Judgment : Sanjay K. Agrawal, J. 1. Invoking jurisdiction of this Court under Section 19(1) of Family Court Act, 1984 read with Section 28 of Hindu Marriage Act, 1955 (hereinafter, “the Act of 1955”), the appellant/plaintiff has preferred this appeal calling in question the legality, validity and correctness of impugned judgment and decree dated 20/08/2024 passed in Civil Suit No. 96-A/2023 whereby learned Additional Judge, Family Court, Janjgir, District Janjgir-Champa has dismissed the suit filed by the appellant/plaintiff seeking decree for divorce on the ground of cruelty enumerated under Section 13(1)(ia) of the Act of 1955 finding no merit. 2. The aforesaid challenge has been made on the following factual backdrop :- (a) The marriage of appellant/plaintiff with respondent/defendant was solemnized on 11/12/2020 and they were blessed with a baby girl namely Surbhi on 07/10/2022. Thereafter, matrimonial dispute arose between them and it is the case of the appellant/plaintiff that he was abused and threatened by some unknown person by three sim numbers 9294820611, 8982615194 and 9303491037 which were obtained by the respondent/defendant in the social meeting held in Janjgir in November, 2022 wherein both the appellant/plaintiff and respondent/defendant were given understanding after which both of them again continued to live together as husband and wife. Thereafter, on 16/03/2023, respondent/defendant threatened the appellant/plaintiff to get him involved in a false dowry case and tonhi pratadna which led the appellant/plaintiff to file a complaint against the respondent/defendant before the SHO, Janjgir and on 19/03/2023, notice under Section 155 of CrPC was issued for non-cognizable offence and thereafter, on 29/03/2023, respondent/defendant left her matrimonial house and on 04/04/2023, the appellant/plaintiff filed application under Section 13(1)(ia) of the Act of 1955 for dissolution of marriage. (b) Respondent/defendant filed her written statement and apart from the admitted facts opposed the plaint averments stating inter alia that appellant/plaintiff entered into dispute with his brother Moolchand, therefore, he decided to live separately with the respondent/defendant and appellant/plaintiff wants to desert her and so he has filed false complaints against him, however, she still wishes to live with him, therefore, the suit filed by him be dismissed. 3. Learned Family Court framed the following two issues for determination and answered them as stated below :- 4. 3. Learned Family Court framed the following two issues for determination and answered them as stated below :- 4. In sum and substance, learned Family Court, after consideration of oral and documentary evidence on record, held that appellant/plaintiff has failed to prove and establish that respondent/defendant has cruelty to him and proceeded to dismiss the suit filed by him on the ground enumerated under Section 13(1)(ia) of the Act of 1955. 5. Mr. H.V. Sharma, learned counsel for the appellant/plaintiff, would submit that the Family Court is absolutely unjustified in dismissing the suit filed by the appellant/plaintiff holding that the ground of cruelty has not been proved and established as the documents Ex. P/1 to P/3 would show that cruelty on the part of the respondent/defendant has duly been established. He would rely upon the decision rendered by the Supreme Court in the matter of Dr. N.G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534 to buttress his submission. 6. Mr. Mahendra Dubey, learned counsel for the respondent/defendant, would support the impugned judgment and decree and submit that there is no cruelty at all on the part of the respondent/defendant and learned Family Court has rightly held that the fact of cruelty, if any, has been condoned by the appellant/plaintiff herein, as such, the instant appeal is liable to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The question for determination in this appeal is, “whether the Family Court is justified in holding that the ground of cruelty on the part of respondent/defendant has not been proved and established by the appellant/plaintiff ?” 9. At this stage, it would be relevant to notice the provision contained under Section 13(1)(ia) of the Act of 1955, which provides as 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 - (i) XXX XXX (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty, or” 10. The word ‘cruelty’ has not been specifically defined in the Act of 1955. The word ‘cruelty’ has not been specifically defined in the Act of 1955. However, the Supreme Court in the matter of Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 has laid down some situations or instances of human behaviour that would constitute mental cruelty. Paragraph 101 of the report states as under :- “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day- to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 11. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 11. It is doubtless that burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with common sense as it is so much easier to prove a positive than a negative. The petitioner must therefore, prove that the respondent has treated him with cruelty within the meaning of Section 10(1)(b) of the Act.[ See : Dr. N.G. Dastane (supra) para 23] 12. In the instant case, admittedly, the marriage of appellant/plaintiff and respondent/defendant was solemnized on 11/12/2020 and thereafter, on 07/10/2022, they were blessed with a girl child. It appears that immediately thereafter dispute arose between them due to which a social meeting was held at Janjgir in November, 2022 wherein according to the appellant/plaintiff, three sim cards, which were used by some unknown person to abuse and threatend him, were recovered from the respondent/defendant. However, both of them were made to understand and thereafter, they started living together as husband and wife again but on 10/02/2023, vide Ex. P/1, appellant/plaintiff filed a complaint that some unknown person was calling him from three phone numbers (as mentioned above) and abusing and threatening him to leak obscene videos of his wife and thereafter, on 18/03/2023 (Ex. P/3), appellant/plaintiff again filed a complaint against the respondent/defendant that those sim cards were recovered from the respondent/defendant and she was threatening him to file a false case of dowry and tonhi pratadna against him and his family pursuant to which notice under Section 155 of CrPC was issued for non-cognizable offence. P/3), appellant/plaintiff again filed a complaint against the respondent/defendant that those sim cards were recovered from the respondent/defendant and she was threatening him to file a false case of dowry and tonhi pratadna against him and his family pursuant to which notice under Section 155 of CrPC was issued for non-cognizable offence. However, appellant/plaintiff Lokesh Chandra Katakwar (P.W.-1) has himself admitted before the Court that his wife has not filed any complaint with regard to demand of dowry or tonhi pratadna against him and moreover, those three sim cards from which threatening calls were made to him, have neither been produced nor any attempt has been made to get the sim numbers checked as to find out that in whose names they were registered and no call details have either been brought on record in order to prove that these calls were made to abuse/threaten him at the instance of the respondent/defendant. Thus, there is no evidence available on record to prove cruelty on the part of respondent/defendant. Even otherwise, it is the case of the appellant/plaintiff and after he recovered the three sim cards from the respondent/defendant, a social meeting was held in November, 2022 where both the parties were given understanding and thereafter, both of them continued to live together as husband and wife till 29/03/2023, which shows that cruelty, if any, was condoned by the appellant/plaintiff. 13. At this stage, it would be relevant to notice Section 23(1)(b) of the Act of 1955 which provides that if the Court is satisfied that 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. 14. The Supreme Court, in the matter of Dr. N.G. Dastane (supra), has clearly held that 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. (see: para 55). 15. 14. The Supreme Court, in the matter of Dr. N.G. Dastane (supra), has clearly held that 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. (see: para 55). 15. In the instant case, if the admitted facts are taken as it is, it reveals that after the appellant/plaintiff having recovered those three sim cards from the respondent/defendant, social meeting was held in November, 2022, however, the meeting was concluded by giving understanding to both the parties pursuant to which both of them continued to live together as husband and wife till 29/03/2023, when respondent/defendant left her matrimonial house, that too, because of the complaint filed by the appellant/plaintiff against her vide Ex. P/3. Thus, it appears that cruelty, if any, was condoned by the appellant/plaintiff, which has rightly been held by learned Family Court. In that view of the matter, we are of the view that learned Family Court has rightly held that appellant/plaintiff has failed to prove the ground of cruelty as enumerated under Section 13(1)(ia) of the Act of 1955 against the respondent/defendant and cruelty, if any, has been condoned by the appellant/plaintiff. 16. Accordingly, the instant appeal, being devoid of merits, is liable to be and is hereby dismissed leaving the parties to bear their own cost(s). 17. A decree be drawn accordingly.