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2024:CGHC:42298-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
FA(MAT) No. 285 of 2023
Judgment reserved on : 11.09.2024
Judgment delivered on 25.10.2024
Smt. Kiran Tiwari D/o Late Shri Kamal Kishore Tiwari, W/o Kamlesh
Tiwari, Aged About 30 Years R/o Vill- Amora, Tah Nawagarh, Dist.
Janjgir Champa (Chhattisgarh) Present Address Sahu Chaoul, Link
Digitally
signed by
Road, Tahsil Janjgir, District Janjgir Champa (Chhattisgarh)
RAMAKANT
NIRALA
Appellant
versus
Kamlesh Tiwari, S/o Shri Radhe Hari Tiwari, Aged About 57 Years, R/o
Vill- Amora, Tah. Janjgir, Dist- Janjgir Champa (Chhattisgarh) Present
Address House of Smt. Saroj Sharma W/o Shri Ashok Sharma, Ward
No.15 Bajor Para, Behind Raja Babu Lakdi Tall, Tah. Janjgir, Dist.
Janjgir Champa (Chhattisgarh)
Respondent
For Appellant : Mr. Ravindra Sharma, Advocate
For Respondent : Mr. S. B. Pandey, Advocate
Hon’ble Smt. Justice Rajani Dubey
Hon’ble Shri Justice Sanjay Kumar Jaiswal
CAV Judgment
Per Rajani Dubey J.
1. The present appeal has been filed by the appellant against the
judgment and decree dated 06.05.2023 passed by the learned
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Judge, Family Court, Janjgir, District Janjgir-Champa in Civil Suit
No.212-A/2022, whereby the appellant’s application seeking
divorce has been rejected by the learned Family Court.
2. Brief facts of the case are that the marriage between the parties
was solemnized on 05.05.2011 as per Hindu Rites and Rituals,
but soon after the marriage, the respondent husband and his
family members started committing cruelty with the appellant.
The respondent had also suppressed his actual age at the time
of marriage and made false statement that he is a government
servant, as such she was living separately. Thereafter the
respondent filed application under Section 9 of the Hindu
Marriage Act before the Family Court, Janjgir-Champa and vide
order dated 26.09.2018, the decree was granted in favour of the
respondent and the appellant was directed to cohabit with the
respondent within 2 months therefrom. The 125 CrPC application
was also filed by the appellant, but the same was dismissed by
the Family Court, as the compromise took place between the
parties. Subsequently, the appellant filed application under
Section 13 (1) (b) of the Hindu Marriage Act before the learned
Family Court, which has been dismissed vide impugned
judgment and decree, against which the present appeal has been
filed.
3. Learned counsel for the appellants submits that the impugned
judgment and decree is erroneous in law and facts both and the
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same is liable to be set aside. The learned Family Court has
failed to consider that the appellant and the respondent are living
separately immediately after their marriage and there is no
chance of their cohabitation. The learned Family Court has also
not considered that the respondent had suppressed his actual
age at the time of marriage and made false statement that he is a
government servant, as such he committed fraud with her.
Therefore, the appeal may kindly be allowed and the decree of
divorce be granted in favour of the appellant. Reliance has been
placed on this Court’s judgment dated 29.03.2022 passed in
FAM No.69/2016 in the matter of Smt. Sarita Tamrakar vs
Sudhir Tamrakar.
4. Learned counsel for respondent supports the impugned judgment
and decree passed by the learned Family Court and submits that
the learned Family Court has minutely appreciated the oral and
documentary evidence available on record and rightly dismissed
the application of the appellant.
5. Heard learned counsel for the parties and perused the material
available on record.
6. Before the learned Family Court, the respondent husband filed an
application under Section 9 of the Hindu Marriage Act, which was
allowed vide order dated 26.09.2018, but the appellant wife is still
living separately and did not follow the order of the learned
Family Court.
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7. It is not disputed that the marriage of both the parties was
solemnized on 05.05.2011 according to Hindu Rites and Rituals.
The appellant filed application under Section 13 (1) (b) of the
Hindu Marriage Act on the ground of cruelty and desertion. The
learned Family Court after appreciation of oral and documentary
evidence found that the appellant wife herself is living separately
without any sufficient cause and she has failed to prove her case
against the respondent husband.
8. The appellant wife stated that she lived with her husband only for
1 month and stated that at the time of marriage, she was aged
about 18 years and the respondent husband was aged about 40
years at the time of marriage. The husband stated that his age
was 28 years at the time of marriage and also stated that he is a
government servant and since 11 years the appellant is living
separately. In the cross-examination, she admitted this fact that
she filed divorce petition before Korba Court, which was
dismissed by the Court and she herself stated that she is living
separately since 10-11 years. The respondent husband also
admitted this fact that in the year 2012, the appellant wife filed
application for divorce, which was dismissed in default and after
that he filed application under Section 9 of the Hindu Marriage
Act. He denied this suggestion that he suppressed his age at the
time of marriage, but he admitted this fact that at the time of
marriage, he was aged about 35 years and he also admitted his
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signatures in stamp paper (Ex-D/1) and he stated that his
signatures were taken by threatening him.
9. The learned Family Court found that the appellant wife has failed
to prove cruelty and desertion on the part of the respondent, but
it is clear that both the parties are living separately since long.
10. This Court in FAM No.69/2016 held in paras 7 & 8 as under:-
“7. In so far as the plea of desertion is concerned, it is
stated by the husband that both are living separately
since 1998 and the said version is found to be
corroborated by the statement of the wife, as reflected
from para 16 of her statement whereby it is deposed
by her that they lived only for 2-3 months after 25-6-
1998 and appears further from her own admission as
reflected from para 17 that a desertion certificate was
issued by the Nagar Panchayat, Dhamdha on 19-2-
1999. After considering the evidence led by the
parties, the trial Court has, therefore, not committed
any illegality in arriving to a conclusion that both are
living separately since 1998 and, thus, rightly granted
a decree for dissolution of marriage on the ground
enumerated under Section 13(1)(ib) of the HM Act
and we do not find any infirmity in the same.
8. Moreover, as observed hereinabove, the marriage
was solemnised in June, 1988 but both have started
living separately since 1998. Therefore, the alleged
marriage has irretrievably broken down and, it is, thus
like a deadwood for all purposes and cannot be
revived as held by the Hon’ble Supreme Court in the
matter of K. Srinivas Rao v D.A. Deepa1, wherein, it
has been held at paragraphs 30 & 31 as under :
“30. It is also to be noted that the appellant-
husband and the respondent-wife are staying
apart from 27/4/1999. Thus, they are living
separately for more than ten years. This
separation has created an unbridgeable
distance between the two. As held in Samar
Ghosh, if we refuse to sever the tie, it may
lead to mental cruelty.
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31. We are also satisfied that this marriage
has irretrievably broken down. Irretrievable
breakdown of marriage is not a ground for
divorce under the Hindu Marriage Act, 1955.
But, where marriage is beyond repair on
account of bitterness created by the acts of
the husband or the wife or of both, the courts
have always taken irretrievable breakdown of
marriage as a very weighty circumstance
amongst others necessitating severance of
marital tie. A marriage which is dead for all
purposes cannot be revived by the court’s
verdict, if the parties are not willing. This is
because marriage involves human
sentiments and emotions and if they are
dried-up there is hardly any chance of their
springing back to life on account of artificial
reunion created by the court’s decree.”
11. In light of the above, in this case also, it is clear that the marriage
of the parties was solemnized on 05.05.2011 and as per
statement of both the parties as well as the document (Ex-D/1),
they are living separately since 2011-12, therefore, the alleged
marriage has irretrievably broken down. It is thus like a
deadwood for all purposes and cannot be revived, as has been
held by the Hon’ble Apex Court in the matter of K. Srinivas Rao
(supra). Therefore, we are of the considered opinion that the
impugned judgment and decree passed by the learned Family
Court is not sustainable, as such the impugned judgment and
decree is hereby set aside and the application filed by the wife
under Section 13 (1) (b) of the Hindu Marriage Act is allowed and
the marriage solemnized between the parties on 05.05.2011 is
dissolved.
12. The appeal stands allowed.
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13. A decree be drawn accordingly.
Sd/- Sd/-
(Rajani Dubey) (Sanjay Kumar Jaiswal)
Judge Judge
Nirala