Court: Chhattisgarh High Court
Bench: JUSTICE I.M. Quddusi & G. Minhajuddin
Ashok Kumar Deshmukh Vs. Gayatri Decided on 11 April 2012
Law Point:
Wife has an affair, lived with husband for only 18 days and then deserted him to live at maternal home. Divorce granted on ground of desertion.
JUDGEMENT
1. This appeal has been filed by the appellant/plaintiff under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 5.12.2009 passed by Second Additional Principal Judge, Family Court, Durg, in Civil Suit No. 100-A/07, whereby the application of the appellant/plaintiff under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion, has been rejected.
2. The facts not in dispute are that marriage between the parties was solemnized on 22nd June, 2003 as per Hindu rites and ceremonies at Village Achhoti, Distt. Durg and since 11.7.2003, the respondent/defendant is residing at her maternal home. However, rest of the facts are disputed.
3. Case of the appellant/plaintiff, in brief, is that marriage between the parties was solemnized on 22.6.2003 at Village Achhoti. Distt. Durg as per Hindu rites and ceremonies and after marriage, the respondent/defendant came to her matrimonial home at Village Tirga, where she resided with the appellant/plaintiff only for 18 days. During the said period of 18 days, whenever the appellant desired to have sexual intercourse with the respondent, she, on one ground or the other, refused to establish physical relations with him. On being informed that the respondent is not well, she was taken to a gyneacologist Dr. (Mrs.) Gurubaxani at Durg and on way to her clinic, the respondent disclosed to the appellant that she was not willing to marry him and her marriage was performed by her parents under pressure as she was having love affair with one Budheshwar @ Pappu. The appellant/plaintiff was shocked to hear all this and in the hope that she will recover and will forget her previous affair, that she was dropped at her maternal home. When after two days, the appellant tried to bring her back, she bluntly refused saying that she cannot live with the appellant and as she is having love affair with Budheshwar @ Pappu, therefore, she cannot give physical pleasure to him as his wife. After this, as the appellant was at that time posted as an Engineer in the Hydro Electric Department in Himachal Pradesh and his leave was about to exhaust, that he proceeded to his place of posting. The appellant through his maternal uncle Teman Singh Belchandan had got the date 30.11.2003 fixed for Bidai (departure of the bride from maternal home) of the respondent. The appellant had come for this purpose on 24th November, 2003 from Himachal Pradesh to his Village Tirga and two days before the said date i.e. 28.11.2003, he came to know that the respondent with intent to commit suicide had consumed pesticide along with her lover Budheshwar @ Pappu. Both of them were immediately shifted, first to District Hospital, Durg and, thereafter, looking to the critical condition of the respondent, she was shifted to Sector-9 Hospital, Bhilai, where she remained admitted for about 15-20 days. However, Budheshwar @ Pappu expired at District Hospital, Durg. In this regard, news was published in the daily local newspaper, on account of which the appellant had to face humiliation and was defamed in the society. Thereafter, the appellant moved an application for getting the marriage dissolved before the Circle Committee of their Kumari community, which dissolved their marriage. Against the decision of the Circle Committee, an appeal was filed by the respondent before the Judicial Committee and thereafter to the Central Executive of their community and decision of the Circle Committee regarding dissolution of marriage was upheld. As such, marriage between the parties was dissolved on 7.1.2007. With the aforesaid averments, the appellant/plaintiff filed an application under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion before the learned Family Court.
4. The respondent/defendant, in her written statement, denying the allegations made by the appellant/plaintiff in his application under Section 13 of the Hindu Marriage Act, averred that she had neither refused to establish physical relations with the appellant nor had informed him that she was not willing to marry him and her marriage was performed by her parents under pressure as she was having love affair with one Budheshwar @ Pappu, who she was willing to marry. She was at all time and is still ready to lead conjugal life with the appellant. She had never attempted to commit suicide. In fact, she was suffering from cold and cough and the bottle of cold and cough mixture was kept near the bottle of pesticide and at night in the dark, on account of mistake, she had consumed the pesticide assuming it to be cold and cough mixture. The news published in the daily local newspaper regarding attempt to commit suicide by lovers is baseless and false. She has further averred that she and her father had, at all time, been trying that the respondent should lead conjugal life with the appellant.
5. Learned Family Court after affording opportunity of hearing and of adducing evidence to the parties, by the impugned judgment and decree dismissed the application under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce.
6. Heard learned Counsel for the parties, perused the LCR as also the impugned judgment.
7. The main question to be decided in this appeal is—Whether the respondent/wife has committed cruelty towards her husband/appellant and without just and reasonable cause has deserted his company since 11.7.2003?
8. To substantiate the averments made in the application for divorce, the appellant/ husband has, in addition to himself as PW-1, examined his maternal uncle Teman Singh Belchandan as PW-2 and has also affidavit of Babulal Deshmukh, s/of late Shri Feruram Deshmukh, under Order 18, Rule 4 of the CPC. But this witness Babulal Deshmukh was not presented before the Family Court for being cross-examined by the respondent/ defendant. As such, the appellant/plaintiff in support of his case has examined himself as PW-1 and his maternal uncle Teman Singh Belchandan as PW-2. In addition to this, the appellant has filed documents, Exs. P/l to P/6. On the other hand, the respondent/defendant has examined herself as DW-1, her father Virendra Kumar Dilliwar as DW-2 and uncle Mohit Deshmukh as DW-3. In addition to this, she has filed documents, Exs. D/1 to D/3.
9. Looking to the evidence adduced by the parties, this appeal can be disposed of on the basis of undisputed facts and the admission made by the parties and their witnesses in their statements.
10. It is not in dispute that marriage between the parties was solemnized on 22.6.2003 and the respondent/wife had remained only for about 18 days with the appellant/husband and since 11.7.2003, she is residing at her maternal home at Village Achhoti, Distt. Durg. As per statement of the appellant/plaintiff (PW-1); the respondent/wife, on one ground or the other, was not willing to establish physical relations with him and when she informed him that she is not well and should be taken to a doctor, that he had taken her to a Senior Gynaecologist Dr. (Mrs.) Gurubaxani at Durg and on way to the clinic, she had informed him that she was not willing to marry him and under pressure of her parents only, her marriage was solemnized and she was having love affair with one Budheshwar @ Pappu, whom she was willing to marry. The fact that after marriage, the respondent on her request was taken by the appellant to gynaecologist Dr. (Mrs.) Gurubaxani is not in dispute. The respondent/defendant (DW-1) has denied that she had ever refused to establish physical relations with the appellant and had ever told him about her love affair with Budheshwar @ Pappu as well as her unwillingness to marry the appellant on that count.
11. It is not in dispute that after marriage, the respondent resided with the appellant for about 18 days only and since 11.7.2003 she is residing at her maternal home. This is also not in dispute that after 11.7.2003 the appellant after expiry of his leave proceeded to his place of posting at Himachal Pradesh and had got the date 30.11.2003 fixed through his maternal uncle Teman Singh Belchandan (PW-2) for Bidai of the respondent from her maternal home. Further, it is also not in dispute that two days prior to the date fixed i.e. in the night of 28th November, 2003, the respondent and Budheshwar @ Pappu had consumed pesticide, on account of which both of them were shifted first to District Hospital, Durg and thereafter, the respondent was shifted to Sector-9 Hospital, Bhilai, where she survived and remained admitted for about 15-20 days. However, Budheshwar @ Pappu died at District Hospital, Durg in the intervening night of 28/29th November, 2003. The appellant has filed the document Ex. P/4, which is Inpatient Discharge Slip of Sector-9 Hospital, Bhilai relating to the respondent.
12. The fact that on the next date i.e. 29th November, 2003, news regarding consumption of pesticide by two lovers, death of male and admission of female in hospital was published in the daily local newspaper, is not in dispute. Although name of the respondent was not published in the news and only name of Budheshwar @ Pappu, S/o Dhruvlal Kurmi of Village Achhoti was published. In this regard, the appellant has filed copy of the local newspaper of 29th November, 2003, which has been marked as Ex. P/5.
13. Although respondent Smt. Gayatri (DW-1) and her father Virendra Singh (DW-2) as well as her uncle Mohit Deshmukh (DW-3) have stated that the rumour regarding love affair between the respondent and Budheshwar @ Pappu is totally false and baseless, and by mistake the respondent had consumed pesticide thinking it to be cold and cough mixture as the bottle of pesticide was kept by the side of bottle of cold and cough mixture, but it is beyond contemplation that in any house, any sensible man will keep the bottle of pesticide along with medicines to be taken for cold and cough. The fact of ad-mission of both the respondent and Budheshwar @ Pappu simultaneously at District Hospital. Durg, where Budheshwar @ Pappu died, is not in dispute. Although name of the respondent has not been specifically mentioned in the news published in the local newspaper, but name of her village Achhoti as well as name of Budheshwar @ Pappu were published, which unerringly points towards the fact that the news published in the daily local newspaper on 29th November, 2003 relates to the respondent/defendant. The respondent/defendant (DW-1) has admitted that after publication of the said news, she had not taken any action against the editor or publisher of the newspaper. From the said fact, it stands proved that there was love affair between the respondent and Budheshwar @ Pappu and two days before the date fixed for Bidai of the respondent, both of them had consumed pesticide with intent to end their life. This fact corroborates the statement of the appellant/plaintiff that his wife/respondent, on one ground or the other, used to refuse to establish physical relations with him and had told him that she was not willing to marry him as she was having love affair with Budheshwar @ Pappu and her marriage was solemnized by her parents under pressure. Even after marriage, continuing the extramarital relations with the previous lover, attempting to commit suicide by consuming pesticide along with the lover and publication of the said news in the local newspaper, amount to cruelty of highest order and degree towards the appellant/husband, in addition to refusing to establish physical relations with him. As such from the evidence on record, the appellant/plaintiff has been successful in establishing the ground of cruelty for obtaining a decree of divorce.
14. So far as desertion of the company of the appellant/plaintiff by the respondent/defendant is concerned, it is not in dispute that the respondent/defendant had lived only for about 18 days with the appellant/plaintiff and since 11.7.2003 she is residing at her maternal home. The respondent/defendant (DW-1) has admitted that the appellant/plaintiff had come to Bhilai for his treatment of jaundice and she had not gone to see him. She has also admitted that after recovery, her husband (appellant) had come to her maternal home. Further she has admitted that since 11.7.2003 she had neither tried to go back to her in-laws’ house at Village Tirga, Distt. Durg, nor had taken any steps for restitution of conjugal rights. The appellant/plaintiff (PW-1) has stated that after dropping the respondent at her maternal home, he had gone after two days to bring her back, but the respondent refused to come back along with him and had told him that as she is having love affair with Budheshwar @ Pappu, she cannot discharge her marital obligations with him as his wife. This statement of the appellant/plaintiff (PW-1) finds corroboration from the fact that two days before Bidai, the respondent and Budheshwar @ Pappu had consumed pesticide with intent to commit suicide, in which somehow or the other the respondent survived, but Budheshwar @ Pappu died at District Hospital, Durg. As such, from the evidence adduced, it also stands proved that the respondent/defendant had refused to come back along with the appellant/plaintiff to her matrimonial home and since 11.7.2003 she is residing separately without any just and reasonable cause at her maternal home and had thereby deserted the company of the appellant. In addition to this, from the documents, Exs. P/l to P/3 filed by the appellant/plaintiff and the oral evidence adduced, it stands proved that after attempt to commit suicide by the respondent along with Budheshwar @ Pappu and publication of the same in the local daily newspaper, the appellant/plaintiff had moved an application for dissolving the marriage as per their customary mode and after hearing the parties, their marriage was dissolved and the decision of the Circle Committee was subsequently affirmed by the Judicial Committee as well as Central Executive of their Kurmi community, resulting in dissolution of marriage w.e.f. 7.1 .2007.
15. On the basis of evidence adduced, the appellant has been successful in establishing both the ground of cruelty as well as desertion for obtaining a decree of divorce and the learned Family Court has committed an error in dismissing his application under Section 13 of the Hindu Marriage Act.
16. In the result, the appeal is allowed. The impugned judgment and decree dated 5.12.2009 passed by Second Additional Principal Judge, Family Court, Durg, in Civil Suit No. 100-A/07 is hereby set aside. The application under Section 13 of the Hindu Marriage Act, 1955 filed by the appellant/plaintiff is allowed and, consequently, the marriage between the parties solemnized on 22nd June, 2003 stands dissolved with immediate effect. No order as to costs.
17. Additional Registrar (Judicial) is directed to draw up a decree accordingly.
Appeal allowed.
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