1 Reserved on : 25.02.2025 Delivered on : 02.05.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FAM No. 8 of 2019 1 - Dr. Arvind Sharma S/o D R Sharma Aged About 54 Years Medical Officer, Govt. Homeo Dispensary, Rajnandgaon, Chhattisgarh ... Appellant(s) versus 1 - Smt. Kiran Sharma W/o Dr. Arvind Sharma Aged About 49 Years C/o M S Daage’s House, Through Tushar Homeo Point, Handi Para, Azad Chowk, Raipur, Tahsil And District- Raipur, Chhattisgarh ... Respondent(s) For Appellant (s) : Shri Shobhit Koshta, Advocate For Respondent (s) : Ms. Sakshi Chhabra, Adv. on behalf of Shri Malay Shrivastava, Advocate DB : Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment Per Sachin Singh Rajput, J. This appeal is directed against order dated 15/11/2017 passed by the First Additional Principal Judge, Family Court, Raipur (CG) in H.M.No.47 A/2013 whereby appellant's application under Section 10 of the Hindu Marriage Act, 1955 (for short ‘the Act of 1955’) was dismissed. 2 2. The admitted facts of this case is that respondent is the legally wedded wife of the appellant and out of their wedlock, daughter Shrutika and son Shantanu were born. After marriage, the appellant/husband, his wife and children were living together. His ailing parents were also living with him under his care and supervision. 3. The appellant moved an application under Section 10 of the Act of 1955 for judicial separation before the Family Court, Rajnandgaon on the ground that his old parents were subjected to cruelty by the respondent/wife and she refrained herself from serving his old parents. The appellant had filed C.S.No.77A/2012 which was dismissed due to want of jurisdiction. Thereafter, he moved another application under Section 10 of the Act of 1955 on the ground that the respondent/wife deserted him, she does not want to live in her matrimonial house and living separately with children in Raipur since last 2 years and prayed for judicial separation. 4. The respondent / wife accepting the admitted facts, denied the averments in the application under Section 10 of the Act of 1955. She stated that the appellant/ husband subjected her to cruelty. She was always willing to take charge of her responsibilities. She further stated that the appellant/husband is not willing to keep her with him therefore he, one way or the other made allegations of theft against her as also questioned on her character. Then application for divorce was filed before the Family Court which was dismissed. Thereafter, an appeal was filed before the High Court of Chhattisgarh which was also dismissed. Therefore, she prayed for dismissal of the application. 5. Learned trial Court framed issues, recorded statements of the parties and 3 their witnesses, heard the parties and passed the judgment. Against that judgment, the appellant/husband moved a review petition under Section 114 read with Section 151 and Order 47 Rule 1 of CPC on 30/12/2017 due to which the appeal could not be filed within the statutory period. The review petition was dismissed by the Family Court on 05/11/2018. Hence, this appeal was filed by delay of more than one year. 6. On 12/04/2023, delay of 374 days in filing the appeal was condoned by this Court. 7. Learned counsel for the appellant submits that the impugned judgment is unsustainable in the eye of law. The finding of the learned trial Court in disbelieving the statement of the appellant/husband and his witnesses is bad in law. It is submitted that the learned trial Court deliberately failed to see the statement of the respondent / wife that on the transfer of the appellant from Raipur to Rajnandgaon, she did not turn up to the appellant. If she was willing to join the marital life with the appellant, she herself could have made efforts to do so. It is submitted that the learned trial Court failed to see that earlier the divorce petition filed by the appellant was based on cruelty whereas application filed thereafter under Section 10 of the Act of 1955 was based on desertion and the factum of desertion on the part of non-applicant has specifically been ignored by the trial Court while appreciating the judgment. He placed reliance on the judgment of the High Court of Delhi in the case of Parkash Chand Gupta v. Smt. Kamla Gupta, 1978 SCC OnLine Del 35. Hence, it is prayed that the impugned judgment dated 15/11/2017 may be set aside and the application under Section 10 of the Act of 1955 may be allowed. 4 8. On the other hand, learned counsel for the respondent submits that the submission made by counsel for the appellant is baseless. She submits that the respondent/wife was subjected to cruelty by her husband for a long period and used to level false allegation regarding her moral character, therefore, she left the matrimonial house. She prayed that this appeal may be dismissed. 9. Heard learned counsel for the parties and perused the records. 10. In order to prove his case, the appellant / husband examined himself and two other witnesses. He stated that his ailing old aged parents are residing with him at present and there is no other lady member in his family to take care of them. He stated that the respondent / wife is living separately since last 5 years. He also stated that he was transferred from Raipur to Rajnandgaon and since last 5 years, he is residing there with his parents and he do not know why his wife is residing in Raipur. The other two witnesses have also stated that they did not see the respondent /wife residing with the appellant or coming to appellant’s home since last 6 years. 11. The respondent/wife examined herself and stated that the appellant/ husband subjected her to cruelty several times, many times he attempted to strangulate her. He also doubted her character. She stated that on 09/02/2008, she was subjected to cruelty and assault by her husband in the matter related to meals and on the same day, he left the home. Then she applied for maintenance in the Raipur Court. She stated that the appellant / husband filed complaint against his wife under Section 294, 506, 323, 120, 328 of IPC that his wife used to give some medicine to him to kill him. She stated that due to his cruelty, quarrelsome and 5 doubting character, she left her matrimonial home and residing with her parents. 12. Now the question comes before this Court as to whether the appellant/ husband was able to prove issue no.1 with regard to desertion of respondent / wife 2 years prior to filing of application. From the evidence of the appellant/husband, it appears that he is making allegations of cruelty against the respondent/wife; without any reason or rhyme, she is living separately for the last 6 years and deserted him whereas the respondent / wife has stated that she was subjected to cruelty after the marriage by appellant/ husband and the appellant/husband attempted to assault with hammer and tried to strangulate her. The evidence of the respondent/wife also indicates that the appellant/husband used to suspect on the character of the respondent /wife. It also appears from the evidence of the respondent /wife that the allegation is being leveled against her by the appellant/husband that she involved in witchcraft and trying to kill her husband by giving him poison. 13. Important factor in this case is that for the allegations which are leveled against the respondent/wife, the appellant had filed an application for divorce before the Family Court earlier and that the said application for divorce was dismissed by the Family Court against which the appellant/husband had preferred an appeal before this Court which also stood dismissed by this Court in the year 2010 itself. The cruelty leveled against the respondent/wife by the appellant/ husband was found to be not proved by the learned Family Court in the divorce proceedings and affirmed by this Court in the appeal holding that the respondent/wife has just and reasonable cause for living separately. It goes to show that infact, the respondent/wife had not subjected the appellant/husband to cruelty rather from the evidence brought before this Court, it appears that there is 6 sufficient reason for the respondent/wife to live separately from the husband. Learned Family Court, from the above evidence, brought before it gave a finding that the evidence of the appellant/husband is not trustworthy and held that she is residing separately as a result of cruelty meted out by the appellant / husband. 14. Learned counsel for the appellant tried to persuade this Court that principles of res judicata is not applicable in the case in hand. For this purpose, reliance is placed in the case of Parkash Chand Gupta (supra). In the case in hand, earlier divorce petition filed by the appellant / husband on the ground of cruelty and desertion was dismissed by the Family Court which has been affirmed by this Court, giving a finding of cruelty against the appellant / husband. According to the appellant, the present application for judicial separation was filed in the year 2013 and the respondent/wife deserted him from the year 2008 and therefore, submission was made that without any reason or rhyme, the respondent /wife was living separately. But as discussed earlier, it is the appellant/husband who subjected his wife to cruelty which gave a plausible reason for his wife to live separately. 15. The desertion cannot be assumed merely on the act that one spouse has left the matrimonial home. It is settled position of law that in order to seek the relief of divorce on the ground of desertion, not only withdrawal and living separately from the matrimonial obligation without any justifiable reason is required to be proved but also must prove that there is animus deserendi on the part of deserted spouse. in a judgment reported in Ravi Kumar v. Julmi Devi, 2010 (4) SCC 476, Hon’ble Supreme Court has observed as under - "13. It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se 7 became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home." 16. The finding recorded by the learned Family Court with respect to issue No.1 appears to be based upon proper appreciation of evidence and also on preponderance of probabilities. The judgments cited by counsel for the appellant would not help in any manner in the facts and circumstances of the case. On weighing, the evidence of the appellant and the respondent, it tilts towards the respondent/wife. From the evidence on record, it is established that respondent /wife has just and sufficient cause to live separately. Therefore, we do not find any good ground to interfere with the impugned judgment and decree passed by the learned Family Court. The appeal fails and is accordingly dismissed. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) JUDGE JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.05.02 16:58:15 +0530