Lileshwar Kurre Vs Smt. Preetibala Kurre

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2025:CGHC:7786-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment reserved on:17.01.2025 Judgment delivered on: 13.02.2025

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FA(MAT) No. 30 of 2021

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1 - Lileshwar Kurre, S/o Saheb Ram Kurre, Aged About 35 Years, R/o Village Khairidih, Post Sambalpur, Tahsil Doundi Lohara, District Balod Chhattisgarh.

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--- Appellant/Non-applicant

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versus

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1 - Smt. Preetibala Kurre, W/o Lileshwar Kurre, Aged About 32 Years, R/o Village Raipura, Tahsil Doundi Lohara, District Balod Chhattisgarh. Presently R/o Through Shri G.K. Joshi, Irrigation Colony, Amapara, Balod, P.S. And Tahsil Balod, District Balod Chhattisgarh.

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--- Respondent/Applicant With

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FAM No. 119 of 2016

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1 – Lileshwar, S/o Saheb Ram, Aged About 31 Years, R/o Village Khairidih, P.S. and Tahsil Doundi Lohara, District Balod (Old District Durg) Chhattisgarh........Applicant , Chhattisgarh

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--- Appellant/ Applicant

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Versus

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2

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1 - Smt. Preetibala, W/o Lileshwar, Aged About 30 Years, D/o G. K. Joshi, R/o Irrigation Colony, Amapara, Balod, P.S. and Tahsil Balod, District Balod (Old District Durg) Chhattisgarh

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--- Respondent/Non-applicant

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For Appellant	: Mr. Sunil Sahu, Advocate
For Respondent	: Mr. Prashant Dansena, Advocate

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Hon'ble Smt. Justice Rajani Dubey

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Hon’ble Shri Justice Sachin Singh Rajput

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CAV judgment

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Per Rajani Dubey, Judge

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Since the parties in both the cases are same, therefore, both the appeals are being heard together and are decided by this common judgment.

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The appeal i.e. FA(MAT) No.30/2021 has been filed against the judgment and decree dated 25.03.2021 passed by learned Family Court, Balod (C.G.) in Civil Suit No. 40-A/2016 whereby the application filed under Section 9 of the Hindu Marriage Act by the respondent/wife has been allowed and decree for restitution of conjugal rights has been passed in favour of the respondent/wife.

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The appeal i.e. FAM No. 119/2016 has been filed against the judgment and decree dated 13.05.2016 passed by learned 1 st Additional Principal Judge, Link Court/Family Court , Balod in Civil Suit No. 23A/2010 whereby the application filed under Section 13 of the Hindu Marriage Act by the appellant/husband for grant of divorce, has been dismissed.

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In FA(MAT) No. 30/2021 - Admitted facts of the case are that the marriage between the appellant/husband and the respondent/wife was solemnized on 27.04.2007 in accordance with Hindu rites and rituals and they have been blessed with a daughter who is aged about 13 years.

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The brief facts of the case as have been pleaded by the wife before the Family Court, are that after marriage, wife lived at her in-law’s Village- Khairidih, Tehsil- Daundilohara, District- Balod for about 7 months and started living her marital life. After some time of marriage, her husband and his family members started harassing her and raising dispute. During her pregnancy also, they harassed her. It is also pleaded that at the time of her pregnancy, her husband left her with her parents and has never taken care of her. On 11-06-2008, her daughter was born who is presently residing with her. She wants to reside with her husband. Therefore, a decree for restitution of conjugal rights may be passed in her favour.

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The non-applicant/appellant, in turn admitting the applicant/respondent as his wife and denying all adverse allegations made in the application contended that the applicant/wife herself left the company of the nonapplicant/husband and started residing with her parents. She lodged report under Section 498-A of I.P.C. against the non-applicant and his family members, however they were acquitted by the learned trial Court of the alleged charge. Against the said acquittal, the appeal filed by the applicant/wife has also been dismissed by the learned Sessions Court. The applicant had also filed an application under Section 12 of the Protection of Woman from Domestic Violence Act, 2005, which has also been dismissed by the learned trial Court as well as the learned

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appellate Court. Earlier, the non-applicant/husband had filed an application under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights, but the applicant has put the condition that if he left his parents, then only she is ready to reside with him. Thereafter, the non-applicant/husband has withdrawn his application. Subsequently, he has filed an application under Section 13 of the Hindu Marriage Act, 1955, for grant of decree of divorce, which has been dismissed by the learned Family Court and an appeal is pending before this Court. Further, the wife filed an application under Section 125 of Cr.P.C. for grant of maintenance before this Court and the same has also been dismissed by this Court.

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It is also submitted by the non-applicant that after about 8 years from residing separately from her husband, she filed the instant application. During this period, she made various efforts to harass the non-applicant/ husband by making various complaints to the police station. She pressurized him to left his parents and forced him to live as Ghar Jamai. She also doubted about his character. Looking to her behavior and attitude with him, their residing together is not possible and he prayed for dismissal of her application. He made various efforts and went to Amapara, Balod, to bring her back but she refused to come back with him. She continuously harassed the non-applicant since 2008 and committed cruelty with him and, therefore, prayed for dismissal of her application for restitution of conjugal rights.

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Learned Family Court after appreciation of oral and documentary evidence, allowed the application filed by wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Hence, this appeal i.e. FA(MAT) No. 30/2021 has been filed by the appellant/husband.

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In FAM No. 119/2016- Admitted facts of the case are that the nonapplicant is wife of the applicant and they have a minor daughter who is under the guardianship of non-applicant.

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To settle the dispute between the parties, attempts were made from 10.05.2011 to 07.07.2011 but the same has failed.

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The pleadings made in the application are that the marriage between the parties was solemnized on 28.04.2007 and from their wedlock, one daughter Ku. Princy @ Prachi was born who is presently aged about 8 years. After their marriage, the non-applicant/respondent was compelling him to reside with her parents as Ghar-Jamai . She does not want to live at village and also does not like his village. She used to quarrel with him and went to her parental home without informing anyone. At the time of her delivery, she came to her parental home where their daughter was born on 11-06-2008. Thereafter, when the applicant/husband went to bring her back and his child, the nonapplicant/wife refused to return with him. The non-applicant/respondent is residing with her parents since 19-112007. Despite repeated attempt of bring her back, she did not return.

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It is also pleaded in the application that the non-applicant/wife filed a case against the applicant/husband under Section 498-A IPC. The applicant had filed a case under Section 9 of the Hindu Marriage Act on 12.08.2008. In the said case, the non-applicant had refused to live a married life with the applicant. The non-applicant had filed a case under Section 125 of the Code of Criminal Procedure against the applicant for maintenance. After the said case was dismissed, the nonapplicant filed an appeal before this Court. The said appeal is pending. In view of the above act of the non-applicant, it is not possible for the

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applicant to live a married life with the non-applicant. Therefore, the applicant has filed the application in question and prayed that the marriage dated 28.04.2007 solemnized between the applicant and the non-applicant be dissolved through the judgment and decree. The applicant has also submitted his own affidavit in support of the application.

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In her written statement, non-applicant/wife contended that the applicant and the applicant's parents had assaulted the non-applicant for dowry and ousted her from their house. Since then, the nonapplicant is living in her parental home along with her daughter Ku. Prachi. The non-applicant had lodged a report against the applicant under Section 498-A of IPC. The case in this regard is pending before the Judicial Magistrate, Doundi Lohara. The applicant had filed a case under Section 9 of the Hindu Marriage Act. In the said case, the nonapplicant had submitted an application on 10.09.2009 and expressed her desire to spend her married life with the applicant. On 09.09.2010, the applicant had got the said case terminated. Thereafter, the nonapplicant had filed an application under Section 9 of the Hindu Marriage Act and the said case is pending. The non-applicant wants to spend her married life with the applicant. The applicant wants to marry with another woman for the second time. Hence, the application filed by the applicant is liable to be dismissed.

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11.After appreciating oral and documentary evidence, learned Family Court dismissed the application filed by the appellant/ husband under Section 13 of the Hindu Marriage Act. Hence, this appeal i.e. FAM No. 119/2016 has been filed by the appellant/husband.

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In FA(MAT) No. 30/2021 and FAM No.119/2016 , learned counsel for the appellant/husband submits that both the judgments passed by the learned trial Court are illegal, bad and against the facts and circumstances of the case. Therefore, the impugned judgments and decrees in both the cases are liable to be set aside.

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Learned trial Court did not appreciate this fact that wife herself deserted the company of the husband since long and she committed cruelty many times against the husband. She lodged the FIR against the husband under Section 498A of IPC and also filed complaints under Domestic Violence Act. She filed application for maintenance under Section 125 of Cr.P.C. Appellant/husband filed application under Section 9 of the Hindu Marriage Act but she refused to go with him and when the appellant/husband filed application for divorce on 08.10.2010 then she filed application under Section 9 of the Hindu Marriage Act for restitution of Conjugal Rights on 04.07.2016. Learned trial Court did not appreciate all these facts, therefore, the impugned judgment and decree passed by the learned trial Court in both the cases are liable to be set aside and appellant/husband is entitled to get decree of divorce against the wife/respondent.

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Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of K. Shrinivas Vs. K. Sunita; 2014(16) SCC 34, Malathi Ravi, M.D. Vs. B.V. Ravi, M.D.; (2014) 7 SCC 640, Rani Narasimha Sastry Vs. Rani Suneela Rani; 2019 SCC OnLine SC 1595, this Court’s judgment dated 08.03.2022 passed in FAM No. 164 of 2018 in the matter of Smt. Indra Meshram Vs. Bhanupratap Singh Meshram and order dated 30.07.2019 passed in FAM No. 3 of

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2015 in the matter of Anjan Bhattacharya Vs. Smt. Latika Arpita Bhattacharya.

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13. Appellant/husband also filed application under Order 41 Rule 27 of C.P.C. for taking additional evidence on record and along with this application, he filed order-sheets of learned trial Court bearing MJC No. 88/2008, order dated 08.06.2010 passed by this Court in CRR No. 336/2010 and letters of his higher officers.

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14. Learned counsel for the respondent/wife opposing the prayer of the husband supports the impugned judgments and submits that the appellant/husband and his family members ousted the respondent/wife. The appellant wants to marry with another woman. Respondent/wife wants to live with her appellant/husband and therefore, she filed application under Section 9 of the Hindu Marriage Act and the learned trial Court rightly dismissed the application for divorce filed by the appellant and allowed the application of wife for restitution of conjugal rights. Therefore, both the appeals being without any merit are liable to be dismissed.

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Reliance has been placed on this Court’s judgment dated 20.03.2023 passed in FAM No. 171 of 2019 in the matter of Shwetabh Vikram Gupta Vs. Priyanka Gupta.

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15. Learned counsel for the respondent/wife also opposes the application filed under Order 41 Rule 27 of C.P.C. for taking additional evidence on record, by the husband and submits that the appellant/husband did not file the said documents before the learned trial Court and only with malafide intention, he filed the said application. The said documents were not taken on record at appellate stage. Therefore, the said application is liable to be dismissed.

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

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17. It is not disputed before the trial Court that the marriage between the parties was solemnized on 28.04.2007 and from their wedlock, one daughter was born and she is living with her mother/respondent. It is also not disputed in this case that since 2008, respondent/wife is living separately from the husband in her parental home. It is admitted by respondent/wife that she had lodged the FIR against husband. The learned trial Court also appreciated this fact that the appellant/husband is acquitted by learned trial Court but the learned Principal Judge, Family Court found that only on this ground, he is not entitled to get decree of divorce.

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Before the learned trial Court, appellant/husband examined himself as A.W.-1 and another witness- Firtu Ram as A.W.-2. He filed affidavit of Lakhan Lal but he did not appear in cross-examination whereas respondent/wife examined herself as N.A.W.-1 and two other witnesses namely Santosh Pandey as N.A.W.-2 and Deendayal as N.A.W.-3.

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Appellant/husband stated in his statement that he went to bring the respondent/wife back to his home but she refused to go with him.

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20. Firtu Ram (A.W.-2) stated that in the year 2008, apart from him, 8 -10 people went along with the applicant/husband to bring the nonapplicant home. He denied this suggestion that at that time, the family members had said that the they would not send the non-applicant on account of her delivery.

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21. Respondent/wife (N.A.W.-1) admitted in her cross-examination that she is living separately since 2008. She stated that she did not

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remember that on 12.08.2008, the applicant/husband had submitted an application under Section 9 of the Hindu Marriage Act. Further, she admitted that in that case a reconciliation was done between her and applicant. Also, she admitted that she lodged the FIR against husband and his family members under Section 498- A of IPC and filed complaint under Domestic Violence Act against the husband and his family members. She stated that she is not aware about the acquittal of the applicant and his family members by the trial Court in the said case. She voluntarily stated that the case is pending before the higher Court. She denied this suggestion that she filed complaint against her husband before the Higher officers. She further stated that the appellant/husband had performed second marriage with one Sharda Sonbarsa but to substantiate the said fact, she did not file any document in this regard. She further admitted that she did not see the applicant/husband marrying to another woman.

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22. Santosh Pandey (N.A.W.-2) stated that he performed the marriage between the applicant and Sharda Sonbarsa in accordance with Hindu rites and rituals.

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In his cross-examination, he stated that he does not know Sharda Sonbarsa. He himself stated that when they took him away, the face of Sharda Sonbarsa was covered with a cloth. He did not know the date of marriage of the applicant/husband and Sharda Sonbarsa. He admitted that he came to Court to give testimony along with the father of the respondent/wife.

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Deendayal (N.A.W.-3) also stated that the applicant/husband had relation with another lady teacher. However, in his cross-

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examination, he stated that he does not know the name of said lady teacher with whom the applicant had relation.

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Learned trial Court framed issue No.1 regarding cruelty and issue No.2 for desertion but the learned trial Court found that only on the ground of lodging the FIR under Section 498-A of IPC against the appellant/husband, appellant/husband is not entitled to get decree of divorce and also found that respondent/wife filed application under Section 9 of the Hindu Marriage Act and appellant/husband himself deserted and performed second marriage to another woman and thus decided both the issues against the husband. However, it is clear from statement of respondent/wife that she is living separately from her husband since 2008. She did not file any oral and documentary evidence in this regard to substantiate that before filing application under Section 9 of Hindu Marriage Act, she ever tried to live with the husband.

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It is evident from the record that after acquittal of the husband by the learned trial Court, the wife filed appeal against the said acquittal. Thereafter, again, she filed complaint under Domestic Violence Act against the husband/appellant. Subsequently, application under Section 125 of Cr.P.C. was filed by the wife against the husband for maintenance.

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Husband filed application under Section 9 of the Hindu Marriage Act and also went along with other person to parental home of the wife to take her back but the learned trial Court did not appreciate all these facts and passed the impugned judgments in favour of the wife/respondent.

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Vide judgment dated 13.03.2013 (Ex.P/4), learned Judicial Magistrate First Class acquitting the husband and his family members, observed in paras 25 and 26 and held as under:-

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25--- cfYd mDr vfHk;kstu lk{; ds vk/kkj ij izkfFkZ;k ds Lo;a vius ek;ds esa jgus ij vkjksihx.k }kjk mls ysus gsrq ckyksn tkuk rFkk izkfFkZ;k ds llqjky ugha vkus ij U;k;ky; ds le{k nkEiR;thou ds iquLFkkZiuk gsrq vkosnu lafLFkr fd;k tkuk izdV gksrk gSA

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26- vr% mijksDr vfHk;kstu lkf{k;ksa dh lk{; ds lafnX/k gksus ,oa mudh lk{; esa ijLij fojks/kkHkkl gksus] izdj.k dh izFke lwpuk i= foyac ls ntZ djk, tkus ,oa mDr fjiksVZ vkjksih fyys’oj ds nkEiR;thou ds iquLFkkZiu gsrq vkosnu lafLFkr fd, tkus ds ifj.kkeLo:i izLrqr fd, tkus ds rF; dks n`f”Vxr j[krs gq, mDr vfHk;kstu lk{; ds vk/kkj ij vkjksih;x.k }kjk ?kVuk fnukad o le; ij izkfFkZ;k ds ifr ;k ifr ds ukrsnkj gksrs gq, mldks ngst esa lkeku ;k uxn :i;s ykus ds fy, rax djrs gq, ‘kkfjfjd ;k ekufld :i ls izrkfM+r dj mlds lkFk dzwjrk fd, tkus] vius lkekU; vk’k; ds vxzlj.k esa mlds lkFk ekjihV dj mls LosPN;k lk/kkj.k migfr dkfjr fd, tkus] mls tku ls ekjus dh /kedh nsdj vkijkf/kd vfHk=kl dkfjr fd, tkus rFkk izkfFkZ;k ;k mlds ifjokjtu ls ngst ekax fd, tkus ds rF; lansg ls ijs izekf.kr ugha gksrs gSaA vr% fopkj.kh; iz’u dza0 1 ls 4 izekf.kr ugha esa vafdr fd;k tkrk gSA

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28. It is not disputed before the parties that against the acquittal judgment dated 13.03.2013, appeal was filed by the State before the learned Sessions Judge and learned Sessions Judge found that the statements of the witnesses are not reliable and dismissed the said appeal vide judgment dated 29.01.2015 (Ex.P/3) and after the application filed by the husband for restitution of conjugal rights, wife lodged the FIR against the husband. But the learned trial Court did not appreciate all these facts.

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In the matter of Smt. Indra Meshram Vs. Bhanupratap Singh Meshram passed in FAM No. 164 of 2018 order dated 08.03.2022 , this Court observed in paras 14 and 15 which read as under:-

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“14. The appellant specifically admitted in her cross-examination in para-11 that the respondent never doubted about her character, but her witness (DW-2) Dharmendra Singh has stated contrary. In examination-in-chief, he has stated that the respondent used to harass the appellant by doubting her character. (PW-1) Harsh Ram has stated that his father had asked the mother for living together but she had denied. This witness further stated that his mother told to his father for having illicit relations with another woman. In the matter of Smt. Hemlata Sonwani Vs. Dr. K.R. Sonwani {AIR 2010 Chh 77}, the wife has made allegation of illicit relations with more than 10-11 women. It was held that in such type of allegations, if the appellant has not examined any of the women or any other witness to support her allegation that any witness had ever seen the respondent with any of the women, then it is sufficient for constituting mental cruelty.

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15.In the matter of Debananda Tamuli Vs. Kakumoni Kataky {2022 SCC Online SC 187}, in para-9, it was observed that every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence.”

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In the matter of Rani Narasimha Sastry Vs. Rani Suneela Rani; 2019 SCC OnLine SC 1595, Hon’ble Supreme Court held in paras 12, 13, 14 and 15 as under:-

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12. This Court has laid down that 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. This Court in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate has laid down following in paragraph 7:

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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 leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital 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 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

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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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In the present case the prosecution is launched by the respondent against the appellant under Section 498-A of IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A of IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by respondent under Section 498-A of IPC, the High Court made following observation in paragraph 14.

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“14..... Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A of IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty.”

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The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of

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offence under Section 498-A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now.

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In view of forgoing discussion, we conclude that appellant has made a ground for grant of decree of dissolution of marriage on the ground as mentioned in Section 13(1)(i-a) of the Hindu Marriage Act, 1955.”

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In light of above, in the present case also, it is clear that the respondent/wife filed several complaints against the appellant/husband and it is also observed by learned criminal Court that when husband filed application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, thereafter, the wife lodged FIR against the husband and as such, it is evident from the record that wife never tried to save her matrimonial life.

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Before the learned trial Court also, she admitted that since 2008, she is residing in her parental home. But the learned trial Court in both the cases, did not appreciate all these statements of wife and also the documents filed by the appellant/husband and gave perverse finding which is not sustainable in the eye of law.

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Considering the facts and circumstances of the case, and the law laid down by Hon’ble Apex Court in the cases referred to above and the observation made by this Court, it is proved that wife committed cruelty against her husband and also deserted her husband without any cause and never tried to reconcile her marriage.

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In view of foregoing discussion, we conclude that the husband has proved his case for the grant of decree of divorce on the ground of cruelty and desertion and wife has failed to prove her case for Restitution of Conjugal Rights. Therefore, both the judgments are not sustainable in the eye of law and are liable to be set aside.

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In the result, both the appeals i.e. FA(MAT) No. 30/2021 and FAM No. 119/2016 are allowed. Consequently, impugned judgments dated 25.03.2021 passed in Civil Suit No. 40-A/2016 and impugned judgment dated 13.05.2016 passed in Civil Suit No. 23-A/2010 are set aside. It is ordered that marriage dated 28.04.2007 solemnized between the parties is dissolved from the date of this judgment.

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36. After having gone though the material on record, considering the fact and situation of the case, we direct the husband to give a sum of Rs. 5,00,000/- (Rupees Five Lac Only) within a period of two months as permanent alimony to the wife.

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Let a decree be drawn up accordingly.

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Sd/-

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Sd/-

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(Rajani Dubey) (Sachin Singh Rajput) Judge Judge

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Ruchi

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RUCHI YADAV Digitally signed by RUCHIYADAV

Lileshwar Kurre v. Smt. Preetibala Kurre

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Lileshwar Kurre v. Smt. Preetibala Kurre

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