Smt. Hemlata Yogi Vs Rajendra Nath Yogi

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2025:CGHC:7985-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment reserved on : 24-01-2025 Judgment delivered on : 14-02-2025

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FA(MAT) No. 210 of 2023

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Smt. Hemlata Yogi W/o Rajendra Nath Yogi Aged About 50 Years Resident Of Ward No. 2, Mahkapara, Rahaud, Police Station Shivrinarayan, Tahsil Pamgarh, District Janjgir-Champa (C.G.)

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... Appellant /plaintiff

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versus

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Rajendra Nath Yogi S/o Late Tungeshwar Nath Aged About 51 Years Resident Of Ward No.8, Mahkapara, Rahaud, Police Station Shivrinarayan, Tahsil Pamgarh, District Janjgir-Champa (C.G.)

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... Respondent/Defendant

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For Appellant : Mr. Ishwar Jaiswal, Advocate. For Respondent : Mr. Sahdev Yadav, Advocate.

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Hon'ble Smt. Justice Rajani Dubey, J

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Hon'ble Shri Justice Narendra Kumar Vyas, J

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C A V Judgment

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Per Rajani Dubey, J

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Challenge in this appeal under Section 19(1) of the Family

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Courts Act, 1984 is to the legality and validity of the judgment and decree dated 26.6.2023 passed by Additional Principal Judge, Family Court, Janjgir, Distt. Janjgir-Champa in Civil Suit No.265A/2022 whereby the application under Section 13 of the Hindu Marriage Act, 1955 filed by the appellant/wife for dissolution of marriage with the respondent/husband has been dismissed.

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The admitted fact in this case is that marriage of the appellant with the respondent was solemnized on 7.6.1991 as per Hindu rites and rituals and from their wedlock, two daughters and one were born.

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The appellant/wife filed an application under Section 13 of the Hindu Marriage Act, 1955 with the averments that her marriage with the respondent was solemnized on 7.6.1991 at Village-Rahaud and from their wedlock, son Voneshnath was born on 3.2.1993, daughter Yamini was born on 1.4.1995 and Bhavna born on 16.3.2004. Yamini has been married on 3.2.2021. As per the appellant/wife, she was studying at the time of her marriage and she wanted to continue her studies, however, the respondent and his family members did not agree to it. The respondent used to make physical relations with her forcibly and on her refusal, abuse her filthily and beat her as well but she continued to bear all this cruelty. He was not doing any work and the appellant has to bear the expenses of maintenance of the children and their education. She got a house constructed by taking loan and also bore the entire expenses of marriage of her daughter Yamini. She further

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averred that the respondent also has illicit relations with many women of the village. Being fed up with this cruel and promiscuous conduct of the respondent, she got a meeting of their family members convened and there she proposed for divorce from him. She stated that there is so much bitterness in their relations that the respondent is living in another room of the appellant's house since 2018 and there is no physical relation between them since then. She also averred that the respondent is not vacating the shop with a view to grabbing and selling her private house. Hence she prayed for a decree of divorce on the ground of physical and mental cruelty as also desertion.

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The respondent in his written statement denied all the adverse averments and contended that he never had forcible sexual intercourse with the appellant and also never treated her with cruelty. He stated that he bore all the expenses of education of his son up to Class-12th and also spent Rs.3 lacs on purchase of land and construction of house thereon after selling his ancestral property. The appellant/wife has filed the instant application on false and frivolous grounds, therefore, it is liable to be rejected.

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Based on the pleadings of the respective parties, the learned Family Court framed issues and after appreciation of oral and documentary evidence, rejected the application of the appellant by the impugned judgment and decree. Hence this appeal.

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Learned counsel for the appellant would submit that the

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impugned judgment and decree are illegal and contrary to the evidence on record. Learned Family Court ought to have seen that the respondent/husband was proceeded ex-parte before the Court below and there was no rebuttal to the pleadings of the appellant/wife. Further, it failed to appreciate that since 2018 there is no cohabitation between the appellant and the respondent. He would next submit that the learned Family Court also did not appreciate the fact that the entire expenses of maintenance and education as also marriage of daughter Yamini were borne by the appellant and that the daughter Bhavna Yogi, appellant/plaintiff's witness, has stated that her mother/appellant and herself do not want to live with the respondent due to his cruel nature and conduct. The appellant is a government teacher, she got a house constructed after taking loan, the respondent did not want to reside separately from her and always tortured her mentally and physically and took money from her but the learned trial Court did not consider this aspect of the matter properly. The respondent never tried for getting employment anywhere. Thus, looking to the oral and documentary evidence and conduct of the respondent, the appellant deserves to be granted a decree of divorce.

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Reliance has been placed on the judgment dated 26.7.2023 of this Court in FA(MAT) No. 4 of 2022 in the matter of Smt. Payal Sharma Vs. Umesh Sharma .

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On the other hand, learned counsel appearing for the respondent

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supporting the impugned judgment and decree would submit that upon proper appreciation of oral and documentary evidence the learned Family Court rightly recorded a finding that no physical or mental cruelty was committed by the respondent to the appellant and as such, she is not entitled for any decree of divorce. The appeal being without any substance is liable to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of learned Family Court that it is an admitted position that marriage of the appellant with the respondent was solemnized on 7.6.1991 and from their wedlock, two daughters and one son were born. It is also not in dispute that one daughter namely Yamini is married on 3.2.2021 and the son has completed his B.E. degree and is taking coaching in Bengaluru whereas the younger daughter is studying in Class-12th. It is also admitted that the appellant/wife is a teacher in government school and the respondent has an electronic shop in the village.

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Learned Family Court on the basis of pleadings of the respective parties framed following three issues :

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01-	क्या�्ቚ नि�वा�द�/अन�वा�दक,वा�निदन�/ आवा�निदक� क�	अ्ቚमा�नि#�।
	मा�नसि�कएवा�शा�री�रिरीकरुप��्ቚ ��नि��करीक�री��
	क�रिरी�क है"?

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02-	क्या�्ቚ नि�वा�द�/अन�वा�दक,	वा�निदन�/ आवा�निदक� प�शा	अ्ቚमा�नि#�।
	करीन�क� द�वा्ቧ�प�वा��िी्ीााि अनि)त्या्ሹ करीरीखा�है"?	ा्ቧ��ा��निनरीन्�रीक�ला�वासि' मा(
03-	�है�या��एवा�वा�दव्याया?		वा�निदन�क�वा�दनिनरीस्�। ( क�नि�क�20)

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Before the learned Family Court, the appellant/wife filed her affidavit under Order 18 Rule 4 of CPC and the respondent/husband appeared and also filed his written statement but since 1.3.2023 he remained absent. on 16.6.2023 the case was fixed for plaintiff's evidence and on this date the plaintiff/wife filed affidavits of herself and two witnesses namely Bhavna Yogi and Girja Shankar, and the Court proceeded ex-parte against the respondent/husband. Thereafter, the case was fixed for 20.6.2023 and again fixed for 23.6.2023 but the respondent/husband did not appear before the Court. Finally, on 26.6.2023 the learned Family Court passed the impugned judgment and decree rejecting the application of the appellant/wife.

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The appellant/wife in her affidavit under Order 18 Rule 4 of CPC stated that she is working as a teacher and she got a house constructed after taking loan and is also maintaining the children alone. She also opened an electronic shop for the respondent/husband but he did not sit in the shop, rather he would take money in advance from the customers and thereafter close the shop and as a result of this, his business has totally ruined. She stated that the respondent has also

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illicit relations with many women and since 2018 they have no marital relationship.

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She filed her marriage card as Ex.P/1, marriage photographs as Ex.P/2, photograph of the closed shop as Ex.P/3; copy of passbook as Ex.P/4; fees receipts of her daughter Bhavna Yogi as Ex.P/5; copy of loan account statement as Ex.P/6; copy of her service book as Ex.P/7 and photographs of marriage of her daughter Yamini as Ex.P/8.

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Witness Bhavna Yogi, daughter of the appellant and the respondent, and witness Girja Shankar Jaiswal have also supported the statement of the appellant/wife.

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It is clear from the order sheets of the learned Family Court that on 27.1.2023 mediation was conducted between the parties but it failed. On 8.1.2025 this Court also after hearing both the parties directed the respondent to sit in his shop from tomorrow onwards from 9.30 am to 8 pm till the next date of hearing and the appellant was also directed to file an affidavit as to whether the allegations made against him in the complaint are true or not. At the same time, learned counsel for the respondent was also directed to produce respondent's income chart of 23 days before this Court on the next date of hearing i.e. 23.1.2025. Though on 23.1.2025 the appellant/wife filed her affidavit and documents as also photographs of the closed shop but the respondent/husband did not file any document. In her affidavit the

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appellant stated that the respondent is having illicit relations with other women, the electronic shop always remains closed; he has no income; he always used to take money from her forcibly and consume liquor and that he is not taking care of her or any of the family members.

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This Court in the matter of Smt. Payal Sharma (supra) held in paras 10 & 11 of its judgment as under:

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"10. There is no cross-examination to the aforesaid facts. In absence of any cross-examination, the averments made by the wife would be deemed to be an acceptance. Even otherwise, if the children are born out of the wedlock, the respondent being the father cannot shirk his responsibilities specially when the wife is a non-working. It is very natural that the wife would depend upon the husband for her household need and to upbring her children to give a good education and life. If the husband instead of discharging of his obligation indulges himself in excessive drinking habit, which deteriorates the family condition, it would naturally lead to a mental cruelty to the wife and the entire family including children.

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11.Having not done so the husband/respondent can be safely be stated that he has caused mental cruelty to the wife. The conduct of the wife would show that she tried to save the marriage as otherwise in the earlier occasion the application seeking divorce on the similar ground of excessive drinking would not have been withdrawn on the promise of the husband that he would mend his behaviour."

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In the present case also, the appellant/wife filed affidavit to prove her pleadings and also filed documents and alleged that conduct of the respondent is not proper, he is not discharging his obligation as a husband and father by taking care of the appellant and the children. Even their daughter Bhavna Yogi has also supported the averments made by the appellant/wife. One witness Girja Shankar Jaiswal has also supported the allegations of the appellant. There is no crossexamination to the said facts, therefore, in absence of any crossexamination despite sufficient opportunity being afforded therefor, the averments made by the wife would be deemed to be an acceptance on the part of the respondent/husband. This Court in the matter of Smt. Payal Sharma (supra) has held that if the husband instead of discharging his obligation indulges himself in excessive drinking habit, which deteriorates the family condition, it would naturally lead to a mental cruelty to the wife and the entire family including children. In this case also, the respondent indulged himself in excessive drinking habit as also has illicit relations with other women and is not doing any work to support his family. Such irresponsible and promiscuous conduct of the respondent is causing social infamy to the whole family. However, the learned Family Court did not consider all this and held that no mental or physical cruelty has been committed by the respondent to the appellant. This finding of the learned Family Court is not based on proper appreciation of material available on record and as such, is liable to be set aside.

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On the basis of aforesaid discussions, this Court is of the opinion that the conduct of the respondent/husband amounts to mental as well as physical cruelty to the appellant/wife and as such, she is entitled for a decree of divorce on this ground. Being so, the impugned judgment and decree dated 26.6.2023 of the learned Family Court are hereby set

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aside. Consequently, marriage between the parties held on 7.6.1991 stands dissolved from today.

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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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Digitally MOHD signed by AKHTAR MOHD KHAN AKHTAR KHAN Khan

Smt. Hemlata Yogi v. Rajendra Nath Yogi

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Smt. Hemlata Yogi v. Rajendra Nath Yogi

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