Allowed

Vivekanand Pradhan v. Bharti Pradhan

Chhattisgarh HC2 May 2024FA(MAT)/88/2020

Case brief

AI extract

What is this about?

Husband's appeal against dismissal of divorce suit alleging wife's adultery and cruelty. Evidence of an adulterous act with another man was found unrebutted; the court held adultery amounts to cruelty, noted six years' separation showing irretrievable breakdown, set aside the Family Court's finding and dissolved the marriage.

What did the court decide?

Decree of dissolution of marriage granted on ground of cruelty under Section 13(1)(i-a); Family Court's dismissal set aside.

Vivekanand Pradhan Vs Bharti Pradhan — Dowry and Cruelty | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA(MAT) No. 88 of 2020

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Judgment Reserved on 08.04.2024

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Judgment Delivered on 03.-05.2024

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Vivekanand Pradhan, S/o Tegnu Pradhan, aged about 40 Years, Occupation Cultivator, R/o Village Bhikharimal, Police Station Chakradhar Nagar, Raigarh, Tahsil and District Raigarh, Chhattisgarh.

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----Appellant

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Versus

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Bharti Pradhan, W/o Vivekanand Pradhan, aged about 31 Years, R/o Village Baghadola, Tahsil Pussore, District Raigarh, Chhattisgarh.

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---- Respondent

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For Appellant Mr. Hariom Rai, Advocate. For Respondent Mr. Hari Agrawal, Advocate.

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Hon’ble Shri Justice Goutam Bhaduri &

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Hon’ble Shri Justice Radhakishan Agrawal C A V Judgment

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Per Radhakishan Agrawal, J.

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This appeal has been preferred by the appellant-Husband against the judgment and decree dated 05.02.2020 passed by the Judge, Family Court, Raigarh (C.G.) in Civil Suit No.162-A/2017, whereby the application filed by him under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (for short 'Act of 1955') seeking dissolution of marriage has been dismissed. Therefore, the instant appeal is by the husband.

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Briefly stated the facts of the case are that appellant-husband instituted a suit claiming decree for dissolution of marriage on the

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grounds enumerated under Section 13(1)(i-a) of the Act of 1955. It is pleaded in the application that his marriage with respondent-wife was solemnized on 01.05.2007 in accordance with Hindu Rites and Rituals and they have been blessed with three children. According to the appellant-husband, after marriage, the respondent joined the company of appellant for performing matrimonial obligations. After some time of marriage, her behaviour suddenly changed towards him and she started quarreling with the appellant over petty domestic issues and during scuffle, she also threatened the appellant to leave him. It is further pleaded that on 27.05.2014, the respondent-wife accompanied by her three children left the house at 7:00 pm without informing him and his family members. Then, the appellant started searching them, but he could not trace them out, therefore, he lodged a missing report (Ex.P-1) on 28.05.2014 at Police Station Chakradhar Nagar, Raigarh in that behalf. After 5-6 of making report, an information was given to the appellant that the respondent-wife is living at village Baghadola in the house of her friend along with children. Thereafter, the appellant along with his friend Kedarnath Gupta went there and enquired about the name of friend of respondent, but she (respondent-wife) did not disclose her friend's name. It is also pleaded by him that the appellant requested the respondent to return the matrimonial house, upon which, the maternal grand father of the respondent brought the respondent-wife to the house of appellant-husband. It is further pleaded that even then there is no change in her behaviour and used to pick quarrels with the appellant in petty matters. According to the appellant, on 07.06.2017, the appellant went to Raigarh for skill test,

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leaving the respondent and his children in the house and taking undue advantage of the absence of the appellant, one Harikishan Bareth @ Pappu Bareth came to the house of appellant and had sexual intercourse with the respondent-wife. At the same time, the appellant reached there and saw them in a compromising position. It is further put forth by him that on seeing them in such condition, he raised alarm and called the other family members and informed them about the incident. The appellant, thereafter, reported the said incident in the Police Station Chakradhar Nagar, Raigarh against the respondent and Harikishan Bareth @ Pappu Bareth, but because of Harikishan Bareth @ Pappu Bareth being influenced person, no offence was registered against him, in turn, the said Harikishan Bareth @ Pappu Bareth threatened the appellant for dire consequence and the appellant has also made complaint in that behalf also vide Ex.P-12. Since the respondent-wife was leading adultery life and that there is no physical relation between them since 07.06.2017, therefore, the appellant has been compelled to institute the said suit.

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In reply, respondent-wife, while admitting the factum of marriage with the appellant-husband on 01.05.2007 and they have three children, denied the aforesaid averments. It was specifically pleaded by her that during the course of cohabitation, appellant used to abuse and commit marpeet with her and prevented her to meet the children, which compelled her to go to her maternal home. On 07.06.2016, again the appellant committed marpeet with the respondent-wife and went to police station Chakradhar Nagar and lodged the false report against her, upon which the Station In-charge made him understand and

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advised him to live peacefully in future. However, despite that the appellant left the place leaving her alone and since then she is living in her maternal home. It is stated by the respondent-wife that the appellant has moved the application for divorce on false grounds so that he can get the divorce decree and marry again. On these grounds, she prayed that appeal filed by her husband seeking dissolution of marriage is baseless, therefore, the same is liable to be dismissed.

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Before the Family Court, both the parties led evidence and brought on material documents. The Family Court, on the basis of evidence and material available on record, dismissed the suit filed by the appellanthusband for dissolution of marriage. Aggrieved by the said judgment, the appellant-husband is before this Court.

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Learned counsel for the appellant / husband would submit that despite there being evidence of finding of PW-1 Vivekanand Pradhan and PW-2 Kedarnath Gupta with respect to adultery life of the respondentwife, the Family Court has erred in holding that respondent- wife is not leading an adulterous life. He would further submit that the respondent-wife was in the habit of leaving the matrimonial home frequently to which the appellant reported the matter to the police station and thus subjected the appellant to mental cruelty. He would also submit that the learned Family Court has failed to appreciate that once the wife has committed adulterous act that would amount to cruelty. He would also submit that appellant time and again reported the matter to the police station about the wife leaving the matrimonial

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home frequently. On these grounds, he urged that the appeal may be allowed and the appellant may be granted decree of divorce. In support of his contention, he placed his reliance on the decision rendered by the Tripura High Court in the matter of Budhi Datta Barua vs. Usha Barua¹ .

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Per contra, learned counsel for the respondent / wife submits that the appellant-husband has not proved his case and that respondent-wife was living with her in-laws and all the allegations made by husband against her are false, therefore, the learned Family Court, after considering all the relevant aspects of the matter in light of the pleadings of the parties and the evidence adduced in support thereof, has rightly dismissed the suit filed by the appellant-husband for dissolution of marriage. As such, no interference in the impugned judgment and decree is warranted.

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We have heard learned counsel appearing for the parties, perused the pleadings and the evidence available on record.

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Now, the question that falls for our consideration is whether the appellant-husband is entitled for decree of divorce?

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Admittedly, marriage between both the parties was solemnized on 01.05.2007 according to Hindu Rites and Rituals. After marriage, the respondent-wife joined the company of appellant-husband and it is not disputed that they have been living apart since 2017. Reiterating the pleadings made in the plaint, PW-1 Vivekanand Pradhan has stated in

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1 2021 (3) HLR117 (Tri.)

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his deposition that on 28.05.2014, he lodged a missing report (Ex.P-1) that the respondent-wife accompanied by children has left the matrimonial home without any information thereof to his family members. Thereafter, he has specifically stated that on 07.06.2017, to attend skill test, he had gone to Raigarh, leaving his wife-respondent and children and on the same day, when he returned to his home at 2:30 pm, he saw his wife with one Harikishan Bareth in a compromising position. Thereafter, he raised alarm and hearing his alarm, his family members came there and he informed the incident to them. At that time, said Harikishan Bareth was standing near a corner of bed wearing underwear and vest. On seeing him, he asked his name, then he (Harikishan Bareth) pushed the appellant and tried to run away from there while disclosing his name to be Harikishan Bareth @ Pappu Bareth. This witness has also stated that his son Siddharth told him that said Harikishan Bareth had given him Rs.10/- and sent him out to play. Then immediately, the said incident was reported by him to Police Station Chakradhar Nagar where police tried to save Harikishan Bareth since he is the son of retired Police Officer. Thereafter, he has filed a complaint before the Judicial Magistrate. After filing of complaint, said Harikishan Bareth threatened him to dire consequences, which information was also reported to the Chakradhar Nagar Police Station vide Ex.P-12 and Police Superintendent, Raigarh vide Ex.P-13. It is also stated by him that his wife-respondent always indulged in adultery with Harikishan Bareth @ Pappu Bareth and used to cheat him, which would amount to cruelty and since she indulged in leading adulterous life, therefore, it is not

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possible for him to live with her. He was subjected to crossexamination where he remained firm. However, in para 23, he has specifically stated that in Ex.P-7 whatever mentioned therein with respect to adulterous act committed by his wife, has been deposed by him.

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PW-2 Kedarnath Gupta has stated in his deposition that when he was called by the appellant on 07.06.2017, then he went to the house of the appellant and saw Harikishan Bareth sitting near the corner of bed wearing underwear and wife of appellant (respondent herein) also sitting on the side of bed covering saree. Thereafter, they (PW-1 & PW-2) enquired about the matter, upon which said Harikishan Bareth admitted to indulge in sexual intercourse with her. He was subjected to cross-examination and in cross-examination para 4, he has admitted that although he did not witness the incident, but upon calling by the appellant, he reached the place of incident and supported the statement of PW-1 Vivekanand Pradhan.

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Reiterating the pleadings made in her written statement, DW-1 Smt. Bharti Pradhan has admitted in para 8 of her cross-examination that in absence of her husband, on 07.06.2017, Harikishan @ Pappu Bareth came to the house. It has been admitted by her that on 07.06.2017, appellant-husband reported the matter to the police station and her statement has also been recorded by the police. It has been further admitted by her that Harikishan Bareth is her friend since 10^th class. Although in her cross-examination, she denied about the relationship with Harikishan Bareth, but a perusal of Ex.P-8 (statement recorded

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before police) shows that she has admitted that since school days, they were friends (she & Harikishan Bareth) and during college days, they wanted to marry, but because of different castes, their marriage could not be performed. It has been further admitted by her in her crossexamination at para 11 that when Harikishan was present in her house, PW-2 Kedarnath reached there later on. Further One Arvind Kumar, Para-Legal Volunteer, has also admitted in his statement (Ex.P-6) that when his niece Kashiram told him about the incident at the house of appellant, then he went there and saw that one unknown person standing in the bed room of appellant wearing underwear and vest.

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In the matter of Budhi Datta Barua (supra), the Tripura High Court has held in para 15 as under:-

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“15. Sine quo non is the sexual intercourse. Sexual intercourse beyond the marriage is broadly called adultery, but the said provision does not require the proof of living in adultery or in adulterous life. It is the sexual intercourse, even a single intercourse would be adequate to invoke that provision for dissolving the marriage.”

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Now in the light of aforesaid judgment, what is reflected from the evidence of appellant is that on 07.06.2017, when the appellant has gone to Raigarh for attending skill test, the respondent-wife, her children and parents of appellant were present in the home. After completion of his work, he returned to his house at 2:30 pm and saw his wife along with one Harikishan @ Pappu Bareth in a compromising position in bed room and thereafter, he raised alarm and upon his alarm, his family members also arrived there and they were also apprised of the incident. It is also reflected from the evidence of appellant that earlier also, the respondent-wife was in the habit of

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leaving the matrimonial home without any information. The statement of PW-1 husband also finds support from the statement of PW-2 Kedarnath Gupta and also the statement (Ex.P-6), with respect to the fact that on the date of incident i.e. 07.06.2017, respondent-wife and one Harikishan @ Pappu were seen together in an objectionable position. In support of his evidence, PW-1 Husband has also filed copies of missing report (Ex.P-1) and complaints (Exs.P-12 & P-13) made by him against the respondent-wife and one Harikishan @ Pappu Bareth to the Police Station Chakradhar Nagar and Superintendent of Police, Raigarh and duly proved by him being unrebutted. Moreover, from the evidence of respondent-wife, it is quite vivid that in para 8 of her cross-examination, she has admitted that in absence of her husband, on 07.06.2017, Harikishan @ Pappu Bareth came to the house and further admitted by her that Harikishan Bareth is her friend since 10^th class. Although in her cross-examination, she denied about the relationship with Harikishan Bareth, but in her statement recorded before police vide Ex.P-8 wherein she has admitted that since school & college days, they (she & Harikishan Bareth) were friends and wanted to marry, but because of different castes, their marriage could not be performed. Further, she did not rebut the evidence of PW-1 Husband, PW-2 Kedarnath as well as the police statement (Ex.P-6) of one Arvind Kumar, Para-Legal Volunteer nor did she led any evidence in her defence. Though friendship between the two persons cannot be objected, but when appellant-husband returned to his house and saw Harishankar Bareth sitting in bed room with the respondent-wife wearing undergarment, then it is an indecent position, which shows that

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respondent-wife committed adulterous act. Thus, from the overall appreciation of evidence available on record, it is clear that wiferespondent has committed adulterous act, which amounts to cruelty.

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In view thereof, the appellant is entitled to be granted decree for dissolution of marriage on the grounds enumerated under Section 13(1) (i-a) of the Act, 1955. Further, it appears that both husband and wife are living separately since 2017 and thus they are living apart for more than six years, it, thus, appears that the alleged marriage solemnized on 01.05.2007 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 vs D.A. Deepa² wherein it has been held at paragraphs 30 & 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 27-41999. 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

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2(2013) 5 SCC 226

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observed herein above, that since both are living separately from the year 2017, therefore, the said act on the part of the respondent-wife certainly caused mental cruelty to appellant-husband. As a consequence of it, the appellant – husband would be entitled to get a decree for dissolution of marriage. The finding of the trial Court declining to grant a decree for divorce on the ground of cruelty is accordingly set aside and the appellant is, thus, held to be entitled to a decree for divorce.

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In view of the aforesaid background, the appeal is allowed and the marriage between the parties solemnized on 01.05.2007 is hereby dissolved. No order as to costs.

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A decree be drawn accordingly.

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Sd/Sd/- (Goutam Bhaduri) (Radhakishan Agrawal) Judge Judge

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Akhilesh / Anjani

Vivekanand Pradhan v. Bharti Pradhan

Case brief

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Vivekanand Pradhan v. Bharti Pradhan

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