Neutral Citation

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

FA(MAT) No. 30 of 2022

Judgment Reserved on 13.03.2024

Judgment Delivered on 23.04.2024

 Ashwini Kumar Singh, S/o Akhilesh Singh, aged about 27 Years, R/o
Village Ranpurkala, P.O. Sukhri P.S. Gandhinagar, District Sarguja,
Chhattisgarh.

----Appellant

Versus

 Sadhna Singh, W/o Ashwini Singh, aged about 27 Years, R/o Village
Chindiya, P.S. Ramnujnagar, P.O. Shrinagar, District Surajpur,
Chhattisgarh.

---- Respondent

For Appellant Mr. A.N. Bhakta and Mr. Vivek Bhakta,

Advocates.
For Respondent Mr. Nishikant Sinha, Advocate.

Hon’ble Shri Justice Goutam Bhaduri &

Hon’ble Shri Justice Radhakishan Agrawal

C A V Judgment

Per Radhakishan Agrawal, J.

1. Appellant-Husband preferred this appeal against the judgment and

decree dated 29.11.2021 passed by the Family Court, Ambikapur,

District Surguja, C.G. in Civil Suit No.136-A/2018, whereby the suit

filed under Section 13 of Hindu Marriage Act, 1955 (for short, 'the Act,

1955') by the husband/appellant for grant of decree of divorce has

been dismissed.

2. The facts, in brief, are that marriage between the appellant/husband

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and respondent / wife was solemnized on 26.04.2013 at Ambikapur

according to Hindu rites and rituals. After marriage, the respondent /

wife joined the company of the husband and out of their wedlock, one

female child was born. It is alleged by the husband that after

marriage, the wife used to visit her maternal home frequently without

any information and also refuses to stay at village Ranpurkala. It is

averred by the husband that he is working as Constable in the

Chhattisgarh Armed Force at village Silphili and on account of his

busy in peforming duties, it is not possible for him to look after his

parents and old maternal grand-mother (nani) and for this reason, the

wife would often fight with the appellant and never wanted to stay with

him and his family as she often used to go to her maternal home even

after birth of child. It was also put forth by the appellant that because

of behaviour of his wife and looking to his busy in duties, he left his

child to his parents house at Surajpur where he admitted his child in

Global Public School and despite that, the wife took his child without

any permission from School Management and information to which

has been given to Surajpur, Police Station, who advised him to go to

the Court as it is a family dispute. Since the wife often used to go to

her maternal home, the appellant is unable to give much time to care

his old maternal grand-mother (nani). It was alleged that since the

wife is leading an independent life by her free conduct and behaviour,

therefore, she is not performing her matrimonial obligations and

because of which he and his family members have to face difficulties

and inconvenience. It is also alleged that wife has filed a case against

him under the Protection of Women from Domestic Violence Act (for

short, 'the DV Act') before the Chief Judicial Magistrate, Ambikapur

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and further filed a case for maintenance, which act of the wife has

hurt the honour and dignity of the husband in the society. In this way,

his wife always tried to implicate him in a false case to teach him a

lesson and thus he was subjected to mental cruelty by wife and the

respondent-wife is residing separately for the past 3 years from him

and there is no possibility of staying together as he was deserted by

her without any sufficient cause, therefore, the appellant is entitled to

decree of divorce.

3. The respondent-wife filed its written statement denying the averments

pleaded in the suit filed by the appellant-husband. She has

specifically stated that no cruelty has ever been meted out by her. It is

also specifically stated by her that after marriage, the husband took

her to the house of his grand-mother situated at Ranpurkala where on

account of land dispute, there is always a threat of fight and

sometimes, the opposite party used to come to home and commit

marpeet with her husband for which she lodged a report in the Police

Station, Gandhinagar. She has also specifically stated that husband

used to misbehave and beat her over small petty matters and thinking

that everything would go in smooth in future, she continued to tolerate

the torture meted out by her husband. She made a number of

requests to take her to Silphili quarter, which was refused by him.

After her daughter has been admitted in a school situated at his

parents village, at that time, she was living all alone in village

Ranpurkala. Therefore, she went to the school and took her daughter

back after informing the same to the Mahila Police Station at

Ambikapur. It was also specifically stated by her that husband was

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not paying any expenses for her maintenance and of her daughter,

therefore, she was forced to file an application to get the

maintenance. On earlier occasions, she made all possible efforts to

live with the husband and to discharge her marital duties, but it was

the husband who made impediments in her marital life and she is still

ready to lead a happy marital life with the husband. Therefore, it was

prayed by her that the application filed by the appellant- husband

seeking dissolution of marriage be dismissed.

4. On the basis of the averments made by the parties, the issues were

framed and after affording opportunity of hearing to the parties, the

Family Court decided all the issues in negative and dismissed the suit

by holding that the husband / appellant failed to prove his case.

5. Learned counsel for the appellant / husband would submit that the

impugned judgment and decree are perverse, illegal, erroneous and

contrary to the facts of the case as well as evidence available on

record. He would further submit that the wife was harassing the

appellant-husband both mentally and physically and used to suspect

his character. According to him, there is no cohabitation between

them since December, 2014, as the respondent-wife has deserted the

husband and is living separately without sufficient cause. It is also

submitted by the appellant-husband that respondent-wife committed

act of cruelty on many times and this apart, the wife also tried to

commit adultery with husband's cousin. On these grounds, he urged

that he is entitled to decree of dissolution of marriage. Reliance has

been placed on the decision of Hon'ble Supreme Court in the matters

of Debananda Tamuli vs Smti Kakumoni Kataky passed in Civil

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Appeal No.1339 of 2022 [@SLP (C) No.22667 of 2019] & Dr. N.G.

Dastane vs Mrs. S. Dastane reported in AIR 1975 SC 1534.

6. Per contra, learned counsel for the respondent / wife would submit

that the appellant / husband used to quarrel with her, his behaviour

towards her was cruel and he always created hindrances in her life

because of which she was not able to perform her marital obligations

properly. According to the wife, appellant-husband and his family

members ousted her from the matrimonial home without any rhyme or

reason. It would contend that the respondent-wife met the Officers of

his Office in person and expressed her desire to live with the

appellant-husband in government quarters, despite that the appellant-

husband refused to live with her. Respondent / Wife was always

ready and willing to live with appellant-husband and daughter and

was also ready to discharge her marital duties. Hence, the impugned

judgment and decree passed by the Family Court are well merited,

which do not call for any interference.

7. We have heard learned counsel for the parties and perused the

record carefully.

8. Admittedly, these facts are not in dispute that the marriage between

the parties was solemnized in the 26.04.2013 and out of their

wedlock, one female child was born. The appellant / husband filed a

suit seeking dissolution of marriage on two grounds i.e. desertion and

cruelty. In order to deal with the desertion and cruelty, PW-1 Husband

has stated that after marriage, he brought his wife to the house

situated at village Ranpurkala where she used to say that she did not
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come here to serve your maternal grand-mother (nani) as she is not

servant and then started quarreling with him and his family members.

He has further stated that after delivery of a female child, the wife

remained in Ranpurkala village for a period of three months and

during her stay also, she had quarrels with his family members and

one fine morning, she left Ranpurkala village. Thereafter, his foster

father- Nigam Mishra persuaded her and took her back to Ranpurkala

village where she stayed for a period of 3-4 months, at that time also,

she did not take care of his family members and on being asked

about the same, she replied that she is not a servant and would not

like to stay at Ranpurkala and in turn, she asked him to stay with him

at Silphili village which is 12 kms away from Ranpurkala. Upon which,

he refused to take her to Silphili village as his foster parent and

maternal grand-mother (nani) have become old, to which she

threatened him. It is also stated by him that his cousin told him that

his wife forced him (cousin brother) to maintain physical relations or

else threatened him to implicate in a false case. Thereafter, after

about a week, his wife, leaving her daughter, went away to her

maternal home and did not come to his house again. Further, he has

stated that he had gone to her maternal home in December, 2014 and

since then there is no relationship between them and as she

subjected his family members to harassment, therefore, he seeks

divorce from her. He was subjected to cross-examination where he

has stated that after delivery of her daughter, she stayed with him for

a period of two months and on the contrary, he has further stated that

after passing of six months, she has returned to his home. He has

admitted in para 10 that he used to say to his wife to take care and to
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look after his grand-mother. It is admitted by him that after divorce, he

would marry again with another girl. PW-2 Nirmala Singh, mother of

the appellant-husband deposed the similar statement and thus

supported the statement of PW-1-Appellant / husband. PW-3 Smt.

Fulkunwar is the grandmother of the husband and in her statement

she has stated that after delivery of child, the wife remained with her

for a period of two and half months and thereafter she left for

maternal house leaving the two and half months infant. She has

further admitted that till the time the respondent was in her house,

she had offered food to her and on the contrary, she has further

stated that the respondent-wife did not give food on time and in turn

respondent-wife used to say that she is not her maid whenever this

witness asked the respondent to serve her.

9. Now, we shall deal with the evidence of respondent-wife, who has

been examined as DW-1. With respect to the facts of marriage with

the appellant-husband and out of their wedlock, they have been

blessed with one female child, are not in dispute. She has specifically

stated that on the pressure of her mother-in-law, her husband applied

for divorce from her, despite there being no dispute between them.

Since her mother-in-law ousted her from the matrimonial house,

therefore, she has been living in her maternal house for the last five

years. It has been stated by her that appellant solemnized marriage

with her as per his choice, but his mother-in-law wants to get him

married to a working girl and that her mother-in-law was always

taunting her that she wanted a male child and not a female child. She

was subjected to cross-examination where in para 6, she has

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admitted that she was staying in Ranpurkala for a period of five years

and during her stay, in Ranpurkala, she used to go to her maternal

house whenever her mother-in-law used to come. In para 7, she has

admitted that she used to take proper care of the family members of

the husband even in his absence. She has spontaneously stated that

a month before filing of application for divorce, her mother-in-law

ousted her from the house. In para 10, she has admitted that

husband himself has made a demand of Rs.5 lakh and if his demand

is fulfilled, then he would not marry another girl and further stated that

she did not want to escalate the dispute, but wanted to live with her

husband peacefully. In para 11, it was admitted by her that on

06.10.2017, her mother-in-law ousted her from the house, whereas

her husband never ousted her. In para 15, she has stated that she

stayed in Ranpurkala for 7-8 months during the year 2017 to 2019.

She has further stated that she used to take money from husband for

educating her child, whereas her parents used to bear her expenses.

10. DW-2 Archana Singh, cousin of appellant-husband, has stated that

after marriage, respondent-wife stayed with the appellant-husband for a

period of 5-6 years and further stated that appellant-husband always

used to talk to a girl over mobile phone and for this reason, dispute

ensued between them. She has also admitted that respondent-wife

used to come to her matrimonial home even while she was staying at

her maternal home. She has also admitted that respondent-wife lived in

Ranpurkala with the appellant-husband itself.

11. DW-3 Smt. Rinku Singh is one of the relatives of appellant-husband

and has stated that due to birth of female child, the mother of husband
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(PW-2) got annoyed and used to ask respondent-wife to leave her son

(appellant-husband) and appellant also wanted a male child and

ultimately, ousted the respondent-wife from the house on account of

birth of a female child.

12. The husband sought decree of divorce on the grounds of cruelty and

desertion. In this regard, the Supreme Court in the matter of Savitri

Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, has observed thus

in paras 6 and 9 :

“6. Treating the petitioner with cruelty is a ground for divorce

under Section 13(1)(i-a) of the Act. Cruelty has not been defined
under the Act but in relation to matrimonial matters it is
contemplated as a conduct of such type which endangers the
living of the petitioner with the respondent. Cruelty consists of
acts which are dangerous to life, limb or health. Cruelty for the
purpose of the Act means where one spouse has so treated the
other and manifested such feelings towards her or him as to
have inflicted bodily injury, or to have caused reasonable
apprehension of bodily injury, suffering or to have injured health.
Cruelty may be physical or mental. Mental cruelty is the conduct
of other spouse which causes mental suffering or fear to the
matrimonial life of the other. “Cruelty”, therefore, postulates a
treatment of the petitioner with such cruelty as to cause a
reasonable apprehension in his or her mind that it would be
harmful or injurious for the petitioner to live with the other party.
Cruelty, however, has to be distinguished from the ordinary wear
and tear of family life. It cannot be decided on the basis of the
sensitivity of the petitioner and has to be adjudged on the basis
of the course of conduct which would, in general, be dangerous
for a spouse to live with the other. In the instant case both the
trial court as well as the High Court have found on facts that the
wife had failed to prove the allegations of cruelty attributed to
the respondent. Concurrent findings of fact arrived at by the
courts cannot be disturbed by this Court in exercise of powers
under Article 136 of the Constitution of India. Otherwise also the
averments made in the petition and the evidence led in support
thereof clearly show that the allegations, even if held to have
been proved, would only show the sensitivity of the appellant
with respect to the conduct of the respondent which cannot be
termed more than ordinary wear and tear of the family life.

9. Following the decision in Bipinchandra case [AIR 1957 SC

176] this Court again reiterated the legal position in Lachman
Utamchand Kirpalani v. Meena [AIR 1964 SC 40] by holding that
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. For the
offence of desertion so far as the deserting spouse is
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concerned, two essential conditions must be there (1) 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. For
holding desertion as proved the inference may be drawn from
certain facts which may not in another case be capable of
leading to the same inference; that is to say the facts have to be
viewed as to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and
subsequent to the actual acts of separation.”

13. In Smt. Rohini Kumari Vs. Narendra Singh {AIR 1972 SC 459}, the

Supreme Court held that desertion does not imply only a separate

residence and separate living. It is also necessary that there must be a

determination to put an end to marital relation and cohabitation.

14. The Supreme Court, in the matter of Debananda Tamuli (supra) has

observed in para 8 which reads as under:-

“8. The reasons for a dispute between husband and wife

are always very complex. Every matrimonial dispute is
different from another. Whether as case of desertion is
established or not will depend on the peculiar facts of each
case. It is a matter of drawing an inference based on the
facts brought on record by way of evidence.”

15. Considering the facts of the present case in light of the aforesaid

principles of law laid down by their Lordships of the Supreme Court, it is

quite vivid that marriage between the parties was solemnized on

26.04.2013 and their relations were cordial while living at village

Ranpurkela. Perusal of the evidence of appellant-husband would reveal

that he used to have quarrels with the respondent-wife with respect to

proper care of his family members and whenever the respondent-wife

expressed her desire to live in Silphili where he is working, the

appellant used to refuse and never took her along with him on one

pretext or other. From perusal of evidence of PW-1 appellant / husband,

it appears that the husband got married with the respondent-wife only to
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serve his family members as maid servant. It also appears from perusal

of statement of PW-1 husband that he used to suspect her character as

his cousin told him that his wife forced him (cousin brother) to maintain

physical relations or else threatened him to implicate in false case, but

no evidence has been produced by him to substantiate this specific

allegation. In fact, the allegations leveled by him are omnibus and there

is no reason for this Court to believe his statement, in absence of any

cogent and reliable evidence. On the other hand, from perusal of the

evidence of respondent-wife, it appears that she is always ready and

willing to live with the appellant-husband despite trivial issues raised by

him. It is also evident from her evidence that even in absence of her

husband, she never lost the opportunity in properly looking after his

family members and in performing her matrimonial obligations carefully

despite there being unfavourable circumstances. It is also clear from

the evidence of DW-2 Archana Singh and DW-3 Smt. Rinku Singh, who

are the relatives of husband, that the appellant-husband always used to

have engaged in talking with another girl over mobile phone and that

because of delivery of female child, the respondent-wife has been

ousted from her matrimonial home. It is manifest from their (DW-2 &

DW-3) evidence that after marriage, the respondent-wife was staying in

Ranpurkala village for a considerable period, which shows that the

respondent-wife was always ready and willing to stay with the

appellant-husband and never deserted either the appellant or his family

members, rather it was the appellant-husband who used to pressurize

her to serve his family members with proper care. It also appears from

perusal of above evidence that even after dispute ensued between the

husband and wife, the respondent-wife used to maintain cordial

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relations with husband and his family members and some times at the

behest of his mother (PW-2), the husband himself used to have

quarrels with the wife and ultimately, she has been ousted from her

matrimonial home by mother-in-law (PW-2).

16. It is very natural and rightful demand of the wife from her husband to

keep her along with him. The appellant-husband herein, from the very

beginning, not accepted any such genuine request of the wife and

always used to treat her as a chattel and thought that she is bound to

live in such a place where he wants to keep her. It is a well settled that

in the matrimonial house, the wife should not be treated as hired chattel

or a bonded labour to stay under the conditions imposed by the

husband. The Family Court, considering the evidence and material

available on record, held that the appellant-husband has failed to prove

the allegations levelled by him against the respondent-wife, therefore,

he is not entitled for a decree of dissolution of marriage and

accordingly, dismissed his suit. Therefore, on overall assessment of the

evidence, we are of the opinion that cruelty & desertion on which

divorce was sought for have not been proved by the appellant-husband.

17. Having gone through the judgments relied upon by learned counsel

for the appellant / husband and the principles of law laid down therein,

in the given facts and circumstances of the present case, the aforesaid

judgments being distinguishable on facts are of no help to the

appellant / husband.

18. Being so, the finding arrived at by the learned Family Court rejecting

the decree of dissolution of marriage as sought for by the appellant-

husband does not call for any interference.

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19. In the result, the appeal filed by the appellant-husband being without

any substance is liable to be dismissed and is, accordingly, dismissed.

20. A decree be drawn up accordingly.

Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge

Akhilesh / Anjani
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