C A V Judgment

Per Radhakishan Agrawal, J.

1. This appeal is filed under Section 19(1) of the Family Courts Act, 1984 (for brevity ‘Act of 1984’) by the appellant/husband (for brevity 'husband') against the judgment and decree dated 06.11.2017 passed by the Judge Family Court, Kabirdham (Kawardha), C.G. in Civil Case No.22-A of 2016 whereby the application under Section 13 (1) of the Hindu Marriage Act, 1955 (for brevity 'the Act of 1955') filed by the husband for grant of decree of divorce, has been dismissed.

2. The husband moved an application with the averments that he and respondent//wife (for brevity 'wife') were belong to Scheduled Tribe, namely, Gond caste. Their marriage was solemnized in the year 2001 as per Hindu rituals and customs and from their wedlock, they were blessed with three daughters, who were aged about 12 years, 10 years & 6 years, respectively. In the year 2007, husband was appointed as Constable in the Police Department and after completion of training, he was posted at Police Station Rengakhar on 23.10.2009. Thereafter, attitude of wife towards the husband started changing and she refused to accompany him in his workplace whenever and wherever he was transferred. In the month of September 2011, without there being any sufficient cause, wife left the company of husband and spread rumour in her relatives that the husband had performed second marriage with another lady, who was residing with him. In the month of November 2011, she went to her parental house along with her children and thereafter she did not return. The husband made efforts and went to wife's residence along with his relatives to bring back his wife, but, she refused to join and resume matrimonial chord.

3. The wife has filed reply to divorce petition, in which, it was pleaded that husband and wife both belong to Gond caste under Scheduled Tribe. The wife denied all adverse pleadings made therein and pleaded that she is always ready and willing to live with husband and discharge her matrimonial obligations and it is the husband who refused to live with her and he himself has disclosed to her that he is having extramarital affair with some lady. It is, therefore, pleaded that husband is not entitled to get decree of divorce and Family Court is rightly justified in dismissing the petition filed by the husband.

4. Mr. Ram Kumar Tiwari, learned counsel for the husband would submit that learned Family Court has committed illegality by not considering the fact that wife is staying at her parental house on her own will since 2011, and thus, wife has committed cruelty towards the husband and his parents. He further submits that Family Court has also committed illegality in not appreciating the evidence in its correct perspective. It is contended that the finding recorded by the Family Court that application for grant of divorce is not maintainable in view of provisions contained in Section 2(2) of the Act of 1955, is not correct. The marriage between husband and wife was solemnized as per Hindu rites and customs, hence, the provisions of the Act of 1955 would apply in the matter of dissolution of said marriage.

5. Per contra, Ms. Usha Chandrakar, learned counsel for the wife would submit that both the parties belong to Gond caste under Scheduled Tribe, therefore, in view of provisions contained in Section 2(2) of the Act of 1955, Family Court has rightly dismissed the petition for divorce under the Act of 1955 filed by the husband. It is contended that the husband does not prove his case beyond reasonable doubt and the wife has raised an objection with regard to maintainability of application under section 13 (1) of the Act of 1955 stating that both the parties belong to Schedule Tribe Community, hence, the suit for divorce is clearly barred in view of provisions contained in Section 2 (2)

of the Act of 1955.

6. We have heard learned counsel for the parties and perused the record of the Family Court.

7. Perusal of the record would show that after fili