1 / 24 CGHC010184712024 2026:CGHC:40860-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 177 of 2024 Smt. Om @ Uma W/o Ratrash Nand Aged About 30 Years R/o Village Nikum, Near Satnaam Chowk, P.S. Anda, Tahsil And District- Durg, Chhattisgarh. ... Appellant (s) versus Ratrash Nand Deshlahra @ D.K. Ratrash Nand S/o Devcharan Deshlahra Aged About 33 Years R/o Near Satnaam Chowk, Katulboard, Ward No. 59, Tahsil And District- Durg, Chhattisgarh. ... Respondent(s) For Appellant : Mr. Tapan Kumar Chandra, Advocate For Respondent : Mr. T.R. Patel, Advocate on behalf of A.K. Yadav, Advocate D.B. : Hon'ble Shri Justice Parth Prateem Sahu & Ho n'ble Smt. Justice Sushma Sawant Judgment on Board 17/09/2026 Per Parth Prateem Sahu, J. 1. This appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the judgment and decree dated 6th May 2024 passed by Digitally signed by PRAVEEN KUMAR SINHA Date: 2026.09.25 10:56:59 +0530 2 / 24 learned Third Additional Principal Judge, Family Court, Durg, District- Durg in Civil Suit No. 07/2022, whereby application preferred by respondent/applicant (husband) under Section 13(1)(i-a), 13(1)(i-b)of the Hindu Marriage Act, 1955 (for short, "the Act of 1955"), seeking dissolution of marriage by a decree of divorce on the ground of cruelty and desertion, has been allowed. 2. Facts necessary for disposal of the present appeal are that the respondent/applicant (husband) filed a petition under Sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955 before the Family Court, Durg, seeking dissolution of marriage with the appellant/non-applicant (wife), pleading therein that marriage between the parties was solemnized on 25.04.2018 according to their social customs, after which the non- applicant/wife resided with the applicant and his family at Durg. He further pleaded that, within a few months of marriage, non-applicant started frequently quarrelling with him and his family members, neglected household responsibilities, remained occupied with her mobile phone, and refused to maintain cordial relations with his parents. He further alleged that in July 2019 she called several persons from her parental side and publicly accused him of having an illicit relationship with another woman. Thereafter, she went to her parental home and, despite repeated efforts by the husband and his family to bring her back, she remained there for several months. After her return, non-applicant/ wife continued to quarrel over trivial matters and that her father and brother repeatedly interfered in the matrimonial affairs, demanded division of husband's family property in her favour, and threatened to implicate him and his family in criminal proceedings. He also pleaded that the non-applicant/wife made 3 / 24 accusations of witchcraft against his father and mother, causing humiliation and damage to the family's reputation. According to him, non- applicant/wife did not adequately care for their child, who was looked after by him and his parents, and subsequently prevented him from meeting the child. He also alleged regarding non-applicant’s/wife's communications with other persons, including one Deepak Chelak, and pleaded that she had been in an inappropriate relationship with him. He relied upon telephone communications, social-media photographs and other circumstances in support of his allegations. He further alleged that the non-applicant wife voluntarily retained the jewellery and valuables received at the time of marriage and refused to resume cohabitation. He approached the Superintendent of Police, Durg, on 09.12.2019 seeking intervention for restoration of matrimonial life. Counselling proceedings were thereafter conducted before the Mahila Police Station, Bhilai, on 10.02.2020, 17.02.2020 and 26.03.2020; however, the wife declined to live with him. He subsequently filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. During reconciliation proceedings before the Family Court on 25.02.2021, non-applicant/wife again refused to resume cohabitation. Non-applicant/wife had been living separately since 08.12.2019 without sufficient cause and had deprived him of matrimonial companionship. On these grounds, he sought a decree of divorce under Sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955, on the grounds of cruelty and desertion. 3. Non-applicant in her written statement, denied all the material allegations made by the applicant and pleaded that she was always willing to reside with applicant and that the situation had arisen due to the conduct of the applicant himself. She pleaded that she was innocent and 4 / 24 that the mobile numbers referred to by the applicant, which were found in the newspaper, were actually saved in the applicant's mobile phone and that she had no knowledge of the persons to whom those numbers belonged. She further stated that her uncle, Deepak, resides at Raipur and occasionally visits Nikum in connection with agricultural work. There was a dispute between her father and uncle concerning land, which, according to her, was unrelated to the matrimonial dispute. She denied ever referring to the applicant's father as a “witch”. She also stated that the applicant possessed ten pieces of jewellery received at the time of marriage. She desired to live peacefully and affectionately with the applicant at her matrimonial home so that their child, Vyom, could be properly cared for and educated. According to her, it was the applicant who was unwilling to keep her and the child and was attempting to avoid his matrimonial and parental responsibilities. She alleged that the present proceedings had been instituted by the applicant with an intention to gain an unfair advantage. Accordingly, she prayed for dismissal of the application filed by the applicant/husband. 4. On the basis of the pleadings made by the parties, learned Family Court framed following main issues for determination: “1. Whether the non-applicant harassed the applicant by behaving cruelly towards him ? 2. Whether the non-applicant deserted the applicant without any sufficient and reasonable cause ? 3. Whether the applicant is entitled to obtain a decree of divorce from the non-applicant ” 5 / 24 5. Learned Family Court upon appreciation of the pleadings and oral as well as documentary evidence adduced by the parties, answered the aforesaid issues in affirmative and held that the applicant/plaintiff had proved the allegation of cruelty against the non-applicant/defendant. Consequently, the application filed under Section 13(1)(i-a), 13 (1) (i-b) of the Act of 1955 was allowed by the impugned judgment granting decree of divorce to the applicant/plaintiff (respondent herein), which is the subject matter of challenge by non-applicant/wife (appellant herein) in the present appeal. 6. Assailing legality, validity, and correctness of the impugned judgment and decree, learned counsel for the appellant/wife (non-applicant), submits that learned Family Court committed a manifest illegality and perversity in granting the decree of divorce by relying upon statements made by the appellant/non-applicant during police/counselling proceedings regarding the respondent's/applicant’s parents spreading ash on her bed and her alleged unwillingness to reside with the respondent/applicant. He submits that statements made in the course of reconciliation could not constitute substantive evidence of cruelty or desertion. It is further submitted that the counsellor was required only to record whether settlement had been arrived at or mediation had failed and, therefore, the alleged statements made during counselling could not have been relied upon against the appellant; nor could withdrawal of the Section 9 proceedings by the respondent/applicant establish that the appellant/applicant was living separately without just or reasonable cause. The burden to prove the grounds for cruelty and desertion was upon the respondent/applicant, which he failed to discharge, particularly as he 6 / 24 neither issued any notice before filing Section 9 applicant nor made any genuine effort to bring the appellant/non-applicant back to the matrimonial home. It is further contended that the respondent/applicant suppressed the material factum of the child born out of the wedlock and made an incorrect pleading regarding the appellant's employment as a guest teacher, and thus did not approach the Court with clean hands. Accordingly, the findings of the learned Family Court being contrary to the evidence and unsustainable in law, the impugned judgment and decree of divorce deserve to be set aside. 7. Per contra, Learned counsel appearing for the respondent/husband submits that the impugned judgment and decree passed by the learned Family Court are based upon a proper appreciation of the pleadings, oral and documentary evidence available on record and do not suffer from any illegality or perversity. It is submitted that the learned Family Court has rightly found that the appellant/wife subjected the respondent/applicant and his family members to continuous matrimonial cruelty by frequently quarrelling, making allegations of witchcraft against the respondent's parents, creating disputes in the matrimonial home, making allegations regarding the respondent's alleged extra-marital relationship in the presence of several persons, and permitting repeated interference by her parental family in the matrimonial affairs. The allegation regarding ashes having been put on her bed was not considered in isolation, but formed part of the overall conduct of the appellant and the resulting humiliation and mental agony caused to the respondent and his parents. It is further submitted that the appellant's repeated refusal to resume conjugal relationship, including her categorical refusal during counselling 7 / 24 proceedings and the reconciliation proceedings before the Family Court, is a relevant circumstance demonstrating her intention not to resume matrimonial life with the respondent/applicant. The respondent/applicant had made repeated efforts to bring the appellant/non-applicant back, including approaching the Women's Police Station and thereafter instituting proceedings under Section 9 of the Hindu Marriage Act, and therefore the contention that he made no effort to resume matrimonial life is contrary to the record. The fact that the appellant/non-applicant remained separately from the respondent since December 2019 and did not resume conjugal relationship despite such efforts, without establishing any sufficient or reasonable cause, fully supports the finding of desertion. It is further submitted that the appellant/non-applicant cannot contend that counselling proceedings are wholly irrelevant merely because they were undertaken for reconciliation; the respondent/applicant does not rely upon counselling as the sole basis of the decree, but upon the conduct of the appellant/non-applicant as emerging from the entire evidence on record, including her subsequent conduct and refusal to resume cohabitation. The respondent/applicant discharged the burden resting upon him by leading evidence in support of the specific instances of cruelty and desertion, which were duly considered and accepted by the learned Family Court. The appellant's assertion that she was always willing to reside with the respondent is also inconsistent with her conduct and the findings recorded by the trial Court. As regards the allegation of suppression of the birth of the child and the appellant's employment, learned counsel submits that such allegations, even assuming them to be incorrect, do not diminish the otherwise cogent evidence regarding the appellant's/non-applicant’s conduct and cannot by themselves defeat a claim for divorce once the 8 / 24 statutory grounds have been established. Accordingly, it was prayed that the present appeal, being devoid of merit, deserves to be dismissed and the impugned judgment and decree be affirmed. 8. We have considered the rival submissions made by learned counsel for the parties and have carefully perused the record of the Family Court. 9. The appellant/wife has challenged the impugned judgment and decree whereby learned Family Court allowed the application filed by respondent/husband under Section 13(1)(i-a) and Section 13 (1) (i-b) of the Act of 1955 granting decree of divorce to respondent/husband on the ground of cruelty and desertion. The factum of marriage is not in dispute. It is an admitted position that the marriage between the parties was solemnized on 25.04.2018 in accordance with their social customs. 10. Section 13 of the Act of 1955 provides for grant of decree of divorce in certain cases. It enacts that any marriage solemnized whether before or after the commencement of the Act may be dissolved on a petition presented either by the husband or by the wife on any of the grounds specified therein. Clause (i-a) of sub-section (1) of Section 13 envisages that a decree of divorce may be passed by a Court on the ground that after solemnization of marriage, opposite party has treated the petitioner with cruelty. Expression ‘cruelty’ includes both (i) physical cruelty; and (ii) mental cruelty. Cruelty is not defined in the Act of 1955. Physical cruelty can be proved by oral and documentary evidence. As far as mental cruelty is concerned, the same has to be decided based on the facts and circumstances of each case taking into consideration the social standing of the parties. 9 / 24 11. Section 13(1)(i-b) of the Act of 1955 provides desertion as a legal ground for divorce. It allows either spouse to file for the dissolution of marriage if the other party has deserted them for a continuous period of at least two years right before filing the petition. 12. In the present case, respondent/husband (applicant) has enumerated various acts of cruelty alleged to be committed by the appellant/non- applicant (wife). The law on a wife's cruelty against her husband is not as clear as the other way around. The concept of cruelty under matrimonial law has traditionally been discussed in the context of a husband's conduct towards his wife. There are instances where a wife may be found to have treated her husband with cruelty because cruelty is a matter of conduct, not gender. Matrimonial law does not presume that only one spouse is capable of committing cruelty. Whether the husband or the wife has been cruel depends on the facts and circumstances of each case. 13. In order to examine the act of cruelty, the principles laid down by the Hon’ble Supreme Court in Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511, would be a relevant guideline wherein the Court has indicated certain illustrative instances at para 101 whereby the inference of mental cruelty can be drawn. Para 101 reads 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: 10 / 24 (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. 11 / 24 (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 12 / 24 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.” 14. The burden of proving the issues framed by the learned Family Court squarely rested upon the respondent/applicant-husband. In order to discharge the said burden, respondent/applicant Ratrash Nand Deshlahara, entered the witness box as AW-1 and produced, inter alia, the documents in support of his case i.e. a copy of the letter dated 09.12.2019 addressed to the Superintendent of Police, District Durg, marked as Ex.P- 1C, wherein he alleged that he had been subjected to mental cruelty by his wife (non-applicant) and sought appropriate action; a copy of the letter dated 09.12.2019 addressed to the In-charge, Police Station Mohan Nagar, Durg, marked as Ex.P-3C; and a copy of the information furnished by the applicant under Section 155 of the Cr.P.C., marked as Ex.P-4C, alleging misbehaviour on the part of the non-applicant and her other family members. Applicant also placed on record copies of the counselling proceedings obtained under the Right to Information Act, including the proceedings dated 16.03.2020, wherein the non-applicant/wife stated that she did not wish to return to her matrimonial home. He further produced a copy of the application filed under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights, as well as the counselling report dated 25.02.2021, marked as Ex.P-9C, wherein the non-applicant stated that she was neither willing to seek restitution of conjugal rights nor 13 / 24 willing to reside with the applicant under any circumstances. In support of his case, the applicant also examined Dwarika Prasad Mandle as AW-2. 15. Applicant/husband Ratrash Nand Deshlahra (AW-1), was extensively cross-examined by the non-applicant before the learned Family Court. In paragraph- 25 of his cross-examination, he stated that he had filed an application under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights against the non-applicant, which was exhibited as Ex.P-7. In paragraph 26, he further stated that, after 08.12.2019, non-applicant and her family members had blocked his mobile number, due to which he was unable to contact the non-applicant over the telephone. In paragraph- 27 of his cross-examination, applicant voluntarily stated that, during the counselling proceedings, when he expressed desire to keep non-applicant and the children with him, non- applicant wrote a letter stating that she did not wish to live in his house under any circumstances. He admitted that, in the said letter, non- applicant had further stated that she and her children were in danger in his house. In paragraph- 28 of his cross-examination, applicant specifically denied the suggestion that, on the night of 08.12.2019, he was under the influence of alcohol and had assaulted the non-applicant. In paragraph 32, he denied the suggestion that the non-applicant had never referred to his father as a witch. He voluntarily stated that, during the counselling proceedings before the Mahila Thana, non-applicant had stated that his father had spread ash on her bed. In paragraph-34 of his cross- examination, the applicant stated that, on 08.12.2019, non-applicant had left him and had been residing at her parental home thereafter. He further denied the suggestion that, as he did not wish to keep the non-applicant 14 / 24 with him and wanted a divorce, he had lodged a false complaint against her. A careful perusal of the applicant's cross-examination reveals that nothing material or adverse has been elicited from his testimony so as to discredit his version or warrant rejection of his evidence. 16. Non-applicant/wife was examined as NAW-1. In support of her case, she also examined Panchram Mahilang as NAW-2, Balram Deshlahre as NAW-3, and Sukhu Ram as NAW-4. 17. In paragraph- 11 of her cross-examination, non-applicant (NAW-1) admitted that on 09.12.2021, her husband (applicant) had lodged a written complaint before the Superintendent of Police. She also admitted that her brother is posted in the Police Department. In paragraph- 13 of her cross- examination, she admitted that, during the counselling proceedings held on 17.02.2020 and 16.03.2020, she had expressed her unwillingness to reside with the applicant. In paragraph -15, she admitted that, during the counselling proceedings, she had alleged that her husband was having a relationship with another woman. However, she further admitted that she had not produced any documentary evidence in support of the said allegation. In paragraph- 17 of her cross-examination, she specifically admitted that she had never lodged any complaint against the applicant or his family members. Most significantly, in paragraph 18 of her cross- examination, she admitted that, during the proceedings under Section 9 of the Hindu Marriage Act, 1955, she had refused to reside with the applicant. She voluntarily stated that she apprehended danger to her life and property. However, she further admitted that she had never lodged 15 / 24 any complaint before any competent authority or court alleging that her life or property was in danger. 18. Panchram Mahilang (NAW-2), one of the witnesses examined on behalf of the applicant/wife, admitted in paragraph-8 of his cross- examination that the non-applicant had never lodged any complaint before the police or the community alleging harassment or misbehaviour on the part of the applicant. In paragraph-9, he further stated that the non- applicant had never submitted any application before the community expressing her willingness to return and reside with the applicant. He also stated that non-applicant had been residing at her parental home since 08.12.2019. Similarly, Sukhu Ram (NAW-4), in paragraph-10 of his cross- examination, admitted that no meeting of the community had ever been convened in relation to the alleged assault committed by the applicant. 19. From the aforesaid evidence, it is evident that the factum of the parties living separately since 08.12.2019 is not in dispute. It is also borne out from the evidence of the parties that efforts were made for reconciliation through counselling proceedings and that the respondent/applicant (husband) had thereafter instituted proceedings under Section 9 of the Act of 1955 seeking restitution of conjugal rights. The appellant/non-applicant (wife), in her cross-examination, has admitted that during the counselling proceedings held on 17.02.2020 and 16.03.2020, she had expressed her unwillingness to reside with the respondent/applicant (husband). She has further admitted that, during the proceedings under Section 9 of the Act of 1955, she again declined to reside with the respondent. Thus, her categorical refusal to resume matrimonial cohabitation with the respondent/applicant stands established from her own admissions. 16 / 24 20. It is true that a statement made during counselling or reconciliation proceedings cannot, by itself, be treated as substantive evidence of the truth of the allegations made therein, particularly where such proceedings are intended to facilitate settlement between the parties. However, in the present case, the respondent/applicant (husband) is not relying upon the counselling proceedings as the sole or substantive proof of the acts of cruelty pleaded by him. The said proceedings are relevant to the limited extent of demonstrating the conduct of the parties and, particularly, the appellant's/non-applicant’s repeated refusal to resume matrimonial cohabitation. Such conduct has to be considered along with the pleadings, oral evidence, documentary evidence and the admitted circumstances appearing on record. 21. The appellant/non-applicant (wife) has sought to explain her refusal to return to the matrimonial home by stating that she apprehended danger to her life and property. However, except for the said assertion, there is no material on record to demonstrate that she had taken any legal or other remedial steps on account of such apprehension. In her cross- examination, she admitted that she had never lodged any complaint against the respondent or his family members. She also admitted that she had not made any complaint before any competent authority or Court alleging that her life or property was in danger. Her own witness, Panchram Mahilang (NAW-2), further admitted that the appellant had never complained either to the police or to the community regarding any harassment or misbehaviour by the respondent. Likewise, Sukhu Ram (NAW-4) admitted that no community meeting had been convened in relation to the alleged assault by the respondent. At the same time, the 17 / 24 mere absence of a police complaint cannot, by itself, be treated as conclusive proof that the appellant's/non-applicant’s apprehension was false or that no matrimonial discord had occurred. The Court is required to assess the entire evidence on record and determine whether the explanation offered by the appellant/non-applicant constitutes a reasonable and sufficient cause for her continued withdrawal from the society of the respondent. 22. In the present case, respondent/applicant (husband) has placed on record his complaint dated 09.12.2019 addressed to the Superintendent of Police, District Durg, which has been exhibited as Ex.P-1C. Thereafter, he pursued reconciliation through the counselling process and also instituted proceedings under Section 9 of the Act of 1955 seeking restitution of conjugal rights. The appellant/non-applicant (wife), however, admittedly declined to resume cohabitation, not only during the counselling proceedings but also throughout the proceedings instituted under Section 9 of the Act of 1955. Her conduct, therefore, cannot be construed as an isolated refusal confined to a particular occasion; rather, it reflects a continuous and sustained course of separation commencing from 08.12.2019. The aforesaid circumstances, viewed cumulatively, establish the respondent/applicant's case of desertion against the appellant/non- applicant (wife). 23. So far as the allegation of cruelty is concerned, the Court must bear in mind that every matrimonial disagreement, quarrel or refusal to cohabit does not amount to cruelty. In the present case, apart from the respondent/non-applicant’s allegations regarding frequent quarrels and 18 / 24 interference in the matrimonial affairs, the evidence establishes that the appellant made allegations against the respondent/applicant regarding his alleged relationship with another woman, but admittedly did not produce any documentary evidence in support thereof. The appellant/non-applicant also admitted that she had repeatedly expressed her unwillingness to reside with the respondent/applicant. The respondent/applicant, on the other hand, specifically denied the allegation that he had assaulted the appellant while being intoxicated on 08.12.2019. The allegation made by the appellant/non-applicant that she and her children were in danger in the matrimonial home also requires consideration. However, no complaint or other independent material has been brought on record by her to substantiate such apprehension. Her own admission that she did not approach the police, any competent authority, or the Court complaining of such danger, coupled with the testimony of her witnesses that no complaint was made before the police or community, assumes significance while assessing the justification for her continued refusal to resume cohabitation. 24. Hon’ble Supreme Court in case of Savitri Pandey Vs. Prem Chandra Pandey reported in (2002) 2 SCC 73, while dismissing the appeal filed by appellant-wife seeking decree of divorce under Section 13 (1) (i-b) and 23 (1) of the Act of 1955, observed thus : “11. There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the withdrawal of one party from a state of things i.e. the marital status of the party, no party to the marriage can be permitted to allege 19 / 24 desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognised position of law in matrimonial matters that no one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong. In the instant case the appellant herself pleaded that there had not been cohabitation between the parties after the marriage. She neither assigned any reason nor attributed the non- resumption of cohabitation to the respondent. From the pleadings and evidence led in the case, it is apparent that the appellant did not permit the respondent to have cohabitation for consummating the marriage. In the absence of cohabitation between the parties, a particular state of matrimonial position was never permitted by the appellant to come into existence. In the present case, in the absence of cohabitation and consummation of marriage, the appellant was disentitled to claim divorce on the ground of desertion. 12. No evidence was led by the appellant to show that she was forced to leave the company of the respondent 20 / 24 or that she was thrown away from the matrimonial home or that she was forced to live separately and that the respondent had intended animus deserendi. There is nothing on record to hold that the respondent had ever declared to bring the marriage to an end or refused to have cohabitation with the appellant. As a matter of fact the appellant is proved to have abandoned the matrimonial home and declined to cohabit with the respondent thus forbearing to perform the matrimonial obligation. 13. In any proceedings under the Act whether defended or not the court would decline to grant relief to the petitioner if it is found that the petitioner was taking advantage of his or her own wrong or disability for the purposes of the reliefs contemplated under Section 23(1) of the Act. No party can be permitted to carve out the ground for destroying the family which is the basic unit of the society. The foundation of the family rests on the institution of a legal and valid marriage. Approach of the court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties.” 25. Hon’ble Supreme Court in case of Raj Talreja Vs. Kavita Talreja reported in (2017) 14 SCC 194 while allowing the appeal filed by appellant/husband seeking decree of divorce on the ground of cruelty meted out to him by the wife, held as under : “11. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely 21 / 24 have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 (for short ‘the Act’). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC. “ 26. In case of K. Srinivas Rao Vs. D.A. Deepa reported in (2013) 5 SCC 226, Hon’ble Supreme Court observed thus : “34. In the ultimate analysis, we hold that the respondent- wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent- wife expressed that she wants to go back to the appellant- husband, but, that is not possible now. The appellant- husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent- wife.” 22 / 24 27. Recently, Hon’ble Supreme Court in case of Sonal Talpada Vs. Veerbhan Singh [Civil Appeal arising out of SLP (C) No.10422 of 2025, decided on 2nd June 2026] observed thus: “36. This Court is also of the view that prolonged pendency of matrimonial litigation only leads to perpetuity of marriage on paper. It is in the best interest of parties and the society if ties are severed between parties in cases where litigation has been pending for a considerably long period of time. Prolongation of matrimonial relationship would further lead not only to escalation of frustration in a dead relationship, which has already decayed and is decomposing day by day creating foul sociological, psychological and mental hollowness in life resulting in denial of a free and independent environment to flourish which each human strives in body and soul. Consequently, this Court is of the opinion that such matrimonial litigation pending in Court needs to be put to end by granting effective release to the parties from a stale and frozen relationship.” 28. In the case at hand, upon careful appreciation of the oral and documentary evidence available on record, we are of the considered opinion that the respondent/husband has successfully established 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. The appellant/wife has failed to demonstrate any illegality, perversity, or error of law in the judgment and decree passed by the learned Family Court warranting interference by this Court in exercise of its appellate jurisdiction. The 23 / 24 evidence on record clearly establishes that appellant/wife treated the respondent/husband and his family members with mental cruelty and also withdrew from his society without any reasonable cause for the statutory period prescribed under the Act of 1955. Despite sincere efforts made by the respondent/husband to restore the matrimonial relationship, the parties have failed to resume cohabitation, and there appears to be no reasonable possibility of reconciliation between them. They have been living separately for a considerable period and the material on record indicates that mutual trust and confidence, which constitute the very foundation of a matrimonial relationship, have completely eroded. In the facts and circumstances of the present case, there appears to be no reasonable possibility of the parties resuming conjugal relationship or leading a peaceful matrimonial life. 29. In view of the foregoing discussions and in the light of the principles laid down by the Hon'ble Supreme Court in the decisions referred to herein-above, we are of the considered opinion that the findings recorded by the learned Family Court are based on a proper appreciation of the oral and documentary evidence available on record. The impugned judgment neither suffers from any perversity nor discloses any error of law or fact warranting interference by this Court in exercise of its appellate jurisdiction. 30. Consequently, the appeal, being devoid of merit, deserves to be and is accordingly dismissed. The judgment and decree dated 6th May 2024 passed in Civil Suit No.7/2022, whereby application filed by the respondent/husband under Section 13(1)(i-a) and 13 (1) (i-b) of the Act of 1955 seeking dissolution of marriage on the ground of cruelty and 24 / 24 desertion has been allowed and a decree of divorce has been granted, are hereby affirmed. 31. Let a decree be drawn accordingly. S Sd/- Sd/- (Parth Prateem Sahu) (Sushma Sawant) Judge Judge Praveen