1 2026:CGHC:4986-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 307 of 2024 Dheeraj Kumar Sahu S/o Late Duryodhan Lal Sahu aged about 34 Years R/o Kodiya Block Dhamdha District- Durg ( C.G.). --- Appellant/Plainti% versus Jyoti Sahu W/o Shri Dheeraj Kumar Sahu, aged about 34 Years R/o Five Building, Malviya Nagar District- Durg ( C.G.). --- Respondent/Defendant For Appellant : Mr. Ashwin Panickar, Advocate For Respondent : Mr. Rishikant Mahobia, Advocate Hon’ble Shri Sanjay K. Agrawal, Judge Hon’ble Shri Arvind Kumar Verma, Judge Judgment on Board 28/01 /202 6 Arvind Kumar Verma J. 1. Invoking jurisdiction of this Court under Section 19(1) of Family Court Act, 1984 and Section 28 of the Hindu Marriage Act, 1955, the appellant/plainti; has preferred this appeal against the impugned judgment and decree dated 23.07.2024 (Annexure A/1) passed by learned Principal Judge, Family Court, Durg in Civil Suit No. 447/2022 whereby application >led by the appellant/plainti; under Section 13(1)(i- a) (i-b) of the Hindu Marriage Act, 1955 (hereinafter the Act of 1955) Digitally signed by JYOTI JHA Date: 2026.01.30 11:38:46 +0530 2 seeking decree for dissolution of marriage on the ground of cruelty and desertion has been rejected >nding no merit. 2. The aforesaid challenge has been made on the following factual backdrop :- a) The marriage of appellant/plainti; with respondent/defendant was solemnized on 03.02.2014 as per Hindu rites and customs in Durg and they were blessed with a baby girl namely Anubhavi Sahu on 18.11.2014. Thereafter, the appellant was subjected to continuous mental and physical harassment, culminating in a violent assault. The incident dated 17.10.2019, which occurred on the occasion of Karva Chauth and involved a physical assault on the appellant by the respondent with the aid of her brother, resulted in injuries to the appellant and created a real and reasonable apprehension to his life and personal safety. A report in this regard was lodged at Police Station Padmanabhpur, Durg. Owing to the said incident and the continuing hostile conduct of the respondent, the appellant was compelled to leave the matrimonial home and reside at di;erent places to safeguard his life, whereas the respondent continued to reside independently in the matrimonial house. Since 17.10.2019, the appellant and respondent have been living separately for more than two years. The matrimonial relationship has irretrievably broken down and there exists no reasonable possibility of resumption of conjugal life. Therefore, the appellant >led suit for divorce and dissolution of marriage before the learned Family Court, Durg on the ground of cruelty and desertion by respondent and decree for dissolution of marriage under Section 13 of the Act of 1955 be granted in his favour. (b) Respondent/defendant opposed the application and >led her written statement stating that it is the appellant/plainti; who has deserted her 3 without any lawful cause. No cruelty has been committed by her with her husband and her mother namely Keshar Sahu. She is living with her mother-in-law in the matrimonial house along with her minor daughter. The appellant has left his house due to extra material a;airs. However, she is ready and willing to reside with him. She does not wish to deprive her minor daughter of the love and a;ection of her father. The aged mother of the appellant is being duly looked after and maintained by her. Hence, the application >led by the appellant is not maintainable and is liable to be dismissed. 3. In sum and substance, learned Principal Judge Family Court, after consideration of oral and documentary evidence on record, held that appellant/plainti; has failed to prove and establish that respondent/defendant has committed cruelty towards him and proceeded to dismiss the suit >led by him on the ground enumerated under Section 13(1)(ia) of the Act of 1955. 4. Mr. Ashwin Panickar, learned counsel for the appellant/plainti;, would submit that the Family Court is absolutely unjusti>ed in rejecting the application >led by the appellant/plainti; by recording a >nding which is perverse and contrary to the record as the learned Trial Court misinterpreted the incident that occurred on 17.10.2019 on Karva Chauth there was argument between the Appellant and Respondent and her brother in course of which they beat the Appellant requiring the Appellant to seek medical help from Government Hospital, Durg. The Respondent in para 26 of cross examination has also admitted that the Appellant was treated for injuries in Government Hospital, Durg. Thus there was substantial evidence for the Trial Court to come to the conclusion that on 17.10.2019 the Appellant was beaten up by the Respondent and her 4 brother, thereafter the Respondent >led complaint on 18.10.2019 P-2, claiming the Appellant is drunkard, abusive and has extra marital a;airs, thereby forcing Appellant to Cee from his marital home. Hence Respondent's conduct amounts to cruelty. He would submit that the learned Trial Court erred in treating the vague allegations of extra marital a;air being made by the Respondent as cruelty towards Appellant as the Respondent in her cross examination para 18 has admitted that she has not seen the appellant in objectionable position with any girl but she used to caution him from talking to neighbour. He would rely upon the decision rendered by the Supreme Court in the matter of Narendra Vs. K. Meena 1 and the decision of this Court in Dr. Dinesh Patel v. Dr. Mala Chaudhary 2 wherein it has been that false allegation of extra marital a;air is cruelty. 5. Learned counsel for the appellant would further submit that the learned Trial Court dismissed application 19.12.2022 for amending the plaint with regard to the issue of conversion of respondent but during the pendency of the Appeal appellant was able to obtain photographs and videos of respondent attending and giving testimonies on changes in her life due to prayers done for her by the Pastor at prayer meetings at Anugrah Jyoti Prophetic Church in Durg which were >led in Appeal as additional documents. The Respondent's observance of Christian faith is another ground for divorce for the appellant as this Hon'ble Court in Smt. Neha Chandra v. Vikash Chandra 3 relying on the judgment of Hon'ble Supreme Court in Lily Thomas Vs. Union of India4 upheld the >ndings of the trial court and held that conversion is a ground for divorce under Section 13 of the Hindu Marriage Act, 1955. 1 2016 9 SCC 455 2 FA(MAT) 91/2024, decided on 09.01.2026 3 FA(MAT) No. 132 of 2023, decided on 25.10.2024 4 Laws(SC)-2000-5-113 5 6. Mr. Rishikant Mahobia, 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 he would further submit that learned Family Court is absolutely justi>ed in rejecting the application for dissolution of marriage >led by the appellant/plainti; on the ground of desertion. 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 <rst question for determination in this appeal is, “whether the Family Court is justi>ed in rejecting the application >led by the appellant/plainti; under Section 13(1)(i-a) holding that the ground of cruelty on the part of respondent/defendant has not been proved and established by the appellant/plainti; ?” 9. At this stage, it would be relevant to notice the provision contained under Section 13(1)(ia) and 13(i-b) 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” (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; Explanation. - In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect 6 of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” 10. The word ‘cruelty’ has not been speci>cally de>ned in the Act of 1955. However, the Supreme Court in the matter of Samar Ghosh v. Jaya Ghosh5 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 su*ering 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 a*ection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indi*erence 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 unjusti0able conduct and behaviour of one spouse actually a*ecting 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. 5 (2007) 4 SCC 511 7 (vii) Sustained reprehensible conduct, studied neglect, indi*erence 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, sel0shness, 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 0nds it extremely di1cult 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 0ction 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 aJrms 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 8 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 v. Mrs. S. Dastane6 para 23] 12. In the instant case, admittedly, the marriage of the appellant/plainti; and the respondent/defendant was solemnized on 03.02.2014 as per Hindu rites and customs, and from the said wedlock a daughter was born on 18.11.2014. The parties thereafter resided together in the matrimonial home situated at the government quarter allotted to the appellant at Malviya Nagar, Durg, where the respondent continued to live along with the minor child and the appellant’s mother. The appellant has alleged that soon after the marriage the respondent subjected him to cruelty; however, it has come on record that for nearly nine years of cohabitation no complaint was ever lodged by the appellant before any police authority, court, social forum, or elders of the community, nor was any independent or family witness examined to substantiate such allegations. The primary incident relied upon by the appellant is stated to have occurred on 17.10.2019 on the occasion of Karva Chauth, alleging physical assault by the respondent and her brother; however, the said allegation remains uncorroborated inasmuch as no First Information Report, medical report, or copy of any complaint has been produced, and even the appellant’s mother, who was residing in the same house at the relevant time, has categorically denied any such incident. On the contrary, the record discloses that it was the respondent who approached the Women Police Station with a complaint, followed by counselling proceedings wherein she expressed her willingness to reside with the appellant. It is further established that the respondent has continuously remained in the matrimonial home with the minor daughter 6 AIR 1975 SC 1534 9 and the appellant’s mother, whereas the appellant himself left the matrimonial house and started residing separately at di;erent places since the year 2022. Despite issuance of a legal notice by the appellant seeking dissolution of marriage, the respondent reiterated her desire to continue the matrimonial relationship, thereby negating any intention on her part to desert the appellant. In matrimonial disputes, vague, bald, and uncorroborated allegations, particularly when raised after a long period of silence, cannot constitute cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act, 1955. Thus, there is no evidence available on record to prove cruelty under Section 13(1)(i-a) on the part of respondent/defendant. 13. The Second question that arises for consideration in this appeal is, “whether the Family Court is justi>ed in rejecting the application >led by the appellant/plainti; under Section 13(1)(i-b) of the Act of 1955 for grant of decree for dissolution of marriage on the ground of desertion. 14. A careful perusal of Section 13(i)(ib) of the Act of 1955 would show that husband or wife would be entitled for decree of dissolution of marriage on the ground of desertion if the other party to the marriage is residing separately for a period of two or more years without reasonable cause or consent or against the wishes of such party. 15. In the matter of Lachman Utamchand Kirpalani v. Meena alias Mota7, their Lordships of the Supreme Court have clearly held that for o;ence of desertion so far as deserting spouse is concerned, two essential conditions must be there : (1) factum of separation and (2) intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is 7 AIR 1964 SC 40 10 concerned : (1) absence of consent and (2) absence of conduct giving reasonable cause to spouse leaving matrimonial home to form necessary intention aforesaid. 16. Section 13(1)(ib) of the Act of 1955 along with its explanation has to be read with Section 23(1)(a) of the Act of 1955, which provides as under :- “23. Decree in proceedings. - (1) In any proceeding under this Act, whether defended or not, if the court is satis>ed that - (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground speci>ed in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and” 17. A careful perusal of the aforesaid provision would show that under sub- section (a) of clause (1) of Section 23 of the Act of 1955, in any proceeding under the Act, if the Court is satis>ed that any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, the Court shall grant the relief under Section 23(1)(a) of the Act of 1955. Therefore, even if a proceeding is undefended, it is obligatory on court to be satis>ed under Section 23(1)(a) of the Act of 1955 that petitioner is not in any way taking advantage of his or her own wrong or disability for purpose of such relief. The Court is bound to take into consideration conduct of petitioner. If the petitioner has by his own misdeeds forced his spouse to leave him, he cannot be allowed to take advantage of his own wrong and ask for assistance of Court to perpetuate his own wrong doing. 11 18. The Supreme Court, in the matter of Dharmendra Kumar v. Usha Kumar8, has held that in order to be a ‘wrong’ within the meaning of Section 23(1)(a) of the Act of 1955, the conduct alleged has to be something more than a mere disinclination to agree to an o;er of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. 19. In the matter of Chetan Dass v. Kamla Devi9, their Lordships of the Supreme Court have held that the husband, who committed wrong (adulterous life) cannot be given advantage of his own wrong and cannot be granted divorce on the ground of desertion on part of his wife who is still prepared to live with him and further observed as under :- “18. … In the present case, the allegations of adulterous conduct of the appellant have been found to be correct and the Courts below have recorded a >nding to the same e;ect. In such circumstances, in our view, the provisions contained under Section 23 of the Hindu Marriage Act would be attracted and the appellant would not be allowed to take advantage of his own wrong. Let the things be not misunderstood nor any permissiveness under the law be inferred, allowing an erring party who has been found to be so by recording of a >nding of fact in judicial proceedings, that it would be quite easy to push and drive the spouse to corner and then brazenly take a plea of desertion on the part of the party su;ering so long at the hands of the wrong-doer and walk away out of the matrimonial alliance on the ground that marriage has broken down.” 20. Coming to the facts of the instant case in light of the principle of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra) clearly de>ning wrong/misconduct within the meaning of Section 23(1)(a) of the Act of 1955, it is quite established that marriage between the parties cannot be dissolved unilaterally by any of the parties to the marriage. In the present case, learned Family Court has recorded a clear- cut >nding that the applicant himself deserted the respondent and started 8 AIR 1977 SC 2218 9 AIR 2001 SC 1709 12 living separately, and therefore, he cannot hold the respondent responsible for his own fault. 21. The evidence on record clearly demonstrates that the respondent–wife has continuously resided in the matrimonial home i.e. the government quarter at Durg, along with the minor daughter and the appellant’s mother. The respondent, examined as DW-1, has categorically deposed that she is willing and ready to reside with the appellant and to discharge her matrimonial obligations. This testimony >nds corroboration from the appellant himself, who has admitted in paragraph 30 of his cross- examination that while he desires divorce, the respondent does not want dissolution of marriage and wishes to continue matrimonial life. 22. The most crucial evidence on this issue comes from Kesar Sahu (DW-2), the appellant’s own mother, who is a independent witness residing with the respondent, has unequivocally stated in her examination-in-chief that the respondent never deserted the appellant nor treated him with cruelty, and that it was the appellant who voluntarily left the matrimonial home in the year 2022 due to his relationship with another woman and thereafter started residing separately at di;erent places. The testimony of DW-2 has remained consistent and unshaken. 23. In view of such cogent and consistent evidence, it stands clearly established that the separation, if any, was the result of the appellant’s own conduct and not due to any act or intention of the respondent. Consequently, the appellant cannot be permitted to take advantage of his own wrong to seek a decree of dissolution of marriage on the ground of desertion, and the Family Court was fully justi>ed in rejecting the appellant’s claim under Section 13(1)(i-b) of the Act of 1955. 13 24. In view of the aforesaid legal discussion and analysis, we are of the considered opinion that learned Family Court has rightly rejected the application >led by the appellant/plainti; seeking decree for dissolution of marriage on the ground of cruelty and desertion under Section 13(1)(i-a) (i-b) of the Act of 1955 >nding no merit and we do not >nd any good ground to interfere with the impugned judgment and decree passed by the Family Court. 25. Accordingly, this appeal, being devoid of merits, is liable to be and is hereby dismissed leaving the parties to bear their own cost(s). Sd/- Sd/- (Sanjay K. Agrawal) (Arvind Kumar Verma) Judge Judge Jyoti