1 2025:CGHC:3150-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No.145 of 2023 Judgment reserved on : 10.12.2024 Judgment delivered on : 17.01.2025 1 - Smt. Aruna Tengwar W/o Pankaj Tengwar Aged About 24 Years R/o C/o Latel Ram Dongare Village Baima P.S. Sarkanda Tahsil and District Bilaspur, Chhattisgarh Appellant versus 1 - Pankaj Tengwar, S/o Sukhsagar Aged About 29 Years R/o Village Madai P.S. Seepat Tahsil and District Bilaspur, Chhattisgarh Respondent For Appellant : Mr. Praveen Tulsyan, Advocate For Respondent : Mr. Mohd. Parvez Khan, Advocate Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Bibhu Datta Guru C A V Judgment Per Rajani Dubey J. 1. The present appeal has been filed by the appellant against the judgment and decree dated 24.04.2023 passed by the learned Additional Principal Judge, Family Court, Bilaspur (C.G.) in Civil Digitally signed by RAMAKANT NIRALA 2 Suit No.39-A/2020, whereby the respondent’s application seeking divorce has been allowed. 2. Brief facts of the case are that the respondent filed a civil suit under section 13 (a) of the Hindu Marriage act 1955 for dissolution of the marriage dated 27.03.2015 before the learned Family Court stating therein that his marriage was solemnized with the appellant wife on 27.03.2015, thereafter appellant was residing with respondent in respondent's house, but after some time she was not performing her duty as wife and started cruelty with the family members on the ground that she is living in adultery and she does not want to reside at respondent’s house. The appellant wife filed her reply and denied the allegations levelled by the respondent husband and submitted that it is the respondent who does not want to live with her. The learned Family Court after appreciation of oral and documentary evidence available on record passed a decree of divorce in favour of the respondent husband on the ground of cruelty and desertion, against which the present appeal has been filed by the appellant wife. 3. Learned counsel for the appellants submits that the impugned judgment and decree is erroneous in law and facts both and the same is liable to be set aside. The learned Family Court has failed to appreciate the testimony of witnesses. The learned Family Court has wrongly held that appellant is residing 3 separately without any sufficient reason despite without there being any evidence in this regard. The learned family court has passed the decree of divorce on another ground of metal harassment on the respondent on the basis of adultery, but in para 16 of the judgment, the learned family court has found that both the parties have failed to prove the adultery on each other. The respondent wants to marry with another woman therefore on the basis of false allegation, he filed the instant suit and even during the counseling, the appellant stated she wants to live with the respondent, despite that the learned Family Court has passed the decree in favour of the respondent. Therefore, the impugned judgment and decree deserves to be set aside. 4. Learned counsel for the respondent supports the impugned judgment and decree passed by the learned Family Court and submits that the learned Family Court has minutely appreciated the oral and documentary evidence available on record and rightly passed the decree of divorce in favour of the respondent. The judgment is well merited and does not call for any interference. He further submits that both the parties are living separately since 2017 and it is also admitted fact that she filed case against her husband for domestic violence so the learned Family Court has rightly passed the decree in favour of the respondent. 4 5. Heard learned counsel for the appellant and perused the material available on record. 6. It is clear from the record of the learned Family Court that the marriage of both the parties was solemnized on 27.03.2015 and out of their wedlock, one son Arav was born. It is also not disputed that since 2017, they are living separately. 7. The respondent husband examined himself before the learned Family Court and one witness Parmeshwar Suryawanshi to prove his case and the appellant wife examined herself and one witness Ram Sanehi Suryawanshi, her maternal uncle. 8. The respondent husband stated that character of his wife is suspicious and he denied the suggestion of wife that he likes another woman. He admitted that the appellant wife is living in the matrimonial house for 3 months and he filed complaint/letter (Ex-P/1) and notice of police station vide Ex-P/2. The respondent husband also stated that his wife’s family members and his beloved were called by him for a meeting. Parmeshwar Suryavanshi (PW-2) stated that the respondent Pankaj Tangwar is his nephew (bhanja) and on 09.07.2018, he was called by the respondent along with appellant’s beloved and his father for meeting. In cross-examination, he admitted this fact that information of about second man/appellant’s beloved Sandeep was already provided by the respondent Pankaj to him. 5 9. The appellant wife also stated that her husband is characterless person and he talks with another woman, but she admitted in cross-examination that she is living in her paternal home since 2017 and she filed application for maintenance but she did not file any application for restitution of conjugal rights. She also admitted that she did not file any criminal case against the respondent husband for demand of dowry. Ramsanehi, maternal uncle of the appellant wife admitted that they did not call any village or social meeting and he self stated that a meeting was called for by the parents, in which he participated. 10. The learned Trial Court minutely appreciated the oral and documentary evidence and found that the appellant wife is living separately since 2017 and it is also clear that she is living separately without any sufficient cause and she deserted her husband and it is also clear that in her affidavit, she alleged that her husband is a characterless person. 11. It is a well settled principle that 'Desertion' for the purpose of seeking divorce under the Act, 1955, 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 6 single act complete in itself. It is a continuous course of conduct to be determined under the facts and circumstances of each case. So far as 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. 12. As regard the desertion is concerned, in the present case, the respondent wife has stated in her written statement that her husband is a characterless person and he talks to another woman and she is living separately since 2017, but we find from the record that no such documentary evidence has been adduced by the wife to substantiate her plea, which could prove this fact that the husband was living in adultery, as a result of which she left the matrimonial house. The appellant wife and her witnesses have not stated that as to what efforts were made by the wife to reside with her husband. The respondent husband proved this fact by the documents that the appellant is living separately by deserting him. 13. In the present case, the burden of proof is on the wife to prove that she has sufficient reason to live separately from her husband 7 and the wife has not been able to prove in her oral and documentary evidence that she has sufficient cause to live separately, which could justify her desertion from her husband, as such the finding of the learned Family Court is based on proper appreciation of oral and documentary evidence available on record, which is neither perverse nor contrary to the record. 14. Accordingly, the appeal is dismissed. 15. As regards permanent alimony, it is clear that as per affidavit of the respondent, he has some agricultural land and he also earns some money by driving taxi and it is also clear that wife is not earning anything, thus it would be appropriate to award Rs.5 Lakh as permanent alimony in favour of the appellant wife, which shall be paid by the respondent husband within 3 months from the date of this order. 16. A decree be drawn accordingly. Sd/- Sd/- (Rajani Dubey) (Bibhu Datta Guru) Judge Judge Nirala