1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 234 of 2023 Judgment Reserved on 20.06.2025 Judgment Delivered on 27.06.2025 1 - Abhijeet Chakravarti S/o Sushil Ranjan Chakravarti Aged About 47 Years R/o H. No. 2180, M.I.G., Infront Of Nawyug School, Veer Sawarkar Nagar, Hirapur, P.S. Kabir Nagar, District Raipur (C.G.) (Applicant) ... Appellant versus 1 - Smt. Devyani @ Rani Chakravarti W/o Abhijeet Chakravarti, D/o Samar Chakravarti Aged About 43 Years R/o L.I.G. H. No. 05, Basant Vihar Colony, Mahaveer Nagar, Post Ravi Gram, District Raipur (C.G.) (Defendant) ----Non-appellant ----------------------------------------------------------------------------------------------- For Appellant : Mr. T.K. Jha, Advocate For Respondent : Mrs. Sangeeta Mishra, Advocate ------------------------------------------------------------------------------------------------ Hon'ble Smt. Justice Rajani Dubey and Hon'ble Shri Justice Amitendra Kishore Prasad CAV Judgment VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR 2 Per, Amitendra Kishore Prasad, J. 1. The instant appeal, filed under Section 19 of the Family Courts Act, has been preferred by the appellant husband, who is aggrieved by the impugned judgment and decree dated 18.07.2023 (Annexure A/1), passed by the learned Additional Principal Judge, Family Court, Raipur, District Raipur (C.G.), in Civil Suit No. 823/2021, whereby the learned Family Court dismissed the application filed by the appellant under Section 13(1) of the Hindu Marriage Act for a decree of divorce on the ground of cruelty. 2. The admitted facts of the case are that the parties are husband and wife. Their status will be referred to as it stood before the Family Court. 3. According to the husband, the marriage between the parties was solemnized on 28.11.2015 at Raipur as per Hindu rites and customs. After the marriage, they started their matrimonial life; however, after some time, the behavior of the wife changed, and she began to show cruelty because she was unwilling to stay in the joint family with the appellant. When she conceived, she went to her matrimonial house and, without the husband’s consent, got her pregnancy terminated. Thereafter, she returned to her matrimonial house. She stayed there and became pregnant again in the year 2008. During this pregnancy, she threatened the husband that if he did not agree to let her live separately from the 3 joint family, she would terminate her pregnancy again. She also began refusing to take meals, thereby pressurizing the husband. As a result, the appellant himself took her and left her at her matrimonial house. In the year 2008, without the consent of the husband, she again terminated her pregnancy, which amounted to cruelty against the husband. The wife returned to the matrimonial house, and they started living together; however, during this period, she left on 05.11.2008. After this, their relations became strained and not cordial, with no physical relationship between the parties. On 13.12.2015, due to the wife’s pressure, the husband left her at her maternal house, along with gold and silver ornaments. He also gave her some money so that she could live peacefully. The husband began giving her some amount towards maintenance. Later, an application under Section 127(1) of the CrPC was filed by the wife for enhancement of the maintenance amount, which the appellant has complied with and is paying. The behavior of the wife from 21.11.2005 to 31.11.2015 was of cruelty. The husband was physically and mentally tortured by the wife. Since 05.11.2008, they have not had any physical relationship, and it is not possible in the future as well. Due to the cruel and adamant behavior of the wife, there is no possibility of the parties living together or leading a matrimonial life. Considering the age of the parties, the application for dissolving the marriage dated 28.11.2005 and for granting a decree of divorce has been filed by the appellant. 4 4. After the issuance of notice, the respondent wife filed her written statement denying the contentions of the appellant. She pleaded that the application made against her regarding cruelty and non- observance of rituals is totally misconceived. When she became pregnant, she went to her maternal house to live with her parents due to the ill behavior of the appellant and his family members at her matrimonial house. The appellant was in the habit of drinking liquor and often quarrelled over trivial matters. On many occasions, he assaulted the wife. On the first occasion, when she became pregnant, the appellant stated that he did not have sufficient income and was therefore unable to maintain the expected child. He forcibly gave her some medicine, which caused the termination of her pregnancy. Regarding the second alleged termination of pregnancy in year 2008, the entire allegation made by the husband is totally false and fabricated. The appellant did not like the wife and, in fact, was himself committing cruelty against her. When she became pregnant again, her husband forcibly administered medicine, resulting in the termination of her pregnancy. The appellant consistently claimed that his financial condition was poor, and that was the reason he was unwilling to have a child. No cruelty was committed by the wife. From the very beginning of the marriage, the husband was committing cruelty against her. He never took her to a Doctor when she was ill or in need of treatment and used to leave her at her maternal house. He was habitually intoxicated, used filthy 5 language, and threatened her life. The husband never once went to take the wife back from her matrimonial house. Both the appellant and his family members have been committing cruelty against the wife, especially after she restrained the appellant from drinking liquor. He quarreled with her while using filthy language. Finally, on 13.12.2014, the appellant left the wife at her maternal house in Raipur, telling her to stay there for six months, after which he would decide the next course of action. The application made by the husband is entirely incorrect, false, and fabricated. 5. The learned trial Court, based on the rival submissions, framed issues in this case and recorded the evidence of the parties. After considering the oral and documentary evidence produced by both parties, the learned Family Court dismissed the husband’s application for a decree of divorce, holding that the appellant had failed to prove cruelty committed by the wife and therefore was not entitled to a decree of divorce. Being aggrieved by the aforesaid decree passed against him, the husband has filed this appeal. 6. Learned counsel for the appellant submits that there is overwhelming evidence against the respondent wife for committing cruelty against the husband and his family members; however, the Family Court failed to consider this evidence and, without any reason, dismissed the application seeking a divorce in an illegal manner. The appellant has not been residing with the 6 respondent for a long time. They have had no physical relationship for a considerable period, indicating an irretrievable breakdown of the marriage. Therefore, a decree of divorce ought to be granted. He further submitted that on 07.02.2024, the respondent wife filed an application under the Domestic Violence Act before the JMFC Raipur, despite the fact that she has been residing in her maternal house since 2015, which also amounts to cruelty. The appellant husband moved an application for amendment of the grounds, which was allowed by order dated 09.01.2025. Accordingly, this ground has been taken into consideration for granting a decree of divorce on the basis that the subsequent filing of the application under the Domestic Violence Act also amounts to cruelty. 7. Learned counsel for the respondent wife submits that, from the pleadings as well as the documentary evidence filed by the parties, it is quite apparent that the husband has failed to prove any cruelty committed by the wife. In fact, the husband deserted the wife, due to which she has been residing with her parents since 2015. The entire allegation made against the respondent wife regarding her abortion without the consent of the appellant husband is totally incorrect. It was the appellant husband who was unwilling to have a child and, on both occasions, convinced the respondent wife that he was not earning sufficiently, and, therefore would not bear the expenses of the child. Consequently, he administered some medicine, which resulted in the termination of 7 her pregnancy. The expenses for the termination of pregnancy were borne by the husband. She trusted her husband; however, he cheated her by getting her pregnancy terminated twice. No prudent woman would terminate her pregnancy willingly. The husband disliked her and was unwilling to keep her as his wife. Therefore, he repeatedly left her in her maternal house. When she returned to fulfill her matrimonial obligations, the husband disturbed her. After being left and deserted by her husband, she moved an application for maintenance, in which an order for maintenance was passed. She is surviving on this maintenance amount. The husband has utterly failed to prove the allegations made against the wife. The termination of the respondent wife’s pregnancies was itself a cruelty committed by the husband. She is ready and willing to live with the husband despite all difficulties; however, the husband is not taking her back. The trial Court rightly dismissed the application for divorce, and this order does not warrant interference. 8. We have heard the learned counsel for both parties, considered their rival submissions, perused the evidence led by the parties and the record with utmost circumspection. 9. From the perusal of the application seeking divorce, as well as from the evidence of the applellant husband, it appears that no specific date of termination of pregnancy has been mentioned in the application. The averments regarding termination of 8 pregnancy and cruelty are vague and unspecific. 10. The husband, in his statement under Order 18 Rule 4 of the CPC, has verbatim reproduced a copy of the application. He submits that he has annexed a copy of the prescription dated 03.04.2008 from Bagdi Nursing Home as Annexure P/1, with a photocopy marked as Annexure P/1-C. On 30.10.2006, a sonography report was given as Annexure P/2, with its photocopy marked as Annexure P/2-C. Prescriptions for treatment have also been filed as Annexures P/3 and P/4. In cross-examination, the husband stated that cruelty was committed by the wife. He admits having paid the charges for the termination of pregnancy; however, he denies having given any consent letter. 11. From the aforesaid statement of the husband, there is no specific averment or evidence of cruelty as alleged. No particular instance of cruelty has been demonstrated either in the application or in the evidence. Nothing has been brought on record to show that the pregnancy was terminated by the wife on her own consent. On the contrary, the averments indicate that the husband paid the charges for the abortion, and at that time, there was no dispute. As regards the second pregnancy, it was not specifically mentioned. It is surprising that if the husband is alleging cruelty by the wife on the grounds of ill behavior and abortion, why he would take her back and continue to reside with her. Even for the sake of argument, if it is considered that the wife 9 committed any cruelty, it appears that such cruelty was condoned by the husband as they lived together after such cruelty. There is nothing on record to show that they were not having any physical relationship. On the contrary, it was the appellant’s own pleading that the wife became pregnant a second time; however, this pregnancy was terminated, as alleged by the husband, which has been denied by the wife. The husband and wife resided under one roof, and nothing on record shows that their relationship was restrained. 12. When an application under Section 9 of the Restitution of Conjugal Rights was filed, the parties settled their dispute before the Court. Accordingly, the matter was closed by the concerned Family Court based on a compromise between the parties. Thereafter, the appellant husband raised a false dispute to avoid taking his wife back and lodged a false report before the Police; however, this was not substantiated. From the averments made in the application as well as the evidence presented by the husband, it appears that even if any cruelty was committed by the wife, it has been condoned under Section 23(1)(b) of the Hindu Marriage Act, 1955. Furthermore, no fresh or subsequent cruelty has been alleged by the appellant husband. 13. For the sake of convenience, Section 23(1)(b) of the Hindu Marriage Act 1955 has been reproduced hereinbelow:- “23. Decree in proceedings. (1) In any 10 proceeding under this Act, whether defended or not, if the court is satisfied that- (a) xxxxxx xxxxxxx xxxxxxxx. (b) where the ground of the petition is the ground specified 4[*] in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and [(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and] (c) xxxxxxxx xxxxxxx xxxxxxx (d) xxxxxxxx xxxxxxx xxxxxxx (e) xxxxxxxx xxxxxxx xxxxxxx” 14. Further, the Hon’ble Supreme Court in the matter of Dr. N.G. Dastane vs. Mrs. S. Dastane reported in (1975) 2 SCC 326 has held as under:- "34. We do not propose to spend time on the trifles of their married life. Numerous incidents have been cited by the appellant as constituting cruelty but the simple trivialities which can truly be described as the reasonable wear and tear of married life have to be ignored. It is in the context of such trivialities that one says that spouses take each other for better or worse. In many marriages each party can, if it so wills, 11 discover many a cause for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage. We will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas. 15. In Dr. N.G. Dastane (Supra), the Hon’ble Supreme Court found that the wife had treated the husband with cruelty and thereafter proceeded to examine whether the husband has condoned the cruelty. Answering the issue in favour of the wife, the Supreme Court noticed that under Section 23(1)(b) of the Act, in any proceeding under the Act, the relief prayed for can be decreed only and only if "where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty." The Supreme Court thereafter proceeded to observe thus in paras- 54, 55, 71 & 72:- "54. Before us, the question of condonation was argued by both the sides, It is urged on behalf of the appellant that there is no evidence of condonation while the argument of the respondent is that condonation is implicit in the act of cohabitation and is proved by the fact that, on February 27, 1961 when the spouses parted, the respondent was about 3 months pregnant. Even though condonation was not pleaded as a defence by the respondent it is our duty, in view of the provisions of Section 12 23(1)(b), to find whether, the cruelty was condoned by the appellant, That section casts an obligation on the court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if we are satisfied "but not otherwise", that the petitioner has not in any manner condoned, the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty. 55. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. The evidence of condonation in this case is in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not consist in the mere fact that, the spouses continued to share a common home during or for some time after the spell of cruelty, Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued cohabitation be construed as condonation. Such a construction will hinder reconciliation and. thereby frustrate the benign 13 purpose of marriage laws. 71. Considered in this context, the allegations made by the respondent in her letter Ex. 318 cannot revive the original cause of action. These allegations were provoked by the appellant by his persistent and purposeful accusation, repeated times without number, that the respondent was of unsound mind. He snatched every chance and wasted no opportunity to describe her as a mad woman which, for the purposes of this appeal, we must assume to be wrong and unfounded. He has been denied leave to appeal to this Court from the finding of the High Court that his allegation that the respondent was of unsound mind is baseless. He also protested that he was not liable to maintain the respondent. It is difficult in these circumstances to accept the appellant's argument either that the respondent deserted him or that she treated him with cruelty after her earlier conduct was condoned by him. 72. It is true that the more serious the original offence, the less grave need be the subsequent acts to constitute a revival and in cases of cruelty, "very slight fresh evidence is needed to show a resumption of the cruelty, for cruelty of character is bound, to show itself in conduct and behaviour, day in and day out, night in and night out". But the conduct of the respondent after condonation cannot be viewed apart from the conduct of the appellant after condonation. Condonation is conditional forgiveness but the 14 grant of such forgiveness does not give to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse would be required mutely to submit to the cruelty of the other spouse without relief or remedy. The respondent ought not to have described the appellant's parents as "wicked" but that perhaps is the only allegation in the letter Ex. 318 to which exception may be taken. We find ourselves unable to rely on that solitary circumstance to allow the revival of condoned cruelty." 16. From perusal of the evidence, there is nothing to show that in any subsequent date or time, any cruelty has been committed by the respondent wife. 17. The wife examined herself before the Family Court and, while denying the allegations of cruelty against her, specifically stated that it was the husband and his family members who repeatedly committed cruelty and pressured her to terminate her pregnancy. She underwent abortion twice at the instance of the appellant husband. The husband was in the habit of drinking liquor, and while intoxicated, he abused and assaulted the wife. However, to preserve the relationship, she did not make any complaint. The wife categorically stated that the expenses for the termination of pregnancy were borne by the husband, which confirms the statements made by parties that the termination was solely due to the instance of husband. When the husband left her 15 to live in her maternal house and she had no source of income, she filed an application for maintenance, which was allowed, and she has been living on the maintenance amount since then. From this evidence, the cruelty alleged against the wife is not proved. On the contrary, it appears that the termination of the wife’s pregnancies on two occasions was, in fact, a cruelty committed by the husband. Though the wife has stated that since 2015, when the husband left her, she has been staying with her parents in her matrimonial house, this was because the husband abandoned her and refused to take her back. Regarding the subsequent allegation of cruelty by the wife in filing an application under the Domestic Violence Act, if the husband fails to maintain his wife with dignity, the wife is always at liberty to file an application under the relevant laws. Any subsequent filing of such an application during pendency of this appeal cannot be taken as a ground of cruelty committed by the wife and the same cannot and could not be a ground to pass a decree of divorce. 18. The law is fairly well settled that a party cannot be allowed to take advantage of its own wrongful conduct, therefore, the appellant having compromised the matter by solemn compromise to resume marital life but instead of honouring, ousted the wife out of the house when she tried to resume marital life. The appellant having derived the benefit from the compromise, cannot be granted another undeserving advantage or benefit by granting decree of divorce on the ground of cruelty which he condoned by 16 entering into a compromise. We may not be misunderstood to have found that the appellant has not proved cruelty. Our ground of condonation of cruelty is on assumption that even if the respondent wife has allegedly roughly treated the appellant husband, the same stands condoned. 19. The application under the Domestic Violence Act was filed on 07.02.2024 during the pendency of this appeal, and as such, it cannot be taken as a ground by the husband to allege cruelty committed by the wife in addition to his earlier pleadings. From the earlier pleadings themselves, cruelty committed by the wife has not been proved. Therefore, the subsequent filing of the application under the Domestic Violence Act will not constitute cruelty sufficient to grant a decree of divorce. 20. The trial Court, after considering the entire evidence, held that the cruelty alleged by the appellant was not substantiated by any cogent oral or documentary evidence. Hence, the allegation of cruelty has not been proved. Where the husband files an application seeking a divorce on the ground of cruelty, the onus is upon him to prove the same. If he fails to do so, no relief can be granted, which the trial Court rightly considered before dismissing the application for a decree of divorce. There is no illegality or perversity in the order passed by the trial Court upon due appreciation of the evidence adduced by the parties. 21. Accordingly, this Court is having no hesitation in dismissing 17 the appeal. As such, it stands dismissed. 22. 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