Mansingh Sahu Vs Smt. Dashoda Sahu

1 - Smt. Dashoda Sahu, W/o Mansingh Sahu, Aged About 59 Years, At - Through Brother Durjan Singh, Village Balrampur (Bidora), Post And Tehsil Fingeshwar, P.S. Fingeshwar, District Gariyaband, (C.G.),

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Second Address - Through Smt. Tameshwari Naagle, Block No. 5, Quarter No. 11, G.A.D. Colony, Kuchna P.S. Khamardih, Raipur, District Raipur (C.G.)

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... Respondent/defendant

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For Appellant	: Mr. Lukesh Kumar Mishra, Advocate
For Respondent	: Mr. Suresh Tandon, Advocate

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Hon’ble Smt. Justice Rajani Dubey,

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Hon’ble Shri Justice Narendra Kumar Vyas

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CAV Judgment

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Per Rajani Dubey, J.

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This appeal is directed against the judgment and decree dated 12.03.2024 passed by learned Principal Judge, Family Court, Raipur (C.G.) in Civil Suit No. 518/2022 whereby the application filed under Section 13(1) of the Hindu Marriage Act by the appellant/husband seeking decree of divorce, has been rejected.

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Before learned trial Court, it is an admitted fact that the marriage between the parties was solemnized on 20.05.1978 as per Hindu rites and rituals at Beltukri Rajim District- Gariaband (C.G.). From their wedlock, three children namely Tameshwari, Praveen and Yogeshwari were born, who are presently married. At present, both the parties are living separately.

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Appellant/husband filed application under Section 13(1) of Hindu Marriage Act seeking decree of divorce before the trial Court on the ground that both the parties lived a marital relationship for 11-12 years at his native Village Beltukri, District Gariaband. After marriage, son namely Praveen lives with him along with his wife and daughter. In 1981, the appellant was posted in Dhamtari as a teacher and after a few years, he got transferred to Raipur and started working there. During his employment, he took 2 acres of land in Balrampur (Bidora) in the name of the non-applicant/wife, which the non-applicant/wife is currently occupying and doing agriculture. The applicant and the non-applicant lived a marital life for 39 years, thereafter, for the last 4 years, the non-applicant has withdrawn from the marital relationship without any proper reason and is living in her maternal home. The non-applicant has kept with herself 1.5 kg gold and 12 kg silver purchased by him during his stay

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with her. Four years ago, after her daughter Tameswari married outside her caste, the non-applicant/wife started living with her daughter in Kachana, Raipur and from there, she has been staying at her maternal home in Balrampur for the last six months.

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He further pleaded that after some time of marriage, the behaviour of the non-applicant became bad and cruel towards him. The non-applicant used to quarrel over petty matters. He tried to make nonapplicant understand and also requested her family members but instead of making her understand, her brothers took her side and used to fight with him by abusing him. In spite of being a housewife, the nonapplicant/wife was not responsible for the household chores and upbringing of the children. He stopped advising the non-applicant but the applicant did not leave any stone unturned to provoke him. The non-applicant started spreading false rumours about his character. Later on, a family meeting was organised regarding the said false character accusation, wherein she did not prove the said allegations against the applicant. Even after that, the non-applicant kept accusing him of having illegal relations with many women in a fictitious manner. The non-applicant used to spend most of her time at her maternal home. Keeping in mind the future of the children, she was brought back after being counselled. The non-applicant had received some share in her account through a Will in the partition of her ancestral property. The non-applicant started harassing the applicant alleging that the Will made by her father had been changed by the applicant. Thereafter, she also used to quarrel with her daughter-in-law and when the applicant scolded and opposed the non-applicant, she left the marital relationship and went away. A lot of efforts were made by him, his son and

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daughter-in-law through personal, family and social members, but the non-applicant refused to come.

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He also pleaded that he had submitted an application in the Family Court for restoration of conjugal rights, in which an ex-parte order was passed in the absence of the non-applicant. On 16.08.2021, he sent a notice through the advocate which the non-applicant refused to accept. When his application for restitution of conjugal rights was allowed by the trial Court, then he tried to bring her again in person, but even then she refused to come back. The non-applicant did not appear in the counseling on the complaint made by him in the Mahila Police Station on 16.04.2022 to live together. On giving a written complaint to the Director General of Police Raipur on 28.12.2021, the complaint was sent to the Superintendent of Police Purani Basti for investigation where the statements of both the parties were recorded in which, the non-applicant refused to live with him accusing him of having an affair with his servant's wife. Now there is no possibility of their marital relationship being restored. After the non-applicant went to her maternal home in the year 2019, despite the continuous efforts of the applicant to bring her back, she has clearly refused to come back. Therefore, he prayed to grant decree of divorce against the nonapplicant.

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In her written statement, wife/respondent denying the adverse allegation levelled by the husband/appellant, stated that the land of Balrampur (Bidora) belongs to the elder brother of the applicant/husband. He was selling the said land to pay off his son's debt which was purchased in the name of the non-applicant's father. The applicant used to unnecessarily argue with her, beat her and

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cause mental and physical harm to her and threw her out of the house and broke the lock of her almirah in the presence of servants Gulab Sahu and Shatrughan Sahu. When she returned home and asked about the same, she was again beaten and thrown out of the house. The applicant himself got his daughter Tameswari married and he keeps visiting his daughter's house. She never abandoned the marital relationship but the applicant himself has illicit relation with another woman.

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The non-applicant also alleged that the applicant has an illicit relationship with his servant Gulab Sahu's wife Chhanni Bai and when she objected, he beat her. No social meeting of any kind held in her presence. All the relatives and neighbours are well aware of the applicant's illicit relationship with his servant Gulab Sahu's wife Chhanni Bai. The applicant has committed fraud by tampering with the Will executed by his father in the name of three daughters. Therefore, she prays to reject the application filed by the husband.

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On the basis of pleadings made by both the parties, learned trial Court framed the issues and after appreciating the oral and documentary evidence, by its judgment and decree dated 12.03.2024 dismissed the application filed by the appellant/husband. Hence, this appeal has been filed by the appellant/husband.

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Learned counsel for the appellant submits that the learned trial Court without considering the documents and evidence available on record, passed the impugned judgment rejecting the application filed under Section 13(1) of the Hindu Marriag Act and committed grave error of law. The learned trial Court failed to appreciate all grounds so raised by the appellant in his favour and did not appreciate the oral and

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documentary evidence properly and gave wrong finding. It is apparent from the record that false accusation of womanizing had been levelled and such rumors had been spread by the respondent without any justification which itself amounts to grave cruelty towards the appellant. The trial Court also failed to consider that on the one hand, the allegations of womanizing and mal-treatment had levelled by the respondent whereas in her cross examination and even during the suggestions given in cross-examination of the appellant and his witnesses, she herself admitted that the appellant is residing with his son and his family. From the said admission of the respondent, it is apparent that in order to avoid the consequences of the application, she had levelled false allegations of character that too at the old age of the appellant. Learned trial Court also failed to appreciate that during cross-examination of the appellant and his witnesses, she herself had suggested that she led a peaceful married life with the appellant, so it is clear that false allegations without any cogent or reliable evidence have been imputed by her and therefore she had committed grave cruelty upon the appellant and on this ground itself, appellant/husband is entitled to get decree of divorce.

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It is also clear from oral and documentary evidence that the respondent/wife is living separately for more than 4 years before institution of the application without any justifiable cause which itself proved desertion on her part and without appreciating the same, the trial Court rejected the application filed by the appellant, therefore, the impugned judgment is liable to be set aside and appellant may be entitled to get decree of divorce against the respondent/wife.

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On the other hand, learned counsel for the respondent supports the impugned judgment and submits that the appellant and respondent, both are senior citizens and they live together continuously for 40 years. Appellant himself ousted respondent/wife from the house. The learned trial Court minutely appreciated oral and documentary evidence and rightly dismissed the application filed by the husband. Thus, this appeal being without any merit is liable to be dismissed.

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Heard counsel for the parties and perused the material placed on record.

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It is an admitted position in this case that the marriage between the parties was solemnized on 20.05.1978 and from their wedlock, they were blessed with three children and all three children are married and living happily. The appellant/husband is living with his son and daughter-in-law whereas respondent/wife is living in her parental home since 2019.

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On the basis of pleadings of both the parties, learned trial Court framed following issues:-

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्ቅ.	वा�द ्ቚश्न	निनष्क्ቧ�
1.	क्या� निवावा�ह अन�቗ኋ�पन क� पश्चा�त अन�वा�निदक� न� आवा�दक क� ्ቚनित ्ቅ�रत� क� व्यावाह�र निकया� ह�?	"्ቚमा�नि�त नह�"
2.	क्या� अन�वा�निदक� न� या�निचाक� प�श निकए जा�न� क� अव्यावानिहत प�वा� कमा से� कमा द$ वा्ቧ� क% निनर&तर क�ला�वाधि) भर आवा�दक क$ अनिभत्या्ሹ रखी. ह�?	"्ቚमा�नि�त नह�"
3.	क्या� आवा�दक,अन�वा�निदक� से� निवावा�ह निवाच्छे�द क% नि1क% ्ቚ �्቎ करन� क� हकद�र ह�?	"नह�"
4.	सेह�यात� एवा& व्याया?	"आवा�दक क� द�वा� खी�रिरजा"

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11.Appellant examined himself as A.W.-1 and other witnesses namely Indal Ram Sahu as A.W.-2, Gulabram Sahu as A.W.-3, Baliram Sahu as A.W.-4, Shatrughan Sahu as A.W.-5 and Niresh Ram Sahu as A.W.6 whereas respondent/wife also examined herself as N.A.W.-1 and her daughter- Yogeshwari Sahu as N.A.W.-2.

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Applicant’s witnesses stated that the applicant/husband is living with his son and daughter-in-law whereas the non-applicant/wife is living separately since long. It was stated by respondent/wife to the appellant and his witnesses that the appellant has an illicit relation with another woman.

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Respondent/wife (N.A.W.-1) and Yageshwari Sahu (N.A.W.-2) in her written statement and affidavit filed under Order 18 Rule 4 CPC alleged that the appellant/husband used to beat the respondent/wife and ousted her from the house. Thereafter, she went to her younger daughter’s house and lived there. The appellant/husband had illicit relation with other women and he used to spend his money on them.

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In para 15 of her cross-examination, respondent/wife (N.A.W.-1) admitted that,

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“15. याह कहन� सेह. ह� निक ्ቚवा.� और उसेक� परिरवा�र क% गृ7हस्थी. क� प�र� खीचा� आवा�दक वाहन कर रह� ह�। याह कहन� सेह. ह� निक हमा�र� से�ह; सेमा�जा मा< सेमा�जा क� मा�धिखीया� ला$गृ रहत� ह�। याह कहन� सेह. ह� निक घर मा< निकसे. भ. ्ቚक�र क� निवावा�द ह$न� पर सेमा�जा क� मा�धिखीया� ला$गृ निवावा�द क� निनर�कर� करत� ह�। याह कहन� सेह. ह� निक मा> कभ. भ. क$ई निशक�यात ला�कर सेमा�जा मा< नह� गृया. थी.. स्वात@ कहत. ह� निक मा> निशक�यात क्याA करत.। याह कहन� सेह. ह� निक मा�न< आवा�दक क� निवारू्ቍ सेमा�जा मा< क$ई निशक�यात नह� क% थी. निक आवा�दक क� चारिर्ቔ खीर�ब ह� और उसेक� अन्या मानिहला�ओं& से� अवा�) से&ब&) ह�, स्वात@ कह� निक मा�न< गृ�&वा मा< बत�या� थी�। याह कहन� सेह. ह� निक मा�र� मा�ला आवा�दन तथी� बया�न मा< इसे ब�त क� उቤኔ�खी नह� ह� निक गृ�&वा मा< मा�न< आवा�दक क� निवा्ቧया मा< बत�या� ह$। याह कहन� सेह. ह� निक मा>न� अपन� आवा�दन तथी� मा�ख्या पर.्ቌ� क� शपथीप्ቔ मा< याह भ. नह� बत�या� ह� निक आवा�दक क� निकन मानिहला�ओं& से� अवा�) से&ब&) रह� ह� तथी� उ्ሹ मानिहला�ओं& क� न�मा तथी� पत� भ. उቤኔ�धिखीत नह� निकया� ह�।"

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15.Further in para 17 of her cross-examination, she admitted that, “ मा�र� निपत�जा. क% मा7त्या� र�याप�र मा< हLई थी.। याह कहन� सेह. ह� निक अपन� जा.वानक�ला मा< मा�र� मा�त� निपत� हमा�र� से�थी रहत� थी�, हमा�र� से�थी क� मातलाब मा�र� और आवा�दक से� ह�। याह कहन� सेह. ह� निक मा�र� चा�र अन्या भ�ई बहन ह$न� क� ब�द भ. मा�र� मा�त� निपत� क$ आवा�दक न� अपन� से�थी रखी� थी�……. " She also admitted that she is living separately since 10 years in

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her parental home. She denied this suggestion that she never visited the appellant’s house for the last 5-6 years. Further she denied this suggestion that the appellant went to her maternal home several times to bring her back.

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Her daughter- Yogeshwari Sahu (N.A.W.-2) supported the statement of her mother/respondent and she also stated that her father had illicit relation with another woman but in her cross-examination, she admitted that her father (appellant) is living with her brother and sister-in-law ( Bhabhi ). She voluntarily stated that she had asked for partition in ancestral property from his father (appellant). She had also filed suit in this regard.

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Appellant also filed letter (Ex.P/1) dated 17.07.2021, copy of postal receipts with acknowledgment (Ex.P/2 and Ex.P/3 collectively), letter dated 05.08.2021 and postal receipt (Ex.P/4 and Ex.P/5 collectively), envelope, postal receipt with acknowledgment (Ex.P/6), letter dated 09.08.2021 with postal receipt (Ex. P/7 and Ex.P/8 collectively), closed envelope with postal receipt (Ex.P/9), registered notice dated 16.08.2021 with postal receipt (Ex.P/10 and P/11 collectively) and also filed certified copy of judgment dated 06.04.2022 whereby the application filed under Section 9 of the Hindu Marriage Act was allowed by learned trial Court and learned trial Court directed the respondent/wife to live with the appellant/husband and perform her marriage obligations/duties.

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Respondent/wife alleged that the appellant has illicit relation with another woman but to substantiate this fact, she did not file any complaint or oral and documentary evidence in this regard.

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Daughter- Yogeshwari Sahu (N.A.W.-2) also alleged the same allegations however, she admitted that she filed a case against her father/appellant for partition in the property and claimed property from her father.

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It is also clear that the appellant is living with his son and his witnesses stated that they went along with the appellant to bring the respondent back.

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In the case of Vijay Kumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate reported in (2003) 6 SCC 334 , Hon’ble Supreme Court held in para 7 as under:-

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“7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim

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of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”

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Again, Hon’ble Supreme Court in the matter of Narendra Vs. K. Meena reported in (2016) 9 SCC 455 held in paras 15 and 16 as under:-

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“15. With regard to the allegations about an extra-marital affair with the maid named Kamla, the reappreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the respondent wife had levelled allegations with regard to an extra-marital affair of the appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the appellant, there is nothing to substantiate the allegations levelled by the respondent with regard to an

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extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one's character of having an extra-marital affair is quite tortuous for any person-be it a husband or a wife.

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We have carefully gone through the evidence but we could not find any reliable evidence to show that the appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the appellant with the maid named by the respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra-marital life to be quite serious and that can surely be a cause for mental cruelty.”

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In the matter of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4

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SCC 511 , Honb’le Apex Court held in point No. (xiv) of para 101 as under:-

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“101………... (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

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In light of above, it is clear that the respondent/wife in her written statement and in Court statement levelled some allegations which were not proved by oral and documentary evidence. It is also clear that the appellant has decree of restitution of conjugal rights in his favour which was passed on 06.04.2022 by learned trial Court whereas respondent/wife did not file any oral and documentary evidence which proves that she ever tried to save her matrimonial life but the learned trial Court did not appreciate all these facts and dismissed the application filed by the appellant seeking decree of divorce. Thus, it is

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clear that the appellant/husband successfully proved issues No. 1 & 2 in his favour. Thus, the findings recorded by the learned trial Court are not sustainable.

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From the above discussions, we are of the view that the judgment and decree of the learned Family Court is liable to be set aside. Accordingly, we allow the appeal and in consequence thereof, it is ordered that the marriage in between the appellant/husband and the respondent/wife dated 20.05.1978 shall be dissolved by decree of divorce.

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Now coming to grant of alimony to respondent/wife, considering the fact and situation of the case, looking to the status of the parties in order to avoid further litigation between the parties, it would be appropriate to grant a sum of Rs. 5 lacs to the respondent/wife as a permanent alimony. Accordingly, it is directed that the appellant/husband shall pay sum of Rs.5 lacs in the account of wife/respondent as a permanent alimony.

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Let a decree be drawn up accordingly.

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Sd/Sd/- (Rajani Dubey) (Narendra Kumar Vyas) Judge Judge

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Ruchi RUCHI YADAV Digitally signed byRUCHI YADAV

Mansingh Sahu v. Smt. Dashoda Sahu

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Mansingh Sahu v. Smt. Dashoda Sahu

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