1 2025:CGHC:5850-DB AFR HIGH COURT OF CHHATTISGARH, BILASPUR FA (MAT) No. 115 of 2023 Judgment Reserved on : 10/01/2025 Judgment Delivered on : 31 /01/2025  Smt. Kavita, daughter of Ganesh Singh Thakur, aged about 37 years, R/o Near Petrol Tanki, Rest House Nagar, P.S. Nawagarh, District Bemetara (C.G.). ---- Appellant / Defendant Versus  Vijay Kumar Dixit, S/o Late Shiv Kumar Singh, aged about 41 years, R/o village Kargikala, Kota, P.S. Kota, District Bilaspur (C.G.) ---- Respondent / Plaintiff For Appellant : Ms. Meenu Banarjee, Advocate. For Respondent : Mr. Ratnesh Kumar Agrawal, Advocate. Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Narendra Kumar Vyas (C.A.V. Judgment) Per Rajani Dubey, J. 1. The present appeal under Section 19(1) of the Family 2 Courts Act, 1984 has been preferred by the defendant/wife against the judgment and decree dated 24.03.2023 passed by the Principal Judge, Family Court, Bilaspur (C.G.), in Civil Suit No.215-A/2020 whereby, application preferred by the plaintiff/husband filed under Section 13 of the Hindu Marriage Act was allowed on the ground of desertion. The parties to this appeal shall be referred herein as per their description before the learned Family Court. 2. Briefly stated fact of the case are that the plaintiff/husband instituted a suit claiming decree for dissolution of marriage on the grounds enumerated under Section 13 of the Hindu Marriage Acrt, 1955 (for short ‘the Act, 1955’). It is pleaded in the application that his marriage with the defendant/wife was solemnized on 11.07.2008 according to Hindu customs at village Nawagarh, District Bemetara (C.G.) and one daughter namely Siddhi and son Divyansh were born out of their wedlock on 25.09.2009 and 23.10.2014 respectively. According to the plaintiff/husband, upto year 2016 the defendant/wife used to visit her parental home from time to time. In the year 2016, when the defendant/wife fell ill, she got treated by doctor regularly but the defendant/wife got misconception that somebody has done sorcery on her and her treatment could be done only at her maternal home. Due to this, she started visiting her maternal home regularly and on 16.06.2016, on the pretext of exorcism, insisted him 3 to leave her to Navagarh, thereafter, the plaintiff left her at Navagarh. It was also pleaded that when the defendant refused to come to the home of plaintiff citing her ill health and accountable his mother being witch, the plaintiff was shock and felt insulting and to save his marital relationship, he gave some time to defendant to think over it and allowed her to live in her material home but the defendant, due to this issue and her stubbornness, got her children admitted in school at Navagarh and the entire expenses of which was born by him. It was also pleaded that the plaintiff in order to save the marital relationship, on various occasion made the defendant understand through prominent persons of the society but she did not agree. The defendant has deprived the plaintiff of marital relationship for 4-5 years since 16.06.2016 and despite repeated request and efforts, the defendant has refused to live together and it is not possible to live together and lead a happy married life, therefore, he is entitled to get a decree for dissolution of marriage under the Act, 1955. 3. The defendant, in her reply, except admitted fact denied all the allegations and stated that family members of plaintiff used to harass her mentally and physically on trivial issues, they used to rebuke her calling witch (tohni) and instigated the plaintiff against her. It was also averred that on the instigation by family members of the plaintiff, he left the 4 defendant and children in Navagarh, he visits them occasionally, their relationship is cordial and respect each other. Therefore, the suit may be dismissed. 4. The learned Family Court, after examining oral and documentary evidence, allowed the application of plaintiff holding that the plaintiff has been successful in proving that the defendant has deserted him for long and deprived him of marital relationship. Hence, the present appeal by the defendant. 5. Learned counsel for the appellant submits that the judgment and decree passed by the learned Family Court is bad in law and facts & thus liable to be set-aside and the suit of the plaintiff deserves to be dismissed. The learned Family Court did not appreciate the evidence in its true perspective. The learned Family Court has failed to appreciate that the preponderance was in favour of the defendant. Learned counsel further submits that the learned Family Court ought to have considered the statement of the appellant that she was tortured and ill treated by the family members of the plaintiff and he was instigated to do so by his family members. The statement of plaintiff is false, fabricated and concocted. Learned counsel also submits that the statement of the defendant as also her witnesses has not been considered by the learned Family Court while passing the impugned judgment and decree. The learned Family Court 5 committed error by non appreciating the fact that the defendant was subjected to cruelty by the family members of the plaintiff particularly when this High Court vide order dated 31.07.2023 in CRR No. 996/2022 [Vijay Singh V. Kavita Dixit] appreciated the statement of defendant in para 7 of its judgment that the defendant was subjected to cruelty by the plaintiff. The plaintiff himself had left the defendant and her children to her parental home. The learned trial Court failed to appreciate that the plaintiff’s behaviour was such that which is sufficient to prove that the cruelty was committed by the plaintiff and his family members. Learned counsel also submits that the learned Family Court committed grave error in allowing the application of plaintiff without taking into consideration the statement of the defendant. As such, the appeal deserves to be allowed setting aside the impugned judgment and decree. 6. Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of Bipinchandra Jaisingh Bhai Shah V. Prabhawati reported in AIR 1957 SC 176 and Dr. Dastane V. Mrs. S Dastane reported in 1975 (2) SCC 326. 7. On the other hand, learned counsel for plaintiff/respondent supporting the impugned judgment and decree submits that the learned Family Court after minute appreciation of oral and documentary evidence has rightly passed the impugned judgment and decree of divorce in favour of plaintiff. The 6 impugned judgment and decree is well merited and no interference is required by this Court. 8. Reliance has been placed on the decision of Hon’ble Apex Court in the matter of Narendra V. K. Meena reported in (2016) 9 SCC 455. 9. We have heard learned counsel for the parties and perused the material available on record. 10. It is an admitted position that marriage of plaintiff with defendant was solemnized on 11.07.2008 according to the Hindu customs and out of their wedlock two children were born. The plaintiff had filed an application on 01.12.2020 under Section 13 of the Act, 1955 against the defendant- wife for dissolution of marriage by decree of divorce on the ground of cruelty and desertion and in order to prove these grounds, the learned trial Court on the basis of pleadings of both the parties framed issues, which are reproduced herein as under :- dz- okn iz’u fu”d”kZ 1 D;k izfrokfn iRuh us mHk;i{k ds fookg ds vuq”Bkiu ds i'pkr vthZnkj ifr ds lkFk dwzjrk dk O;ogkj fd;k gS \ izekf.kr 2 D;k izfroknh us vthZ is’k fd;s tkus ls vO;ofgr de ls de nks o”kZ dh fujarj dkykof/k rd vthZnkj dks vfHkR;Dr dj j[kk gS \ izekf.kr 3 Lgk;rk ,o O;; nkok fMdzh 11. The plaintiff in his evidence on affidavit filed under Order 18 7 Rule 4 of CPC has stated that he is working as Nagar Sainik in N.G.O. at Kota and due to his service, he has to reside near Kota but the defendant pressurized him to live in Nawagarh, Bemetara. He has also stated that he is looking after his old aged mother, who is dependent upon him but the behaviour of defendant toward his mother is very rude. He has also stated that in the year 2016, when the defendant/wife fell ill, she got treated by doctor regularly but the defendant/wife got misconception that somebody has done sorcery on her and her treatment could be done only at her maternal home. Due to this, she started visiting her maternal home regularly and on 16.06.2016, on the pretext of exorcism, insisted him to leave her to Navagarh, thereafter, the plaintiff left her at Navagarh and from 16.06.2016 she is residing separately. In cross-examination, the plaintiff has denied this suggestion that in when he along with five members of society went to take the defendant, she was ready to come with them. He has also denied that they asked defendant that they have not come to take her but to take divorce. 12. Santosh Singh Thakur (PW/2) has supported the statement of plaintiff/husband and stated that on 17.07.2020 he along with plaintiff and some other persons of society had gone to Navagarh and advised the defendant to come back to Kargikala and take care of her family by giving example of 8 religious, social and moral matters but she did not agree and put a condition that she did not want to go to Kargikala and would stay in her maternal home in Navagarh only, and if the plaintiff wants to stay with her then he can come to Navagarh from time to time and stay with her. In cross- examination, this witness has denied the suggestion that when they went to take the defendant, she was ready to come with them. 13. The defendant/wife also examined herself as witness and in para 07 of her Court evidence, she admitted that she wants to live with her parents in her maternal home. She has also admitted that she is living separately in her maternal home from her husband since 2016 till date. After she came from village Kargikala in the year 2016, her daughter Niharika went to village Kargikala 2-4 times but her son is young so she did not go. She never visited her in-laws house after June, 2016. She has also stated that she used to stay alone at home after her husband and mother-in-law went to their respective work and even after the she did not go for treatment of her own accord. When a question was asked to defendant/wife that Kargi is closed to Kota, in these circumstances the plaintiff wants to live with his mother in his ancestral house in village Kargi, to which, the defendant/wife stated that she does not want to reside with the plaintiff while living with his mother. She will reside with 9 the plaintiff only when he resides separately from his mother and lives with her outside Kargi. For ready reference, hindi portion of the relevant part of her admission is reproduced herein as under :- “ iz’u %& lk{kh ls ;g iwNs tkus ij fd dksVk ls djxh utnhd gS bu ifjfLFkfr;ksa esa oknh vki vius xzke djxh fLFkr iSr`d edku ls vius ekrk ds lkFk j[krs gq, fuokl djuk pkgrk gS \ mRrj %& eSa oknh ds ekrk ds lkFk jgrs gq, oknh ds lkFk ugha jguk pkgrh gwaA ;fn oknh viuh ekrk ls iwFkd gksdj esjs lkFk djxh ls ckgj fuokl djsxk rc eS mlds lkFk jgqaxhA ” 14. The defendant, in para 13, has also admitted that his mother-in-law is aged around 65-66 years and she is senior citizen. Further, in para 14, she has stated that after the maintenance order passed by the Family Court Bemetara, her husband/plaintiff is giving Rs. 6,000/- per month to her and children as maintenance. She wants that she should live in her maternal house and the plaintiff's mother should live in Bilaspur and the plaintiff should come to Navagarh from time to time and live with her. She has admitted that she does not want to live with the plaintiff if his mother will be with him. It has been written in clause 04 of her affidavit that the plaintiff is not giving maintenance allowance due to which they are starving and she is on mercy of her maternal family, but she herself stated that the plaintiff has started giving maintenance just two months back, he did not give it 10 before this, therefore, it was written this. Further, in para 15, the defendant admitted that she knew Santosh Singh and Chhatar Singh who are my maternal uncles and Shambhusharan Singh who is my brother-in-law (Nandoi). She has admitted that in the year 2020, these people went to her maternal home at Bemetara with the plaintiff. She herself stated that she was threatened to live with the plaintiff or else sign the divorce paper, so she did not go with the plaintiff. She denied that the plaintiff and his family members never subjected her to cruelty. She herself stated that making her stand in the Court also comes within the category of cruelty. 15. Ganesh Singh Thakur (NAW/2), father of defendant, has also admitted in para 5 of his cross-examination that in the year 2020, the plaintiff along with Santosh Singh, Chattar Singh and Shambhu Singh had come to his home at Nawagarh. He himself stated that Ajay Singh, brother of plaintiff, has also come. He has admitted that Santosh Singh, Chattar Singh and Shambhu Singh told the defendant to live with the plaintiff at village Kargikala in his ancestral home with his mother, but he himself stated that Ajay Singh had told that they have come for divorce. This witness, in para 06 of his cross-examination, has also stated that they never went to the house of plaintiff with any proposal that defendant to stay with plaintiff. He himself 11 stated that the plaintiff had left the defendant in ailing condition. 16. Hon’ble Apex Court in the matter of Narendra (supra) held in para 12 and 13 as under :- “12. The respondent wife wanted the appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her. 13. In the instant case, upon appreciation of the evidence, the trial court came to the conclusion that merely for monetary considerations, the 12 respondent wife wanted to get her husband separated from his family. The averment of the respondent was to the effect that the income of the appellant was also spent for maintaining his family. The said grievance of the respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the respondent wanted the appellant to be separated from the family-the sole reason was to enjoy the income of the appellant. Unfortunately, the High Court considered this to be a justifiable reason. 17. The question for our decision in the present appeals is whether the learned Court below was justified in granting the decree of divorce on the ground of desertion and, whether in the facts and circumstances of the case, a decree for dissolution of the marriage between the parties should be passed on the ground or grounds as contemplated under Section 13(1) of the Hindu Marriage Act. 18. S ection 13(1) provides several grounds for obtaining divorce by either party to the marriage whether solemnized before or after the commencement of the Act. For facility of reference, Section 13 (1)(b) of the Act, 1955, is reproduced herein under :- :13. Divorce. - (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a 13 petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party --- [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] 19. It is well settled that 'Desertion' for the purpose of seeking divorce under the Hindu Marriage Act, means the intentional permanent forsaking and abandonment of one spouse by the other without other's consent and without reasonable cause. Desertion is not the withdrawal from a place but from the state of things. Desertion therefore means withdrawing from the matrimonial obligations that is to say not permitting or allowing and facilitating the cohabitation between the parties. It 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. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, (i) the factum of separation, arid (ii) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to from the necessary intention aforesaid. 14 20. In the light of above decision of Hon’ble Apex Court in Narendra (supra) and as regards desertion is concerned, it the present case, the defendant/wife has stated that she wants to live with her parents in her maternal home and that she is living separately in her maternal home from her husband since 2016 till date. She never visited her in-laws house after June, 2016. When a question was asked to defendant/wife that Kargi is closed to Kota, in these circumstances the plaintiff wants to live with his mother in his ancestral house in village Kargi, to which, the defendant/wife stated that she does not want to reside with the plaintiff while living with his mother. She will reside with the plaintiff only when he would reside separately from his mother and lives with her outside Kargi. She has also stated that after the maintenance order passed by the Family Court Bemetara, her husband/plaintiff is giving Rs. 6,000/- per month to her and children as maintenance. She wants that she should live in her maternal house and the plaintiff's mother should live in Bilaspur and the plaintiff should come to Navagarh from time to time and live with her. She has admitted that she does not want to live with the plaintiff if his mother will be with him. It also transpires from defendant’s statement that she did not made any effort to go to the plaintiff for leading peaceful married life and she continuously deprived the plaintiff from marital relationship. 15 Thus, the factum of desertion for a continuous period and cruelty has been established in this case. On consideration of the entire facts and circumstances, we are of the opinion that the finding of the learned Family Court in allowing the application of divorce filed by the plaintiff is based on proper appreciation of oral and documentary evidence. We do not find any illegality or infirmity in the impugned judgment and decree of the learned Family Court. 21. As a decree has been passed, the wife is entitled to permanent alimony for her sustenance. Be it stated, while granting permanent alimony, no arithmetic formula can be adopted as there cannot be mathematical exactitude. It shall depend upon the status of the parties, their respective social needs, the financial capacity of the husband and other obligations. Hon’ble Apex Court in Vinny Parmvir Parmar v. Parmvir Parmar [2011 (13) SCC 112] , while dealing with the concept of permanent alimony, has observed that while granting permanent alimony, the Court is required to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. 22. Keeping in mind the aforesaid principles and the fact that 16 the plaintiff/husband is giving Rs.6,000/- per month as maintenance in compliance of order passed in application filed by defendant/wife under Section 125 of Cr.P.C., we think it appropriate to fix the one time permanent alimony at Rs 5,00,000/- which shall be deposited before the learned Family Judge within a period of six months. We may want to clarify that amount, if any, deposited earlier shall be adjusted. 23. On the basis of the forgoing discussion, the decree for dissolution of marriage is affirmed on the ground of mental cruelty and desertion which eventually leads to dismissal of the appeal. The parties shall bear their respective costs. 24. Let a decree be drawn accordingly. Sd/- Sd/- (Rajani Dubey) (Narendra Kumar Vyas) Judge Judge Pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.01.31 16:18:29 +0530