Smt. Champa Patel Vs Meghnath Kaushik

The present appeal has been filed by the appellant against the judgment and decree dated 21.10.2022 passed by the learned Family Court, Jagdalpur, District Bastar (C.G.) in Civil Suit No.41A/2021, whereby the respondent’s application seeking divorce has been allowed.

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Brief facts of the case are that the respondent had filed a civil suit under section 13 (1) of the Hindu Marriage act 1955, for dissolution of the marriage dated 09.07.2018 before the learned Family Court, Bastar against the appellant stating therein that their marriage was performed on 09.07.2018, but after some time of the marriage, she started cruelty upon him and his family members and went to the house of her parents and did not want to reside at respondent’s house. The appellant wife filed her written statement and denied the allegations levelled by the respondent husband. The learned Family Court after appreciating the oral and documentary evidence available on record passed the final judgment on 21.10.2022 and granted decree of divorce in favour of the respondent husband. Hence the present appeal has been filed by the appellant wife.

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Learned counsel for the appellants submits that the impugned judgment and decree is erroneous in law and facts both and the same is liable to be set aside. The learned Family Court has failed to appreciate the testimony of witnesses and held that appellant has done cruelty with the respondent and his family, whereas there is no pleading in the application under section 13 of Hindu marriage Act in this regard and no evidence whatsoever. The respondent has alleged that the appellant does not want to live with the respondent but during the counseling she herself stated that she wants to live with the respondent, but the learned Family Court has not considered the said aspect of the matter.

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The learned Family Court has only appreciated the evidence adduced by the respondent and ignored the evidence adduce by the appellant in support of her case. Therefore, the impugned judgment and decree is liable to be set aside.

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Learned counsel for the respondent supports the impugned judgment and decree passed by the learned Family Court and submits that the learned Family Court has minutely appreciated the oral and documentary evidence available on record and rightly passed the decree of divorce in favour of the respondent. The judgment is well merited and does not call for any interference.

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

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It is clear from the record of the learned Trial Court that the respondent/husband filed application before the learned Family Court under Section 13 (1) of the Hindu Marriage Act for dissolution of marriage dated 09.07.2018 and also he claimed that marriage be declared null and void. The appellant wife in her written statement admitted that both the parties are Hind but she denied pleadings made in the plaint. In the plaint averments, the respondent husband stated that the marriage of both the parties was solemnized on 09.07.2018 and before that engagement was performed on 03.07.2018 but the appellant wife in her written statement denied this pleading and stated that the respondent

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husband kidnapped her and performed marriage without her consent and at the time of marriage, she was even minor.

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The learned Trial Court on the basis of pleadings framed following issues:-

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	Okkn iz’u	fu"d"kZ
1	D;k vkosnd dk vukosfndk ds lkFk fnukad 09- 07-2018 dks fof/kor fookg dk lEiknu gqvk gS \|vkosnd ,oa vukosfndk dk fnukad 09-07-18 dks fookg gksuk Lohd`fr ds vk/kkj ij izekf.kr
2	D;k vkosnd vkSj vukosfndk ds e/; fnukad 09- 07-2018 dks lEikfnr fookg vukosfndk ds vo;Ld jgus ls 'kwU;dj.kh; gS\|izekf.kr ughA
3	D;k vukosfndk }kjk fookg i'pkr~ vkosnd dk ifjR;kx fd;k x;k gS \|gkW A
4	D;k vukosfndk }kjk fookg i'pkr~ vkosnd ds fo:} vlR; fjiksVZ ntZ djkrs gq, dqzjrk dk O;ogkj fd;k x;k gS \|izekf.kr A
5	D;k vkosnd] vukosfndk ls fookg foPNsn dh vkKfIRk izkIr djus dk vf/kdkjh gS \|gkWA
6	lgk;rk ,oa O;;A	;kfpdk LohdkjA

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The appellant wife admitted in her cross-examination that she was in love affair with the respondent husband but he forcefully married her. She admitted that their marriage was solemnized on 09.07.2018. She also admitted that she lodged FIR against the respondent husband on 07.03.2019 and she also admitted that she lodged FIR against the respondent for rape and case was registered against the respondent under Sections 363, 366, 376 of IPC and Section 6 of POCSO Act and she also admitted that

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on this FIR, criminal case was registered against the respondent and he was in jail and since 16.02.2019, she is in her parental home. The respondent also filed order sheet of Special ST No.19/2019 (Ex-P/1) and certified copy of judgment (Ex-P/2).

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The father of the appellant Fakirchand Patel admitted in his cross-examination that the marriage of the appellant and the respondent was solemnized according to social rituals, then he self stated that the respondent kidnapped her daughter and after that they entered into compromise and the marriage was performed. He also admitted that his daughter lodged FIR against the husband for the offence of rape and he was in jail during pendency of the trial. The learned Trial Court minutely appreciated the oral and documentary evidence and found that the marriage of both the parties was solemnized on 09.07.2018 and the appellant wife has failed to prove this fact that on the date of marriage, she was minor and it was also proved by the husband that since 2019, the respondent wife deserted her husband. The appellant wife and her father admitted this fact that the appellant wife lodged FIR against the respondent/husband and criminal case was registered against him and after full trial, he was acquitted by the learned Session Court on 13.01.2020.

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The Hon’ble Supreme Court in the matter of K. Srinivas Rao vs D.A. Deepa , reported in (2013) 5 SCC 226 , held in paras 14, 16 & 28 as under:-

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“14. In Vijaykumar Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations 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 to live with her husband. In Naveen Kohli the respondent-wife got an advertisement issued in a national newspaper that her husband was her employee. She got another news item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband.

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Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.

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Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant-husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the respondent-wife filed criminal appeal in the High Court challenging the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant-husband for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife

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filed criminal appeal in the High Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellanthusband so that he would be removed from the job. The conduct of the respondent- wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant- husband.”

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The Hon’ble Supreme Court in the matter of Debananda Tamuli

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vs Kakumoni Kataky , reported in (2022) 5 SCC 459 held in para 7 as under:-

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“7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home………………...”

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In the case in hand, the main objection of the appellant wife is that the respondent had filed the divorce application only on the

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ground of desertion and not on cruelty and he did not raise ground of cruelty in his application, but it is clear from application of the respondent that in his application, pleadings itself admitted false FIR against the respondent and also ill behavior of wife and her family members with the respondent and in para 18 of the plaint, he clearly pleaded that the cruel act of the wife has physically and mentally harassed him and her act comes in the category of severe mental cruelty. The learned Trial Court framed Issue No.3 for desertion and Issue No.4 for cruelty and after appreciation of oral and documentary evidence, the learned Trial Court rightly found that the appellant deserted her husband and committed cruelty by lodging false FIR against him. Thus the finding recorded by the learned Trial Court is based on the proper appreciation of oral and documentary evidence available on record, which is neither perverse nor contrary to the record, as such the same does not call for any interference by this Court.

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Accordingly, the appeal is dismissed.

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A decree be drawn accordingly.

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

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Nirala

	Okkn iz’u	fu"d"kZ
1	D;k vkosnd dk vukosfndk ds lkFk fnukad 09- 07-2018 dks fof/kor fookg dk lEiknu gqvk gS \|vkosnd ,oa vukosfndk dk fnukad 09-07-18 dks fookg gksuk Lohd`fr ds vk/kkj ij izekf.kr
2	D;k vkosnd vkSj vukosfndk ds e/; fnukad 09- 07-2018 dks lEikfnr fookg vukosfndk ds vo;Ld jgus ls 'kwU;dj.kh; gS\|izekf.kr ughA
3	D;k vukosfndk }kjk fookg i'pkr~ vkosnd dk ifjR;kx fd;k x;k gS \|gkW A
4	D;k vukosfndk }kjk fookg i'pkr~ vkosnd ds fo:} vlR; fjiksVZ ntZ djkrs gq, dqzjrk dk O;ogkj fd;k x;k gS \|izekf.kr A
5	D;k vkosnd] vukosfndk ls fookg foPNsn dh vkKfIRk izkIr djus dk vf/kdkjh gS \|gkWA
6	lgk;rk ,oa O;;A	;kfpdk LohdkjA

Smt. Champa Patel v. Meghnath Kaushik

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Smt. Champa Patel v. Meghnath Kaushik

Case brief

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