1 2025:CGHC:10652 NAFR Judgment Reserved on 21.02.2025 Judgment Delivered on 05.03.2025 HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 113 of 2022 Ramdayal Patel S/o Late Nilambar Patel Aged About 38 Years Caste Aghariya, Occupation Agriculture Labour, R/o Village Parsadih, Police Station And Tahsil Baramkela, District : Raigarh, Chhattisgarh ... Appellant versus Santoshi Bai W/o Ramdayal Patel, D/o Tejram Patel Aged About 36 Years Caste Aghariya, Occupation Agriculture And Tailoring, Presently R/o Village Amrapali (Charbhatha), Police Station And Tahsil Baramkela, District : Raigarh, Chhattisgarh ... Respondent For Appellant : Mr. Vivek Tripathi, Advocate For Respondent : None present, though represented (Hon’ble Shri Justice Naresh Kumar Chandravanshi) C A V Judgment 1. The appellant has preferred instant appeal under Section 28 of the Hindu Marriage Act, 1955, (for short ‘the Act, 1955) assailing judgment and decree dated 23.3.2022, passed by Upper District Judge, Sarangarh, Distt. Raigarh (CG) in Civil Suit No.06A/2017, whereby application filed by the appellant/husband under Section 13 of the Act, 1955, seeking decree of divorce from respondent/wife, has been dismissed. BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2025.03.05 14:00:25 +0530 2 2. Facts of the case, in nutshell are that, marriage between the parties was solemnized 17-18 years ago in the year 1999. After marriage, the respondent/wife (henceforth ‘the wife’) started reprimanding the appellant/husband (henceforth ‘the husband’) by saying that he is impotent, insane and fool and she is not getting physical pleasure from him. Due to such humiliation and frustration, he left his home and went to pilgrimage outside the village for 5-6 months. During this period, wife had gone to her parental house, but after returning of the husband, she joined him at her matrimonial home. But her behaviour did not change and she started harassing the husband again by levelling aforesaid allegations. After residing for few months with the husband, she went back to her parental place along with her father. On 02.10.2000, the wife gave birth to a male child but the same was not informed to her husband and his family members. Ultimately, in the family counselling centre at Raigarh, they entered into compromise and thereafter the wife again came back to her matrimonial house. But behaviour of the wife did not change and again she left the company of the husband and lodged FIR against him and his family members under Section 498-A of the IPC, which was registered as Criminal Case No.293/2003, but after trial, they were acquitted by the trial Court vide judgment dated 10.4.2012 and the same has also been upheld by the appellate Court vide judgment dated 07.3.2013. It has further been pleaded that, earlier application filed by the husband under Section 13 of the Act, 1955 for getting decree of divorce bearing Civil Case No.4A/2014, has been dismissed by the Upper District Judge, Sarangarh, Distt. Raigarh vide judgment dated 29.7.2015. Thereafter neither any marital relationship was established between the parties, nor is there any possibility of it in future, as such, marital life of both the parties has 3 been ruined, therefore, the husband filed divorce petition before the trial Court. 3. In written statement filed by the wife, she has denied the allegation levelled against her, rather she alleged that she was subjected to cruelty by the husband and his family members on demand of dowry. Even the husband also did not come to meet her when she was residing in her parental home. He had fled from the village with a girl and remained outside for about 5 months, therefore, her parents had taken her with them. It is further alleged that during her pregnancy, the husband and his family members brought her to her parental place and left her there, thereafter she gave birth to their child, but despite being informed, they did not come to meet the wife and her son. Due to torture on various counts, physical health of the wife was deteriorated, therefore, after filing application in the Court of SDM, Sarangarh, her father took her from the custody of the husband. She has further pleaded that neither she has ruined their marital life, nor she herself has left the company of her husband, rather she is still ready to continue marital life with her husband, if he is ready to keep her and her child peacefully with love and affection. As such, the husband is not entitled to get decree of divorce. 4. On the basis of pleading of both the parties, the learned trial Court framed as many as four issues and recorded deposition of the witnesses of both the parties. After considering the evidence and contention of the parties, the Family court dismissed the application filed by the husband vide impugned judgment holding therein that, earlier vide judgment and decree dated 29.7.2015, divorce petition bearing Civil Suit No.4A/2014 filed by the husband has been rejected by Upper District Judge, Sarangarh, Distt. Raigarh and grounds raised in that case were almost similar and no new ground has been raised by the husband in the subsequent/instant divorce 4 petition therefore, it has dismissed the application filed by the husband/appellant. Hence, this appeal. 5. Learned counsel for the appellant/husband submits that as per the impugned judgment of the trial Court, the trial Court itself has observed that the parties have been living separately since 2010, thus, they have not been living together for almost 12 years. Therefore, the learned trial Court ought to have granted decree on the ground of desertion by the respondent, as it has been proved by the husband that the wife has deserted him. He further submitted that in a criminal case instituted by the wife against the respondent and his mother, vide judgment dated 10.7.2012 passed in Criminal Case No.293/03, the trial Court has acquitted the appellant and his mother for the offence under Section 498A/34 IPC and the appeal preferred against the same has also been dismissed by the appellate Court. It is further submitted that various cases have been instituted by the wife for getting/enhancing maintenance amount. She has also filed application under Section 9 of the Act, 1955 before Upper District Judge, Sarangarh bearing Civil Suit No.19/21, thus, the parties are litigating for many years and living separately for more than 12 years, as such, their marital life has completely ruined, hence, the trial Court ought to have granted decree of divorce on the basis of irretrievable breakdown of their marital life. But the trial Court, without considering aforesaid aspects and ground of cruelty proved by the husband, has dismissed the divorce petition. Therefore, it is prayed that the appeal may be allowed by setting aside the impugned judgment passed by the trial Court and relief sought for by the appellant in divorce petition may be granted in his favour. To support his contention, learned counsel for the appellant places reliance in the matter of Mangayakarasi vs. M. Yuvaraj reported in (2020) 3 SCC 786. 5 6. None present for the respondent, though vakalatnama has been filed on behalf of the respondent. 7. I have heard learned counsel for the appellant and perused the material available on record along with record of the Family Court. 8. Instant divorce petition has been filed by the husband on the ground of cruelty towards him in the following manner:- (a) The wife used to call him impotent, insane and fool. (b) She did not permit him for physical relation and further she had one fiance in her parental place and she used to say that her family members had performed her marriage with the appellant by forcing her. Therefore, their relation is not cordial with each other, rather the same is very strained. (c) Criminal Case under Section 498-A of the IPC instituted against the husband and his mother has been dismissed by acquitting them and the appeal has also been dismissed. 9. In the instant petition, the husband has also raised the ground of desertion by the wife for many years. 10. Undisputedly, as per the oral and documentary evidence adduced by both the parties, earlier the husband/appellant had filed divorce petition bearing No.4A/14, which was dismissed by the Upper District Judge, Sarangarh Distt. Raigarh vide Judgment dated 29.7.2015 (Ex-D/1). 11. Grounds raised by the appellant/husband in the instant petition were also raised in earlier Civil Suit No.4A/2014. In that petition, it was also a ground that the appellant and his mother were prosecuted in criminal case for the offence under Section 498-A IPC, but they were acquitted by the trial Court as well as the appellate Court also. Other grounds including elements of desertion were also similar. After considering the evidence adduced in that 6 case, the learned Upper District Judge, Sarangarh, dismissed the divorce petition filed by the husband vide judgment and decree dated 29.7.2015 (Ex- D/1). The appellant has not raised any new ground which would give him cause of action against the respondent/wife for filing fresh divorce petition. Even alleged desertion was also pleaded in that petition, but the same was not found proved, as such, his divorce petition was dismissed and that order was not challenged by the husband by filing appeal, as such, it attained finality and therefore, the appellant/husband cannot raise such ground, which has already been dealt with by the Court and has attained finality. 12. Learned counsel for the appellant/husband has laid very much stress on his contention that both the parties have been living separately for more than 14 years and they have been involved in litigation against each other for long time, as such, there is no possibility of re-conciliation between them, rather there is irretrievable breakdown in their marital status, hence, decree may be granted in favour of the appellant/husband. In the case of Mangayakarasi (supra), the Hon’ble Supreme Court has held that though the Supreme Court can in any event exercise the power under Article 142 of Constitution of India in appropriate cases, but in the facts and circumstances of in that case, it did not exercise that power. In the aforesaid case the Apex Court has held that, “the dissolution of marriage merely because they have been litigating and they have been residing separately for quite some time would not be justified in the present facts, more particularly when the restitution of conjugal rights was also considered simultaneously.” 13. In the instant case also, the ground for seeking decree of divorce has already been considered and rejected by the trial Court vide judgment dated 29.7.2015 in Civil Suit No.4A/2014, The respondent/wife is still ready to join the company of the husband, even she has also filed application under 7 Section 9 of the Act, 1955 bearing Civil Suit No. A/9/21 for restitution of conjugal rights, which shows her intention to join the company of the husband, but he is not ready to keep her with him and the wife is not residing separately because of her own, rather because of undue conduct and behaviour of the husband. As such, aforesaid case law is not helpful to the husband in the instant case. 14. Thus, since the ground raised by the husband seeking decree of divorce has already been rejected by the Upper District Judge, Sarangarh Distt. Raigarh vide judgment dated 29.7.2015 passed in Civil Suit No.4A/2014, therefore, the appellant cannot be permitted to raise such ground in the instant divorce petition as that ground has already attained finality and in the instant divorce petition, the appellant/husband has not raised any new ground, which would give him cause of action for getting decree of divorce. As such, I do not find any good ground to interfere with the impugned judgment and decree dated 23.3.2022 passed by Upper District Judge, Sarangarh, Distt. Raigarh in Civil Suit No.06A/2017. 15. Consequentially, the appeal fails and is hereby dismissed. Sd/- (Naresh Kumar Chandravanshi) Judge Bini