CHITRA PATEL Vs. RUPESHWAR @ RUPESH PATEL

CHHATTISGARH HIGH COURT

JUSTICE Goutam Bhaduri, J. & Deepak Kumar Tiwari

CHITRA PATEL Vs. RUPESHWAR @ RUPESH PATEL On 25 March 2022

Law Point:
When person undergoes trial in which he acquitted of allegation of offence levelled by wife against husband, it cannot be accepted that no cruelty meted out on husband — After marriage appellant wife treated respondent with cruelty — Appellant not only remained adamant in her behaviour but also used to insult dignity of husband by her continuous ill-treatment at time of his illness, his transfer, filing of several criminal cases resulted in acquittal for one or another reason — Cumulative effect of such conduct amounts to cruelty which not desirable to run matrimonial life, and in such situation matrimonial bond is beyond repair — Finding recorded by family Court does not call for any interference.

JUDGEMENT

This is an Appeal by the Non-Applicant/wife under Section 19 of the Family Courts Act, 1984 challenging the judgment and decree dated 30.10.2013 passed by the Family Court, Raigarh in Civil Suit No. 96A/2012, whereby the learned Family Court allowed the application under Clause (ia) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act, 1955’) preferred by the respondent-husband for dissolution of marriage and granted decree of divorce on the ground of cruelty.

2. Facts of the case are that the marriage between the appellant and the respondent was solemnized on 19.5.2002 in the village Chandrapur, Tehsil Dabhra, District Janjgir Champa. Out of the said wedlock one daughter Kumari Siddhi was born on 30.5.2003. The respondent/applicant had preferred an application under Section 13 of the Act, 1955 stating that after the marriage they had gone to his parental village Khairpali, District Bargarh (Orissa), On the next day the appellant/Non-Applicant started insisting the respondent husband to take her to Nagpur where the respondent was working and that she would not stay at village. Within one week of the marriage, the appellant/Non-applicant returned to her alleged father Shri Uday Lal Patel, Sub Inspector in the Police Department at Chandrapur and refused to go to Khairpali. After two months of the marriage, the respondent-husband took the appellant to his place of workingi.e. Nagpur (Maharashtra). After reaching Nagpur, the appellant started pressurizing the respondent to purchase Colour TV, Fridge and Motorcycle. As a result, the respondent purchased Colour TV and Fridge. As the financial condition of the respondent was poor, he could not purchase motorcycle-scooty for the appellant. Being enraged, the appellant left the house of the respondent and returned to her alleged father’s home. After some time, the appellant returned to the house of the respondent at Nagpur and again started pressu-rizing the respondent to purchase motorcycle-scooty. When the respondent expressed his inability to purchase the motorcycle, the appellant started raising quarrel with the respondent and threatened him by saying that her alleged father is the Police Inspector and she would implicate him and his family members in a dowry case and thereby started committing cruelty on him.
3. In the month of September, 2002, the respondent was transferred from Nagpur to Hinganghat. The appellant refused to accompany the respondent and again returned to her alleged father. The respondent tried to convince her but the appellant was not ready. As per the wish of the appellant, the respondent got himself transferred at Raipur (Chhattisgarh) at his own expenses. The respondent informed the appellant over phone that he has been transferred to Raipur and he has managed a room on rent. The appellant started pressurizing him to get a big house and refused to come. In January, 2004, the respondent came to his native village Khairpali, as he was suffering from Jaundice. The appellant had come, but she was neither doing any domestic work nor was she behaving properly with family members and started insulting him. The appellant went to her alleged father at Sariya leaving him in ill health condition.
4. It was also stated in the application that the appellant used to raise quarrel with the respondent every now and then and used to extend threat to implicate him in a dowry case. The appellant used to keep the entire salary of the respondent and thereby deprived him of the money. It was further alleged that the appellant was having illicit relations with her so called father. When the respondent enquired about their relations from the wife of Uday Lal, she informed that the appellant and her husband is having illicit relations. So he called a meeting at village Khairpali. In the said meeting, the appellant tendered apology and the Panchayat advised the appellant and said Uday Lal Patel not to contact in any manner in future and thereafter they came to Raipur on 22.3.2004 and continued to live together. However, the behaviour of the appellant did not change and became intolerable. Therefore, the respondent lodged a report at Police Station Azad Chowk, Raipur and he has also applied for his transfer from Raipur to Raigarh on 4.6.2004. Uday Lal and the mother of the appellant came to Raipur and pressurized him to withdraw the report lodged by him and also asked him to get the transfer order cancelled and when he denied, they threatened to beat him and lodged a false criminal case under Section 498-A of the IPC under Crime No. 387/2009. The Judicial Magistrate 1st Class, Raipur vide his judgment dated 22.4.2009 (Ex.-P/3) acquitted him and his family members.
5. The appellant and her minor daughter Ku. Siddhi preferred a maintenance application under Section 125 of the Cr.P.C. before the family Court, Raigarh, which was registered as Misc. Criminal Case No. 91/2005. Vide order dated 26.3.2007, the application so far as it relates to the appellant was dismissed. Therefore, the appellant had challenged the said order by way of Misc. Criminal Revision No. 161/2007 before the High Court, which was also dismissedvide order dated 7.3.2011 (Ex.-P/2). After dismissal of such application, the appellant again came to the respondent by tendering apology and also assured him that she would not have any relation with Uday Lal Patel.
6. Therefore considering the future of his minor daughter, the respondent allowed the appellant to stay with him. But the appellant again came in contact with said Uday Lal Patel and after conspiring with said Uday Lal Patel, she lodged a false FIR under Section 377 of the IPC against him at Police Station Chakradharnagar, Raigarh on 25.12.2010. The appellant had also lodged an FIR in Crime No. 537/2011 at Police Station Amanaka, Raipur under Sections 452, 294, 506 & 323 of the IPC and also under Sections 18, 19 & 20 of the Protection of Women from Domestic Violence Act, 2005 on 11.12.2011. By lodging false criminal cases, the appellant is causing mental cruelty to him. Therefore, the respondent would pray for grant of decree of divorce.
7. The appellant filed a written statement denying the facts raised by the respondent except the admitted facts. The appellant asserted that on the 2nd day of the marriage the respondent started demanding motorcycle and was also making demand of Rs. 45,000 for purchasing it. Her father has given Rs. 45,000/- cash for the purpose. Thereafter the respondent took the appellant to Nagpur. The respondent started harassing her by demanding Fridge and a Colour TV. On 15.7.2002, her father had given him a Fridge and a Colour TV after purchasing at Nagpur. When she was pregnant, the respondent had beaten her and left her to Uday Lal Patel. After birth of Ku. Siddhi, the respondent took her to his native village and since the appellant gave birth to a girl child, for her marriage purpose, the respondent made a demand of Rs. 5 lakh and the respondent had also beaten her. The appellant has denied the allegation raised against her character and prayed to dismiss the petition.
8. On the basis of averments made by the parties, issues were framed and after affording an opportunity of hearing to the parties, the learned Family Court decided the issue Nos.1, 3 & 4 in affirmative by holding that the respondent is entitled to get a decree of divorce for dissolution of marriage on the ground of cruelty. However, the issue No. 2 regarding the fact that after the marriage the appellant was having sexual intercourse with Uday Lal Patel, was decided in negative.
9. We have heard learned Counsel for the appellant, perused the judgment and record with utmost circumspection.
10. Learned Counsel for the appellant would submit that the Court below has wrongly passed the decree of divorce on the ground of cruelty, but there was no cruelty committed by the appellant. Learned Counsel would further submit that the marriage should not have been dissolved, as the marriage is a solemn tie and the respondent has failed to establish the ground of cruelty.
11. In order to appreciate the arguments advanced by learned Counsel for the appellant, we have examined the evidence adduced on behalf of the parties.
12. The seminal point for determination of this appeal is : Whether the Trial Court has erroneously appreciated the evidence and arrived at a wrong finding for granting a decree of divorce on the ground of cruelty ? InSavitri Pandey v. Prem Chandra Pandey, I (2002) DMC 177 (SC)=I (2002) SLT 103=(2002) 2 SCC 73 in para 6 it was observed as under :

13. Reverting to the present case, indisputably, the appellant has preferred a maintenance application on the ground that the respondent has ousted her from matrimonial house after beating her on 06.06.2004. While dismissing the said application by order dated 26.03.2007, the learned Family Court, Raigarh has not found the allegation made by her to be true and given the findings that appellant was residing separately with so called alleged father Uday Lal Patel (NAW.2), voluntarily and not found any sufficient cause for living separately otherwise, the said findings were affirmed in the Criminal Revision by the High Courtvide Order dated 07.03.2011 ( Ex. P-2).
14. Rupeshwar (A.W.1) respondent deposed that Smt. Chatur Kumari ,wife of Uday Lal Patel has also objected the relation of the appellant with her husband, and also their matrimonial relationship becomes bitter and Uday Lal had after beaten his wife, ousted her from the house and they have also started the fighting in the Court. Uday Lal Patel has filed an application Under Section 9 of the Hindu Marriage Act (Ex.D-3 and reply of Wife Ex. D-4) . Uday Lal Patel (D.W.2) categorically denied any illicit relationship with the appellant, and stated to her as daughter. He also denied that respondent has found him in an objectionable condition with the appellant, so the respondent called a meeting in his native village at Khairpali. Munku Sahu (A.W.2) has stated that respondent called a meeting, such meeting was held in the presence of Gorakh Nath Patel, Purshottam Patel, Gautam Naik, and the appellant and Uday Lal Patel (D.W.2), had tendered apology and also assured not to contact in future. The respondent has denied the signature in Ex.D-1, in which it was mentioned that he has taken such ground only for his defence and it is not true.
15. The appellant has also filed a complaint under Section 498-A of the I.P.C. against the respondent, his father, brother and 2 unmarried sisters, in which charge sheet was filed before J.M.F.C., Raipur on 30.04.2005, which was registered as Cr. C. No. 387/2009. Though in said case the appellant has preferred an application for compromise, but the offence is not compoundable in nature, so her application was dismissed on 05.03.2009. After trial, the allegation raised by the appellant about demand of dowry and cruelty by the husband was not found proved. Therefore, the Judgment (Ex.P-3) of acquittal was delivered. The respondent has also lodged complaint on 21.04.2004 at Police Station Azad Chowk , Raipur alleging that appellant used to quarrel for trivial issues, and also beaten him and threatened to falsely implicate, for which a notice Under Section 155 of Code of Criminal Procedure, was given to him vide Ex. P-8. The appellant has also lodged Police case at Police Station D.D. Nagar, Raipur, bearing Criminal Case No. 43/2009 (Ex.D-2) under Sections 294, 323, 506 of I.P.C. and in the said case respondent was acquitted on the ground that the appellant has compounded the offence on 07.02.2009.
16. Appellant has stated that the respondent and his family members were harassing her for demand of Rs. 5 lac, but in her cross-examination in para 42 about such main allegation, she replied that she does not remember that such fact was told or not at the time of lodging the F.I.R, that due to given birth to a female child such demands were made. The appellant has also not stated to any village Sarpanch or Community members about such demand, even on such allegation the offence which was registered resulted in acquittal.
17. Appellant has also lodged a criminal case for unnatural sex against the respondent. Gavesh Nayak (D.W.3) has stated that such fact firstly come to his knowledge through the News Paper. He further admits that for the dispute between them he had never told earlier to anyone. There was long dispute between the parties and many criminal cases were registered, but this witness has come forward to state their relationship for the first time. Therefore, this Court is of the view that in such circum-stances the evidence of such witness that the respondent was harassing and beating the appellant, for which he had advised to him, can not be accepted.
18. In view of the aforesaid evidence, this Court is not convinced with the submission of learned Counsel for the appellant that merely because the appellant has sought for maintenance and has filed a complaint against the respondent and his family members for the offence under Section 498-A of the IPC, it cannot be said to be a valid ground for holding that such a recourse adopted by the appellant amounts to cruelty. In similar situation, the Hon’ble Supreme Court in the matter ofRani Narasimha Sastry v. Rani Suneela Rani, (2020) 18 SCC 247 held that ‘It is true that it is open for anyone to file complaint or lodge prosecution for redressal of 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 offence under Section 498-A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has been meted out on the husband.’
19. Having also considered the other facts which were analyzed by the Trial Court in the impugned judgment and reached to the findings to the issue No. 1 that after the marriage the appellant treated respondent with cruelty, that the appellant after the marriage not only remained adamant in her behaviour but also used to insult the dignity of the husband by her continuous ill-treatment at the time of his illness, his transfer, filing of several criminal cases resulted in acquittal for one or another reason, the cumulative effect of such conduct amounts to cruelty which is not desirable to run a matrimonial life, and in such a situation the matrimonial bond is beyond repair. Therefore, the finding recorded by the learned family Court does not call for any interference.
20. In the result, the Appeal being bereft of any substance deserves to be and is hereby dismissed.
21. Parties shall bear their own costs.
22. Advocate Fees as per schedule.
23. A decree be drawn up accordingly.

Appeal dismissed.

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