Vijay Sahu Vs Dileshwari Sahu

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NAFR Reserved on 24.04.2025 Pronounced on 24.06.2025

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA(MAT) No. 139 of 2022

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1 - Vijay Sahu S/o Kunjram Sahu Aged About 30 Years (now 34 years) R/o Shiva Nagar, Kewada Badi Bus Stand, Tah. And Distt. Raigarh (C.G.) Mo. No. 9993775075

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... Appellant

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versus

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1 - Dileshwari Sahu W/o Vijay Sahu Aged About 27 years (now 31 Years) R/o Shiva Nagar, Kewadabadi Bus Stand, Raigarh (C.G.) At Present Bilaimunda, Distt. Sundergarh (Orissa) ( Bhilaimunda wrongly mentioned in judgment)

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... Respondent(s)

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For Appellant	: Mr. Vedant Shadangi, Advocate
For Respondent(s)	: Mr. Abhishek Saraf, Advocate

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DB: Hon’ble Smt Justice Rajani Dubey

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Hon’ble Shri Justice Sachin Singh Rajput

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C A V Judgment

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Per Sachin Singh Rajput, J

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Parties herein shall be referred to as the appellant/ husband and respondent/ wife.

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The instant appeal under Section 19 (1) of the Family Court Act, 1984 has been filed by the appellant/ husband being aggrieved by the impugned judgment and decree dated 17.03.2022 (Annexure A/1) passed by Judge, Family Court, Raigarh (C.G.) in Civil Suit No. F- 169-A/2018 whereby the application under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the “Act of 1955”) filed by the appellant/ husband was dismissed.

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The admitted facts of the case are that the marriage between the parties was solemnized on 24.06.2012 as per Hindu rites and rituals at village Bhilaimunda, Sundergarh, Orissa in the house of respondent/ wife and from their wed lock two children one daughter and one son were born who are residing with respondent/ wife.

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Brief facts of the case are that for 4-5 years of marriage, the behavior of the

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respondent/ wife towards the appellant/ husband was normal, but after birth of second child, her behavior became neglectful and disrespectful and she started going out of the house and spending more time outside without informing the appellant/ husband and his family. The appellant kept explaining to her every time that she should be happy in the small world of her husband and children and if there is any shortcoming, she should inform him which he will try to fulfill, but this had no effect on her and she started spending more time outside the house than before. For the last one and a half years, the appellant has been going to other cities for business. In his absence, she used to call the appellant’s son-in-law Manoj Sahu to her in-law’s house at night and spend time with him, on objecting to which, she used to say that she calls him as she is unable to pass her time, she has no other relationship with him. After checking her phone and listing to the recording of respondent and his son-inlaw, the appellant/ husband is fully convinced that there is an illicit relationship between them. When he told him about this, she started indecently and started hitting him. Thus, domestic dispute started between the parties.

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According to the plaint, on 31.08.2018, in the afternoon, the respondent/ wife left the house with both the children with the help of her male friend Manoj Sahu, when the appellant objected to her meeting him. In this regard, when the respondent was called, she neither gave her address nor agreed to let him meet the children. When the appellant tried to find her, it was found that she has started living at her maternal home. After leaving the house, she started pressurizing him for divorce. When he asked about returning home, she rejected his requested and strictly refused to let him come there. Thereafter, the appellant/ husband filed a written complaint against the respondent/ wife and Manoj Sahu before Police Station City Kotwali, Raigarh. In this situation, the appellant has no other option but to divorce her. Since the respondent/ wife is living with new men and getting into wrong company, there is a strong possibility of it will have a bad impact on the children and at the same time, the education of the children is also getting affected, due to which their future will be ruined. In this view, to protect the future of the children, the appellant wants to keep

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them with him and raise them better. In the above circumstances, it has been requested to accept the appellant’s application and pass a decree of divorce in his favour and provide guardianship to both the children.

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The respondent/ wife in her reply, has mainly refuted the claim of the appellant/ husband and has stated that after keeping her well for a few months after marriage, the appellant/ husband and his family started treating her cruelly, beating and abusing her and pressuring her to bring cash and gold and silver etc from her parents’ house. Her behavior towards her husband and his family has been respectful right from the beginning of marriage. The appellant/ husband and his family members started harassing the respondent physically and mentally after some time of marriage. According to the reply, the appellant and his family members against her will, kept all her jewelry with themselves and forcibly left her along with the children in maternal home at village Bhilaimunda, Sundargarh without making any arrangements for their livelihood due to which they are living a life of extreme financial, physical and mental suffering. After a few years of marriage, the appellant/ husband used to go out of Raigarh city for several months without informing anyone to avoid living a married life with the respondent/ wife. Therefore, the appellant has no legal right to claim the guardianship of both the children, and the suit filed by the appellant/ husband liable to be dismissed.

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On the basis of above broad pleadings, the learned Family Court framed following issues:-

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I. Whether the plaintiff is entitled to seek dissolution of his marriage with the respondent on 24.06.2012 under the provision of Section 13 of Hindu Marriage Act ? II. Relief and cost?

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Learned counsel for the appellant vehemently argued that the judgment and decree passed by the learned trial Court is wholly erroneous, illegal and contrary to the principles of law and therefore, it is liable to be set aside. Learned trial Court has committed error by rejecting the application under Section 13 of Hindu Marriage Act, 1955 filed by appellant/husband and has not considered the fact that the

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respondent/wife was living in adultery with the husband (Manoj Sahu) of sister-inlaw. The learned family Court has not appreciated the evidence and material available on record to its proper perspective. He submitted that a false case of section 498A of IPC and section 4 of Dowry Prohibition Act, 1961 was lodged against the appellant/husband by the respondent/wife which resulted into his acquittal. Certified copy of the judgment is filed with an application for taking additional evidence in appeal under Order 41 Rule 27 of CPC. This application may be allowed. He thus prayed for setting aside the impugned judgment and decree by allowing the appeal.

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Per contra, learned counsel for the respondent opposes the arguments and would submit that no sufficient grounds have been urged by the husband which would entitle him to get a decree of divorce on the ground of cruelty. He further submits that respondent/wife was subjected to cruelty by her husband and used to level false allegation regarding her moral character. He also submits that the order of learned Family Court is well merited which does not call for any interference by this Court. He submitted that the application filed by the appellant/husband under Order 41 Rule 27 of CPC may not be allowed as no such pleading with regard to lodging a false report under Section 498A of IPC and Section 4 of Dowry Prohibition Act, 1961 is pleaded in the plaint nor evidence is led in this regard.

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Heard learned counsel for the parties and perused the record.

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Before delving into merits of the case, it would be expedient to consider the application filed by the appellant/husband under Order 41 Rule 27 of CPC. Learned counsel for appellant/husband submitted that certified copy of the judgment of acquittal filed with the application is essential for adjudication of appeal as it will demonstrate that by filing a false report against the appellant/husband, the respondent/wife treated him with cruelty. Perusal of plaint and the evidence it is evident that the main ground for divorce taken by the appellant/husband is that the respondent/wife is having relationship with another person. Appellant/husband neither pleaded nor deposed that a false report has been lodged by the respondent/wife. The suit was filed in the year 2018 and the report was lodged in the

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year 2019. This fact was not brought on record by the appellant/husband. Therefore, the document filed along with the application is neither essential nor necessary for adjudication of the appeal on merit. Thus, the application is rejected.

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The appellant/husband has also stated in his examination-in-chief that in his absence the respondent/wife used to call his son-in-law (Manoj Sahu) to his house, which he came to know about from her parents. In his cross examination he also admitted that he has not filed any criminal complaint against Manoj Sahu and also admitted that Manoj Sahu is the husband of his younger sister Rita Sahu and also stated that for the last two years since the above case started, Manoj Sahu and his sister are living in his house. He himself stated that at present only his sister is living in his house and Manoj Sahu is living in his house at Kharsia. Thus, in view of above fact no presumption can be drawn against the respondent/wife merely on visit of Manoj Sahu to his house. The appellant/husband in his statement has not specifically mentioned that what kind of neglectful or disrespectful behavior was shown by the respondent/wife towards him or his family members. In para 18 of his crossexamination he has admitted that he has not filed any recording of the conversation between the respondent/wife and Manoj Sahu. In Para 19 he also stated that he did not know whether the respondent wants to live a married life with him, he himself stated that he does not want to live with her. In Para 20 he also admit that he has not mentioned that when and where the respondent/wife had gone out of the house.

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Witness Sonu Shukla (AW-2) who is the friend of appellant/husband stated in his cross-examination that respondent and Manoj Sahu spent two-three hours outside because he used to see them when he used to work and when he used to return. He also admitted that on being asked by the appellant/husband, he said that Manoj Sahu and respondent have a love affair. Similarly, Pinki Sahu (AW-3) who is the sister of appellant also admitted in her cross-examination that she lives in her village and she came to know only after her brother informed about lodging of report against the respondent/wife. This witness also admitted that she knows about threatening to her sister Rita Sahu by Manoj Sahu and respondent as told by the appellant. Similarly,

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witness Rita Sahu (AW-4) who is the sister of appellant and wife of Manoj Sahu also stated in her cross-examination that she is staying at her maternal home as her inlaws are not behaving well with her. Thus, this witness has also not stated that her husband Manoj Sahu left her because of having any relationship with respondent. In Para 9 of her cross-examination she stated that about one and half year ago, when she was at her maternal home, at about 9:30 pm, she saw her husband coming out of the respondent’s room and she has not lodged any report against her husband.

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Respondent/wife has also stated in her examination-in-chief that after a few months of marriage, the appellant and his family members used to abuse and beat her cruelly and said her to bring cash, gold, silver etc from her maternal home. Both her children are currently living with her and the appellant has filed this case by making false allegations against her. As long as she lived in her in-laws house, she always treated them with respect and she never had any wrong relationship with the husband (Manoj Sahu) of her sister-in-law, nor did she ever go out of the house alone with Manoj Sahu. She has never spoken anything wrong on the phone to her sister-inlaw’s husband. On 31.08.2018, she did not go to her parents’ house with Manoj Sahu, rather on 01.09.2018, her husband and in-laws deceived her and forcibly left her with her children to her maternal home. She is still ready to live a married life with appellant but he did not want to live with her. Her statement also supported by witnesses Khuleshwar Samrath and Akeel Kumr Sahu.

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Now the question comes before this Court as to whether the appellant/ husband was able to prove issue no.1 with regard to cruelty of respondent / wife.

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From the evidence of the appellant/husband, it appears that he is making allegations of adultery against the respondent/wife; whereas the respondent / wife has stated that she was subjected to cruelty after the marriage by appellant/ husband and his family members and also told her to bring cash, gold, silver etc from her maternal home. The evidence of the respondent/wife also indicates that the appellant/husband used to suspect on the character of the respondent /wife.

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From the evidence on record it does not appear that the appellant/husband was able

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to prove the adultery against the respondent/wife. Such allegation is made against the brother in law. Allegation is made with regard to mobile conversation amongst them. Barring bald oral allegation no electronic evidence is available on record to prove the same. It is also alleged that the brother in law is visiting the house and meeting with the respondent/wife outside. Being a relative of the respondent/wife it is not unnatural. It is not a glaring evidence to hold that they are having any relationship outside the marriage. Therefore, it cannot be said that the respondent/wife is living a adulterous life.

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The appellant/ husband has leveled allegations on chastity of the wife with his own brother-in-law and made a report a day before filing of the application before the Family Court. If any allegation on chastity of character are leveled against her, itself amount to cruelty by the husband against wife [please see Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, (2003) 6 SCC 334 ]. Therefore, it is the appellant/husband who subjected his wife to cruelty which gave a plausible reason for his wife to live separately.

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The finding recorded by the learned Family Court with respect to issue No.1 appears to be based upon proper appreciation of evidence and also on preponderance of probabilities. On weighing, the evidence of the appellant and the respondent, it tilts towards the respondent/wife. From the evidence on record, it is established that respondent /wife has just and sufficient cause to live separately. Therefore, we do not find any good ground to interfere with the impugned judgment and decree passed by the learned Family Court. Hence, we are not inclined to allow this appeal. The appeal fails and is accordingly dismissed.

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Decree be drawn accordingly. No cost.

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Sd/- Sd/(Rajani Dubey) (Sachin Singh Rajput) PARUL Judge Judge MITTAL Parul Digitally signed by PARUL MITTAL Date: 2025.06.24 16:32:33 +0530

Vijay Sahu v. Dileshwari Sahu

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Vijay Sahu v. Dileshwari Sahu

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