily stated that she refused to go with plaintiff/husband due to life threat. Further in para 12, she has stated that she was ousted from her matrimonial house but she admitted that she came to her parental home on 15.04.2019 and she herself called her father. The defendant/wife alleged that plaintiff/husband demanded dowry and tortured her but she admitted that she did not lodge any FIR against plaintiff/husband in this regard and she also admitted that she is residing in her father’s house since 15.04.2019.

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Bhuwan Prasad Ogre (DW/2) has stated that plaintiff/husband has performed another marriage with one woman namely Reena but he admitted this fact in cross-examination that he did not see marriage of Reena and plaintiff Birbhan.

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Anendra Kumar Patre (DW/3) is the husband of Reena. He too has admitted that he did not see the marriage of plaintiff Birbhan

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with his wife Reena.

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The learned Family Court minutely appreciated oral and documentary evidence and recorded its finding that defendant/wife did not go to her matrimonial house despite the judgment and decree by the learned Family Court. This is the case where no marital relations were resumed for more than 1 years after the decree for restitution of conjugal rights was passed in favour of the plaintiff/husband. The husband filed petition for divorce under Section 13 (1A) (ii) of the Act, 1955. The question arose whether defendant/wife is taking advantage of her own 'wrong'. The learned Family Court considered Section 13 (1A) (ii) of the Act, 1955. For ready reference, Section 13 (1A) (ii) of the Act, 1955 is reproduced herein as under :-

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“ [(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -

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(i) xxxxx

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(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]”

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The learned Family Court placing reliance in Vidya Vishwanathan V. Kartik Balkrushnan (2014) 15 SCC 21 , wherein it has been held that not allowing a spouse for a long

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time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse, recorded its finding that when the decree for restitution of conjugal rights was passed against the defendant/wife and she has made no efforts to comply with it and has avoided the restitution of conjugal decree, she was taking advantage of her own wrong and therefore plaintiff/husband is entitled to the decree of divorce.

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It is an admitted position in this case that the learned Family Court passed the decree under Section 9 of the Act, 1955 on 23.11.2019 but the defendant/wife did not follow the order of learned Family Court. The learned Family Court minutely appreciated the evidence of both the parties and finds that issue Nos. 1, 2 and 4 proved in favour of plaintiff/husband and defendant/wife failed to prove issue No.3 in her favour.

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It is well settled that 'Desertion' for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without other's consent and without reasonable cause. Desertion is not the withdrawal from a place but from the state of things. Desertion therefore means withdrawing from the matrimonial obligations that is to say not permitting or allowing and facilitating the cohabitation between the parties. It is not a single act complete in itself. It is a continuous course of conduct to be determined under the facts and circumstances of each case. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (i) the factum

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of separation, arid (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to from the necessary intention aforesaid.

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Learned counsel for the defendant/wife submitted that the learned Family Court did not grant alimony in favour of wife. This Court, vide order dated 31.08.2023, directed both the parties to file their affidavits in view of guidelines of Hon’ble Apex Court in Rajnesh V. Neha (2021) 2 SCC 324 . Perusal of affidavits filed by both the parties goes to show that the defendant/wife is fully dependent upon his father who is agriculturalist holding and cultivating about an acre of land and is sole earning member in the family & plaintiff/husband has no immovable assets on his name and his father has purchased one second hand vehicle Maruti Omni on loan which is being used by his father.

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The husband has made out a case for divorce by proving mental cruelty and the learned Family Court was fully justified in granting decree of divorce in favour of plaintiff/husband. As a decree has been passed, the wife is entitled to permanent alimony for her sustenance. Be it stated, while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. Hon’ble Apex Court in Vinny Parmvir Parmar v. Parmvir Parmar [2011

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(13) SCC 112], while dealing with the concept of permanent alimony, has observed that while granting permanent alimony, the Court is required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party.

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Keeping in mind the aforesaid principles, we may proceed to address the issue. The plaintiff/husband has submitted land certificate which shows that he has no land on his name and further in affidavit he has stated that one second hand Maruti Omni has been purchased by his father on loan and presently is being used by his father. Be that as it may, it is the duty of the Court to see that the wife lives with dignity and comfort and not in penury. The living need not be luxurious but simultaneously she should not be left to live in discomfort. The Court has to act with pragmatic sensibility to such an issue so that the wife does not meet any kind of man-made misfortune. Regard being had to the position of the husband, the social strata to which the parties belong, and the fact that the plaintiff/husband is giving Rs.5,000/per month as maintenance in compliance of order passed in application filed by defendant/wife under Section 125 of Cr.P.C., we think it appropriate to fix the one time permanent alimony at Rs 5,00,000/- which shall be deposited before the learned Family Judge within a period of six months. We may want to clarify that amount, if any, deposited earlier shall be adjusted.

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On the basis of the forgoing discussion, the decree for dissolution of marriage is affirmed only on the ground of mental cruelty which eventually leads to dismissal of the appeal. The parties shall bear their respective costs.

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Let a decree be drawn accordingly.

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Sd/-

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Sd/-

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(Rajani Dubey) (Bibhu Datta Guru) Judge Judge

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Pekde

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Digitally signed by VIJAY BHARATRAO PEKDE Date: 2024.12.09 15:18:09 +0530

Sonia Jangde v. Birbhan Singh Jangde

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Sonia Jangde v. Birbhan Singh Jangde

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