1 2025:CGHC:5200-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 269 of 2023 Piyush Kumar Choubey S/o Late Shri Prakash Chand Choubey, aged about 51 years, R/o Kheti Badi Bij Bhandar, Purana Ganj Mandi, Rajnandgaon, Tahsil and District – Rajnandgaon (C.G.) ... Appellant Versus Smt. Archana Choubey D/o Mahesh Narayan Mishra R/o A - 66, B.D.A. Colony, Near Pani Tanki, Tilaj Malpura, District - Bhopal Madhya Pradesh ). ... Respondent For Appellant : Mr. Samir Singh, Advocate. For Respondent : None. Hon'ble Smt. Justice Rajani Dubey, J. Hon’ble Shri Justice Narendra Kumar Vyas, J. Order on Board Per Rajani Dubey, J. 29.01.2025 1. This appeal is filed against the judgment and decree dated 14.06.2023 passed by the learned Family Court, Rajnandgaon (C.G.) passed in Civil Suit No. 208A/2018, whereby the learned 2 trial Court rejected the application filed by the appellant/ husband under Section 13 (1) (a) of the Hindu Marriage Act, 1955. 2. Brief facts of the case are that the appellant/plaintiff and the respondent/defendant were married on 23.05.2005 as per the Hindu traditions and out of their wedlock they have no children. The appellant filed an application under Section 13 (1) (a) of the Hindu Marriage Act, 1955 on 23.10.2018 on the ground of cruelty and desertion and it was alleged by the appellant/husband that the respondent/wife had made several attempts of suicide and her behaviour is not normal, she is continuously abusing and assaulting the appellant/husband and she has started fighting with the appellant/husband and his mother. The respondent/wife’s family at the time of marriage, hidden the fact regarding her illness that their daughter is suffering from arthritis which causes problem in her knees due to which she cannot sit and walk properly. In the year 2015, the appellant/husband had developed jaundice and despite the information, the respondent/wife did not come to see him and even on death of appellant’s father she did not come to her matrimonial home and since 21.11.2014 she is living in her parental home. However, several attempts were made by the appellant/husband for restitution of his matrimonial life, but she did not come. So, the appellant filed an application before the Family Court for dissolution of marriage. 3. The respondent denied all the allegations of the appellant in her written statement and submits that the appellant/husband himself 3 left her at Bhopal and thereafter he never called her. The appellant/husband filed this application on false and frivolous grounds. At the time of marriage, her parents gave gold and silver ornaments and other articles to the appellant which is entitled as “Streedhan”. 4. Before the learned trial Court, the appellant examined himself and one witness, whereas the respondent/wife did not produce any oral and documentary evidence before the learned trial Court. On 24.04.2023, the learned trial Court proceeded ex parte against the respondent/wife and the case was fixed for final argument. 5. The learned trial Court after appreciation of oral and documentary evidence of the appellant/husband dismissed the application filed by the appellant. Hence, this appeal filed by the appellant/husband. 6. Learned counsel for the appellant submits that the impugned judgment and decree is against the facts and circumstances of the case, the learned trial Court had committed serious error while rejecting the matter with a view that it is a case of normal wears and tears in matrimonial life not amounting to cruelty. The Court failed to appreciate that there is no scope of hope left to the parties for reconciliation. The appellant/plaintiff successfully proved his case against his wife/respondent and it is clear that wife remained ex parte and she did not file any documents, and nor examined any witness, but the learned trial Court did not 4 appreciate this fact that the plaintiff proved his case by oral and documentary evidence and it is also clear from the written statement that since 2014, respondent is living separately, but the learned trial Court gave wrong finding and dismissed the application of the appellant/husband. The finding recorded by the learned trial Court is not sustainable. 7. Reliance has been placed on the decision of Hon’ble Apex Court in the matter of Nagesh Sharma Vs. Shweta Sharma reported in 2024 SCC OnLine Chh 8551. 8. No one appeared on behalf of the respondent/wife despite the notice being served twice upon her. 9. Heard learned counsel for the appellant and perused the material available on record. 10. It is clear from record of the learned trial Court that the learned trial Court framed charges on the basis of pleadings of both the parties. Issues No. 1 and 2 are as under:- वाद ्ቚ्቞ निष्क्ቧ 01. क्या ्ቚतिवादी े निववाह के उपरां वादी से ्ቅू रा कारिर की है? " सानि हीं" 02. क्या ्ቚतिवादी े यह यातिका ्ቚस्ु करे के अव्यवनिह 02 व्ቧ पूव से वादी का परिरत्याग निकया है? " सानि हीं 11. It is clear from record of the learned trial Court that the plaintiff examined himself as (PW-01) and witness Roshan Verma as (PW-02) and he also filed affidavit under Order 18 Rule 4 before 5 one witness Snehil Pathak, but he did not appear for his cross- examination before the learned trial Court. 12. The plaintiff filed notice vide Ex. P/01 sent by the respondent/wife and also filed reply of notice vide Ex. P/02. In his examination-in- chief the appellant/plaintiff alleged several allegations against the respondent/wife and in cross-examination it was suggested by the wife that he never came to pick her up from the day he left her in her maternal home. He himself stated that in 2015 when he was suffering from jaundice, his wife never came to see him. Witness Roshan Verma (PW-02) also supported the statement of appellant/husband and stated that in 2015, the plaintiff was suffering from jaundice and he used to do his daily routine in bed for 06-07 months, then he used to stay with him at his house and used to take him to the hospital, despite being suffering from jaundice, the plaintiff used to call the respondent/wife to say that he is unwell and tried to convince her to come back home but she did not come. The respondent/wife filed written statement, but she did not appear before the learned trial Court at the time of examination. The notice was sent twice to the respondent by this Court on 10.10.2023 and after admission of this petition i.e., on 28.11.2024 and in both times, the respondent/wife did not appear before this Court despite service of notice upon her. 13. The question for our decision in the present appeal is whether the learned Family Court was justified in granting the decree of divorce on the ground of desertion and, whether in the facts and 6 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. 14. Section 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 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] 15. 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 7 continuous course of conduct to be determined under the facs 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 form the necessary intention aforesaid. 16. In the light of above judgment, it is clear that both the parties are living separately since 2014 and it is also clear from the record of the learned trial Court that the respondent/wife filed application under Section 27 of the Hindu Marriage Act to get back her “Streedhan”. So, it is clear that both the parties are living separately for more than 10 years and in the light of above judgment and looking to the conduct of the appellant before the learned trial Court and this Court, we are of the opinion that the appellant has proved his case on the ground of cruelty and desertion. The appellant/husband filed oral and documentary evidence in support of his application and the respondent/wife did not file any oral and documentary evidence, but the learned trial Court did not appreciate all these facts and rejected the application of the appellant/husband. The appellant/husband proved his case by both oral and documentary evidence, so his application is allowed and the impugned judgment dated 8 14.06.2023 is set aside. 17. Thus, this appeal is allowed and the impugned decree is set aside, consequently the marriage between the parties dated 23.05.2005 is dissolved from today. We also think it appropriate to fix the one time permanent alimony of Rs. 5,00,000/- (Rupees Five Lakhs only) which shall be deposited before the learned Family Judge within a period of six months. We may want to clarify the amount, if any, deposited earlier shall be adjusted. 18. On the basis of the foregoing discussion, the decree for dissolution of marriage is affirmed on the ground of mental cruelty and desertion this appeal is allowed and the impugned judgment and decree dated 14.06.2023 is set aside and the parties shall bear their respective costs. 19. Let a decree be drawn accordingly. Sd/- Sd/- (Rajani Dubey) (Narendra Kumar Vyas) Judge Judge Uttej