1 2026:CGHC:5153-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 260 of 2025 Nemchand Kosre S/o Shri Jhumuk Lal Kosre Aged About 56 Years Office Address- Assistant Director Fisheries Department, Kanker District North Bastar, C.G., Permanent Address- Ward No. 44, Gali No. -4 Ashirwad Colony, Kaurin Bhatha, Rajnandgaon, District Rajnandgaon, C.G. --- Appellant versus Smt. Bena Bai W/o Nemchand Kosre Aged About 46 Years R/o Village Mohbhattha, Tahsil- Patan, District Durg, C.G. --- Respondent/Defendant For Appellant : Mr. Amiyakant Tiwari, Advocate Hon’ble Shri Sanjay K. Agrawal, Judge Hon’ble Shri Arvind Kumar Verma, Judge Judgment on Board 30/01/2026 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/plaintiff has preferred this appeal against the 2 impugned judgment and decree dated 02.07.2025 passed by the learned First Additional Principal Judge, Family Court, Durg in Civil Suit No. 931/2022, whereby application filed by the appellant/plaintiff under Section 13(1)(i-a) (i-b) of the Hindu Marriage Act, 1955 (hereinafter the Act of 1955) seeking decree for dissolution of marriage on the ground of cruelty and desertion has been rejected finding no merit. 2. The aforesaid challenge has been made on the following factual backdrop : (A) The marriage between the present appellant and respondent was solemnized on 05.04.1987 at village Mohbhattha, Tahsil- Patan, District Durg (C.G.) and out of their matrimonial wedlock, they have been blessed with 4 children. It is also an admitted fact that 3 of the girl child are living with the respondent herein, whereas the son is residing with the present appellant. (B) It is alleged that after the marriage was solemnized the respondent started misbehaving with the present appellant and started quarreling over trivial domestic issues. It is also averred that the respondent herein is living separately from the present appellant since last 16 years. She has also deserted her male child with the present appellant. The job of the appellant is transferable and presently he is posted at Kanker. It is also averred that in the month of June, 2022 she has permanently deserted the present appellant, hence the said application under 3 the provisions of Hindu Marriage Act, 1955 was filed for dissolution of marriage solemnized on 05.04.1987 between the parties. (C) The respondent has filed her written statement denying the plaint averments. It was averred that it is the present appellant who has refused to keep the respondent with him despite the fact that the respondent is ready to live with the present appellant. 3. The learned Family Court on the basis of rival submissions framed as many as 4 issues including the issue relating to cruelty and desertion as also an issue relating to entitlement of the present appellant to get the marriage dissolved on the grounds enumerated in the plaint. After consideration of oral and documentary evidence on record finally decided the issue no. 1 & 2 against the present appellant defeating his claim for dissolution of marriage and held that appellant/plaintiff has failed to prove and establish that respondent/defendant has committed cruelty towards him and proceeded to dismiss the suit filed by him on the ground enumerated under Section 13(1)(i-a)(i-b) of the Act of 1955 and consequently the suit was dismissed. Hence, this appeal. 4. Mr. Amiyakant Tiwari, learned counsel for the appellant/plaintiff, would submit that the present appellant has successfully proved the desertion and cruelty as the respondent is living separately 4 since last 16 years and refusal by her to cohabit with the present appellant. He would next contend that the evidence brought on record on behalf of the present appellant was remained unchallenged and unrebutted. He would next contend that the respondent herein had examined herself and no evidence was brought on record to corroborate her version or her pleadings yet the learned court below had found the issue of cruelty and desertion as not proved. He would further submit that the impugned judgment and decree of the learned Family Court is bad in law as well as on facts, arbitrary and cannot be sustainable in the eye of law, hence liable to be quashed and set-aside. He would next contend that the learned Court below has further committed an error of law in recording the finding in respect of issue no. 1, 2 & 3 and deciding the same against the present appellant. It is respectfully submitted that the findings and reasons recorded in respect of issue no. 1, 2 & 3 are not based on material available on record or evidence, hence perverse in nature, hence also the impugned decree and judgment are liable to be quashed and set-aside. He would further submit that the appellant herein has successfully proved his pleadings by bringing cogent and reliable evidence on record which were remained unchallenged and unrebutted, therefore in the facts and circumstances of the present case, the learned court below ought to have allowed the 5 suit granting decree of dissolution of marriage in favour of the present appellant. 5. No representation is made on behalf of the respondent, despite service of notice. 6. We have heard learned counsel for the appellant considered the submissions made herein-above and went through the records with utmost circumspection. 7. The first question for determination in this appeal is, “whether the Family Court is justified in rejecting the application filed by the appellant/plaintiff under Section 13(1)(i-a) of the Hindu Marriage Act holding that the ground of cruelty on the part of respondent/defendant has not been proved and established by the appellant/plaintiff ?” 8. 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” 6 9. 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 Ghosh1 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 1 (2007) 4 SCC 511 7 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 8 shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 10. 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 v. Mrs. S. Dastane2 para 23] 11. In the instant case, admittedly, the marriage of the appellant/plaintiff and the respondent/defendant was solemnized on 05.04.1987 at village Mohbhattha, Tahsil-Patan, District Durg (C.G.) and out of their matrimonial wedlock, they have been blessed with 4 children. It is also an admitted fact that 3 of the girl child are living with the respondent herein, whereas the son is residing with the present appellant. 12. Appellant - Nemchand Kosre (PW-1) has stated in his cross- examination that he works as a Clerk in the Fisheries Department. He currently posted in Kanker District, Chhattisgarh. He further stated that he is frequently transferred to various districts during his service. His ancestral village is village Mohbhattha, Tehsil 2 AIR 1975 SC 1534 9 Patan, District Durg, Chhattisgarh. His ancestral property and a house in his village. The witness voluntarily states that the ancestral property and house are in the name of his son Pravesh Kosare, and his father transferred the property to him. He further stated that the non-applicant/respondent - Bena Bai, is his wife and they have four children from their marital union, of which two daughters live with the wife/respondent, and one son and one daughter are married. He also stated that had he not been in service he would have kept the wife along with him. He has also stated that the respondent being uneducated, therefore, he cannot keep her with him. 13. Respondent - Smt. Bena Bai has stated in her affidavit that she was diagnosed with a serious disease, breast cancer, in 2014, which was directly informed to the appellant, yet he did not pay any attention to her extremely delicate health and neither did she get herself treated physically or financially with the help of others. The appellant has abandoned his essential and legal duties towards his two daughters, and has neglected to fulfill his responsibilities towards their education and upbringing since their early days. She further stated that leaving her and her daughters behind, himself went to Rajnandgaon and Kanker and when she said take her, the appellant said that where will he take her, she is an illiterate, she shall be fine staying in the village, saying that he did not keep her with him. The appellant himself is staying away 10 from her due to his job in another district. She also stated that she still wants to live with the appellant. Now only the marriage ceremony of her daughters is left, hence the appellant wants to free himself from his fatherly responsibility. Therefore, the application submitted by the appellant is baseless and without any reason that the appellant is away from his wife and children due to his job in another district, and there is no reason for living separately. 14. Respondent - Bena Bai has stated in her Court statement that her husband and she has not talked to each other for the past 16-17 years. She lives with her children in the appellant’s ancestral property, situated in village Mohbhattha. She further stated that the appellant was not invited to her eldest daughter's wedding. There is no close relationship between her daughters and her son. Neither she nor her daughters were invited to her son's wedding in Rajnandgaon, yet she and her daughters attended. An argument broke out during the wedding, and some members of the community called the police. 15. From perusal of the statement of both the parties it shows that appellant has stated that he cannot keep his wife because of his transferable job and the wife has stated that he is not living with the her because she is an uneducated lady. Such type of conduct on the part of a husband that since he is in a transferable job, therefore, cannot keep the wife, is wholly unsustainable and 11 unexpected on the part of the husband. Therefore, over all scrutiny of statement of both the parties does not 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 and desertion under Section 13(1)(i-a) on the part of respondent/defendant. 16. The Second question that arises for consideration in this appeal is, “whether the Family Court is justified in rejecting the application filed by the appellant/plaintiff under Section 13(1)(i-b) of the Act of 1955 for grant of decree for dissolution of marriage on the ground of desertion. 17. Section 13(1)(i-b) of the Act of 1955, which provides as under :- “13. Divorce x x x (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 of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” 12 18. A careful perusal of Section 13(1)(i-b) 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. 19. In the matter of Lachman Utamchand Kirpalani v. Meena alias Mota3, their Lordships of the Supreme Court have clearly held that for offence 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 concerned : (1) absence of consent and (2) absence of conduct giving reasonable cause to spouse leaving matrimonial home to form necessary intention aforesaid. 20. Section 13(1)(i-b) 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 satisfied 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 specified in sub-clause (a), sub- clause (b) or sub-clause (c) of clause (ii) of section 5] is 3 AIR 1964 SC 40 13 not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and” 21. 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 satisfied 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 satisfied 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. 22. The Supreme Court, in the matter of Dharmendra Kumar v. Usha Kumar4, 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 offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. 4 AIR 1977 SC 2218 14 23. In the matter of Chetan Dass v. Kamla Devi5, 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 finding to the same effect. 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 finding 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 suffering 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.” 24. 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 defining 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 finding that the applicant himself deserted the respondent and 5 AIR 2001 SC 1709 15 started living separately, and therefore, he cannot hold the respondent responsible for his own fault. 25. The evidence on record clearly demonstrates that the respondent–wife has continuously resided with her children in the appellant’s ancestral property, a cultivated and residential house, in village Mohbhattha. The respondent has categorically deposed that she is willing and ready to reside with the appellant and to discharge her matrimonial obligations. On the contrary the husband has stated that he cannot keep the wife with him because his job is transferable. 26. 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 justified in rejecting the appellant’s claim under Section 13(1) (i-b) of the Act of 1955. 27. In view of the aforesaid legal discussion and analysis, we are of the considered opinion that learned Family Court has rightly rejected the application filed by the appellant/plaintiff 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 finding 16 no merit and we do not find any good ground to interfere with the impugned judgment and decree passed by the Family Court. 28. 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 Vasant