C A V Judgment

Per Smt. Rajani Dubey, J .

26/07/2022 This appeal is directed against the impugned judgment and decree dated 10.08.2021 passed by the Judge, Family Court Raigarh in Civil Suit No. F-56A/2020 by which the appellant's appeal for grant of decree of divorce filed under Section 13 (1)(ia)(ib) of the Hindu Marriage Act, 1955 has been dismissed.

2. Brief facts of the case are that the appellant/husband filed application under Section 13 (1)(i-a)(i-b) of the Hindu Marriage Act on the ground that marriage of the appellant and respondent/wife was solemnized on 01/02/2017 as per Hindu rites and customs and thereafter the respondent/wife resided with the appellant for sometime during which they had gone to several places at Delhi, Gurgaon, Shimla as well as to their relatives. It is further stated that on 27.07.2017 the respondent/wife went to her maternal house at Bhusawal, Maharashtra on the occasion of Rakhi and did not return to her matrimonial house at Raigarh till filing of the suit.

3. On 23.08.2017, respondent/wife sent a legal notice through her counsel Mohd Zakir Hussain, wherein she has sought for dissolution of the marriage on the ground of cruelty as well as desertion and has falsely alleged that the appellant is impotent and she is blackmailing the appellant by using filthy language to pay Rs. 50,000/- per month and for giving half portion of the flat.

4. The appellant/husband has filed a civil suit for defamation before the Court of Chief Judicial Magistrate, Raigarh vide Criminal Complaint Case No. 118/2019. The respondent/wife sent a notice dated 09.10.2017 on false and fabricated grounds through her counsel. After receiving the notice, the appellant made efforts to bring back the respondent/wife but she did not turn up and threatened him. The appellant/husband filed a complaint before the City Kotwali on 10.01.2017. On the said date, the respondent also sent a complaint letter to the police station, Raigarh and in turn the Family Reconciliation Centre, Raigarh has sent a letter to the respondent/wife to appear on 26.11.2017 for reconciliation however she did not appear and sent a letter stating that she is not willing to continue the case. On 30.08.2017, the appellant/husband filed application under Section 9 of the Hindu Marriage Act for Restitution of Conjugal Rights as CS No.F/126A/17 to restore the marital reunion with his wife/respondent. In reply, the respondent/wife has made several false allegations and charges of he being impotent. After filing the reply, she did not appear in the case and therefore the Family Court passed ex parte decree and on 02.02.2019, rejected the application.

5. The respondent/wife lodged a false FIR under Section 498-A IPC and Sections 3 & 4 of the Dowry Prohibition Act at police station Waraseoni, Balaghat against the appellant and his family members with an intention to harass and coerce them, in Crime No. 867/17 which is pending before the Judicial Magistrate First Class Raigarh as Criminal Case No. 02/2018. The respondent/wife with an intention to harass the appellant has filed several cases in the court of Waraseoni which are pending consideration therefore, the appellant has filed application for divorce before the trial court on the ground of cruelty and desertion. She did not appear before the court proceedings and therefore ex parte order has been passed against him.

6. The trial court after appreciating the oral and documentary evidence of appellant/husband, dismissed his application on the ground that he did not prove the allegation of cruelty and desertion made by his wife/respondent and had not placed any reliable evidence whatsoever before the Court and that the criminal cases are also pending against him. Hence the present appeal filed by the appellant.

7. Counsel for the appellant submits that the impugned judgment and decree dated 10.08.2021 is bad in the eye of law and on facts. The family court has erred in law in analyzing the documentary evidence, and the st