Dismissed

Tejram @ Satish Jayaswal v. Smt. Anjana @ Anju Jayaswal

Chhattisgarh HC12 Jun 2024FAM/254/2018

Case brief

AI extract

What is this about?

In an appeal against the dismissal of a divorce petition by mutual consent filed by a husband, the High Court upheld the Family Court's judgment. The Court held that the wife's alleged desertion was not without cause given the husband's conduct, and the compromise under Section 125 CrPC could not estop her from raising defenses.

What did the court decide?

Appeal dismissed; Family Court judgment affirmed.

Tejram @ Satish Jayaswal Vs Smt. Anjana @ Anju… — Matrimonial and Divorce | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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First Appeal (M) No. 254 of 2018

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Tejram @ Satish Jayaswal, aged about 46 years, son of Late Medini Jayaswal, resident of village - Bhaisma, P.S. Urga, Tahsil and District - Korba (CG)

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---- Appellant/applicant

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Versus

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Smt. Anjana @ Anju Jayaswal, aged about 35 years, wife of Shri Tejram @ Satish Jayaswal, resident of village - Bhaisma, presently resided at near Gol Bazar, Vivekanand Nagar, Mungeli Police Station, Tahsil and District - Mungeli (CG)

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---- Respondent/non-applicant

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For Appellant : Mr. Kamlesh Ku. Pandey, Advocate For Respondent : Mr. Ashutosh Mishra, Advocate

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Division Bench

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Hon'ble Shri Justice Goutam Bhaduri, J

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Hon’ble Smt. Justice Rajani Dubey, J

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JUDGMENT ON BOARD

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(Passed on 13-06-2024)

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Per Goutam Bhaduri, J

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The present appeal is by the husband against the judgment dated 10.09.2018 passed by Family Court, Katghora, Distt. Korba in Civil Suit No.21A/2014 whereby the petition under Section 13 of the Hindu Marriage Act, 1955 filed by the husband seeking decree of divorce, is dismissed.

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The appellant/husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act of 1955") with the averments that the parties got married on 27.04.1999 and from their wedlock, three children were born. It was pleaded by the husband that

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after birth of the children, the non-applicant/wife started living at her parental home and made a report under Section 498A of IPC as also filed an application under Section 125 of CrPC against the husband. During the said proceedings, an amount of Rs.4 lacs was paid as full and final settlement to the wife and children for their maintenance. However, the wife though received the amount of Rs.4 lacs but did not accede to the request of the husband to file an application under Section 13B of the Act of 1955 for divorce by mutual consent. It was stated that the wife has deserted the husband since 6.11.2006 without any just and reasonable cause and therefore, a decree of divorce may be granted.

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The non-applicant/wife stated that she was subjected to cruelty by the husband for demand of dowry and after six days of marriage, brother of the husband died in an accident, as such allegations were clamped on her that she is ill-fated (eugwl) and was being tortured. On 6.11.2006 her husband tried to assault her by means of scissors. However, as on the information of the neighbours regarding quarrel between the parties, her father had come to her matrimonial home, with his intervention her life could be saved otherwise she would have been assaulted brutally by the husband. She further stated that she was driven out of her matrimonial home since 6.11.2006 along with the children and till then, she is living at her parental home because of the persistent ill-treatment, torture and being driven out of the matrimonial home. She stated that she did not have any source of income and is having three children to look after, as such the husband in the

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maintenance proceedings paid her Rs.4 lacs. However, she never agreed to file a petition under Section 13B of the Act of 1955 for divorce. She further stated that according to the husband, who is working in SECL, she was living separately since 2006 but on the false pretext he obtained money under LTC and in the year 2010, as against the name of the wife, he attached the photograph of his concubine namely Madhu @ Vandana and fraudulently got a medical card prepared and is availing LTC facilities. Since the husband has kept another lady illegally, he wanted to get a decree of divorce from her on the false grounds. Accordingly, she prayed for dismissal of the suit instituted by the husband.

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Learned Family Court on the basis of pleadings of the respective parties framed certain issues on cruelty and desertion and recorded findings in negative and consequently, dismissed the suit. Hence the instant appeal.

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Learned counsel for the appellant would submit that false report was made by the wife under Section 498A of IPC which is evident from the documents placed on record which go to show that after making report she volunteered to compromise, meaning thereby no cruelty was actually committed against her and a false report was made. He further submits that in the proceedings under Section 125 of CrPC and 498A of IPC, settlement was arrived at between the parties to get a decree of divorce by filing petition under Section 13B of the Act of 1955 and in lieu thereof, an amount of Rs.4 lacs as a full and final settlement was tendered by the husband which was duly received by the wife but later

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on she declined to sign the petition under Section 13B which makes it clear that she committed fraud against the husband. He would next submit that the documents and evidence on record would show that the wife is living separately since 6.11.2006 till date and no effort has been made by her to come back to her matrimonial home. Therefore, it is clear that she has left the company of the husband without any justifiable cause which also amounts to desertion and consequently, the finding of the learned Family Court warrants interference by this Court by granting a decree of divorce in favour of the husband.

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On the other hand, learned counsel appearing for the respondent/wife supporting the impugned judgment submits that the learned Family Court keeping in mind all the relevant aspects of the matter, the conduct of the parties as also the provisions of Section 13 of the Act of 1955, has rightly dismissed the suit and as such it does not call for any interference by this Court.

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

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It is not in dispute that marriage between the parties was solemnized on 27.4.1999. The husband alleged that in the year 2008 the wife made a false report under Section 498A of IPC, on which a criminal case under Crime No.304/2008 was registered against him and his entire family was also roped in it, which amounts to cruelty. Apart from this, it was further pleaded that an application under Section 125 of CrPC was filed by the wife to harass the husband and in that

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proceeding, compromise was effected for payment of maintenance and filing of petition under Section 13B of the Act of 1955 for divorce by mutual consent. Though Rs.4 lacs was received by the wife towards maintenance but she refused to file petition under Section 13B. Statement of the husband (PW-1) is also in the similar line. Apart from this fact he stated that the wife has deserted him since 6.11.2006 and she went back to her parental home with all her belongings. However, the wife, on the other hand, denied all the adverse averments and stated that she was brutally assaulted by the husband in connection with demand of dowry. After report being made to this effect, during pendencey of the criminal case a compromise was entered into at the behest of the husband.

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We have gone through the documents filed in this case. The order sheet pertaining to the proceedings under Section 125 of CrPC goes to show that pursuant to the compromise petition (Ex.P/2) being filed, compromise between the appellant/husband and the respondent/wife and her three children was effected vide Ex.P/1 and as one time settlement towards maintenance, Rs.4 lacs was given to them. The compromise petition (Ex.P/2) purports that Rs.4 lacs was paid to the wife and she agreed to make no further claim for maintenance. However, the wife in her statement, on the other hand, when confronted with the said suggestion, has denied the fact that in lieu of payment of Rs.4 lacs, it was agreed between the parties that compromise petition for divorce by mutual consent would be filed. She in her statement has stated that since the children were with her, as

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such she being under coercion and left out with no other option for survival, initially agreed to the proposal of the husband. The position of the parties as was existing, the wife, admittedly, was not having any job and was burdened with three children, would explain that she was at the receiving end, and the compromise offer of Rs. 4 lacs as full and final settlement even for the minor which was given to her and accepted by her, cannot be clothed and protected by a judicial order on ground of estoppel as it would be an unfair bargain to term it as a battle between the lion and the lamb. Furthermore, there can't be estoppel against law.

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Apart from the facts which are existing, we are conscious to the issue that the decree of divorce can be granted only on certain grounds enumerated under Section 13 of the Act of 1955. The claim of the husband that since it was agreed between the parties that he would pay a sum of Rs.4 lacs to the wife and in lieu thereof she agreed to sign the petition under Section 13B to seek a decree of divorce by mutual consent, cannot be pressed into as grant of decree is not a matter of sale and purchase and on the facts it should be brought on record that ground seeking divorce existed between the parties in terms of grounds laid down under Section 13 of the Act of 1955. If he advances this ideology, then the script would be a flawed one and shall not be able to stand up to the object of the Act of 1955. The evidence would further show that the wife was subjected to cruelty and the husband tried to assault her with scissors and drove her out of the matrimonial home. If the wife was treated by the husband in such a manner and was driven out, then it cannot be said that she deserted

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the husband without any just and reasonable cause. The husband is said to be in the company of another lady and as against the name of his wife, the photographs of that lady have been attached in the records of SECL where the husband is working. At this stage, in absence of any cogent proof regarding this fact, we would not deliberate upon the same. Further, as regards the submission of the appellant that his exoneration/acquittal from criminal case under Section 498A of IPC proves that no cruelty was ever committed against the wife by the husband, the order sheet of the Court below goes to show that acquittal was only on the basis of compromise between the parties and not on merits.

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Thus having regard to the facts and circumstances of the case, the oral and documentary evidence available on record and conduct of the parties, the findings recorded by the learned Family Court in the impugned judgment for dismissing the suit of the husband, cannot be faulted with. Being so, the present appeal is sans merits and is dismissed as such. A decree be drawn up accordingly.

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Sd/ Sd/ (Goutam Bhaduri) (Rajani Dubey) Judge Judge

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Khan

Tejram @ Satish Jayaswal v. Smt. Anjana @ Anju Jayaswal

Case brief

What is this about?

What did the court decide?

Tejram @ Satish Jayaswal v. Smt. Anjana @ Anju Jayaswal

Case brief

What is this about?

What did the court decide?

What the court decided

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