SANJEEV CHOKHANI Vs. GARIMA CHOKHANI

JUDGEMENT

(1.) The instant appeal, under Sec. 19(1) of the Family Courts Act, is directed against judgment and decree dtd. 5/12/2018 passed by learned Principal Judge, Family Court, Ranchi in Original Suit (M.T.S.) No. 518 of 2015 whereby and whereunder the suit filed by the petitioner-husband, appellant herein, under Sec. 13 of the Hindu Marriage Act, 1955 for decree of divorce has been dismissed.

(2.) The facts in brief are that the appellant-husband married with respondent-wife on 18/6/1997 at Agrasen Bhawan, Ranchi as per Hindu Customs, rites and rituals. Out of their wedlock, they have two daughters, namely, Hansika Chokani-the elder one and the younger is Nikki Chokhani. It is the case of the appellant-husband, as per the pleading made in plaint, that the respondent-wife is a bad tempered lady of rude behavior and since marriage she started quarreling and misbehaving with the appellant and his parents. Due to such behavior of the respondent, the appellant had to live separately from his parents for the last ten years. It is alleged by the appellant-husband that on many occasions the respondent insulted the appellant in social gathering and functions. It is further alleged that the respondent, without any rhyme and reason, deserted the appellant with the two daughters and went to her parental home on 8/4/2013 and returned home after more than two years i.e., on 18/6/2015. After her return, the appellant was threatened not to interfere with the day to day work of respondent otherwise she will file criminal case against him (appellant). The petitioner-appellant left the house, his parents reported the incident to Argora Police Station. On 2/11/2015 for a petty matter over demand of bucket by the respondent she was asked to wait for five minutes, she became aggressive and attempted to commit suicide by jumping over from Balcony of first floor but by intervention of well-wishers her life could be saved. It has been stated that in the backdrop of these tortures and atrocities meted out to the petitioner-husband it is not possible for the appellant-husband to live with respondent, therefore, the suit for divorce was filed by the appellant-husband on the ground of 'cruelty' and 'desertion', which was registered as Original Suit (M.T.S.) No. 518 of 2015, and decided ex-parte vide order dtd. 21/6/2016 by passing the decree of judicial separation. The ex-parte decision of judicial separation was challenged before this Court by the respondent-wife by filing First Appeal No. 142 of 2016, which was decided vide order dtd. 27/2/2017, whereby the Co-ordinate Bench of this Court set aside the ex-parte judgment and decree and remanded the matter back for deciding the suit afresh. The learned Family Court in terms of order dtd. 27/2/2017 passed in F.A. No. 142 of 2016 has revived the proceeding for the purpose of passing fresh order. Pursuant thereto, the respondent-wife appeared and filed written statement and contested the suit by adducing oral evidence and cross-examined the witnesses produced by the appellant-husband. The learned Family Court, Ranchi on due appreciation of the evidence did not find any ground of 'cruelty' and 'desertion' and accordingly dismissed the suit by answering the issues framed by Court against the appellant-husband, against which, the present appeal has been filed.

(3.) Ms. Rashmi Kumar, learned counsel for the appellant-husband has assailed the impugned judgment on the ground of perversity and non-consideration of vital issue of the conduct of the respondent due to which the appellant is being subjected to cruelty as also there is non-consideration of the fact that the respondent-wife is living apart and the appellant-husband having no marital relationship with her since long and hence submission has been made that it is a fit case where ground of desertion is well available but the same has not been considered in right prospective and the learned Family Court, Ranchi has come to the conclusion that the ground of divorce i.e., 'cruelty' and 'desertion' is not available. Learned counsel for the appellant, therefore, has contended that the impugned judgment suffers from material irregularity and hence not sustainable in the eye of law. Learned counsel for the appellant has referred the testimony of witnesses as also the cross-examination and has tried to impress upon the Court that whatever has been deposed by the appellant in the testimony in the examination-in-chief the same remain in-tact and as such negating the ground of 'desertion' for grant of decree of divorce as per the conclusion arrived at by the learned Family Court cannot be said to be justified and in that view of the matter the impugned judgment is fit to be set aside. Learned counsel for the appellant-husband apart from the aforesaid argument has taken the ground that since it is a clear-cut case of desertion and the wife is living separately having no marital relation, therefore, there is no chance of re-union and the marriage has become irretrievable. Therefore, the decree of divorce on these grounds ought to have been considered by the learned Family Court but having not done so the impugned judgment suffers from illegality. In support of her argument, learned counsel for the appellant-husband has relied upon the judgment rendered by Co-ordinate Division Bench of this Court in Dev Das Dey Vs. Smt. Shipla Devi [2022 (2) JBCJ 744(HC)]; Hon'ble Apex Court in Naveen Kohli vs. Neelu Kohli [(2006) 4 SCC 558]; High Court of Punjab and Haryana in Seema Singh Vs. Sanjay Kumar [FAO 1369/2017.