1 2026:CGHC:4919-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA (MAT) No. 211 of 2023 Girdhar Dubey S/o Bodhan Prasad Dubey, Aged About 57 Years R/o Village Kurda, Tahsil Than- Khamhariya, District Bemetara (Chhattisgarh) ... Appellant/Plaintiff versus Smt. Anusuiya W/o Girdhar Dubey, Aged About 55 Years R/o Village Kurda, Tahsil Than-Khamhariya, District Bemetara (Chhattisgarh) Present R/o Village- Devarbija, Tahsil And District Bemetara (Chhattisgarh) ... Respondent/Defendant For Appellant : Mr. Vaibhav A. Goverdhan, Advocate For Respondent : Mr. Sameer Singh, Advocate DB- Hon'ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Arvind Kumar Verma Judgment On Board 29.01.2026 Sanjay K. Agrawal, J. 1. Invoking jurisdiction of this Court under Section 19(1) of Family Court Act, 1984, the appellant/plaintiff has preferred this appeal against the impugned judgment and 2 decree dated 05/07/2023 (Annexure A/1) passed by the Family Court, Bemetara in Civil Suit No. 16-A/2023 whereby application filed by the appellant/plaintiff under Section 13 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 dismissed finding no merit. 2. The aforesaid question arises on the following factual backdrop :- (a) The marriage of appellant/plaintiff/husband and respondent/defendant/wife was solemnized 35 years prior to the date of filing of the said application, as per Hindu rites and rituals and out of their wedlock, they have two sons and one daughter, however, they lost one of the sons at the age of 7 years and now have one son and one daughter and both of them have been married. (b) It is the case of the appellant/plaintiff that after some time of the marriage, behaviour of the respondent/defendant changed towards him and she abused and quarreled with him and he works as a Priest and earns his livelihood and just to harras him, she has been living separately from the last 14-15 years at their daughter and son-in-law’s house and is also getting 3 interim maintenance from the appellant/plaintiff, therefore, decree for divorce be granted in his favour. (b) Respondent/defendant opposed the application and filed her written statement stating inter alia that the averments made by the appellant/plaintiff are actually the other way around as it is the appellant/plaintiff who used to abuse her and committed maarpeet with her and also doubted her character and the appellant/plaintiff himself has ousted her from his house and as such, she has started residing with her daughter and son-in-law from the last 17 months. She has further stated that she is a patient of blood pressure and sugar and the appellant/plaintiff, despite earning Rs. 35,000/- per month, did not bear her medical expenses, as such, the suit filed by the appellant/plaintiff be dismissed. (c) Learned Family Court, Bemetara, by its impugned judgment and decree dated 05/07/2023 (Annexure A/1), rejected the application for dissolution of marriage filed by the appellant/plaintiff holding that the appellant/plaintiff has failed to prove that respondent/defendant has deserted her and has been living separately for a period of two years or more and further the appellant/plaintiff has failed to prove that respondent/defendant has caused cruelty to the appellant/plaintiff. The Family Court has in fact held that it has not been found proved that 4 appellant/plaintiff caused cruelty to the respondent/defendant and as such, the appellant/plaintiff is not entitled for decree for divorce. 3. Mr. Vaibhav A. Goverdhan, learned counsel for the appellant/plaintiff, would submit that the Family Court is absolutely unjustified in rejecting the application filed by the appellant/plaintiff by recording a finding which is perverse and contrary to the record as the respondent/defendant has been living separately for the last 14-15 years and deserted the appellant/plaintiff which amounts to cruelty, as such, the appellant/plaintiff is entitled for decree for divorce. He would rely upon the decisions rendered by the Supreme Court in the matters of Bipinchandra Jaisinghbai Shah v. Prabhavati1 and Dr. Nirmal Singh Panesar v. Paramjit Kaur Panesar @ Ajinder Kaur2 to buttress his submission. 4. Mr. Sameer Singh, learned counsel for the respondent/defendant, would support the impugned judgment and decree and submit that learned Family Court is absolutely justified in rejecting the application for dissolution of marriage filed by the appellant/plaintiff on the ground of cruelty and desertion as the only averment made it the application by the appellant/plaintiff is that respondent/defendant abused and quarreled with him and 1 AIR 1957 SC 176 2 (2025) 3 SCC 790 5 just to harras him, he has been living separately for 14-15 years at her daughter and son-in-law’s house and there is neither any specific pleading with regard to cruelty and nor any evidence available on record in this regard, as such, the instant appeal is liable to be dismissed. 5. We have heard learned counsel for the parties, considered their submissions made herein-above and went through the records with utmost circumspection. 6. The question that arises for consideration in this appeal is, “whether the Family Court is justified in rejecting the application filed by the appellant/plaintiff for grant of decree for dissolution of marriage on the ground of cruelty and desertion ? 7. In order to raise the plea at the Bar, it would be appropriate to notice the provision contained under Section 13(1)(ia) and (ib) of the Act of 1955 with explanation, which states 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; 6 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.” 8. A careful perusal of Section 13(1)(ia) and (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 cruelty if after solemnization of marriage, one spouse has treated the other spouse with cruelty and 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. 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 Ghosh3 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: 3 (2007) 4 SCC 511 7 (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. (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. 8 (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.” 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 9 treated him with cruelty within the meaning of Section 10(1)(b) of the Act.[See : Dr. N.G. Dastane (supra) para 23] 11. Now, so far as divorce on the ground of desertion is concerned, in the matter of Lachman Utamchand Kirpalani v. Meena alias Mota4, 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. 12. At this stage, it would be appropriate to notice the pleadings made by the appellant/plaintiff in his application under Section 13 of the Act of 1955, which states as under :- “3/ यह की दा्ቘ्ቓ जीवन ेሰ रहते- रहते दान की साहचय सा दा पु्ቔ एव एकी पु्ቔ की जी्ቖ हुआ। ्ቚथेሰ पु्ቔ की ७ व्ቧ की अ्ቜ आय ेሰ ह ेሰ$्ቓ ह गय, दान की वतेेሰन ेሰ एकी पु्ቔ साते्ቧ दाबे एव पु्ቔ पु'जी शेሰ ह)। 4/ यह की की छ व्ቧ+ तेकी साथ रहन की बेदा अनवदिदाकी की ्ቤቮኋर ेሰ पुरिरवतेन आन लग अनवदाकी की साथ झगड़ा झझट व गल गल4च कीरन लग धीर- धीर वह ्ቭስ቏ दा ्ቚकी$ दिते की ेሰदिहल ह गई। इसा तेरह अनवदिदाकी ्ቭते्ቔ रहन लग। आवदाकी अपुन दापु्ቓ की बेनय रखन एव आपुसा सा्ቚ቏ኘ की ठीकी रखन की 4 AIR 1964 SC 40 10 बेहुते ्ቚयसा दिकीय पुरቌ኎ अनवदिदाकी की ्ቭछ दाते पु'वकी आचरण ेሰ कीभी भी साधीर नह हुआ इसा तेरह अनवदिदाकी आवदाकी सा पु$थकी रहन लग। 5/ यह की आवदाकी एकी ቜኋ्ቧण जीते की ्ቤሹኌD ह) पु'जी पुठी जीजीेሰन कीरकी जीवन यपुन कीरते ह) इसाकी अलव उसाकी पुसा आय की अ्቗ कीई साधीन नह ह)। अनवदिदाकी जीन बे'झकीर आवदाकी की तेग वG पुरशन कीरन की दिलए लगभीग 14-15 व्ቧH सा पु$थकी रह रह ह)। अनवदिदाकी अपुन बेट दाेሰदा की साथ रहकीर जीवन यपुन अስ቏ ढंग सा ्ቤतेते कीर रह ह) इसादिलए वह आवदाकी ” की पुरवह नह कीरते ह)। 13. Other than the aforesaid pleadings, there is no other pleading made by the appellant/plaintiff which is available on record, however, in order to prove the aforesaid pleadings and establish the ground of cruelty and desertion, the appellant/plaintiff has examined himself as A.W.-1. In the affidavit filed before the Court, he has made a similar statement that respondent/defendant used to quarrel with him and abused him and started residing separately with their daughter and son-in-law. In cross- examination, he has admitted that they have stayed together as husband and wife for last 30 years and has further admitted in paragraph 12 that respondent/defendant is a patient of blood pressure and sugar. 14. It is appropriate to notice here that on the complaint made by the respondent/defendant at Women Cell, Bemetara on 03/12/2022, the appellant/plaintiff and respondent /plaintiff, both were called at Women Cell on 07/12/2022 and the counseling proceeding has been filed as Ex. D/1 in which rather the respondent/defendant has stated that 11 appellant/plaintiff abuses her and does not bears her medical expenses at all and if she stays with him, she will die. She has further stated that he makes false allegations of stealing money from the house against her whereas the appellant/ plaintiff has only stated that respondent /defendants doubts her character. 15. Similarly, appellant/plaintiff’s witness namely Bahoran Prasad Dubey (P.W.-2) has also made a stereotype statement that respondent/defendant used to quarrel with her and abused her, however, in his cross-examination, he has stated that after 2018, appellant/plaintiff came to village Khamariya and he has no knowledge about what transpired between them thereafter. He has further stated that appellant/plaintiff and respondent/defendant have been living apart from December, 2022. 16. Likewise, appellant/plaintiff’s next witness namely Komal Sahu (P.W.-3) has also made a similar statement as the first two witnesses alleging that respondent/defendant abused and quarreled with the appellant/plaintiff and then in cross-examination he has admitted that appellant/plaintiff works as priest in their village and he has come at his instance and has no knowledge about the relation between the appellant/plaintiff and respondent/defendant. 12 17. As such, from the statements of appellant/plaintiff’s witnesses, it could not be established that at any point of time, respondent/defendant has abused or quarreled with the appellant/plaintiff and caused cruelty to him. On the other hand, respondent/defendant has filed a police report (Ex. P/11) in which she has written to the police that appellant/plaintiff is not giving her money for her medicines and as such, she wants to live separately. 18. Furthermore, the statement of the respondent/defendant Anusuiya Dubey (D.W.-1) would show that appellant/plaintiff used to abuse her and committed maarpeet with her and doubted her character and threatened to oust her from his house pursuant to which she made a complaint to the Women Cell, Bemetara on 03/12/2022 and their counseling was conducted on 07/12/2022 yet the appellant/plaintiff abandoned her thereafter and since then she has been residing with her their daughter and son-in-law at their house. 19. Similarly, respondent/defendant’s next witness i.e. their daughter namely Pooja Sharma (D.W.-2) has clearly stated that his father doubted her mother’s character and used to abuse her and ill-treated her and after committing maarpeet with her, he has also ousted her from his house two-three times due to which she has kept her mother in her house and looks after her as she is a patient. Though 13 she has been subjected to cross-examination but no controverting statement has been extracted from her. 20. Thus, from the aforesaid discussion and analysis of the evidence available on record, it clearly transpires that the pleading of cruelty and desertion taken by the appellant/plaintiff seeking decree for divorce are absolutely inadequate as no specific pleading has been made in that regard and further no concrete evidence has either been led. In our considered opinion, necessary ingredients have not been pleaded by the appellant/plaintiff and he has failed to establish that he is entitled to decree for divorce on the ground of cruelty and desertion. The Family Court is absolutely justified in rejecting the application filed by the appellant/plaintiff for divorce under Sections 13(1)(ia) and (ib) of the Act of 1955 by recording a finding which is neither perverse nor contrary to the record and does not warrant any interference by this Court. 21. Accordingly, this appeal, being devoid of merits, is liable to be and is hereby dismissed leaving the parties to bear their own cost(s). Decree be drawn accordingly. SD/- SD/- (Sanjay K. Agrawal) (Arvind Kumar Verma) JUDGE JUDGE Harneet