1 2026:CGHC:2828-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 152 of 2024 Judgement reserved on 05.01.2026 Judgement delivered on 16.01.2026 Judgement uploaded [full] on 16.01.2026 Smt. Vijaylata Khare W/o Ashok Kumar Khare Aged About 40 Years R/o Vill - Sarwani, P.S. And Tah. Kasdol, Dist - Baloda Bazar- Bhatapara, Chhattisgarh. ... Appellant/defendant versus Ashok Kumar Khare S/o Jivrakhan Aged About 49 Years R/o Vill - Barbhantha, P.S. And Tah. Nawagarh, Distt - Janjgir- Champa, Chhattisgarh. ... Respondent/plaintiff For Appellant : Mr. Vaibhav A. Goverdhan, Advocate For Respondent : Mr. H. V. Sharma, Advocate (Division Bench) Hon’ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal CAV Judgment BHOLA NATH KHATAI Digitally signed by BHOLA NATH KHATAI Date: 2026.01.16 17:20:52 +0530 2 Sanjay K. Agrawal, J. 1. Appellant/defendant/wife has preferred this appeal under Section 19(1) of the Family Courts Act, 1984 feeling aggrieved and dissatisfied with judgment and decree dated 09.04.2024 passed by the Principal Judge, Family Court, Janjgir, District Janjgir-Champa (CG) in Civil Suit No. 163-A/2022, by which the application filed under Section 13 of the Hindu Marriage Act, 1955 by respondent/plaintiff/husband for dissolution of marriage solemnized on 02.06.2003 has been allowed granting decree of devorce in favour of respondent/husband. 2. The aforesaid challenge has been made on the following factual backdrop: i) The marriage between appellant and respondent was solemnized on 02.06.2003 in accordance with Hindu rituals and customs. However, after five years of their marriage, the appellant/wife lodged an FIR against her husband i.e. respondent/plaintiff for offence under Section 498A of IPC which was decided on 05.06.2009 and the respondent/husband was acquitted of the said charge vide Ex.P-3. Subsequently, when the Respondent/husband was appointed as a Shikshak Panchayat in 2010, the Appellant/wife and the Respondent/husband started living together again as husband and wife in Village Rangerpara, Sarangarh (CG). It is the case of respondent/husband that the appellant/wife maintained illicit relationship with a person named Murlidhar Chandra. Consequently, a social meeting regarding their matrimonial dispute was held on 08.12.2017. Following this, on 17.12.2017, the Appellant/wife left her matrimonial home and started living separately. Thereafter, the Appellant/wife filed an application 3 under Section 125 of CrPC seeking maintenance which was rejected by the Family Court vide Ex.P-4. Finally, on 17.12.2020, the Respondent/husband filed a suit seeking dissolution of marriage on the ground enumerated under Section 13 (1) (i) (ia) of the Hindu Marriage Act, 1955 (for short, ‘the Act of 1955’). ii) During pendency of the suit, on 03.05.2023, the respondent/husband made an amendment in Para-11 of his plaint/suit as Para-11(A) introducing that Nandram Suman (PW-4) had seen the appellant/defendant and one Murlidhar Chandra making physical relations and informed about the same to respondent/plaintiff which is the specific ground under Section 13 (1) (i) of the Act. 3. The appellant/wife filed her written statement denying the allegations made by the respondent-plaintiff and made a counter allegation that it is the respondent/husband who had treated her cruelty and prayed for dismissal of the suit. 4. Learned Family Court framed three main issues for consideration in para-6 of its judgment and except issue No.2, answered other 2 issues in affirmative as under :- वाद ्ቚश्न निनष्क्ቧ 01. क्या अनवानिदक/्ቚत्याቕኍ न आवादक/यानिककቔኋ क शारीरिरीक एवा! मानसि$क रूप $ ्ቚቔኋनि'ቔኋ करी ቅ኏) रीቔኋ करिरीቔኋ क* है,? “ ्ቚमानि/ቔኋ” 02. क्या अनवानिदक/्ቚत्याቕኍ, आवादक/यानिककቔኋ क नि3न निक$ करी/ $ 02 वा्ቧ4! $ अनि5त्या्ሹ करी रीखी है,? “ ्ቚमानि/ቔኋ नहै8” 03. क्या अनवानिदक/्ቚत्याቕኍ न निवावाहै क अन:቗ኋपन क पश्ቔኋ पनिቔኋ $ नि5्ቐ व्यानि्ሹ मा:रीलीधरी न्ቖኋ क $ቕኍ स्वाच्छया मा,ቕኍ:न निकया? “ ्ቚमानि/ቔኋ” 4 5. After appreciation of oral and documentary evidence available on record, learned Family Court vide impugned judgment dated 09.04.2024 decreed the suit in favour of the respondent/husband on the ground enumerated under Section 13 (1) (i) (ia) of the Act, against which the present appeal has been preferred by the appellant/wife questioning the legality, validity and correctness of the impugned judgment. 6. Mr. Vaibhav A. Goverdhan, learned counsel for the appellant/defendant/wife would submit that the Family Court’s finding of “cruelty” while granting decree of divorce was based on the acquittal of the respondent/husband on 05.06.2009 from offence under Section 498A of IPC, which the respondent/husband had already condoned, as is evident from the averment made in para-10 of the plaint itself, as from the year 2010, the appellant and the respondent started living together as husband and wife maintaining matrimonial obligations. Therefore, the condonation of cruelty is absolute bar to the granting of relief in case of matrimonial offence under section 23 (1) (b) of the Act of 1955. He would submit that in the present case, the alleged cause of action arose prior to 05.06.2009 and the suit was filed on 17.12.2020 before the Family Court and such improper delay in instituting the suit has not been explained. He submits that as per Section 23 (1) (d) of the Act, there should not any unnecessary or improper delay in instituting the proceeding. Therefore, it amounts to bar in granting relief in favour of respondent/husband. He would further submit that the ground under Section 13 (1) (i) has also not been established as the said specific pleading was made with a delay of six years. The incident is said to have taken place on 02.10.2017 and the pleading in this regard was inserted 5 in the suit by an amendment on 03.05.2023 and such delay has not been explained satisfactorily. Moreover, the respondent-plaintiff came to know about the illicit relationship on the part of the appellant-wife on 02.10.2017 but he did not make any such allegation in the original suit filed on 17.12.2020 under Section 13 of the Hindu Marriage Act. Even after commission of the said act on 02.10.2017, as per the pleadings of the plaintiff himself, both lived together as husband and wife till 17.12.2017, therefore, the suit suffers from unnecessary or improper delay in initiating the proceeding. Hence, the decree of divorce granted by the Family Court is absolutely unjustified and is liable to set aside by allowing the appeal. 7. Mr. H. V. Sharma, learned counsel for the respondent/husband would support the impugned judgment and submit that the Family Court is absolutely justified in granting a decree of divorce as the ground of cruelty and the ground enumerated under Section 13 (1) (i) (ia) are clearly established. Hence, the appeal is liable to be dismissed. He relied upon the decision of the Hon’ble Supreme Court in the matter of N. G. Dastane v. Mrs. S. Dastane1. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and gone through the material available on record with utmost circumspection. 9. The grounds for divorce enumerated under Section 13 (1) (i) & (ia) of the Act of 1955 read as follows: “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 1 AIR 1975 SC 1534 6 ground that the other party- (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty. 10. The Family Court granted a decree for the dissolution of marriage on the grounds enumerated under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955. This decree has been challenged by the appellant/wife, who contends that the alleged cruelty and sexual act, if any, had already been condoned by the respondent/husband by virtue of Section 23(1)(b) of the Act which amounts to bar in granting relief in favour of respondent/husband. 11. In order to consider the plea raised by the appellant/wife it would be appropriate to notice Section 23 (1) (b) of the Act of 1955 which reads as under: “23. Decree in proceedings – (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that- (a) x x x x x x x x x x x x x x x (b) where the ground of the petition is the ground specified 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. 7 (c) x x x x x x x x x x x x x x (d) there has not been any unnecessary or improper delay in instituting the proceeding. 12. A careful perusal of Clause (b) of sub-section (1) of Section 23 of the Act of 1955 in terms lays down the effect of the doctrine of condonation. It states in substance that: i) a petition for judicial separation or divorce on the ground specified in Section 13 (1) (i); or ii) a petition founded on cruelty (Section Section 13 (1) (ia) of the Act). shall be dismissed, unless the court is satisfied that the petitioner has not in any manner condoned matrimonial offence i.e. cruelty etc. 13. Clause (b) of Section 23 of the Act of 1955 is also explicit that condonation of matrimonial offence is an absolute bar to the granting of any relief in case of the offences under the above- stated provisions. The Court has no discretion in the matter and if it is satisfied that the petitioner in any manner condoned the act or acts of cruelty complained/other matrimonial offence, the petition must be dismissed. 14. In this regard the decision of the Supreme Court in the matter of N. G. Dastane (supra) may be noticed, in which their Lordships of the Supreme Court examined the doctrine of condonation with reference to the aforesaid provision and clearly held in para – 55 as under: “Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she 8 occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration.” 15. Now, coming to the facts of the present case in the light of the provisions contained under Section 23 (1) (b) of the Act of 1955 and principles of law laid down by the Supreme Court in the case of N. G. Dastane (supra), it is quite vivid that in the instant case, the alleged cruelty found to be proved by the Family Court on the ground that following a complaint by the appellant/wife, an FIR was registered on 12.03.2008, which was culminated in chargesheet under Section 498A of IPC against the respondent/husband and his family. This criminal proceeding ultimately resulted in the acquittal of respondent/husband including his family members by the jurisdictional criminal court on 05.06.2009 (vide Ex.P-3). Thereafter, appellant and respondent resumed residing together as husband and wife from 2010 to 17.12.2017. During this period, they performed their matrimonial obligations until the appellant/wife left the matrimonial home to reside separately on 17.12.2017. Since the parties lived together and performed their matrimonial obligations as husband and wife for such a fairly long period (7 years), it can be safely concluded that the respondent/husband condoned the prior act of cruelty, if any on the part of the appellant/wife. Respondent/husband not only forgiven the appellant’s act of lodging the FIR and prosecuting husband and his family member for offence under Section 498-A of the IPC but also restored the marital relationship by staying together as husband and wife for a long period of 7 years. Therefore, in the light of the decision of the Supreme Court in N. G. Dastane (supra), both the ingredients to constitute condonation i.e. forgiveness and restoration are established. 9 We are satisfied that in terms of Section 23 (1) (b) of the Act of 1955, the respondent/husband had condoned the cruelty committed by the appellant/wife and the condonation of cruelty on the part of respondent/husband is an absolute bar to granting a decree of divorce for a matrimonial offence under Section 13(1)(ia) of the Act of 1955. It is held accordingly. 16. As regards the ground enumerated under Section 13(1)(ia) of the Act of 1955, the respondent/husband filed the civil suit on 17.12.2020 for dissolution of marriage. Subsequently, he filed an amendment application which was allowed vide order dated 03.05.2023 and the specific ground under Section 13 (1) (i) was inserted alleging that on 02.10.2017, PW-4 Nandram Suman saw the appellant/wife and one Murlidhar in making physical relation and informed the respondent/husband of the same. On 08.12.2017, a social meeting was called in the village and on 17.12.2017 the appellant/wife herself has left the matrimonial home and since then she is residing separately. As such, this specific ground u/s 13 (1)(ia) of the Act of 1955 was brought on record by way of amendment only on 03.05.2023 with delay of approximately 5 ½ years from the date of the alleged incident. 17. In the matter of Chandra Mohini Srivastava vs Avinash Prasad Srivastava & Anr.2, the Supreme Court has held that the husband cohabited with the wife even after the knowledge that she had been guilty of cohabiting with another would be sufficient to constitute condonation and held as under: “13. ……...It is urged that in order that forgiveness 2 1967 AIR 581 10 may be confirmed or made effective, something more than stray acts of cohabitation between husband and wife have to be proved. But where as in this case, judicial separation is being claimed on the ground of Section 10(1)(f), the fact that the husband cohabited with the wife even after the knowledge that she had been guilty of cohabiting with another person would in our opinion be sufficient to constitute condonation, particularly, as in this case, the first respondent knew of the alleged adultery in May/June 1958 and still continued to cohabit with the appellant thereafter upto October, 1958.” 18. In the instant case, even after the alleged incident on 02.10.2017, by which AW-4 had seen the appellant/wife with Murlidhar Chandra making physical relation, the respondent/husband resided with the appellant/wife untill 17.12.2017 when she voluntarily left her matrimonial home. The fact remains that from 02.10.2017 to 16.12.2017, the appellant and the respondent both lived together as husband and wife discharging their matrimonial obligation. Therefore, the respondent/husband is deemed to have condoned the sexual act if any on the part of appellant/wife with Murlidhar. Even otherwise, from the statement made by PW- 4, on basis of which the suit/plaint was amended on 03.05.2023, it is quite vivid that on 02.10.2017, PW-4 had seen the appellant/wife and Murlidhar in a compromising position making physical relation, which, according to the affidavit filed in court, was reported to the respondent/husband on that very same day. Surprisingly, this fact was brought on record as late as on 03.05.2023, by filing an application for amendment of the plaint. The delay of approximately 5½ years from the date of the alleged 11 incident, coupled with a 3-year delay even after the institution of the suit, creates doubt on the statement of PW- 4. Such important ground forming the very foundation of the ground for divorce under Section 13(1)(i) of the Act, was pleaded with a delay of around 5½ years. In this regard the provisions contained in section 23 (1) (d) of the Hindu Marriage Act, 1955 may be considered. 19. A careful perusal of Clause (d) of Section 23(1) the Act of 1955 would show that unnecessary or improper delay in instituting a proceeding constitutes an absolute bar in granting the relief of divorce. Where the ground of petition for divorce is a sexual act on the part of the other spouse and there is an unnecessary or improper delay or where it appears to the court that there has been undue delay in instituting the proceeding, there are two questions in such case which require to be considered, namely, when did the petitioner first know or had reason to believe that the appellant had committed sexual act and when did the respondent first take action in order to obtain the relief? In the instant case, according to his own sworn affidavit, the respondent/husband came to know about the sexual act on the part of the appellant/wife with Murlidhar on 02.10.2017 which he did not consider proper to disclose in the suit filed on 17.12.2020 alleging the ground enumerated under section 13 (1) (i) of the Act, 1955. For the first time, it was brought to the record by filing an application for amendment which was allowed on 03.05.2023. As such, there is a delay of around 5 ½ years in disclosing the said fact. No reasonable explanation has been offered by the respondent/husband for the said delay. In fact, the ground under Section 13 (1) (i) of the Act of 1955 was pleaded only by way of an application for amendment which was 12 incorporated by the order of the Court on 03.05.2023. The original suit was filed without expressly pleading the ground under Section 13 (1) (i) of the Act of 1955 which clearly provides that any marriage solemnised on a petition presented either by husband or wife be dissolved by a decree of divorce on the ground that other party had voluntarily sexual intercourse with any of the person other than his or her spouse. As such, the ground under Section 13(1)(i) of the Act of 1955 suffers from unnecessary and improper delay and is hit by the statutory bar under section 23(1)(d) of the Act of 1955. Similarly, as held in the decree granted on the ground of cruelty also suffers from improper delay as the alleged cruelty is said to have been committed on 12.03.2008 which culminated into the acquittal of the respondent/husband on 05.06.2009. Thereafter, from 2010 to 17.12.2017, they resided together as husband and wife performing their matrimonial obligations. The suit for divorce was filed under Section 13 (1) (ia) of the Act of 1955 on 17.12.2020 with a delay of about 11-12 years and no reasonable explanation was offered for the said delay in filing the suit. As such, we are of the considered opinion that both the misconducts on the part of the appellant/wife constituting the ground for divorce had been condoned by respondent/husband by virtue of Section 23 (1) (b) of the Act of 1955 and furthermore there has been unnecessary or improper delay in instituting the proceeding under Section 23 (1) (d) of the Act. We are satisfied that the respondent/husband is not entitled for a decree of dissolution of marriage on the ground enumerated under Section 13(1) (i) (ia) of the Act of 1955 by virtue of provisions contained in Sections 23(1)(b) and 23(1)(d) of the act of 1955. 20. Accordingly, the impugned judgment/decree directing 13 dissolution of marriage between respondent/husband and appellant/wife is hereby set aside. As a consequence, the appeal is allowed leaving the parties to bear their own cost(s). 21. A decree be drawn up accordingly. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) JUDGE JUDGE Khatai