Chattisgarh High Court
Smt. Saroj vs Videsh Kumar on 17 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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2025:CGHC:3198-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 17-12-2024
Judgment delivered on : 17-01-2025
FA(MAT) No. 39 of 2020
Smt. Saroj W/o Videsh Kumar Sahu, aged about 28 years, R/o Village
Pendri, Ward No.20, Tahsil & District Rajnandgaon (CG)
---- Appellant/Defendant
versus
Videsh Kumar S/o Shri Chandra Shekhar Sahu, aged about 30 years,
Caste - Teli, Village - Pendri, Ward 20, Tahsil & District Rajnandgaon
(CG)
---- Respondent/plaintiff
For Appellant : Mr. Aditya Bhardwaj, Advocate.
For Respondent : None.
Hon'ble Smt. Justice Rajani Dubey, J
Hon'ble Shri Justice Bibhu Datta Guru, J
C A V Judgment
Per Rajani Dubey, J
Challenge in this appeal under Section 19(1) of the Family
Courts Act, 1984 is to the legality and validity of the judgment and
decree dated 26.6.2019 passed by Family Court, Rajnandgaon in Civil
Suit No.121-A/2017 whereby the application under Section 27(1)(B)(D)
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of the Special Marriage Act, 1954 filed by the respondent/plaintiff has
been allowed and consequently, the marriage of the parties solemnized
on 7.7.2008 has been dissolved.
02. The admitted fact is that marriage of the appellant with the
respondent was solemnized on 7.7.2008 before the District Marriage
Officer, Rajnandgaon and from their wedlock, one daughter was born
who is living with the appellant.
03. The respondent/plaintiff filed an application under Section 27(1)
(B)(D) of the Special Marriage Act, 1954 with the averments that after
marriage, behaviour of the appellant towards the respondent and his
family members was ignorant and cruel; she started pressurizing the
respondent for living separately from his parents and even when the
respondent was living separately at Kaurinbhata, Rajnandgaon in a
rented accommodation, she used to pick up quarrel on trivial issues
and started going to her parental house every now and then. After birth
of a daughter, she lived with the respondent only for six months and
thereafter, on the pretext of seeing her parents, she left the rented
accommodation of her own and started living at Village-Pendri,
Rajnandgaon. Though the respondent tried his level best to bring her
back through intervention of his relatives and friends and also filed an
application under Section 22 of the Special Marriage Act before the
Family Court, Rajnandgaon for restitution of conjugal rights but despite
issuance of several notices and even after publication of notice in
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newspaper, she deliberately remained absent. Ultimately, being fed up
with the conduct of the appellant, he withdrew the said application on
28.8.2010. She is deliberately living separately from the respondent
for the last 7-8 years and therefore, he prayed for grant of a decree of
divorce on the ground of cruelty and desertion.
04. The appellant/defendant in her written statement contended that
as she is of Satnami caste and the respondent is of Sahu caste, he did
not ever take her to his home and was residing separately with her.
After birth of the daughter, she was living with him at Karuinbhata.
However, after some time he stopped living with her there, he also did
not pay any attention to the daughter, stopped paying the rent and
giving her money, therefore, she was compelled to leave the said
accommodation and live at her parental house. She stated that she
neither received any notice from the Court nor has any knowledge
about publication of notice in the newspaper. The respondent never
took any step to keep her with him. Theirs was a love marriage. After
marriage, they lived together for two years in Jagdalpur (CG). The
respondent has two mothers, the biological mother living at Village-
Pendri and step mother in Jagdalpur with his father. She being a
member of scheduled caste, the respondent never took her to either of
his houses. After return from Jagdalpur, they lived for four years in
rented accommodation and in the year 2009 he went away saying that
he is going to Jagdalpur and thereafter stopped visiting her and giving
her money for daily expenses which forced her to live at her parental
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house. As the respondent got government employment, he wanted to
get rid of her and contract second marriage, therefore, on false
allegations he filed the instant application. She stated that though she
wants to live with the respondent, however, if the Court finds that there
is no possibility of restitution of conjugal rights between the parties, the
respondent be directed to give Rs.20 lacs as permanent alimony for
the maintenance of the appellant and the minor daughter.
05. Based on the pleadings of the respective parties, the learned
Family Court framed issues and after appreciation of oral and
documentary evidence, allowed the application of the
respondent/plaintiff on the ground of desertion by the impugned
judgment and decree dissolving their marriage solemnized on
7.7.2008. Hence this appeal by the appellant/defendant.
06. Learned counsel for the appellant would submit that the
impugned judgment and decree are illegal and based on conjecture
and surmises. From the conduct of the respondent it is explicit that he
did not take the appellant to her matrimonial house because she
belongs to scheduled caste community. The appellant never left the
house of the respondent of her own. In fact, when the respondent
stopped living with her at the rented accommodation and even did not
pay the rent and give money to her, she had no option except to leave
that house with her daughter for her parental house. He would submit
that the appellant had no information about the application under
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Section 22 of Special Marriage Act filed by the respondent because no
notice was ever served upon her. Even she had no knowledge about
publication of notice in the newspaper as no newspaper comes to her
parental house. As the respondent has got government job, he wants
to perform second marriage and get rid of the appellant and the
daughter, therefore, on false grounds he filed the suit for a decree of
divorce. Learned trial Court did not appreciate the oral and
documentary evidence properly as well as conduct of the respondent
towards the appellant, hence the impugned judgment and decree are
liable to be set aside.
07. None appears for the respondent despite service of notice.
08. Heard learned counsel for the appellant and perused the
material available on record.
09. It is not disputed before the learned Family Court that marriage
of the parties was solemnized on 7.7.2008 and from their wedlock, one
daughter was born.
10. The respondent/husband filed an application under Section 27(1)
(B)(D) of the Special Marriage Act on the ground of cruelty and
desertion. He examined himself as PW-2 and one witness Bhagichand
Sai as PW-1 whereas the appellant/wife examined herself as DW-1
and her mother Smt. Keshari as DW-2.
11. PW-1 Bhagchand Sai states that when wife of the respondent left
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his home without informing anyone, the respondent tried his level best
to bring her back but she did not return. In cross-examination he
admits that he does not remember the dates when the respondent
went to the parental house of the appellant for bringing her back.
12. PW-2 Videsh Kumar, husband, states that the appellant/wife left
his home without any sufficient cause. He made many efforts to bring
her back and ultimately filed an application under Section 22 of the
Special Marriage Act for restitution of conjugal rights but she did not
receive any of the notices of that case and even after publication of
notice in the newspaper on 3.6.2010, she did not turn up before the
Family Court, so after some time he withdrew his application on
28.8.2010 and filed the present petition for divorce. In cross-
examination he denied the suggestion that he is not willing to keep his
wife because she is of different caste. He also denied the suggestion
that he deliberately kept her separately to make a ground for divorce.
13. The appellant/wife (DW-1) states in her affidavit under Order 18
Rule 4 of CPC that her husband kept her in a rented accommodation
and after getting job in police department he stopped visiting her at
Kaurinbhata and also stopped paying rent and money for household
expenses, so she went to her parental house. She states that she is
still willing to live with her husband. In cross-examination she admits
that she has no knowledge as to since when her husband is working in
police department and that no meeting was convened in the village for
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their reunion. She also admits that she filed an application seeking
maintenance after the plaintiff filed an application for divorce. She
further admits that after going to her parental house at Pendri, she
never lived with her husband. She states that she has been living at
her parental house at Pendri for the last 07 years.
14. DW-2 Smt. Keshari, mother of the defendant, admits that the
appellant/wife after living at Kaurinbhata for about one and a half years
came back to live with her. She then volunteers that as he deserted
her, so she came to Pendri. She admits that no social meeting was
ever convened for sending her back to the matrimonial house. She
states that she has no knowledge whether any application was filed by
the respondent for bringing the appellant back.
15. It is clear from the statement of wife that she did not make any
effort to go back to her husband and that she went to her parental
house of her own. The Hon’ble Supreme Court in the matter of Savitri
Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73,
observed in paras 6 & 9 of its judgment as under:
“6. Treating the petitioner with cruelty is a ground for
divorce under Section 13(1)(i-a) of the Act. Cruelty has not
been defined under the Act but in relation to matrimonial
matters it is contemplated as a conduct of such type which
endangers the living of the petitioner with the respondent.
Cruelty consists of acts which are dangerous to life, limb or
health. Cruelty for the purpose of the Act means where one
spouse has so treated the other and manifested such
8 / 11feelings towards her or him as to have inflicted bodily injury,
or to have caused reasonable apprehension of bodily injury,
suffering or to have injured health. Cruelty may be physical
or mental. Mental cruelty is the conduct of other spouse
which causes mental suffering or fear to the matrimonial life
of the other. “Cruelty”, therefore, postulates a treatment of
the petitioner with such cruelty as to cause a reasonable
apprehension in his or her mind that it would be harmful or
injurious for the petitioner to live with the other party.
Cruelty, however, has to be distinguished from the ordinary
wear and tear of family life. It cannot be decided on the
basis of the sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct which
would, in general, be dangerous for a spouse to live with
the other. In the instant case both the trial court as well as
the High Court have found on facts that the wife had failed
to prove the allegations of cruelty attributed to the
respondent. Concurrent findings of fact arrived at by the
courts cannot be disturbed by this Court in exercise of
powers under Article 136 of the Constitution of India.
Otherwise also the averments made in the petition and the
evidence led in support thereof clearly show that the
allegations, even if held to have been proved, would only
show the sensitivity of the appellant with respect to the
conduct of the respondent which cannot be termed more
than ordinary wear and tear of the family life.
9. Following the decision in Bipinchandra case [AIR 1957
SC 176] this Court again reiterated the legal position in
Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40]
by holding that in its essence desertion means the
intentional permanent forsaking and abandonment of one
9 / 11spouse by the other without that other’s consent, and
without reasonable cause. For the offence of desertion so
far as the deserting spouse is concerned, two essential
conditions must be there (1) the factum of separation, and
(2) the intention to bring cohabitation permanently to an end
(animus deserendi). Similarly two elements are essential so
far as the deserted spouse is concerned : (1) the absence
of consent, and (2) absence of conduct giving reasonable
cause to the spouse leaving the matrimonial home to form
the necessary intention aforesaid. For holding desertion as
proved the inference may be drawn from certain facts which
may not in another case be capable of leading to the same
inference; that is to say the facts have to be viewed as to
the purpose which is revealed by those acts or by conduct
and expression of intention, both anterior and subsequent
to the actual acts of separation.”
16. The Hon’ble Supreme Court in the case of Debananda Tamuli
Vs. Kakumoni Kataky reported in (2022) 5 SCC 459 observed in
para 7 of its judgment as under:
“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
10 / 11spouse 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. The
view taken by this Court has been incorporated in the
Explanation added to sub-section (1) of Section 13 by Act
No.68 of 1976. The said Explanation reads thus:
“13. Divorce.– (1) …………
3[Explanation.–In this sub-section, the expression
“desertion” means the desertion of the petitioner by the
other party to the marriage without reasonable cause and
without the consent or against the wish of such party, and
includes the wilful neglect of the petitioner by the other
party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.”
17. Upon minute appreciation of oral and documentary evidence on
record, the learned trial Court found that the husband tried to bring his
wife back to his house many a time and even filed an application for
restitution of conjugal rights but the wife remained adamant and she
did not appear before the Family Court despite issuance of notices as
also publication of notice in the newspaper. It is an admitted position in
this case that since 2009 the parties are living separately. Looking to
the overall evidence and conduct of the parties, the learned trial Court
observed that the wife is living separately without any just and
reasonable cause. It is also clear that the plaintiff’s job is at another
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place and the wife never resided with him for a considerable period.
Therefore, the learned trial Court found that Issue No.1 regarding
cruelty is not proved against the wife but issue No.2 regarding
desertion is duly proved against her and granted decree of divorce in
favour of the husband on that ground. We find no good ground to
interfere with this finding of the learned Family Court.
18. As regards permanent alimony, it is clear that the husband is
working in police department and he also admits that he is paying
maintenance to his wife and daughter. Therefore, in the given facts and
circumstances of the case, a permanent alimony of Rs.10,000,00/-
(Rupees Ten Lakhs Only) is awarded in favour of the appellant/wife.
19. In the result, the appeal is allowed in part. The impugned
judgment and decree of learned Family Court are hereby affirmed. The
respondent/husband is directed to pay a total sum of Rs.10 lacs as
permanent alimony to the appellant/wife within a period of three
months from the date of passing of this judgment.
A decree be drawn up accordingly.
Sd/ Sd/
(Rajani Dubey) (Bibhu Datta Guru)
Judge Judge
Digitally
MOHD signed by
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan