Charan vs Annu Sahu

Heard.

The instant appeal is preferred against the judgment and decree dated 24.07.2019, passed by learned Family Court, Bemetara wherein the petition

filed by the husband/ appellant claiming divorce on the ground of cruelty and desertion has been dismissed.

The admitted facts of this case are that both the parties, governed by the provisions of the Hindu Marriage Act, 1955, were married on 26.04.2000

and three children were born out of the wedlock. Unfortunately, two children died and only one survived. The appellant/ husband is working as

Shiksha Karmi, Grade-III and was posted at village Ravali from 2012. Since parental house of husband i.e. village Devri was 15 kms away from the

new place of transfer i.e. village Ravali, he started living at village Devri along with his wife, children and parents. It is alleged by the husband that the

wife started misbehaving with the parents of the husband and on trivial issue and used to abuse his parents, who were of ripened age. The husband

further contended that when he tried to console and make the wife understand, the wife used to hold his collar and used to give him different threat. It

is further contended that, the husband has made report in their social meeting, wherein both the parties were called and the wife admitted her guilt and

stated that, she would further behave properly, however her behaviour did not improve and eventually in the year 2015, without any rhyme or reason,

she left the house. Before, the learned Family Court the husband examined himself as PW-1 and the wife examined herself as DW-1.

The learned Family court after evaluating the facts, came to the conclusion that the ground of cruelty or desertion has not been proved by the

husband and the nature of allegation which was alleged do not entitle the husband to get the divorce on the ground of cruelty and accordingly the

petition was dismissed, hence this appeal.

Learned counsel for the appellant would submit that the finding recorded by the learned Family court is perverse and read out the statement of the

husband and wife and submits that the wife admitted the fact in the social meeting that, she will behave properly henceforth after the meeting which

would imply that behaviour of wife was bad and husband was treated with cruelty and on that ground only the husband is entitled for divorce. He

further submitted that the order of the court below is perverse and against the evidence on records, consequently the husband was entitled to get

divorce on the ground of cruelty. He further submits that, the husband/ appellant is ready and willing to give permanent alimony to wife, however, he

cannot live with the wife henceforth.

Learned counsel for the respondent would submit that the order of the court below is well merited and do not call for any interference. He further

read out the statement of the wife/ respondent and submits that nothing on record has been provided to show that the cruelty was up to what extent

and degree, that it would entitle the husband to get decree of divorce on the ground of cruelty. Therefore, the appeal may also be dismissed.

We have heard learned counsel for the parties at length and perused the records.

The husband presented the petition for divorce pre dominantly on the ground of cruelty, along with this fact, it was contended that for the last 4

years the wife is living separately without any valid reason and primarily projected cruelty and desertion as a ground of divorce. The husband

contended that on 26.10.2015, all of a sudden, without informing the family members of the husband, wife left the matrimonial house without any

cause, therefore, the husband was deserted by wife. The allegations were completely denied by the wife and the wife on the contrary has made

averments that, she was subjected to cruelty and she was forced to leave the matrimonial house, on the ground that, the husband wanted to remarry.

She further contended that on 26.09.2015, a compromise was entered in between the parties, wherein the husband also admitted that henceforth the

date of meeting, he will not misbehave with wife. Further, she also contended that since two children out of 3 children died and only one survived, the

allegation was made that the children born to her do not survive and for that she was subjected to cruelty. With respect to desertion, she also denied

and contended that, since the husband was not keeping the wife without any sufficient reason, therefore, on application filed under Section 125 of the

Cr.P.C. by the wife maintenance was granted, therefore, the wife has not deliberately left the husband, instead the husband has forced the wife to

leave the matrimonial house.

The husband examined himself in his examination-in-chief and the allegations have been made that the wife did not provide due care to the aged

parents of the husband and she used to abuse them and when husband used to go out for job his parents were not provided with food and were

subjected to abuse for which social meeting was held at village Devri. In such, social meeting certain villagers were present. In their presence, it was

admitted by the wife that she would not misbehave, henceforth. In response to it, the wife has completely denied, instead she has stated that she was

being called as ""Tonhi"" and her character was being assassinated. With respect to the meeting, it was contended that both the parties,

husband and wife were present and both were given understanding that each would behave properly and promise made was reciprocal one. With

respect to the allegation that the wife forced the husband to stay separately without parents was also denied, instead in the examination in chief, wife

stated that she wants to live with the husband.

The averments and the statement has been made that the wife was living separately for last 4 years and deserted the husband. In the examination

in chief, she contended  that the application under Section 125 of Cr.P.C. was filed for maintenance, wherein maintenanceÂ

of Rs. 5,000/- has been granted. This fact is not disputed, therefore, if the maintenance is granted then the factum of desertion

may become bleak in the sense that the maintenance is normally granted in the cases where the husband without any sufficient

cause is not maintaining the wife. The order of maintenance if is read together with the submission of the wife where she stated that she wanted

to live with the husband gets an edge and will hold the sway in favour of the wife, that she has not herself voluntarily without any reason has left the

matrimonial house. With respect to the social meeting, no evidence has been placed by either parties before the lower court. It is only oral statement

wherein it shows that husband made certain allegations that, wife is not behaving properly and contrary the wife has also made certain allegations that

husband is not behaving properly. Therefore, both the counter allegations to each other could have been better explained, if the evidence of such

agreement, which is documentary in nature would have been placed before the court below. In absence of such agreement which appears to be

documentary one, adverse inference would be drawn specially against the husband who claimed and sailed an averment that the wife was

misbehaving with the husband and the parents for which social meeting was held.

It is a settled proposition, that in a case of getting decree of divorce on the ground of cruelty normal wear and tear in matrimonial life could not

make the allegation to envelope it to form a ground of cruelty. It should be beyond the normal circumstances to continue the matrimonial house. In the

case in hand, no evidence is on record to provide what extra ordinary circumstances made out to project the ground of cruelty by the husband to get a

decree of divorce. A bald statement wherein the allegations have been made that the wife was not taking care of the parents will not ipso facto will

led to draw inference that the family of the husband was subjected to cruelty by the wife. In absence of clear evidence, the decree of divorce cannot

be passed on assumption and presumption. Accordingly, we are of the considered view that order passed by the learned Family Court below do not

call for any inference.

In view of this, the appeal sans merit is liable to be and is hereby dismissed.

Accordingly, the decree be drawn.