1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 10.06.2025 Judgment Delivered on 20.06.2025 FA(MAT) No. 94 of 2023 1 - Smt. Smriti Chaubey W/o Diwakar Chaubey, D/o Shri Pramod Kumar Tiwari Aged About 31 Years R/o Village Kheda, Thana Mungeli, Tahsil Mungeli, District : Mungeli, Chhattisgarh ... Appellant versus 1 - Diwakar Chaubey S/o Satish Kumar Chaubey Aged About 31 Years R/o Ganga Nagar Phase-02 Mangla, Thana Civil Line, Tahsil Bilaspur, District : Bilaspur, Chhattisgarh ----Non-appellant ----------------------------------------------------------------------------------------------- For Appellant : Mr. Vijay Kumar Mishra, Advocate For Respondent : Mr. Surfaraj Khan, Advocate ------------------------------------------------------------------------------------------------ Hon'ble Smt. Justice Rajani Dubey and Hon'ble Shri Justice Amitendra Kishore Prasad CAV Judgment Per, Amitendra Kishore Prasad, J. 1. The instant appeal, filed under Section 19 of the Family Courts Act, has been preferred by the appellant, aggrieved by the impugned judgment and decree dated 04.03.2023 (Annexure A/1), VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 passed by the learned Additional Principal Judge, Family Court, Bilaspur, District Bilaspur (C.G.), in Civil Suit No. 238-A/2018. By the said judgment, the application under Sections 13, 1 (i-a) and (i-b) of the Hindu Marriage Act, 1955 was allowed, and a decree of divorce was granted in favor of the respondent-husband. 2. The admitted facts of the case are that the parties are husband and wife. The status of the parties will be referred to as per their status before the Family Court. 3. The appellant-husband filed an application seeking a decree of divorce on the grounds of cruelty and desertion by the non- appellant wife. It is submitted that the marriage between the parties was solemnised on 10.06.2015 as per Hindu rites and rituals at Mungeli, District Mungeli, Chhattisgarh. The marriage was arranged by the respective families. At the time of marriage, the appellant was employed in the Cooperative Bank at Mungeli and residing in Bilaspur, commuting to work from Bilaspur to Mungeli. The non-appellant wife was working as a Shiksha Karmi and was posted at Village Pura, Tehsil Takhatpur. She too was commuting from Bilaspur for her job. After the marriage, the wife's posting was temporarily changed to Village Lokhandi near Bilaspur. However, after one year, she was transferred back to her original posting at Village Pura. It is alleged by the appellant that the wife was unwilling to stay with his parents and insisted on living separately at Takhatpur. The appellant was not inclined to 3 leave his old aged parents. It is further alleged that the non- appellant wife was habitually quarrelling with her in-laws, including the appellant's father, mother, brother, and sister. Approximately eight months after the marriage, the appellant lost his job and began working privately. He later secured employment as a Computer Programmer at NIC, Mantralaya, Raipur. During this period, the non-appellant wife became increasingly suspicious and doubtful of the appellant. She took six months of unpaid leave and moved to Raipur to live with him. However, even there, her behavior was not cordial, and she continued to quarrel frequently with the appellant. She also prevented the appellant from visiting his parents and other relatives in Bilaspur. On the occasion of the Teej festival, the wife went to her parental home and did not return to Raipur. The appellant also went to Raipur, but the non-appellant did not accompany him. Instead, she started residing with the appellant's parents in Bilaspur and resumed quarrelling with his family members. She made baseless and defamatory allegations, including that the appellant was having an illicit relationship with his sister-in-law (wife of his younger brother). Despite attempts by the appellant’s family to resolve the issues by approaching the Mahila Paramarsh Kendra, the wife left for her maternal home. Even during proceedings at the Pariwar Paramarsh Kendra, she made false allegations against the appellant and his family, and was consequently directed to appear before the concerned Court. Since the wife voluntarily left the company of the husband and 4 began residing separately on her own will, the appellant filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The wife appeared before the Court and made certain allegations, but ultimately the matter was compromised. The appellant, in accordance with the wishes of his wife, agreed to live separately, and the case was closed. However, after the compromise outside the Court, the non- appellant wife began harassing the appellant. She stated that she would not live with him, and threatened to take legal action to have his entire family imprisoned. She also threatened to file false complaints against them. As a result of these threats, the appellant lodged a complaint at the Civil Lines Police Station, Bilaspur. The wife committed acts of cruelty and voluntarily left the appellant’s company, refusing to live with him since 18.03.2018. Therefore, on grounds of cruelty and desertion, the appellant has filed the present petition seeking annulment of the marriage and a decree of divorce. 4. In response, the non-appellant wife filed her written statement denying all allegations made by the appellant. She stated that the appellant was unemployed and only working temporary jobs at the time of marriage and this fact was concealed by his family. Despite these circumstances, she made sincere efforts to live with him. However, it was the appellant who subjected her to cruelty and harassment, and further demanded a dowry of ₹3,00,000. She alleged that she was told she would not be allowed to enter 5 the matrimonial home unless the said amount was brought. On 18.03.2017, she was physically assaulted by the appellant, resulting in a torn ear membrane for which she had to seek medical treatment with the assistance of her brother, Satyam Tiwari. She further stated that during the Teej festival, she went to her maternal home. The appellant refused to leave her there and never came to take her back. She waited, but the appellant made no effort to resume cohabitation. The non-appellant wife has denied committing any act of cruelty and she contends that it was the appellant and his family members who subjected her to cruelty, both physical and mental. She also reiterated that she was forced to bring ₹3,00,000/- for the purchase of a new Swift car, but her family expressed their inability to fulfill such a demand. Since she was driven out of the matrimonial home by the appellant and his family members, she has been residing separately at her parental home since 08.10.2017. Before the Family Court, when an application under Section 9 of the Hindu Marriage Act was filed by the appellant-husband, the non-appellant wife expressed her willingness to reside with her husband. She specifically stated the same before the Family Court, upon which the Court passed an order noting that both parties were willing to live together, and therefore, the matter was closed. It has been submitted by the non-appellant wife that she was mentally and physically tortured by the appellant-husband and his family members, and although she was willing to stay with the appellant, it was he who 6 committed cruelty and made false allegations against her. 5. The learned Family Court, after framing issues and considering the evidence led by both parties, allowed the divorce petition and dissolved the marriage solemnised on 10.06.2015. A decree of divorce was granted in favour of the husband on the grounds that the wife had committed cruelty and had deserted the matrimonial home. 6. The learned counsel for the appellant-wife submits that there is a clear error apparent on the face of the record in the judgment. The wife has not committed cruelty or desertion. Instead, it was the husband and his family members who subjected her to cruelty. The trial Court has seriously erred in misinterpreting the evidence on record. There is no substantial evidence from the husband's side proving that the wife committed cruelty or desertion. On the contrary, there is sufficient evidence indicating that the appellant- husband committed acts of cruelty. It has been alleged and supported by testimony that the wife was assaulted, resulting in the tearing of her ear membrane, for which she underwent medical treatment. The wife and her brother both gave statements regarding repeated instances of mental and physical cruelty inflicted upon her. Documentary evidence was also submitted in support of these allegations. However, no substantial evidence was produced by the husband to establish cruelty or desertion by the wife. Even the appellant’s parents, who were allegedly the 7 victims of the wife's behavior, were not examined before the Family Court to substantiate such claims. It is further argued that the evidence presented, including oral and documentary evidence submitted by the wife, clearly establishes the cruelty committed by the husband and his family members. However, the Family Court failed to consider these materials appropriately. 7. In response, the learned counsel for the respondent-husband contended that sufficient evidence exists on record to establish that the wife had committed cruelty against the husband and his family. The Family Court has thoroughly discussed these issues in its judgment. The wife’s allegation of an illicit relationship between the husband and his sister-in-law amounts to cruelty and cannot be overlooked. As both parties have been living separately for the past eight years, and there is no likelihood of reconciliation, there is no reason to allow this appeal. A valid decree of divorce has already been granted by the Family Court, which deserves to be upheld. The respondent relied upon the judgments of the Hon’ble Supreme Court in the matter of Narendra vs. K. Meena, reported in 2017 (1) CGLJ (SC) 425, and also the judgment passed by this Hon’ble Court in the matter of Shivani Gupta vs. Piyush Sugandhi, reported in 2021 (1) CGLJ (CG) 304. 8. We have heard the learned counsel for both parties, considered their rival submissions, and perused the record with utmost circumspection. 8 9. Upon a detailed examination of the divorce application and the written statement submitted by the wife, it is apparent that both parties have made serious allegations against each other. Since the divorce petition was filed by the husband, the burden lies upon him to prove his case. The application for divorce is primarily based on two grounds: cruelty and desertion by the wife. Regarding cruelty, although the appellant-husband made several allegations, the evidence produced does not sufficiently support these claims. Apart from his own testimony, only two other witnesses were examined and one of whom is a neighbor. However, none of the appellant’s family members, such as his father or mother, were examined before the Family Court to corroborate the claims of cruelty allegedly committed by the wife. 10. Evidence under Order 18 Rule 4 of the CPC was submitted for one Poonam Choubey, however, she was not examined before the Family Court. The allegations of cruelty involve the entire family of the appellant, yet none of those family members were presented as witnesses, for reasons best known to the appellant. 11. During cross-examination, the appellant husband admitted that the wife had initially insisted on living separately, but once reassured, she started residing with his family. He also admitted that no complaint was ever lodged by his brother or his brother’s wife against the non-appellant wife. Furthermore, the appellant admitted that he used to travel daily from Bilaspur to Raipur for 9 work and was away from home most of the day. He only became aware of the alleged behavior of his wife through his family members. He also admitted that several incidents described in his testimony were not mentioned in the original divorce application. Other than the application for restitution of conjugal rights, no documentary evidence was filed to show any effort made by him to bring his wife back after she left the matrimonial home. 12. It is therefore evident that neither the father nor the mother of the appellant, nor his brother or sister, were examined before the Family Court to establish the appellant’s claims that the wife committed cruelty against his entire family. Apart from the two witnesses—one being a neighbor and another a colleague of the appellant—no other corroborative evidence was presented. The appellant himself admitted that he was absent from the home during most of the day due to work, and hence had no direct knowledge of the alleged acts of cruelty. His knowledge was based solely on what was reported to him by family members. Although his family members were not examined, the credibility of the neighbor's testimony also becomes questionable. 13. On the other hand, the non-appellant wife was examined and categorically stated that she was assaulted and subjected to mental and physical harassment. She also stated that a demand of ₹3,00,000/- was made for the purchase of a Swift car. She submitted medical records and other documentary evidence in 10 support of her claims. She further stated that although the husband was not a government servant at the time of marriage, she accepted the marriage despite the circumstances. However, it was the husband and his family who ultimately drove her out of the matrimonial home. The wife also filed a police complaint regarding the cruelty inflicted upon her, based on which proceedings under Section 498-A of the IPC are ongoing. Her testimony was corroborated by her brother, who detailed several incidents of cruelty inflicted by the husband and his family members. 14. One Naresh Upadhyay was examined on behalf of the wife and supported her claim. He stated that when the non-appellant wife was driven out of the matrimonial home, her family members requested a conciliation meeting. Subsequently, he went to Bilaspur to meet the husband’s family. 15. The Hon’ble Supreme Court, in the matter of Manisha Tyagi vs. Deepak Kumar reported in AIR 2010 SC 1042 held that the husband failed to prove cruelty by the wife is sufficient to warrant a decree of divorce. The relevant paragraphs of the said judgment are quoted hereinbelow:- “22. At this stage we may notice the observations made by this Court in the case of Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. In this case the Court examined the development and evolution of the concept of 11 mental cruelty in matrimonial causes. In paragraph 35 it is observed as follows: "35. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to 1976 amendment in the Hindu Marriage Act, 1955 cruelly was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By the 1976 amendment, cruelty was made a ground for divorce and the words which have been omitted from Section 10 are "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". Therefore, it is not necessary for a party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension- reasonable apprehension - that it will be harmful or injurious for him or her to live with the other party." 25. We may notice here the observations made by this Court in the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 wherein the concept of cruelty has been stated as under: "The word "cruelty" has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a 12 question of fact and degree. It if it mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot b e denied on the ground that there has been no deliberate or willful ill-treatment." 27. Taking into consideration the conduct of the parties over a period of time, the Trial Court as well as the Appellate Court concluded that the husband had failed to establish cruelty on the part of the wife which will be sufficient to grant a decree of divorce. 28. The Appellate Court further came to the conclusion that since both the parties made extremely serious allegations, it would be appropriate as the parties were not compelled to 13 live together. The Appellate Court came to the conclusion that it would be more appropriate to give the couple some time to ponder over the issue especially keeping in view the welfare of their daughter. If in due course they manage to reconcile their differences the decree of judicial separation would be of no consequence. On the other hand, if the parties continued with their adamant attitudes it would be possible for either party to seek dissolution of the marriage on the basis of the aforesaid decree of judicial separation.” 16. In the present case, there is no evidence to suggest that the wife committed any cruelty. Although, the wife and her witnesses have provided categorical evidence of cruelty by the husband, supported by medical reports and other documents. Cruelty is not confined to physical acts alone but includes various forms of mistreatment. Here, the husband’s behavior such as suppressing facts about his employment, not cooperating with the wife, not taking her to her maternal home during the Teej festival and refusing to take her back to the matrimonial home proved physical assault, demand of dowry for purchasing Swift car amounts to cruelty. Therefore, there is insufficient evidence to establish cruelty by the wife. On the contrary, cruelty by the husband and his family members is clearly evidenced through medical and other documentary as well as oral evidence. Hence, the allegation of cruelty against the wife is unfounded. 14 17. The application for divorce was also filed on the ground of desertion. Regarding the desertion claim, the evidence produced by the husband indicates that on 08.10.2017, the wife left the matrimonial home and refused to live with the applicant husband. 18. Section 13(1) of the Hindu Marriage Act 1955 deals with desertion according to which, the desertion must last for at least two years immediately before the divorce petition is filed. The same reads as follows:- “13. Divorce- (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party ( i ) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia)has, after the solemnisation of the marriage, treated the petitioner with cruelty; or (ib)has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; xxxxxxx xxxxxxxxxxxx xxxxxxxxx” 19. The Hon’ble Supreme Court in the matter of Dr.(Mrs.) Malathi Ravi, M.D vs. Dr. B.V . Ravi M.D reported in AIR 2014 SC 2881 has opined that the petition for divorce filed under Section 13(1)(ib) of the Hindu Marriage Act requires proof of desertion for a continuous period of at least two years immediately preceding the petition. Desertion entails the intentional and 15 permanent abandonment of one spouse by the other without consent and without reasonable cause, not merely physical separation. The relevant paragraphs of the said judgment are quoted hereinbelow:- “To appreciate the rivalised submissions raised at the Bar, we have carefully perused the petition and the evidence adduced by the parties and the judgment of the Family Court and that of the High Court. The plea that was raised for grant of divorce was under Section 13(1)(ib) of the Act. It provides for grant of divorce on the ground of desertion for a continuous period of not less than two year immediately preceding the presentation of the petition. The aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted to Section 13 by Act 68/1976. Prior to the amendment it was only a ground for judicial separation. Dealing with the concept of desertion, this Court in Savitri Pandey v. Prem Chandra Pandey[5] has ruled thus:- “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but 16 from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger [pic]or disgust without intending permanently to cease cohabitation, it will not amount to desertion. In the said case, reference was also made to Lachman Utamchand Kirpalani’s case wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the 17 absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. In the case at hand, the Family Court, on the basis of the evidence brought on record, has recorded a finding that there was no desertion for a continuous period of two years. The High Court has reversed it by emphasizing on certain aspects of conduct. Analysing the evidence, we are of the considered opinion that it is not established that the appellant- wife had deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition. It is because the petition was presented in the year 2001 and during the cross- examination of the husband it has been admitted by him that he had gone to Gulbarga in May, 1999 for two days. The Family Court, on the basis of material brought on record, has opined that there is no sufficient evidence to come to a definite conclusion that the wife deserted him with intention to bring the matrimonial relationship to an end and further the period of two years was not completed. The High Court, as it seems to us, has not dealt with this aspect in an appropriate manner and opined that 18 the wife had no intention to lead a normal married life with the husband. Therefore, the allegation of desertion, as enshrined under Section 13(1)(ib) has not been established. The finding on that score as recorded by the learned Principal Judge, Family Court, deserves to be affirmed and we so do.” 20. A plain reading of paragraph 17 of the application reveals that the husband states the wife left the matrimonial home on 08.10.2017. However, the husband filed the divorce petition on the ground of desertion under Section 13(1)(i)(b) of the Act within seven months of the alleged desertion, rendering the application premature. Further, the pleadings show that the husband had earlier filed an application under Section 9 for Restitution of Conjugal Rights. The matter was compromised, as reflected in the order sheet dated 10.08.2018 passed by the Lok Adalat of the Family Court Bilaspur, where both parties agreed to resume cohabitation. Despite this, the husband failed to take the wife back and himself ceased to live with her, as corroborated by the respondent wife’s evidence. 21. Moreover, no specific or cogent allegations of cruelty have been made; vague and unsubstantiated claims cannot constitute valid grounds for divorce. Additionally, the appellant husband, having abandoned the respondent wife, cannot seek relief by taking advantage of his own wrong. Since it was the husband who left the wife and has not taken steps to resume matrimonial cohabitation, he cannot claim divorce on grounds of desertion. 19 22. In view of the above facts and upon careful examination of the record, it is clear that the husband has failed to establish any grounds of cruelty or desertion. The Family Court erred in granting a divorce decree without appropriately considering these aspects. Therefore, the impugned judgment and decree dated 04.03.2023, which dissolved the marriage solemnized on 10.06.2015 on grounds of cruelty and desertion, is hereby set aside. 23. The appeal is accordingly allowed. 24. A decree be drawn be drawn up accordingly. The parties shall bear their own cost(s). Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha