1 2026:CGHC:908-DB The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 09.10.2025 07.01.2026 -- 07.01.2026 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 178 of 2023 {Arising out of judgement and decree dated 29.04.2023 passed by learned Family Court, Raipur, District- Raipur (C.G.) in H.M.A. No.1160/2019} • Smt. Humika Tamrakar, W/o Shri Nitesh Kumar Tamrakar, Aged About 42 Years R/o Lily Chauk, Purani Basti, District Raipur, Chhattisgarh. ... Appellant versus • Shri Nitesh Kumar Tamrakar S/o Shri Mohan Lal Tamrakar Aged About 41 Years R/o Ward No. 42, House No. 348, Subhash Nagar, Kasaridih, Near Mannu Sahu General Stores, Tahsil -District - Durg, Chhattisgarh. ... Respondent For Appellant : Mr. Aniket Verma, Advocate. For Respondent : Mr. Abhyuday Tripathi, Advocate. Hon'ble Smt. Justice Rajani Dubey, J. Hon’ble Shri Justice Amitendra Kishore Prasad, J. C.A.V. Judgment Per Rajani Dubey , J. 1. This appeal is filed by the appellant/wife against the impugned judgment and decree dated 29.04.2023 passed by learned Family Court, Digitally signed by AMIT PATEL 2 Raipur, District- Raipur (C.G.) in H.M.A. No.1160/2019, whereby the learned Family Court has dismissed the application under Section 13 (1) of Hindu Marriage Act, 1955 for decree of divorce and dissolved the marriage between the parties on the ground of cruelty. Therefore, the present appeal filed by the appellant/wife. 2. Brief facts of the case are that the marriage between the parties was solemnized on 27.04.2016 at Dhamdha as per Hindu rites and rituals and since then they are residing together. After few day of their marriage, the respondent/husband’s family started to have a negative attitude towards the appellant/wife. In July, 2017, the appellant became pregnant, however, due to the deliberate negligence of the respondent, the appellant suffered a miscarriage. In January, 2018, the appellant became pregnant again, however, the respondent and his family members gave the appellant wrong medicines and did not take proper care of her as well as did not take her to the hospital, when she needed medical attention the most and this resulted in the appellant’s second miscarriage. The respondent’s family wanted the appellant to adopt the child of the respondent’s sister, whereas the appellant did not want to do so, but the respondent’s family was adamant and continuously tried to convince her forcefully, which was protested by the appellant and that is also the reason due to which the appellant was being continuously harassed in her married life. The appellant had filed a case against the respondent and his family members under Section 498- A read with Section 34 of IPC due to being subjected to cruelty and harassment due to them and the case is still pending before the subordinate court. The respondent/husband had failed to discharge his duty as a husband. The appellant/wife is unable to continue the 3 marriage as she was deprived of the love and care of her husband. The respondent was under the influence of his family members and is very reckless towards his work, which caused the appellant to face financial hardship. Since January, 2017 the appellant went to search for a work and place as she was being thrown out from her in laws’ house. Presently, the appellant is working as Assistant Professor and during that period, the respondent and his family members never asked the appellant to come back. The appellant even tried to stay with the respondent for which she presented an application under Section 09 of Hindu Marriage Act, 1955 but due to the carelessness and irresponsibility of the respondent, the appellant was unsuccessful. Since August, 2018, the appellant and the respondent have been living separately and the appellant tried to be in contact with the respondent, though the latter does not showed any interest in discharging his matrimonial duties as husband, thus the appellant had preferred a suit under Section 13(1) (ia) of Hindu Marriage Act, 1955 before learned Family Court. The application filed by the appellant could not have been decided within a reasonable time, therefore, the appellant was constrained to file a writ petition before this Court thereby seeking direction to decide the matter expeditiously. The aforesaid petition was disposed of by this Court vide order dated 17.12.2020 with a direction to learned Family Court to decide the application of the appellant expeditiously within a period of 09 months. The application of the appellant was taken into consideration on 18.08.2021 where the respondent was not present and the learned Family Court pleased to decide to proceed with matter as ex parte . Thereafter, the statement of the appellant and her witnesses were examined and the matter was 4 heard finally. The learned Family Court pleased to deliver the judgment in the application of the appellant on 15.09.2021 by which the application of the appellant was allowed and decree of divorce was passed in favour of the appellant. Subsequently, the respondent moved an application under Order 9 Rule 13 of CPC with a prayer to recall the order of ex parte decree. The appellant contested the application by submitting a detailed reply. However, the learned Family Court passed an order on 03.11.2022 setting aside the ex parte order dated 15.09.2021 and restored the matter to its original number. 3. Reply has been filed by the respondent/husband, wherein he denied all averments and stated that appellant/wife has filed the application by concealing the fact that the respondent while providing her financial assistance for the desired job and Ph.D examination, had been regularly visiting her paternal home in Durg for approximately 4 to 6 months and had provided financial assistance for her job and studies. As a result, the appellant secured a government job. After which, the appellant/wife began insisting the respondent/husband to live separately from his family members. Then he lived in a rented house with the appellant in Rajnandgaon from February 2017. He further alleged that the appellant was a diabetic prior to marriage and that her sugar levels were always high and the appellant’s advanced age and diabetes posed difficulties in conceiving. The appellant did not provide any documents related to her diabetes before the Court, nor did she disclose this information to respondent prior to the marriage and she filed a case under Section 498- A of IPC by making false allegations against him and his family members. After getting a government job, the appellant/wife began behaving in a completely autocratic manner and began pressuring him 5 to leave her parents and reside permanently in Raipur, or to quit his job and stop traveling to Durg. The appellant/wife argued with the respondent regularly over this issue and she never took responsibility for discharging her marital obligations. Further alleged that the appellant/wife has never provided financial assistance to the respondent or his family members. The respondent's father is a retired government employee and getting pension. The respondent took full care of himself and the appellant through his own business and was never dependent on the appellant and the appellant has been living separately with her own free will. Appellant had filed an application under Section 09 of the Hindu Marriage Act, 1955 before the Family Court, Raipur and stated that she wished to resume the marriage with him. The Court passed its decision in the said case based on the evidence and the respondent ocassionally visited Rajnandgaon to meet the appellant, but the appellant flatly refused to meet or speak with him, however, the respondent still wishes to keep the appellant with him. The appellant stated in her court evidence that she was harassed by her husband and her in-laws in the name of dowry and was compelled to leave her in- laws' home after some time and in this regard, she lodged a complainant at Police Station- Lalbagh, on which after preliminary investigation by the concerned police, a crime under section 498-A/34 of IPC has been registered against the respondent and his family members and a final report has been submitted. It has also been argued on behalf of the appellant that she has held the respondent/husband and his family members responsible for her miscarriage in the year 2017-18 and has stated that the respondent did not pay proper attention to the appellant during pregnancy and delivery, did not take her to the hospital 6 on time and was deliberately negligent, due to which the appellant lose her child. Respondent/husband stated that this application filed by the appellant is mainly in relation to the demand of dowry and non- treatment and care of the appellant by the respondent and a decree for divorce has been sought on the ground of alleged miscarriage of the appellant and cruelty. 4. Learned Family Court framed issues with regard to cruelty and held it against the appellant/wife. After evaluating the evidence dismissed the application preferred by the wife for grant of decree of divorce holding that she has not successfully proved that she was treated with cruelty by respondent/husband. Hence, this appeal. 5. Learned counsel for the appellant/wife would submit that the judgment passed by learned Family Court is erroneous and is liable to be set aside. Learned Family Court erred in not relying into the statement made by the appellant’s brother who has clearly stated that the appellant’s in laws had demanded dowry. Learned Family Court has failed to appreciate that the appellant had initially filed an application under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights. The application was dismissed by the Family Court, subsequently the appellant was constrained to file an application for divorce. Therefore, there is no fruitful purpose left to be served by continuing the marriage. It has been further argued by learned counsel for the appellant that the learned Family Court erred in not appreciating the fact that the appellant has lost two pregnancies due to the deliberate carelessness of the respondent/husband and his family members. The respondent forced the appellant to adopt the child of his sister and that was the reason, he deliberately created the circumstances that led to the 7 miscarriages. The appellant was mentally and physically harassed for dowry as well as adopting sister-in-law’s child. The learned Family Court ought to have appreciated that the appellant and respondent have no child and have been living separately since August, 2018, thus they can start a fresh life by granting divorce and the respondent’s conduct has made it virtually impossible for the appellant to live with him. Therefore, under these circumstances, the impugned judgment and decree deserves to be set aside. In support of his contention, he relied upon the judgment passed by this Court in the matter of Satish Chander Ahuja vs. Sneha Ahuja.1 6. Learned counsel for the respondent/husband has supported the impugned judgment and submits that the learned Family Court has minutely appreciated the oral and documentary evidence on record and rightly dismissed the application preferred by the appellant/wife for grant of decree of divorce holding that she has not successfully proved that she was treated with cruelty by the respondent/husband. As such, the findings recorded by the learned Family Court are well merited. 7. We have heard both the counsel for the parties and perused the material available on record with utmost circumspection. 8. It is an admitted position in this case that the marriage between the parties was solemnized on 27.04.2016 as per Hindu rites and rituals at Dhamdha, District- Durg (C.G.). 9. Appellant-wife has filed an application under Section 13 (1) of Hindu Marriage Act, 1955 for divorce against the respondent/husband. 10. On the basis of pleadings made by the parties, learned Family Court framed the issues, which are reproduced hereinbelow for ready 1 (2021) 1 SCC 414 8 reference as under:- वाद  क 1. या अावेदक े आवेदका को शारीरक एवं माक प े तात कर उके त !ू रता कारत कया गया है? "ह&" 2. या आवेदका, अावेदक े ववाह व'छेद की आ*+ ा+ करे का अ,कारी है? "ह&" 3. हायता एवं -यय? " कं का 48 के अुार" 11. Appellant has also filed an application under Order 41 Rule 27 of CPC on this ground that she lodged the report against the respondent/ husband and his family members for offence punishable under Section 498-A/34 of IPC and during the pendency of the case, the criminal trial was pending before the learned Judicial Magistrate First Class, Rajnandgaon and learned Judicial Magistrate First Class passed the judgment on 29.05.2024 and thereby acquitted his family members of the said charge, but convicted the respondent/husband. 12. Since the aforesaid criminal case was pending for final adjudication, therefore, the said fact could not have been taken into consideration. Learned Judicial Magistrate First Class has passed the judgment on 29.05.2024 and convicted the respondent/husband Nitesh Kumar and this subsequent development is very relevant and germen to the present issue, therefore, this document is taken on record. 13. Learned counsel for the respondent/husband strongly opposes the prayer as made by the learned counsel for the appellant/wife and submits that learned trial Court has duly considered this fact that criminal case was pending and after that dismissed the application of wife for divorce. 9 14. It is apparent from record that appellant/wife had filed an application on 13.12.2019 and learned Family Court had registered the case as H.M.A. No. 1160/2019 and the respondent/husband was remained ex parte before learned Family Court and ex parte decree was passed by learned Family Court on 15.09.2021 in favour of the appellant/wife and dissolved the marriage between the parties and against this ex parte judgment and decree, the respondent/husband had filed an application under Order 09 Rule 13 of C.P.C. and the case was registered as C.M.C. No. 88/2021. On 03.11.2022, learned trial Court had allowed the application of the respondent/husband under Order 09 Rule 13 of CPC and set aside the judgment and decree dated 15.09.2021 and after that both parties again filed oral and documentary evidence before learned Family Court and the learned Family Court by impugned judgment and decree dated 29.04.2023 dismissed the application of the appellant/wife. 15. Before the learned Family Court, the appellant/wife examined herself as PW-1 and her brother Reegal Tamrakar as PW-2. On the other side, the respondent/husband has also examined himself as DW-1. 16. In her affidavit filed by the appellant/wife under Section 18 Rule 04 of CPC, stated that she was subjected to persecution in connection with demand of dowry by her husband and his family members and in July, 2017 when she was pregnant, due to the deliberate negligence of the respondent/husband, she suffered a miscarriage. In January, 2018, the appellant became pregnant again, however, the respondent and his family members gave her wrong medicines and did not take her to the hospital, when she needed medical attention and this resulted in the appellant’s second miscarriage. The respondent’s family wanted the 10 appellant to adopt the child of the respondent’s sister whereas the appellant did not want to do so, but the respondent’s family was adamant and continuously tried to convince her forcefully. She further stated in her affidavit that her in laws assaulted her, therefore, she lodged an FIR for offence under Section 498-A, 34 of IPC against the respondent and his family members. In the year 2017, her husband and in-laws threw her out of the house. She had filed an application under Section 09 of Hindu Marriage Act, 1955 for restitution of conjugal rights, but due to behaviour of the respondent/husband, her efforts went unsuccessful. She was deserted by the respondent/husband in 2018 and has been living separately since then. She filed certified copy of charge-sheet vide Ex.P/1. In her cross-examination, she denied this suggestion that she disliked the fact that the respondent traveled daily from Rajnandgaon to Durg and denied that she pressurized the respondent to live permanently in Rajnandgaon or Raipur i.e., separately from his family members. She further denied that ever having underestimated the respondent's work after getting a job and she pressurized the respondent to leave his job. 17. Reegal Tamrakar (PW-2) supported his sister's statement and he denied the suggestion that his sister was diabetic prior to her marriage. 18. Respondent/husband- Nitesh Kumar Tamrakar has stated in her affidavit filed under Order 18 Rule 04 of CPC that the appellant/wife after getting a government job, she started neglecting him and pressurized to live separately from his parents. In his cross- examination, he admitted the fact that the appellant/wife had two miscarriages in the years 2017 and 2018, but he denied the suggestion 11 that he was responsible for both miscarriages. In para 12 of his cross-examination, he admitted this fact that the appellant had filed an application under Section 09 of Hindu Marriage Act, 1955 for restitution of conjugal right, whereas, he did not file the same. 19. Learned Family Court minutely appreciated the oral and documentary evidence and finds in para 45, which is reproduced herein below for ready reference as under:- “45. यह त/य क0 त है क अावेदक तेश कु मार तथा उके भाई, माता पता व बह के व5 ,ारा 498 अ/34 भा.दं.ं. का करण राजांदगांव 8यायालय म: लंबत है। इ कार उ= दहेज को लेकर तात करे के ंबं, म: आवेदका >ारा जो अ?भयोग अावेदक तथा उके परवार के व@5 लगाया है, उका राकरण Aम 8यायालय े ह& हुआ है। इ परBCथतयD म: यह क0 त ह& माा जा कता क अावेदक तथा उके परवार के दCयD >ारा आवेदका को दहेज के ाम पर शारीरक व माक प े तात कर की कार की !ू रता कारत की गयी हो।" This judgment passed by learned Family Court on 29.04.2023 and during the pendency of this appeal before this Court, learned Judicial Magistrate First Class, Rajnandgaon passed the judgment on 29.05.2024 and thereby convicted the respondent/husband for offence punishable under Section 498-A of IPC and awarded sentence of 02 years rigorous imprisonment with fine amount of Rs. 5,000/-, in default of payment of fine, to undergo additional rigorous imprisonment for one month. 12 20. It is evident that this judgment was passed by learned Judicial Magistrate First Class during the pendency of this appeal and criminal trial was pending during civil suit of divorce. The judgment of the criminal Court is well relevant to the present issue. 21. The respondent/husband admitted in paragraph 12 of his statement that the appellant/wife filed an application under Section 9 for restitution of conjugal rights, whereas, he did not file the same. The case was subsequently disposed of and they still continue to live separately. 22. Both parties did not file a copy of judgment or order of application of Section 09, but in para 23, the appellant/wife admitted that she filed an application for counseling before Women Cell, Rajnandgaon ("महला कोE") where the counseling of both the parties took place and she further admitted that during that time both wife and husband lived together and both of them used to come together for their counseling. 23. Thus, it is clear that all efforts made by the appellant/wife to resume her marriage with the respondent went in vain. A criminal court has also now convicted the respondent/husband for an offence under Section 498-A of the IPC for subjecting the appellant/wife to harassment or cruelty. 24. In order to examine the cruelty, the principles laid down by the Supreme Court in the matter of Amutha Vs. A.R. Subramanian2, held in paras 27, 28 and 3, read as under :- 27. One of the primary grounds for the dissolution of the marriage is the appellant’s conduct, which constitutes mental cruelty under Section 13 (1) (ia) of HMA. The 2. 2024 SCC OnLine SC 13 respondent has provided sufficient evidence to show that the appellant was engaged in a pattern of behavior that caused him immense mental and emotional distress. This included filing false and baseless criminal complaints against the respondent and his family, which not only strained their relationship but also caused significant damage to his reputation and peace of mind. 28. In N.G. Dastane (Dr.)Vs. S. Dastane3 this Court laid down the principle that cruelty is not confined to physical violence but also encompasses actions that inflict mental pain and suffering that creates a reasonable apprehension of harm or injury to the aggrieved spouse from the conduct of the other spouse so as to make it impossible for them to stay together. In the present case, the appellant’s conduct, including the initiation of frivolous legal proceedings, falls squarely within the definition of mental cruelty. The respondent’s claim is further supported by this Court’s judgment in Samar Ghosh (Supra), wherein it was recognized that actions causing sustained emotional torment and loss of trust in the marital relationship constitutes cruelty. 34. It is evident from the record thatcontinuation of the marriage would only lead to further animosity and litigation, causing harm to both parties. The appellant’s insistence on reconciliation appears to be more of a strategy 3. 1975 (2) SCC 326, 14 to prologn the proceedings rather than a genuine effort to revive the relationship. In matrimonial disputes, this Court has emphasized the need to prioritize welfare and dignity of both parties. Forcing a marriage to continue when it has become a source of unhappiness and conflict undermines the very purpose of the institution of marriage. In the present case, the interests of both the parties to move on with their lives independently.” 25. In consequence of the aforesaid facts, we are of the view that the judgment and decree passed by the learned Family Court cannot be allowed to sustain. Accordingly, in view of the law laid down by the Hon’ble Supreme Court, we hold that the appellant/wife was able to prove the cruelty by the husband, as such, she is entitled for a decree of divorce. Therefore, the impugned judgment and decree dated 29.04.2023 passed by learned Family Court is set aside and the appellant/wife is entitled to get a decree of divorce on the ground of cruelty. Accordingly, we order that the marriage dated 27.04.2016 solemnized in between the parties shall be dissolved by a decree of divorce. 26. A decree be drawn up accordingly. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) JUDGE JUDGE AMIT PATEL