Sunil Kumar Vs Anjana Devi

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( 2024:HHC:5188 )

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

	FAO(FC) No. 09 of 2024 Reserved on : 08.07.2024. *Date of decision: 16.07.2024*
____________________ Sunil Kumar	____________________________________ …..Appellant. Versus
Anjana Devi	…Respondent
____________________ Coram: The Hon’ble Mr. Justice TheHon’ble Mr. Justice	____________________________________ M.S. Ramachandra Rao, Chief Justice. Satyen Vaidya, Judge.
____________________ For the Appellant :	_________________________________________ Mr. Vinay Kumar, Advocate.
For the Respondent:	None.

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M.S. Ramachandra Rao, Chief Justice.

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This appeal is preferred by the appellant challenging the judgment dt. 30.12.2023 passed in HMA Petition no. 07/2018 of the Additional Principal Judge (Family Court), Hamirpur HP circuit Court at Barsar (For short the Family Court).

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1. The appellant had filed the said HMA petition seeking dissolution of his marriage which took place on 28.11.2004 with the respondent on the ground of cruelty and desertion.

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1. Prior thereto he had earlier filed a Hindu Marriage Petition no. 75 of 2006 under Sections 12 and 13 of the Hindu Marriage Act

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seeking annulment and dissolution of marriage with respondent, but it was dismissed by the District Judge, Hamirpur on 10.05.2010.

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1. Against the said judgment, he filed FAO no. 279 of 2010 before the High Court and on 14.09.2017 he had withdrawn the FAO with liberty reserved to resort to remedy available to him in accordance with law.

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The case of the applicant

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1. Thereafter the instant petition was filed on 15.02.2018 before the Family Court.

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1. In the petition it is urged that after the marriage, the parties resided together and a female child by name Anshu was born on 24.05.2006 who was residing with the respondent; that after the marriage on 27.02.2005, he came to know that the respondent is suffering from epilepsy and was under treatment and was also having bad habit of smoking and drinking.

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1. He alleged that the respondent left the matrimonial home on 19.02.2006 and since then she is residing in her parents house.

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1. He alleged that during the period of the respondent in the said house of the appellant, her behaviour was not cordial with him and his parents.

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1. He contended that the respondent filed a petition under Section 125 of the Cr.P.C and under Section 12 of the Protection of Women from Domestic Violence Act,2005 against the appellant and his family members in order to harass them and she had deserted him for a continuous period of 12 years.

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The case of the respondent

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1. The respondent contested the petition in the Family Court denying that she left the matrimonial home on 19.02.2006 and that she had abused the appellant and his parents.

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1. She denied desertion of the appellant since 19.04.2006.

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1. She alleged that it was appellant who had misbehaved with her and treated her with cruelty.

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1. She stated that the respondent intends to live with the appellant but the appellant does not want to live with the respondent.

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Judgment of the Family Court.

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1. In the Family Court, the appellant examined PWs 1 to 5. The respondent examined herself.

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1. By the impugned judgment dt. 30.12.2023 the Family Court dismissed the petition.

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1. It considered the evidence of the parties and in particular the evidence of the appellant as PW3. He had deposed that he had never seen his daughter after her birth. He had also admitted in his evidence that he had not annexed any relevant record regarding the respondent suffering from epilepsy and that he had not provided any treatment to her.

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1. The Trial Court observed that the appellant did not annex any record regarding epilepsy illness suffering by the respondent. There is also no evidence that respondent was accustomed of smoking, drinking and also consuming drugs.

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1. It also took note of the evidence of RW1 that after the birth of child in 2006, the behaviour of the appellant changed towards her, that he started inflicting physical and mental cruelty upon her,that she was shunted out of her matrimonial house along with her minor daughter in the year 2006 and since then she is residing with her mother. She contended that the respondent was not paying maintenance allowance to her.

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1. It also noted the readiness and willingness of the respondent to join the company of the appellant along with her daughter.

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1. The Family Court noted that in the order Ext. P-3 passed in the complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 filed by the respondent against the appellant and his parents on 19.08.2011, it is recorded that the appellant was not ready to take the respondent with him to his home.

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1. The Family Court also noted that the appeal filed by the appellant against the said order was dismissed on 26.11.2012 by the Additional District Judge (Fast Track Court), Hamirpur; and that the appellant had filed a Criminal Revision Petition no. 28/2013 which was disposed of by the High Court on 18.07.2013 granting maintenance allowance Rs.1500/- per month to her and Rs.2000/per month to the daughter; and liberty was also given to her to take back her stridhan and dowry articles under the supervision of the Protection Officer of the area.

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1. The Family Court also noted that there was a specific finding by the High Court in the said order in Criminal Revision petition no. 28 of 2013 that the respondent was subjected to domestic violence

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by the appellant and protection order was passed in her favour by

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the Judicial Magistrate 1^st Class, Barsar in petition no. 15-I of 2010 dt. 19.08.2011 which had also been upheld in the Criminal Revision petition no. 28 of 2013 dt. 18.07.2013.

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1. It also held that epilepsy was not a incurable disease or mental disorder or a psychopathic disorder and would not make a ground under Section 13 (1) (iii) of the Hindu Marriage Act,1955 for dissolution of marriage. It held that his plea of cruelty was that because the respondent was suffering from epileptic fits, it would amount to cruelty. It did not accept his plea.

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1. It also held that the plea of irretrievable break down of marriage cannot be a ground for dissolution of marriage.

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1. The Family Court also held that there is no evidence of desertion by the respondent of the appellant in view of the litigation which commenced in HMA petition no. 75/2006 filed by the appellant which admittedly got dismissed on 10.05.2010 and then got confirmed in FAO no. 279 of 2010 which was withdrawn on 14.09.2017.

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1. Challenging the same, this appeal is filed.

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The instant FAO

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1. The learned Counsel for the appellant sought to contend that the findings recorded by the Family Court are contrary to record and are erroneous; that the respondent was suffering from epileptic fits and therefore, he cannot be compelled to live with her.

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1. The counsel for the appellant however did not dispute that his client had adduced no medical evidence in support of the illness of epilepsy.

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1. He also did not dispute the principles laid down in Harish @ Roshan Karnewar vs. Leelavati @ Reena Karnewar of the Bombay High Court which held that the condition of the ‘epilepsy’ was not a incurable disease or mental disorder or a psychopathic disorder on the basis of which divorce can be sought.

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1. In the light of the findings of this Court in Criminal Revision petition no. 28 of 2013 dt. 18.7.2013 that the respondent had not been subjected to domestic violence by the appellant, it cannot be said that the appellant can claim divorce by taking advantage of his

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own wrong by falsely pleading that it was respondent who had treated him with cruelty. There is also no evidence that respondent used to smoke, drink or take drugs.

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1. The Family Court also recorded in para 21 of the Ext. P-3 order passed on 19.08.2011 by the Judicial Magistrate 1^st Class, Barasr that the appellant was not ready to take the respondent back with him to his home and that the respondent had also admitted in his evidence that he had not seen his daughter after her birth in 2006 and the respondent had to live with her mother.

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1. Nothing is shown by the appellant to show that he had attempted to bring the respondent to his home to live with him. Therefore, it cannot be said that respondent had deserted him.

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1. We are satisfied that the Family Court had properly considered the evidence on record and had rightly dismissed the petition for divorce filed by the appellant against the respondent.

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1. Accordingly, the appeal fails and is dismissed.

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1. Pending application(s), if any also stands disposed of.

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(M.S. Ramachandra Rao) Chief Justice.

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(Satyen Vaidya) Judge.

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July 16, 2024 (cmThakur)

Sunil Kumar v. Anjana Devi

Case brief

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Sunil Kumar v. Anjana Devi

Case brief

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