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2025 DAILYLAW 825 (CHH)

Poonam Sinha, D/o. Lakhan Lal Sinha v. Bashant Sinha, S/o. Devnarayan Sinha

2025-11-13

Amitendra Kishore Prasad, Rajani Dubey

body2025
JUDGMENT : Rajani Dubey, J. 1. This appeal is filed by the appellant against the impugned judgment and decree dated 17.04.2023 passed by learned Family Court, Dhamtari (C.G.) in Civil Suit No. 30-A/2017, whereby the learned Family Court has passed the judgment and again granted a decree in favour of respondent/husband as on earlier vide impugned judgment and decree dated 23.07.2019, the learned Family Court, Dhamtari has granted a decree in favour of the respondent/husband and held that the respondent is entitled for decree of divorce, the appellant being aggrieved by the order filed an appeal before this Court and the matter was remanded back by this Court vide order dated 12.10.2022 passed in FAM No. 252 of 2019, directing the learned Family Court to give sufficient opportunity of hearing to the wife/appellant to lead the evidence for evaluating her physical disability and also directed to decide the matter within 06 months. 2. Brief facts of the case are that the marriage between the appellant/defendant and respondent/plaintiff was solemnized on 25.04.1999 at Village Sonarkara according to Hindu rituals and out of their wedlock, two children were born on 18.06.2000 and 26.11.2004 namely Aashish Sinha and Bhushan Sinha respectively. After the marriage, both the appellant and the respondent resided as husband and wife at Village Arjuni, Tahsil & District-Dhamtari (C.G.). On 15.04.2015, when the respondent/plaintiff woke up for attending nature’s call at 4 am wee hours, he found that the appellant/wife was not in the room and he discovered that the room was closed from outside. Thereafter, by calling the people from outside, the door was opened and it was found that the appellant/wife was not seen anywhere near the house. The respondent/husband then lodged a missing report of the appellant/wife. Subsequently, after a few days, the appellant/wife herself appeared before the Police Station- Arjuni and gave the statement that she herself left the respondent and is residing with one Vijay Sahu as his wife and further requested the police to not to take any action on the missing report. The police filed closure report of the F.I.R. registered under Section 155 of Cr.P.C. dated 11.05.2015 and mentioned therein that the appellant resided with one Vijay Sahu as husband and wife by leaving behind the respondent and children on her own wish. The police filed closure report of the F.I.R. registered under Section 155 of Cr.P.C. dated 11.05.2015 and mentioned therein that the appellant resided with one Vijay Sahu as husband and wife by leaving behind the respondent and children on her own wish. The respondent after knowing the said fact that his wife/appellant is living adulterous life, filed an application for grant of decree of divorce before the learned Family Court, Dhamtari. (C.G.). 3. The learned trial Court has passed the judgment and granted a decree in favour of respondent/husband vide impugned judgment and decree dated 23.07.2019 and held that respondent is entitled for decree of divorce. The appellant/wife being aggrieved by the order passed by the learned Family Court, filed an appeal before this Court vide FAM No. 252/2019. This Court partly allowed the matter and remanded the matter back to the learned Family Court, Dhamtari to give sufficient opportunity of hearing to wife/appellant to lead the evidence regarding her physical disability and also directed the learned Family Court, Dhamtari to decide the matter within 06 months. 4. Learned trial Court after appreciation of oral and documentary evidence of both the parties vide order dated 17.04.2023, again granted the decree of divorce in favour of the respondent/husband. Hence, this appeal filed by the appellant/wife before this Court. 5. Learned counsel for the appellant/wife submits that the impugned judgment dated 17.04.2023 is perverse, illegal, erroneous and contrary to the facts and circumstances of the case as well as to the evidence available on record, therefore, it is liable to be quashed to the extent of rejecting prayer for decree of divorce. The learned trial court has failed to appreciate that the F.I.R was lodged by the appellant/wife against respondent on 19.02.2019. The learned trial Court has failed to appreciate that the appellant treated Vijay Sahu as her brother against whom the respondent/plaintiff made a wrong allegation of live-in with Vijay Sahu as a husband. The learned trial Court has also failed to appreciate that the appellant/defendant was subjected to cruelty and harassment by the respondent/husband as well as his parents, both mentally as well as physically. The learned trial Court has committed serious illegality in appreciating that the present appellant always tried to do her best to reside with the respondent. The learned trial Court has also failed to appreciate that the appellant/defendant was subjected to cruelty and harassment by the respondent/husband as well as his parents, both mentally as well as physically. The learned trial Court has committed serious illegality in appreciating that the present appellant always tried to do her best to reside with the respondent. The learned trial Court has failed to appreciate the oral evidence given by the appellant/wife against the respondent/husband and granted the decree of divorce without mentioning any specific reason. So, the impugned judgment is liable to be set aside. 6. Learned counsel for the respondent/husband supported the impugned judgment and decree and submits that the learned trial Court after minutely appreciating the oral and documentary evidence rightly granted decree of divorce in favour of the respondent/husband. The appellant/wife habitually implicated false allegations against the respondent/husband as she also lodged complaint against one Vijay Sahu at Police Station, Narharpur stating therein that Vijay Sahu often gets drunk and commits maarpeet with the appellant/wife and when the copy of the complainant was produced by the respondent/husband as evidence before the learned trial Court, the appellant/wife denied her signature in the complaint. The impugned judgment and decree passed by the learned trial Court is well merited and no interference is called for. 7. Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of K. Srinivas Rao vs. D.A. Deepa reported in (2013) 5 SCC 226, this Court’s judgment dated 03.05.2024 in the matter of Vivekanand Pradhan vs. Bharti Pradhan passed in FA (MAT) No. 88 of 2020 and this Court’s judgment in the matter of Naveen Kohli v. Neelu Kohli reported in ( 2006) 4 SCC 558. 8. We have heard both the counsel for the parties and perused the material available on record with utmost circumspection. 9. It is an admitted position before the learned trial Court that marriage of appellant/wife and respondent/husband was solemnised on 25.04.1999 according to social customs and rituals at village Sonarkara and out of their wedlock two sons namely Aashish Sinha and Bhushan Sinha were born on 18.06.2000 and 26.11.2004 respectively. The respondent/husband filed application for divorce against the appellant/wife under section 13A of the Hindu Marriage Act, 1955 before the learned trial Court on the ground of adultery. The respondent/husband filed application for divorce against the appellant/wife under section 13A of the Hindu Marriage Act, 1955 before the learned trial Court on the ground of adultery. The learned trial Court framed following issues on the basis of pleadings of both the parties, the said issues are reproduced hereinbelow for ready reference:- 10. (PW/01) Bashant Sinha has stated that on 15.04.15 when the respondent/plaintiff woke up for attending nature’s call at 4 am wee hours, he found that the appellant/wife was not in the room and he discovered that the room was closed from outside. Thereafter, by calling the people from outside, the door was opened and it was found that the appellant/wife was not seen anywhere near the house. The respondent/husband then lodged a missing report of the appellant/wife. Subsequently, after a few days, the appellant/wife herself appeared before the Police Station-Arjuni and gave the statement that she herself left the respondent and is residing with one Vijay Sahu as his wife and further requested to not to take any action on the missing report and she thereby refused to go back to the respondent/husband’s house. Bashant Sinha filed documents Exs. P/01 to P/10. Exs. P/6 & P/7 are police statement of the appellant/wife and Vijay Sahu. He denied the suggestion in cross-examination that he ousted his wife from his house as well as tortured her. 11. (PW/02) Dular Singh Sinha, Keshav Ram (AW/03) and Janardhan Sinha (AW/04) supported the allegation of respondent/husband Bashant Sinha and stated that the appellant/wife left house of Bashant Sinha and started living in the house of one Vijay Sahu as his wife. 12. Appellant/wife Poonam Sinha examined herself as (DW/01). In cross-examination para 11 she admitted her signature on A to A part of the police statement Ex. P/07. She also admitted in para 20 that she is living separately since 2015 from her husband Bashant Sinha. She alleged that Exs. P/1 to P/9 are forged documents, but she admitted this suggestion that she did not initiate any proceeding against her husband regarding these documents. 13. It is an admitted position in this case that the learned trial Court previously passed decree of divorce on 23.07.2019 in favour of the respondent/husband against which the appellant/wife filed FAM No. 252/2019 and this Court vide order dated 12.10.2022 granted one opportunity to lead evidence to state the facts before the learned trial Court. 14. 13. It is an admitted position in this case that the learned trial Court previously passed decree of divorce on 23.07.2019 in favour of the respondent/husband against which the appellant/wife filed FAM No. 252/2019 and this Court vide order dated 12.10.2022 granted one opportunity to lead evidence to state the facts before the learned trial Court. 14. This Court in FAM No. 252 of 2019 observed in paras 08 & 09 which reads as under:- “8. With respect to affording opportunity of hearing, prima facie, it appears that only one date of hearing was given to the wife. She filed her affidavit on 16.05.2019 and was cross examined on 26.06.2019, wherein it was stated that she closed her evidence. On next date of hearing i.e., on 06.07.2019, an application was filed wherein certain reasons were assigned and it was stated that because of her hearing-impaired disability she could not hear properly. 9. In the facts of this case, we are of the view that evaluating the physical disability of the wife/appellant sufficient opportunity should have been given to her to lead evidence, as much as, the allegations in which the husband sailed appears to be grave which assassinates the character of a women coupled with the fact that she is physically impaired. It can be very well assumed that certain Court proceedings may not have been understood by her for want of hearing, therefore, we deem it proper to remand the case back to learned Family Court, Dhamtari to grant opportunity to lead evidence to the wife to slate the facts before the Court below to proceed accordingly.” However, after getting opportunity of additional evidence, the appellant/wife did not examine any witness and she admitted in her re cross-examination on 10.04.2023 in paras 23 & 24 which are reproduced herein for ready reference as under:- Vaishnav Sahu (DW/02) also admitted in his cross-examination that he has not seen the appellant and the respondent living together since 2015. 15. This Court in Vivekanand Pradhan (supra) in paras 12 & 14 which reads as thus:- “12. In the matter of Budhi Datta Barua (supra), the Tripura High Court has held in para 15 as under:- 15. Sine quo non is the sexual intercourse. Sexual intercourse beyond the marriage is broadly called adultery, but the said provision does not require the proof of living in adultery or in adulterous life. In the matter of Budhi Datta Barua (supra), the Tripura High Court has held in para 15 as under:- 15. Sine quo non is the sexual intercourse. Sexual intercourse beyond the marriage is broadly called adultery, but the said provision does not require the proof of living in adultery or in adulterous life. It is the sexual intercourse, even a single intercourse would be adequate to invoke that provision for dissolving the marriage.” 14. In view thereof, the appellant is entitled to be granted decree for dissolution of marriage on the grounds enumerated under Section 13(1) (i-a) of the Act, 1955. Further, it appears that both husband and wife are living separately since 2017 and thus they are living apart for more than six years, it, thus, appears that the alleged marriage solemnized on 01.05.2007 has irretrievably broken down and, therefore, it is dead for all purposes and cannot be revived as held by the Supreme Court in the matter of K. Srinivasa Rao vs. D.A. Deepa 2 wherein it has been held at paragraphs 30 & 31, which read 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 between the two. As held in Samar Ghosh (2007 1 SCC 337), if we refuse to sever the tie, it may lead to mental cruelty. 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.” 16. 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.” 16. In the light of above cited judgments and in the present case also, it is clear that the respondent/husband filed various documents against the appellant/wife that she is living with another person since 2015. This Court granted opportunity to the appellant/wife, but the appellant/wife failed to examine her landlord or any other witnesses. The learned trial Court minutely appreciated the oral and documentary evidence filed by both the parties and rightly granted decree of divorce in favour of the respondent/husband. As such, we did not find any illegality or irregularity in the decree passed by the learned trial Court. 17. As an upshot, this appeal being bereft of any merit is liable to be and is hereby dismissed.