Raksha Jain vs Ankush Jain

This appeal under Section 28 of the Hindu Marriage Act, 1955 (for short “HM Act”) has been fled against the judgment & decree dated 22.05.2020 passed by learned Additional District Judge (for short “ADJ”) Kondagaon, CG in Civil Suit No. 1-A/2019 dismissing the suit preferred by the appellant-wife fled under Section 13 of the HM Act for dissolution of marriage between her and the re-spondent-husband.

Before delving into the merits of the case, this Court thinks it necessary to decide the application (IA No. 01/2023) fled by the appellant-wife under Order 41 Rule XXVII Code of Civil Procedure, 1908 (for short “CPC”) for taking the judgment and order dated 03.09.2019 passed by learned Sessions Judge, Kondagaon in Ses-sions Trial No. 67/2018, on record as additional evidence. By the judgment sought to be taken on record as additional evidence the respondent-husband herein was convicted under Section 323/34 IPC; one Aman Yadav was convicted under sections 363, 323/34 IPC and one Mangesh Kumar Tathour was convicted under Section 363, 323/34 and 506(B) IPC. Their conviction was for kidnapping the son of the appellant and the respondent herein.

Learned counsel for the appellant-wife submits that certifed copy of the entire charge-sheet pertaining to Sessions Trial No. 67/2018 was fled, proved and marked by the appellant-wife as Ex. P-1 and that though the said judgment was passed before passing of the impugned judgment and decree yet the same could not be produced before the trial Court. He further submits that the said judgment was passed by the competent Court, the same may be taken on record as additional evidence as it was fled after due dili-gence.

Considering  the  submissions  made  by  counsel  for  the appellant and for the reasons stated in the application (IA No. 01/2023) is allowed and the judgment passed by the trial Court in Sessions Trial No. 67/2008 is taken on record as an addi-tional evidence in this appeal.

Now coming to the facts and circumstances of the case in hand. It is undisputed that the marriage between the appellant and the respondent herein was performed on 23.01.2011 and out of their wedlock a son namely Daksh was born on 13.03.2013. It is revealed from the record that three-four year after marriage the respondent-husband started abusing, beating, misbehaving and threatening the appellant-wife which led to diference of opinion between them and it became difcult for her to go on with the marital obligations. Being fed up with the misbehaviour of respon-dent-husband, in the month of June/July the appellant-wife went to her father’s house with her son without carrying the belongings with her. Thereafter, respondent-husband started threatening her to get back or else he would forcibly take his son Daksh with him. On 27.07.2018 at about 01:30 PM the respondent-husband along with his two associates tried to kidnap his son and for that Crime No. 186/2018 was registered against him in Kondagaon police station under sections 363, 307, 506, 34 IPC. Even after being advised by the members of both the families in respect of their marriage life, the respondent-husband did not mend his ways. It is alleged that on account of criminal mind-set of the respondent-husband there was a threat of life to the appellant-wife and her son and for that it was not possible for her to live with him.

The respondent-husband by way of written statement denied the allegations made by the appellant-wife and stated that after marriage they were living together happily peacefully and there was no dispute of any sort between them. He has stated that he along with appellant-wife had gone to Erode (Tamilnadu) to attend a marriage ceremony in the family of his sister, and from there they had gone on a trip to Ooty. He has also stated that after mar-riage, the appellant-wife was living with him at Durg and during this period there was no dispute between them. In April, 2018 the appellant-wife, the respondent-husband and his parents had gone to Jodhpur, Rajsthan to participate in a marriage ceremony, and then they had been on a pilgrimage as well. Appellant an the re-spondent went together to Dhamtari in connection with the last rites of her maternal uncle, where the parents of the appellant had also come, and after attending the last rites they had taken them to Raipur by car. On 02.06.2018 the appellant-wife is said to have telephonically demanded Rs. 3,000/- the respondent-husband, which he sent through some businessman namely Sunny Chopra of Kondagaon. It is further pleaded by the respondent-husband that during summer vacation the appellant-wife had gone to her parents’ house with his consent but in spite of promising to get back to Durg after summer vacation was over, she did not come back. As the academic session son Daksh had commenced, he in-sisted the appellant-wife to get back but she did not listen to him, rather she got the son admitted in a school at Kondagaon. He fur-ther stated that the appellant-wife and her parents did not even allow him to meet or have a talk to the son. Appellant-wife is also said to have lodged a complaint at police station Kondagaon, and as that case is still pending, he cannot be held to be guilty of any ofence. It is further pleaded that the respondent-husband never subjected the appellant-wife to cruelty and she herself is living with her parents without any justifable reason, and by not fulflling the marital obligations it she who is practicing cruelty to him. Therefore, for the reasons stated above by the respondent-hus-band, the application fled by her is liable to be dismissed.

Trial Court framed as may as fve issues. The appellant-wife examined herself as AW-1 and one Harish Golchha as AW-2 and got exhibited the challan papers of pending ST No. 67/2018 as Ex.P-1, charge framed against respondent-husband as Ex.P-2 and birth certifcate of son Daksh Jain as Ex.P-3, whereas respondent-husband examined himself as NAW-1 and his father Ganpat Jain as NAW-2.

Learned trial Court after due appreciation of the evidence on record decided the issues against the appellant-wife and in favour of respondent-husband, and thus dismissed the application for dis-solution of marriage fled by the wife by the judgment and decree under challenge in this appeal.

Learned counsel for the appellant argued that learned Family Court did not appreciate the evidence in its proper perspective and has erroneously passed the impugned judgment and decree. He submits that from the statement of AW-1 and her witnesses it is established that the appellant was subjected to mental and physical cruelty by the respondent-husband, and therefore, she is entitled for a decree of divorce. He further submits that respon-dent-husband was charged for commission of the ofence under Sections 363, 307, 506/34 IPC and this caused great mental cru-elty to her as her son’s life would be in danger in case she re-sides with the respondent-husband. He submits that determination of cruelty would depend on the facts and circumstances of each case. He submits that in this case it is established that if the ap-pellant-wife and her son live with the respondent-husband there would be threat to her and also to the son. Reliance is placed on the Division Bench decision of this Court in the matter of Ab-hishek Narayan Kashyap v. Seema Abhishek Kashyap (ILR 2022 Chhattisgarh 612).

Heard counsel for the appellant and perused the material on record.

Learned trial Court held the issue No.2 as not proved which was in connection with appellant-wife being subjected to cruelty by respondent-husband. Finding so recorded is based on the state-ment of the respondent-husband where it has come that the appellant and the respondent visited several places together in-cluding Ooty and then to Jodhpur, Rajsthan and that the allegation of cruelty was made by the wife 3-4 years after marriage and not before that. If is further recorded that no specifc allegation of cru-elty or abuses was made in the afdavit. It has further relied upon the cross examination of the appellant where she has stated that she is a well educated person and therefore she should have made the complaint as soon as she was subjected to cruelty or assault but she did not lodge any report in the police station and after evaluation of the evidence available on record, the learned trial Court dismissed the application of the appellant.

Appellant-wife has examined herself as (AW-1) – in her afdavit under Order 18 Rule 4 CPC, she has stated that after 2-3 years of marriage the behavior of the respondent changed and on account of fnancial problems and habit of betting etc. he started abusing and used to throw her out of the house. She stated that due to the cruel behavior and assault by the respondent, diferent of opinion occurred between them due to which it is not possible to live together. She further stated that she was thrown out from the house after assault and since the month of June, she is resid-ing with her father along with her son at Kondagoan. She further stated that she has been threatened by the respondent over phone and also threatening to abduct her minor son. She has fur-ther stated that the respondent along with two other persons on 21.07.2018 at about 1:30 PM in the day hours tried to abduct her minor son, upon which Crime No. 186/2018 under Section 363, 307, 506 and 34 of IPC was registered against the respondent and trial of which is pending before the Sessions Judge, Kondagaon. She further stated that there was meeting convened by the family members and also by the member of the society on many times but it did not materialized and cruel behavior of respondent in-creased instead of decreasing. On these board allegations, the afdavit was fled.

The appellant was subjected to cross-examination. In her ex-amination, in paragraph 18, she has admitted that the sister of the respondent is residing in Erode, Tamil Nadu. She has also admitted that in the month of January, 2017, she participated in the mar-riage of sister of husband at Erode, Tamil Nadu. Though she herself stated that there was some quarrel between them, however, she has stated that any dispute with Ankush Jain has not been pleaded nor it has been stated in the examination-in-chief. She further ad-mitted in the paragraph 19 that before participating in the mar-riage she had gone to Ooty with respondent. She herself stated that in the Ooty garden, respondent assaulted her in front of peo-ple. She admits that this fact has not been pleaded in the applica-tion nor stated in the examination-in-chief. She further stated that in the April, 2018 she along with her in-laws and her husband had gone to Rajasthan to attend a marriage function and after attend-ing the marriage function, she along with her in-laws and respon-dent had gone to Jain pilgrimage place Ramdevda. She also visited her aunt’s house. In paragraph 23, she states before she came to Kondagaon from Durg, 2 – 3 days prior to it, she, respondent and her son had gone to watch a movie. They ate outside and there-after, respondent came to bus stand to drop her. She further stated that she informed respondent that she has safely reached Kondagaon. She further stated that after she came to Kondagaon, she was talking to Ankush Jain on phone after sometime till, she came to Kondagaon. She further stated that it is correct to say that she was supposed to go back to Durg by 5-6 June but she did not go back. She herself stated that she has already told that she will not come back. She further stated that the respondent was not informed with regard to admission of her son in Kondagaon school. She stated that despite of refusal, respondent used to call her and her mother to bring her back to Durg. She denied the suggestion that the respondent is trying socially to bring her back. She has denied that respondent has not thrown out her from home after assaulting and she had admitted that she has educated till MA. She has admitted that she has not lodged any report with regard to assault against respondent in any police station. She herself stated that no report was fled due to advice given by family mem-bers. She admits that she has not fled any documents with regard to any social meeting with regard to dispute with respondent. She also admits that she has not any lodged report in police station Kondagaon with regard to threatening given by respondent on phone.

Harish Golcha (AW-2) was examined on behalf of the appel-lant. He has stated that after 2 years of marriage the behavior of the respondent was good but after 2-3 years there is a change in his behavior. On being asked, the appellant has informed that the behavior of respondent is not good.

Respondent Ankush Jain examined himself as (NAW-1) and he has denied the allegations made against him. In her afdavit un-der Order 18 Rule 4 CPC, he has stated that till 2018 their married life was happy. They had gone to Erode to attend a marriage in January, 2017 and for 10 days they had gone to Ooty, Mysore etc. He further stated that in the April, 2018 he and his wife had gone to Rajasthan to attend a marriage. He has stated that in the sum-mer vacations appellant had gone to her marital home at Kondagoan in the June, 2018 with their son and promised to come back to Durg after completion of summer vacation. He further stated that when her wife did not come back he made several re-quest to come back as the school session of their son was about to start but she refused to come back. He further stated that he went to Kondagaon to bring her wife but she refused to come back. He further stated that later on, he came to know that without his con-sent and information, his son has been admitted in Chawda school at Kondagoan. He further stated that on several occasions he tried to meet his wife and son but his in-laws did not allow to meet them. False report in the police station at Kondagaon was lodged in order to put pressure on him and his family members. He has stated that there is no dispute between him and his wife and he wants to save his marital life and he loves his wife and son and does not want a divorce. In the cross-examination he has denied suggestion that he assaulted his wife. He denied that he abducted son from the custody of his wife. However, he admits that he was sent to jail by police in this charge. He himself say that all the charges are false. He denied that he has convened any social meeting to bring the son and wife.

Ganpat Jain (NAW-2) was examined on behalf of respondent. In his afdavit under Order 18 Rule 4 CPC, he deposed in the line of the statement of the respondent. Nothing incriminating was brought on record in his cross-examination and he denied the sug-gestions that his son / respondent used to assault of the appellant. He also denied that his son / respondent tried to abduct his minor son with his friends.

From the above evidence brought on record, it is established that the wife has levelled allegations with regard to assault and throwing her away from home and also tried to prove that criminal case was registered against the husband for abduction of their son. The additional evidence which was taken in appeal in the judgment of learned Sessions Court by which the appellant was acquitted on the charges under Section 363 alternatively 363 r/w 34, 307 alternatively 307 r/w 34 and 506-B of IPC and he was only convicted for an ofence punishable under Section 323 r/w 34 of IPC and was sentenced to six month RI, Rs. 1000/- fne and in de-fault, 7 days RI.

Learned counsel for the appellant tried to pursue this Court that since a criminal case for abduction of the son was pending and even if respondent is acquitted from the charges but the other persons have been convicted therefore, it amount to mental cru-elty caused by the respondent/husband. However, it is admitted on record that the appellant has been acquitted from the charges of abduction.

The appellant/wife in her cross-examination on many occa-sions stated that she visited Rajasthan, Ooty and other places with her husband and when she was coming to Kondagaon, the hus-band brought her to station thereafter also intimated her husband she and her son safely reached Kondagaon and was in touch with the respondent for few days she reaching Kondagoan.

Simply because, the respondent was prosecuted for abduc-tion, later on acquitted on such charges and only convicted under Section 323 of IPC, it would not amount to mental cruelty particularly looking to other evidence available on record. From the evidence of the husband, it is evident that after the wife reached Kondagaon, he was not permitted to talk to his son or his wife.

In the light of evidence available on record, the fnding which have been recorded by learned trial court cannot be said to be perverse or contrary to the evidence. The case law which is relied upon by the learned counsel for the appellant is distinguishable on fact. In the case of Abhishek Narayan Kashyap (Supra) the husband fled the application for divorce on the ground that the wife has fled a criminal case against him and his family members, which resulted into initial conviction thereafter acquittal. Therefore, no beneft can be attributed.

On the basis of above discussion, I do not fnd any merits in this appeal. Appeal fails and is hereby dismissed.

Decree be drawn. No cost.