1 2026:CGHC:23910-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 27 of 2022 Tikendra Sahu S/o Mahesh Sahu Aged About 27 Years R/o Village Baghul, Tahsil Navagarh, District Bemetara Chhattisgarh. ... Appellant versus Smt. Gayatri Sahu W/o Tikendra Sahu Aged About 26 Years R/o C/o Khibi Ram Sahu, Village Jhiriya, Tahsil And District Bemetara Chhattisgarh. ... Respondent For Appellant : Mr. Arvind Kumar Dubey with Mr. Raushan Dubey, Advocate For Respondent : Ms. Itu Rani Mukherjee, Advocate DB: Hon’ble Shri Justice Parth Prateem Sahu Hon'ble Shri Justice Sachin Singh Rajput Judgment On Board 15.06.2026 Per Sachin Singh Rajput, J. 1. The parties shall be referred to as appellant/husband and the respondent/wife. 2. This appeal has been filed by the appellant/husband being aggrieved by the judgment and decree dated 18.01.2022 (Annexure P-1) passed by Family Court Bemetara, District Bemetara, CG in Civil Suit No. 06-A/2021 dismissing the application filed by him under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955. HIFZURRAHMAN ANSARI Digitally signed by HIFZURRAHMAN ANSARI Date: 2026.06.24 17:35:57 +0530 2 3. Facts in short : The appellant/husband filed an application under Section 13 (1) (i-a) (i-b) of the Hindu Marriage Act for dissolution of marriage solemnized between the him and the respondent/wife on the ground of desertion. It was inter alia pleaded in the application that marriage of appellant/husband and the respondent/wife was performed as per the Hindu rites on 18-07-2016, and out of their wedlock one male child was also born on 05-02-2018. It is stated by the appellant/husband that the respondent/wife started raising a dispute on account of trivial matters and she always tried to exert pressure on the husband to fulfill her desires. She is also stated to have always compelled the husband to allow her to go to her parental home as and when she desired. The respondent/wife is also alleged to blackmail her husband. She is also stated to have tried to commit suicide by jumping off the roof, and sometimes by consuming poison. Allegedly, she also used to threaten of dragging him in a dowry case. She in this manner thus was physically and mentally harassing the appellant/husband, and eventually in the month of July, 2017 without informing the appellant/husband called her brother and accompanied him to her parental home. It is stated in the application that though the appellant/husband was willing to keep the respondent/wife, she herself was not inclined to live with him. It is further stated that when she delivered the male child in normal course in a government hospital, there also she picked up a dispute saying that why she was not allowed to deliver the child by cesarean in a private hospital. Just thereafter, she left for her parental home on 16-02-2018. It is also stated that whenever the appellant/husband made an attempt to bring the respondent/wife back, she did not get ready for that and insisted for divorce. She went on saying that instead of accompanying the appellant/husband she would prefer to die. It is stated that the appellant/husband even permitted her to go on with her studies and also provided a vehicle to her to attend the college. She is thus stated to have deprived the appellant/husband of the marital bliss. 3 4. By filing a written statement, the respondent/wife has denied all the allegations except the admitted ones. It is stated that on petty matters the appellant/husband used to taunt her saying that her parents did not give gold and sliver ornaments, and he used to make her work forcibly even when she fell ill. The appellant/husband is also alleged to have made a demand of Rs. 1,00,000/- for purchasing motorcycle. The appellant/husband asked her to go to her parental home when she was ill and take treatment there. He also threatened her to marry some-other woman. The overall allegation of the respondent/wife is that on trivial matters the appellant/husband used to mentally harass her and thus subjected her to cruelty. 5. On the pleading of the respective parties, learned Family Court framed the following issues:- 1. Whether by harassing the plaintiff mentally and physically the defendant caused cruelty to him? 2. Whether the defendant was residing separately from the plaintiff without any reasonable ground? 3. Whether the plaintiff is entitled to get a decree of divorce against the defendant? 4. Relief and cost? 6. In support of his pleadings, the appellant/husband has examined 4 witnesses and the respondent/wife examined 3. 7. After taking note of the pleadings and other material available on record, learned family Court dismissed the application filed by the appellant/husband and aggrieved by the said dismissal, he has approached this Court by way of appeal. 8. Learned counsel for the appellant submits that learned Family Court has failed to appreciate the evidence available on record in its proper perspective. He further submits that the appellant/husband had specifically 4 pleaded and proved that the respondent/wife, immediately after the marriage, exhibited conduct which was incompatible with the obligations of a matrimonial relationship. He further submits that the respondent/wife persistently insisted upon living by her own way without any regard to the family responsibilities. She also persisted upon leaving the matrimonial home and to reside at her parental house. It is further submitted that the respondent/wife has been residing separately since 16.02.2018 without any justifiable reason and despite several efforts, the respondent/wife showed no inclination to resume cohabitation. He thus submits that the conduct of the respondent/wife clearly establishes the factum of desertion of the appellant/husband for no justifiable reason, and therefore he is entitled for a decree of dissolution of marriage. He further submits that the continuous refusal of the respondent/wife to discharge her marital obligations and her prolonged absence from the matrimonial home caused immense mental agony, pain, and suffering to the appellant/husband and he was thus deprived of the companionship, affection, and consortium of his legally wedded wife for a considerable long period. Such conduct of the respondent/wife amounts to mental cruelty, making it difficult for the appellant/husband to continue the matrimonial relationship. He further submits that the learned Family Court has erroneously discarded the testimony of the appellant/husband without assigning cogent reasons. The findings recorded by the learned Court below are contrary to the evidence on record and are not based on its proper appreciation. The learned Court below failed to consider that the respondent/wife did not take any sincere steps for restitution of conjugal rights and voluntarily chose to live separately. It is further submitted that the marriage between the parties has practically broken down and there remains no possibility of reconciliation. The parties have been living separately for a long period and the continuation of such a marriage would serve no useful purpose. In these circumstances, the refusal 5 of the decree of divorce by the learned Family Court has resulted in grave miscarriage of justice. Therefore, it is humbly submitted that the impugned judgment and decree dated 18.01.2022 deserve to be set aside, and this Hon'ble Court may be pleased to allow the present appeal and grant a decree of divorce in favour of the appellant/husband on the grounds of cruelty and desertion. He placed reliance on the judgment of this Court of Division Bench in the case of Smt. Saroj v. Videsh Kumar passed in FA(MAT) No. 39 of 2020, delivered on 17.01.2025. 9. On the other hand, counsel for the respondent/wife supports the impugned judgment and decree to be just and proper and based on the evidence adduced by the parties, the same does not require any interference in this appeal. It is submitted that from the record it is apparent that it is the appellant/husband who raised the demand of Rs. 1,00,000/- for motorcycle and on same being not fulfilled, he started causing cruelty to her. According to her, the record also shows that when the respondent/wife fell ill, he did not provide medical treatment and rather he made her live in her parental house and receive treatment there. Not only this, the appellant/husband used to threaten the respondent/wife of marrying some-other woman. All this, according to counsel for the respondent/wife shows that the act of the respondent/wife in living in her parents’ house is not willful rather she was actuated to do this due to the tortuous attitude of the appellant/husband. He thus submits that learned family Court has passed a well-reasoned order in dismissing the application of the appellant/husband for dissolution of marriage and being so it cannot be said to be illegal or arbitrary warranting interference in this appeal. With due respect the case law cited by the learned counsel for the appellant in the given facts & circumstances of this and the discussion made hereinabove does not help in any manner. 6 10. Heard the learned counsel for the parties and perused the record with utmost circumspection. 11. Upon a comprehensive appreciation of the pleadings, oral evidence and the material available on record, this Court finds that the appellant/husband has failed to establish the grounds of cruelty and desertion as contemplated under Section 13(1)(i-a) and Section 13(1)(i-b) of the Hindu Marriage Act, 1955. 12. The principal allegation of the appellant/husband is that the respondent/wife voluntarily left the matrimonial home and has been residing separately since 16.02.2018 without any sufficient cause. However, the evidence brought on record does not support such contention. The respondent/wife has consistently pleaded that she was subjected to physical and mental harassment in the matrimonial home. In her deposition, she specifically stated that on 17.06.2017 she was assaulted by the appellant/husband, resulting in injuries below her eye and on her nose. Though the report was lodged subsequently, the mere delay in lodging the report is not sufficient to discard her testimony, particularly when she has explained the circumstances under which she could not immediately disclose the incident to anyone. Significantly, the evidence of the respondent's witnesses does not establish a case of willful desertion by the wife. It is noteworthy that NAW-2 Bholram Sahu has categorically stated that the respondent/wife was ready to accompany the appellant/husband. Likewise, NAW-3 Malkham Nishad admitted that in the social meeting the appellant/husband and his father were willing to take the respondent/wife back and that discussions took place regarding the conditions under which she would return. Such evidence militates against the essential ingredient of desertion such as unequivocal intention on the part of the respondent/wife to permanently forsake the matrimonial relationship. The evidence further discloses that the parties and 7 their family members participated in social meetings and counseling proceedings with a view to restore cohabitation. The very fact that negotiations continued between the parties demonstrates that the respondent/wife had not finally severed the matrimonial tie. In a case of desertion, the burden lies heavily upon the petitioner to establish not only the factum of separation but also the animus deserendi on the part of the spouse alleged to have deserted. In present case, the evidence falls short of proving the same to the requisite standard of proof. To arrive to this conclusion we are guided by the judgment of the Hon’ble Supreme court in case of Bipinchandra Jaisinghbai Shah Vs. Prabhavati reported in AIR 1957 SC 176, where the Hon’ble Supreme Court has spelt out the history and development of concept of “desertion” for grant of decree of divorce. Supreme Court in this case in paragraph 10 held thus:- “(10) What is desertion? “Rayden on Divorce” which is a standard work on the subject at p.128 (6th Edn.) has summarised the case-law on the subject in these terms:- “Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party”. The legal position has been admirably summarized in paras 453 and 454 at pp. 241 to 243 of Halsbury's Laws of England (3rd Edn.), Vol.12, in the following words:- “In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. 8 Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion. The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition or where the offence appears as a cross- charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence”. It has been further observed that “ For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petition for divorce bears the burden of proving those elements in the two spouses respectively. 13. In the case in hand, evidence brought on record particularly the evidence of respondent/wife, it is not established that she had any intention to live separately without any cause or to end the cohabitation permanently. Accordingly, no decree of divorce can be granted on the ground of desertion. 14. The judgment relied upon by the learned counsel for the appellant in Saroj (supra) is clearly distinguishable on facts. In that case, the wife was found to 9 be living separately without any just and reasonable cause and had no intention to resume cohabitation and desertion was proved against her. However, in the present case, the evidence shows that the respondent/wife has given specific reasons for living separately, including allegations of cruelty and the material on record does not establish any intention to permanently end the matrimonial relationship. Therefore, the said decision does not apply to the facts of the present case. 15. As regards cruelty, the allegations levelled by the appellant/husband regarding threats of suicide, threats of false implication in a dowry case, insistence on visiting the parental home and other instances are largely based upon his own assertions in the pleading but have not received an independent corroboration. On the contrary, the respondent/wife has alleged physical assault, dowry-related demands and neglect during her illness. In view of the mutually conflicting allegations and absence of cogent evidence establishing mental cruelty of such magnitude as to throw matrimonial life out of gear, this Court is unable to hold that the respondent/wife treated the appellant/husband with cruelty within the meaning of Section 13(1)(i-a) of the Act. The evidence on record further indicates that the respondent/wife was residing at her parental home under circumstances which, according to her, arose from the conduct of the appellant/husband and his family members. Therefore, her separate residence cannot be termed as a deliberate and unjustified withdrawal from the society of her husband. Where reasonable cause exists for living separately, the ground of desertion is not attracted. 16. Thus, the overall analysis of the factual narration if seen in the light of judicial pronouncement of the Hon’ble Supreme Court in the matter of Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511, it gets crystallized that mere trivial instances involving minor skirmishes between the spouses and would not amount to mental cruelty. Mere unhappiness and dissatisfaction of one 10 party at the instance of other cannot by itself constitute cruelty warranting dissolution of marriage. Though the appellant/husband taken a stand that the respondent/wife deserted her without there being any sufficient reason, he has not been able to prove the same independently rather the material on record shows that the respondent/wife was willing to live with the appellant/husband. 17. Having undertaken an arduous exercise as above, this Court has no hesitation to say that the learned Family Court has meticulously examined the evidence adduced by the parties and has arrived at a conclusion that the appellant/husband is not entitled to get the decree of divorce in the given facts and circumstances of the case. No perversity or illegality has been pointed out by the appellant/husband so as to warrant interference by this Court in the finding under assail in this appeal. 18. Accordingly, this Court is of the considered opinion that the appellant/husband has failed to prove either cruelty or desertion on the part of the respondent/wife. The judgment and decree passed by the learned Family Court do not suffer from any infirmity warranting appellate interference. Consequently, the appeal being devoid of merit deserves to be and is hereby dismissed. 19. Decree be drawn accordingly. Sd/- Sd/- (Parth Prateem Sahu) (Sachin Singh Rajput) Judge Judge Jyotishi/H.Ansari