Allowed

Surendra Kumar Swarnkar v. Smt. Sudha Devi Swarnkar

Chhattisgarh HC13 Nov 2024FA(MAT)/190/2022

Case brief

AI extract

What is this about?

In an appeal against a Family Court order dismissing a petition for dissolution of marriage, the High Court held the trial court's finding perverse. Citing long separation (27 years), related criminal cases, and previous non-compliance, the court found the marriage irretrievably broken and allowed the appeal, setting aside the lower order and granting a decree of divorce.

What did the court decide?

Impugned judgment and decree set aside; appellant husband entitled to decree for dissolution of marriage on grounds of cruelty and desertion.

Surendra Kumar Swarnkar Vs Smt. Sudha Devi… — Matrimonial and Divorce | Chhattisgarh HC (2024)

2024:CGHC:44402-DB

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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FA(MAT) No. 190 of 2022

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Judgment Reserved on : 04/10/2024 Judgment Delivered on : 14/11/2024

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Surendra Kumar Swarnkar, S/o Late Yogeshwar Prasad, aged about 50 years, R/o M.D.-421, Deepika Colony, Post OfÏce – Gevara Project, Thana – Deepika, Tehsil Katghora, District Korba (C.G.).

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---- Appellant

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Versus

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Smt. Sudha Devi Swarnkar, W/o Shri Surendra Kumar Swarnkar, D/oLate Shankar Prasad Soni, aged about 49 years, R/o Sendripali, Bhaisamaa, Tehsil – Kartala, District Korba (C.G.), Haal Mukam – C/o Kailash Kumar Soni (Teacher) House No. 67, (Cha) (Bazar para) Nawapara, Chhal Post & Thana – Dharamjaigarh, District Raigarh (C.G.)

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---- Respondent

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For Appellant : Mr. Sanjay Patel, Advocate. For Respondent : Mr. Punit Ruparel, Advocate.

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Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Sanjay Kumar Jaiswal

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(C.A.V. Judgment)

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Per Rajani Dubey, J

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This appeal has been preferred by the applicant-husband being aggrieved by the judgment and decree dated

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30.09.2022 passed by the learned Family Court, Katghora, Korba in Civil Suit No.66-A/2017, whereby the application filed by him seeking dissolution of marriage has been dismissed. 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 applicant – husband instituted a suit claiming decree for dissolution fo marriage on the grounds enumerated under Section 13 (1) (I) and (ia) of the Hindu Marriage Acrt, 1955 (for short ‘the Act, 1955’). It is pleaded in the application that his marriage with the non-applicant – wife was solemnized at village Sendripali in the year 1987 and out of their wedlock, two children were born. According to the applicant, his wife after marriage started misbehaving with him and his family members and being objected, she used to quarrel with them. It is pleaded further that in the month of July, 1993, non-applicant – wife called her brother and went with him to her parental home without informing the applicant-husband and was not returning to her matrimonial home. Thereafter, the applicant-husband along with reputed persons of society went to the house of non-applicant-wife to take her, whereupon she denied to come with applicant insulting them. It is further pleaded that non-applicant-wife lodged report against him for offence under Section 498A IPC, in which he got acquittal on 23.06.2020. During

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the pendency of said criminal case, the applicanthusband always tried his level best to keep the nonapplicant-wife and she started residing with him after executing an agreement on 22.12.1997. It is further pleaded that the non-applicant-wife resided happily with him for some period but thereafter she again started quarreling with applicant-husband and his family members and deserted his company and since then she is living in her parental home from 16 years, therefore, he is entitled to get a decree for dissolution of marriage under the Act, 1955.

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The non-applicant – wife, in her reply, except admitted facts denied rest of the allegations and stated that after solemnization of marriage, her husband started torturing her physically and mentally for demand of dowry. She tolerated all these with the hope that everything would be sorted out with the time, however, there was no change in the behaviour of the applicant-husband and he started committing more cruelty and ousted from house and sent her to parental home & since then she is living with her sons. It was further contended that the applicant-husband used to harass her for demand of dowry and was threatening her that he would perform second marriage and therefore, she has been constrained to lodge a complaint in police station and then an FIR for offence under Section 498-A IPC was registered against applicant-husband. It is also

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contended that she was persuaded by the applicanthusband and promised not to harass her and because of that she has not stated anything adversely against him and on account of her support, he has been acquitted of the same crime. It has also been contended that after settling the criminal case, in the year 2012, the applicant-husband without her knowledge and permission, performed second marriage with Sunita Soni and has been leading family life with her. In para 07, the non-applicant-wife has also stated that during the period, the applicant-husband never took any attempt to know about her and harassed her for dissolution of marriage.

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The learned Family Court, after examining oral and documentary evidence, dismissed the application of applicant-husband holding that the applicant-husband failed to prove cruelty and desertion by the respondentwife. Hence, this appeal filed by the applicant-husband.

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5. Learned counsel for the applicant-husband submits that the impugned judgment and decree passed by the learned Family Court is bad, illegal, arbitrary and contrary to law applicable to the facts and circumstances of the case. The learned Family Court failed to see that the marriage is irretrievably broken and there is no chance of reunion. The respondent-wife in her statement stated that there was no cohabitation with the applicant-

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husband since 27 years. Learned counsel further submits that the learned Family Court failed to see that the respondent-wife had initiated a criminal case under Section 498-A IPC, in which applicant-husband got acquittal. There is ample evidence on record which shows that the cruelty was committed by wife. The learned Family Court failed to see that there is abundance of material available on record to prove wife’s cruelty. Learned counsel also submits that the learned Family Court did not appreciate oral and documentary evidence in its true perspective. It has committed gross illegality in in believing the version of the respondent-wife that she wanted to live with the applicant-husband while she herself stated that she is living separately since 27 years and depriving of marital happiness amounts to cruelty. It has been also submitted that the sons, at the behest of respondent-wife, used to beat the applicant-husband which is evident from record, which clearly established cruelty on the part of the respondent-wife. Thus, the finding recorded by the learned Family Court is perverse and impugned judgment is liable to be set aside. In support of his submission, learned counsel placed reliance on the decision dated 12.05.2022 of this Court passed in FA(M) No. 75/2016 [Pritam Lal Sahu Vs. Smt. Kalpana Sahu].

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On the other hand, learned counsel for respondent-wife

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supporting the impugned judgment and decree submits that the learned Family Court minutely appreciated oral and documentary evidence and rightly dismissed the application of the applicant-husband. So, this appeal being without any merit is liable to be dismissed.

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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 not disputed before the learned Family Court that the marriage of applicant-husband was solemnized with respondent-wife in the year 1987 and two children namely Dhelandra Kumar and Mahendra Kumar were born out of their wedlock. The applicant-husband filed an application under Section 13 of the Act, 1955 for dissolution of marriage by decree of divorce on the ground of cruelty and desertion. Applicant-husband, in support of his application, filed medical prescription and medical bills (Ex.P/3 to P/6) with regard to psychological treatment of respondent-wife, copy of agreement (Ex.P/9), certified copy of order sheet of criminal case No.02/96 (Ex.P/10), copy of written complaint addressed to Superintendent of Police (Ex.P/11), copy of FIR lodged against son of applicant-husband (Ex.P/12), copy of complaint given to S.H.O. Dipka (Ex.P/13), copy of notice under Section 155 of Cr.P.C. (Ex.P/14), copy of complaint dated 22.03.2019 given to S.H.O., Dipka (Ex.P/15), copy of complaint dated 29.01.2019 given to Superintendent

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of Police (Ex.P/16), copy of judgment and decree dated 23.07.1999 passed in Civil Suit No.79-A/99 (Ex.P/17 & P/18), copy of order and decree dated 06.05.2003 passed in Case No.28-A/2002 (Ex.P/19 & P/20).

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The applicant-husband, in his cross-examination, has stated that respondent-wife lodged an FIR under Section 498-A of IPC against him and he himself stated that in that case he was acquitted by the learned trial Court. The applicant-husband, in para 24, has stated that the respondent-wife had filed an application under Section 125 of Cr.P.C. for maintenance, which was dismissed for want of prosecution. He has also stated that the respondent-wife is living separately from 25-26 years in her parental house. He has denied the suggestion that respondent-wife is living separately due to his torture. He has also denied this suggestion that he has married to some other woman.

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Rishi Kumar Chandra (PW/2) and Hemlal Gond (PW/3) have supported the version of applicant Surendra Kumar Swarnkar (PW/1).

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Respondent-wife (DW/1) has admitted this fact that the applicant-husband had filed an application under Section 9 of the Act, 1955, which was allowed by the learned trial Court but she did not follow the order of the learned trial Court. She has also admitted this fact that she filed various complaints against her husband-applicant. She

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has also admitted this fact that her elder son namely Dhalendra Kumar is habitual drinker and he used to beat her husband-applicant. Respondent-wife, in para 20 of her evidence, has admitted that when her son could not kill applicant-husband, he broke the honda motorcycle of the applicant. She has denied the fact that she has been living in her parental house for 27 years after deserting the applicant-husband but she herself stated that applicant-husband has deserted her and is living in Dipka for 27 years. She has admitted that in 27 years, she did not take any action or make any attempt to live with the applicant-husband. She has also admitted this fact that she did not have any personal knowledge of second marriage of applicant-husband and she has only heard about this.

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Dhalendra Kumar Swarnkar (DW/2) who is son of applicant-husband and respondent-wife, has supported the version of her mother/respondent, but in crossexamination he admitted that her father and mother (applicant and respondent) both are living separately since 25 years and his mother did not file any application for restitution of conjugal right. He has also admitted that he had gone to Rourkela for Boiler Operator Training and the said training was got arranged by his father (applicant). He has also admitted that his father (applicant) had deposited Rs.70,000/- in his account on different dates. He has also admitted that at

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present his younger brother Mahendra Kumar is behind the bar and it is true that several criminal cases are pending against him also. He has also admitted that on a report lodged by his father (applicant), a crime under Sections 323, 294, 456B and 325 of IPC was registered against him and his brother.

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Close scrutiny of the evidence of both the parties makes it clear that respondent-wife is living separately in her parental home from 27 years and both sons who are major, are also living with their mother. It also transpires from the evidence of Dhalendra Kumar Swarnkar (DW/2) that they tortured the applicant-husband physically and mentally. It is also admitted by respondent-wife that applicant-husband had filed an application under Section 9 of the Act, 1955, and a decree was also passed in favour of the applicant-husband but she did not follow the order of the learned Court, which makes her conduct suspicious. It is also admitted by respondent-wife that she had lodged an FIR under Section 498-A of the IPC against applicant-husband and the applicant got acquittal in that case by the learned trial Court. The factum of registration of case under Section 498-A, beating the applicant-husband by his son who are living with respondent-wife for 27 years and registration of criminal case against sons & non follow of Court’s order in an application under Section 9 of the Act, 1955, clearly proves the cruelty of respondent-wife against

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applicant-husband.

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While dealing with the issue of cruelty and accusation against each other, this court in the matter of Dr. Ramkeshwar Singh V. Smt. Sheela Singh @ Madhu Singh [Neutral Citation No. 2022:CGHC:15007-DB]

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held in para 26 as under :-

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”26. Further the nature of accusation made against each other in a matrimonial case would show that since 1996, the parties are living apart and litigating in different courts. Taking into such facts into consideration, we are of the view that there is irretrievable breakdown of marriage which is beyond repairs. Under the circumstances, we allow the appeal and grant a decree of divorce to the husband. The marriage solemnized between the parties is dissolved and accordingly a decree be drawn.”

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Further, this Court in the matter of Pritam Lal (supra) held in para 14 as under :-

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“14. Moreover, it appears that both husband and wife are living separately since 18.04.2010 and thus they are living apart for over more than 12 years. It, thus, appears that the alleged marriage solemnized on 01.05.1996 has irretrievably broken down, and therefore, it is dead for all purposes and cannot be revived as held by the Supreme Court in the matter of K. Srinivasa Rao V. D.A. Deepa reported in (2013) 5 SCC 226 wherein it has been held at paragraphs 30 and 31, which read as under :-

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“ 30. It is also to be noted that the appellant husband and the respondent wife are staying apart from 27-4-1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh (2007 1 SCC 337), if we refuse to sever the tie, it may lead to mental cruelty.

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31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.”

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Applying the aforesaid principles to the case in hand, it appears as observed herein above, that both are not only living separately for more than 27 years but various criminal cases were lodged by both the parties and respondent-wife also lodged a complaint under Section

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498-A of IPC, which certainly caused mental cruelty to him and also in an application filed under Section 9 of the Act, 1955 by the applicant-husband, a decree has been passed in favour of the applicant-husband by the trial Court but the respondent-wife did not follow the order of the learned trial Court but the learned Family Court recorded finding that the applicant-husband has failed to prove cruelty and desertion on the part of the respondent-wife. This finding of the learned Family Court, in the opinion of this Court, is perverse and not in accordance with rule and documentary evidence of this case. Thus, the finding recorded by the learned Family Court is not sustainable in the eye of law.

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In the aforesaid background, the appeal is allowed. The impugned judgment and decree are set aside. The applicant-husband is entitled to a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (I) and (ia) of the Act, 1955. No order as to costs.

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18. A decree be drawn up accordingly.

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Sd/Sd/-

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(Rajani Dubey) (Sanjay Kumar Jaiswal) Judge Judge

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Digitally signed by VIJAY BHARATRAO PEKDE Date: 2024.11.1416:10:53 +0530Pekde

Surendra Kumar Swarnkar v. Smt. Sudha Devi Swarnkar

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Surendra Kumar Swarnkar v. Smt. Sudha Devi Swarnkar

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