03 /09/2025 Guha Singh, aged about 27 years, Caste Satnami, D/o Shri Balmiki v.
Case Details
1 2025:CGHC:44824-DB AFR HIGH COURT OF CHHATTISGARH, BILASPUR F.A.M. No. 40 of 2018 Judgment Reserved on : 10/07/2025 Judgment Delivered on : 03 /09/2025 Guha Singh, aged about 27 years, Caste Satnami, D/o Shri Balmiki Jangde, R/o Jungle Side Bankimongra, Tahsil Katghora, District Korba (C.G.). ---- Appellant Versus Smt. Kiran Jangde, aged about 29 years, W/o Guha Singh, Caste Satnami, R/o Qtr. No.B-225, Pragati nagar Dipka, Tahsil Katghora, District Korba (C.G.) ---- Respondent For Appellant : For Respondent : Mr. Ram Kumar Tiwari, Mr. F.S. Khare and Ms Neelu Singh, Advocates. Ms. Ruchi Nagar, Advocate. Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Amitendra Kishore Prasad (C.A.V. Judgment) Digitally signed by VIJAY BHARATRAO PEKDE Per Rajani Dubey, J 2 1. This appeal has been preferred by the applicant-husband being aggrieved by the judgment and decree dated 07.12.2017 passed by the learned Judge, Family Court, Camp Court, Katghora, District Korba, in Civil Suit No.53- A/2015, whereby the application filed by applicant-husband seeking dissolution of marriage has been dismissed. The parties to this appeal shall be referred herein as per their description before the Court below. 2. Briefly stated fact of the case are that the applicant – husband instituted a suit claiming decree for dissolution of marriage on the grounds enumerated under Section 13 (1) (I) and (ia) of the Hindu Marriage Act, 1955 (for short ‘the Act, 1955’). It was pleaded in the application that applicant’s marriage with the non-applicant was solemnized on 11.02.2010 and out of their wedlock, one daughter Nidhi was born. According to the applicant, after sometime of marriage, the attitude of the non-applicant was non- cooperative and belligerent. The non-applicant deliberately refused to perform her marital obligations and adopted an attitude of showing her disrespect to the applicant as well as his old aged parents. The non-applicant repeatedly coerced 3 the applicant to live separately from his parents and dependent brothers. The applicant is an employee of SECL and due to his terms of employment, his services were transferable and posted at various establishment of the SECL. The non-applicant instead of residing in her matrimonial home left the company of the applicant and went to her parents home. The applicant took all endeavors to provide her maintenance towards her health and well being. The applicant also arranged for her medical treatment in the SECL Hospital. The applicant repeatedly requested the non-applicant to join his company and reside in her matrimonial home but the non-applicant bluntly refused the applicant. The non-applicant repeatedly coerced the applicant to live separately from his parents. It was also pleaded in the plaint that the non-applicant is living separately since May, 2011, and all the efforts of the applicant to bring her back went in vain. A meeting of the elders of the community was also convened in December, 2011, but the non-applicant again refused to join the company of the applicant. The applicant also moved an application under Sections 97 and 98 of the Cr.P.C. to bring back the non-applicant. The non-applicant thereafter lodged a false criminal complaint under Section 498(A) of the I.P.C. 4 and implicated all his family members. However, by the judgment dated 11.08.2021 passed in Sessions Trial No.20/2019, the applicant and his family members have been acquitted from the charge and he has filed I.A.No.04/2025 for taking the judgment dated 11.08.2021 on record. The non-applicant has also filed an application under Section 125 of the Cr.P.C. and the applicant is regularly paying her maintenance. Therefore, he is entitled to get a decree for dissolution of marriage under the Act, 1955 on the ground of cruelty. 3. The non-applicant, in her reply, except admitted facts denied rest of the allegations and stated that applicant had demanded Rs.40,000/- for his transfer from Talchar to Korba and for transportation of the goods. Out of Rs.40,000/-, Rs.20,000/- was given by non-applicant’s father and Rs.20,000/- was borrowed from some other person and went with the applicant to perform her matrimonial obligation. The non-applicant always wanted to reside with applicant but due to continuous harassment of applicant and his family members, non-applicant compelled to reside with her parents in Deepka. The non-applicant admitted this fact that she has instituted a case of cruelty for dowry, which is pending consideration before the Court. Similarly, she has 5 filed a case of domestic violence and maintenance, which is also pending consideration before the Court and thus, due to harassment of applicant she is residing separately. It was specifically averred by the non-applicant that in the marriage, all the necessary articles including the cash & golden and silver ornaments were given to the applicant and after delivery of child, the entire medical expenses were born by non-applicant’s father. The applicant and his family members demanded Rs.5 Lakh as non-applicant had delivered a female child and after delivery of female child, the behaviour of the applicant and his family members were changed. It was also averred that applicant and his family members themselves ousted non-applicant from matrimonial house and since then non-applicant is residing with her parents. It was further contended that on 13.12.2011, a social meeting was convened in the house of non-applicant in which the non-applicant was humiliated and the applicant refused to take her to matrimonial home. Despite assurance given by the applicant in the Family Counselling Center, the applicant did not take the non- applicant. Thereafter, the applicant filed an application under Section 97, 98 of Cr.PC. before the Court of S.D.M., Katghora, in which non-applicant appeared and ready to go 6 with the applicant but the applicant did not take non- applicant and her daughter. It was also contended that the applicant is posted as Mining Sardar in SECL Gevra, he did not allow the non-applicant to go outside and talk with others. Even he did not allow her to watch television and continuously harassed her. Therefore, it was prayed that the application filed by the applicant for dissolution of marriage may be dismissed. 4. The learned Family Court, after examining oral and documentary evidence, dismissed the application of applicant holding that the applicant failed to prove cruelty and desertion by the non-applicant. Hence, this appeal filed by the applicant-husband. 5.
Legal Reasoning
facts into consideration, we are of the view that there is irretrievable break-down of marriage which is beyond repairs. Under the
Arguments
Learned counsel for the applicant-husband submits that the impugned judgment and decree passed by the learned Family Court is bad, illegal, arbitrary and contrary to law applicable to the facts and circumstances of the case. The learned Family Court failed to appreciate that the non- applicant is living separately without justifiable reason. The non-applicant has deliberately refused to join the company of the applicant for the reason that she wanted to reside separately from joint family. The learned trial Court has also failed to consider that the applicant has proved cruelty 7 committed by the non-applicant by leading cogent and clinching evidence. The non-applicant was abusive towards the parents and family members of the applicant. Learned counsel also submits that the non-applicant had family implicated the applicant and his family members in the criminal case under Section 498(A) of IPC, in which they were acquitted by the learned trial Court vide order dated 11.08.2021. The applicant has made all his efforts to convince the non-applicant to join his company and has also filed the application under Sections 97 and 98 of Cr.P.C. Learned counsel also submits that the applicant is regularly paying maintenance to non-applicant and has always arranged for the medical treatment and proper care of the respondent. The non-applicant had assaulted the applicant inside the Court premises and the report of which was made in the police station and the same was proved by the applicant by leading clinching evidence. The learned trial Court has failed to appreciate that the marriage is irretrievably broken and there is no chance of reunion. There is ample evidence on record which shows that the cruelty was committed by non-applicant. Thus, the finding recorded by the learned Family Court is perverse and impugned judgment is liable to be set aside. 6. Learned counsel for the appellant has also filed I.A.No. 8 04/2025 under Order 41 Rule 27 of CPC for taking copy of judgment dated 11.08.2021 passed by 1st Additional Sessions Judge, Katghora (C.G.) in Sessions Trial Nol20/2019 on record, whereby the appellant and his family members have been acquitted from the charge under Sections 498-A/34, 307 and 323/34 of IPC. Learned counsel for the appellant submits that the impugned judgment and decree has been passed by the learned Family Court on 07.12.2017 and at that time criminal case was pending against the appellant and during pendency of this appeal, the learned 1st Additional Sessions Judge, Katghora (C.G.) passed the judgment dated 11.08.2021 acquitting the appellant and his family members from all the charges. According to him, this judgment is necessary for proper adjudication of this appeal to prove the cruelty on the part of the respondent-wife, therefore, the same may be taken as additional evidence on record. In support of his submission, learned counsel placed reliance on the decision of Hon’ble Apex Court in the matter of K. Srinivas Rao Vs. D.A. Deepa reported in (2013) 5 SCC 226. 7. On the other hand, learned counsel for non-applicant-wife 9 supporting the impugned judgment and decree and opposing the I.A.No.04/2025 submits that the learned Family Court minutely appreciated oral and documentary evidence and rightly dismissed the application of the applicant-husband & merely litigation under Section 498-A of IPC and acquittal cannot be a ground of cruelty for divorce. So, this application and the appeal being without any merit are liable to be dismissed. Learned counsel placed reliance on the decision of Hon’ble Apex Court in the mater of Mangayakarasi Vs. M. Yuvaraj reported in (2020) 3 SCC 786, and decision dated 01.03.2024 of High Court of Delhi passed in MAT.APP. (F.C.) 241/2023 & CM APPL. 729/2000 . 8. Accordingly, I.A. No.04/2025 for taking judgment dated 11.08.2021 on record as additional evidence is allowed and the judgment dated 11.08.2021 is taken on record. 9. We have heard learned counsel for the parties and perused the material available on record. 10. It is an admitted position before the learned Family Court that the marriage of applicant and non-applicant was solemnized on 11.02.2010 according to the Hindu rites and ritual & out of their wedlock one daughter was born, who is 10 now residing with the non-applicant. 11. The learned Family Court on the basis of pleading of both the parties framed as many as 04 issues, out of which, issue Nos. 1 and 2 being significant are reproduced herein as under :- Dza- 01- 02- okn iz’u D;k vukosfndk@iRuh vkosnd@ifr dks vusd izdkj dwzjrkiw.kZ O;ogkj dj vkosnd dks ‘kkjhfjd ,oa ekufld #i ls izrkfMr fd;k gS \ D;k vukosfndk@iRuh vkosnd@ifr dks foxr nks o”kksZ ls vf/kd le; ls fcuk fdlh ;qfDr;qDr dkj.k ds vius nkEiR; lq[kksa ls oafpr fd;k gS \ fu”d”kZ ughA ughA 12. The learned Family Court after appreciation of oral and documentary evidence finds that the applicant has failed to prove both the issues and dismissed the application of the applicant for dissolution of marriage by decree of divorce. The learned Family Court appreciated this fact that both the parties filed complaint against each other and their marital relationship was strain but the learned Family Court finds in para 19 of the impugned judgment that the applicant has failed to prove cruelty on the part of the non-applicant and in para 20 finds that the criminal trial is still pending against the applicant which is related to demand of dowry and torture. So, non-applicant has sufficient cause to live separately. 13. The applicant has stated in his evidence filed under Order 11 18 Rule 4 of CPC that non-applicant filed various complaints against him and criminal case under Section 498-A of IPC, Domestic Violence Act and case under Section 125 of Cr.P.C. is pending against him before various Courts. He has also stated that he made every attempt to bring back the non-applicant for performing matrimonial obligation but she did not come, thereafter he filed an application under Sections 97 and 98 of Cr.P.C. before the Sub Divisional Magistrate, Katghora, which was dismissed by the learned Sub Divisional Magistrate and since 2011, she is living separately. In his cross-examination, he denied this suggestion of non-applicant that he did not go to take non- applicant and daughter and used to taunt her saying that she had given birth to a girl child. He has also denied this suggestion that he had told the non-applicant to bring Rs.5 Lakh then he would keep her. He has also denied this suggestion that father of non-applicant called a social meeting and he himself stated that the social meeting was called by him. 14. Ramlal Jaagde (AW-2), Melu Ram (AW-3) and Sadaram (AW-4) have supported the case of applicant and stated that non-applicant is not willing to reside with the applicant. 15. Non-applicant (NAW-5) has stated in her examination-in- 12 chief that applicant had demanded money in dowry and when she became pregnant, the applicant left her in her maternal home. In July 2011, the applicant took her to maternal home. In the month of May, when applicant did not take her then her father left her to in-laws’ house at Bankimogra as her in-laws were saying that she has delivered a girl child, therefore, they would not keep her. She has also stated that on 26.10.2011, her in-laws provoked the applicant to commit maarpeet with her, then the applicant and his both brothers committed maarpeet with her and her father-in-law had picked up an axe to kill her, and after this incident, her father took her to maternal home. In cross-examination, she denied this suggestion that she did not want to live in her in-laws’ house. She has also denied this suggestion that the applicant was taking good care of her. She has also denied this suggestion that she used to utter objectionable/abusive language against the applicant and his family members. She has admitted this suggestion that she is residing in her maternal home for 5-6 years and there was no marital relationship between them. She has denied this suggestion that the applicant convened a social meeting to take her with him. She has admitted that 13 at present she is getting Rs.13,000/- per month as maintenance from the salary of the applicant. 16. Rajkumari (NAW-4), mother of non-applicant, has stated in her examination-in-chief that the applicant left her daughter in maternal home and did not come to take her back. She has also stated that the in-laws of her daughter used to commit maarpeet with her and did not give her food. In cross-examination, she has admitted that she is deposing about torture at the behest of her daughter. She has admitted that the applicant has a joint family. 17. Bharat Lal (NAW-3), father of non-applicant, has also admitted this suggestion that his daughter is residing with him for 5-6 years. 18. Close scrutiny of the evidence of both the parties makes it clear that non-applicant is living separately since 2011 and she lodged an FIR under Section 498-A, 324 and 307 of IPC against the applicant and his family members & vide judgment dated 11.08.2021, the learned Additional Sessions Judge acquitted the applicant and his family members from all the charges. In the judgment of acquittal from the charge under Sections 498-A/34, 307, 323/34 of IPC, the learned Sessions Judge finds that the applicant was residing separately from 26.10.2011 after the incident of maarpeet 14 and the FIR was lodged by the non-applicant on 08.03.2013 i.e. after the delay of about 1 year and 5 months & no satisfactory explanation has been offered in this regard. The learned Sessions Court also finds that the statement of complainant/non-applicant and her witnesses are not reliable and thus acquitted the applicant and his family members. 19. The non-applicant has also admitted that she had filed a complaint against the applicant under Section 12(1) of the Domestic Violence Act, 2005 and vide judgment dated 12.04.2017, this application was dismissed by the learned Sessions Judge, Katghora. 20. The Hon’ble Apex Court in K. Srinivas (supra) held in para 28 as under :- “28. Pursuant to this complaint, the police registered a case under Section 498-A IPC. The appellant husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent wife filed a protest petition. The trial court took cognizance of the case against the appellant husband and his parents (CC No. 62 of 2002). What is pertinent to note is that the respondent 15 wife filed criminal appeal in the High Court challenging the acquittal of the appellant husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant husband for the offence under Section 498-A IPC in the High Court which is still pending. When the criminal appeal filed by the appellant husband challenging his conviction for the offence under Section 498-A IPC was allowed and he was acquitted, the respondent wife filed criminal appeal in the High Court challenging the said acquittal. During this period the respondent wife and members of her family have also filed complaints in the High Court complaining about the appellant husband so that he would be removed from the job. The conduct of the respondent wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant husband, in filing appeal questioning the acquittal of the appellant husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the 16 appellant husband.” 21. While dealing with the issue of cruelty and accusation against each other, this court in the matter of Dr. Ramkeshwar Singh V. Smt. Sheela Singh @ Madhu Singh [Neutral Citation No. 2022:CGHC:15007-DB] held in para 26 as under :- “26. Further the nature of accusation made against each other in a matrimonial case would show that since 1996, the parties are living apart and litigating in different courts. Taking into such
Decision
circumstances, we allow the appeal and grant a decree of divorce to the husband. The marriage solemnized between the parties is dissolved and accordingly a decree be drawn.” 22. In the instant case, the non-applicant has admitted that she is living separately since 2011 and it is apparent that during her stay at her maternal home, she filed complaint in the year 2013 under Section 498-A of IPC and Section 12 (1) of the Domestic Violence Act, 2005. Ramlal (AW-2) and Meluram (AW-3) have stated that the applicant had called social meeting to resolve the family dispute and the non- applicant denied this fact and stated that her father had called the social meeting but her father Bharat Lal Patel 17 (NAW-3) has admitted in examination-in-chief that he had not called any social meeting to resolve the family dispute. 23. As per the settled position of law, including the judgment in Bipinchandra Jaisinghbhai Shah v. Prabhavati (AIR 1957 SC 176), to prove desertion, two essential elements must be present: (i) factum of separation, and (ii) intention to bring cohabitation permanently to an end (animus deserendi). Both elements are present in this case. Despite repeated efforts by the appellant to bring her back, including calling social meeting and filing of application under Sections 97 and 98 of Cr.P.C., the non-applicant did not return and join the company of applicant to perform matrimonial obligation. 24. Further, the Hon’ble Supreme Court in the matter of Dr. Nirmal Singh Panesar vs. Paramjit Kaur Panesar @ Ajinder Kaur reported in (2025) 3 SCC 790 has held as under:- “12. Similarly, the law is also well settled as to what could be said to be "desertion" in the divorce proceedings filed under Section 13 of the said Act. The expression "desertion" had come up under the judicial scrutiny of this Court in Bipinchandra Jaisinghbai Shah v. Prabhavatís [1956 SCC OnLine SC 15 : AIR 1957 SC 176], 18 which was again considered in Lachman Utamchand Kirpalani v. Meena [1963 SCC OnLine SC 32 : AIR 1964 SC 40]. This Court collating the observations made in the earlier decisions, stated its view as under: (Lachman Utamchand Kirpalani case, SCC OnLine SC para 40) "40.... Collating the aforesaid observations, the view of this Court may be stated thus: Heavy burden lies upon a petitioner who seeks divorce on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi; (3) absence of his or her consent; and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home." 13. Recently, in Debananda Tamuli v. Kakumoni Kataky [(2022) 5 SCC 459 : (2022) 3 SCC (Civ) 82], the Court referring the decision in Lachman Utamchand Kirpalani observed as under: (Debananda Tamuli case, SCC p. 462, paras 7-8) "7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in Lachman Utamchand Kirpalani which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without 19 the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-(2025) 3 SCC section (1) of Section 13 by Act 68 of 1976. The said Explanation reads thus: 13. Divorce. (1) 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.” 25. Similarly, the Hon’ble Supreme Court in the matter of Debananda Tamuli vs. Kakumoni Kataky reported in (2022) 5 SCC 459 has affirmed the aforesaid law laid down 20 in Dr. Nirmal Singh Panesar (Supra) and has reiterated that "desertion" in matrimonial law means the intentional and permanent abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the deserted spouse. It requires both the factum of separation and the animus deserendi (intention to desert). There must also be no reasonable justification for the deserting spouse to leave, based on the conduct of the other. This settled legal position has been incorporated in the Explanation to Section 13(1) of the Hindu Marriage Act, 1955, which defines desertion to include wilful neglect of the petitioner by the other party. 26. In the light of above quoted judicial pronouncements of Hon’ble Apex Court, in the case in hand, it is clear that non- applicant has been living separately since 2011 and non- applicant and his father (NAW-3) have failed to prove this fact that they called any social meeting in order to resolve the family dispute and join the company of applicant to perform matrimonial obligation. The applicant and his witnesses have stated that the applicant had called a social meeting and also filed an application under Sections 97 and 98 of Cr.P.C. before the Sub Divisional Magistrate and the non-applicant has also admitted this fact that she had 21 appeared before the Court of Sub Divisional Magistrate in the proceeding of Sections 97 and 98 of Cr.P.C. It is also apparent that in the year 2013, the non-applicant lodged an FIR against the applicant and his family members under Section 498-A and 307 of IPC and the learned Sessions Judge acquitted them from all the charges. It is also apparent that the non-applicant had also filed an application under Domestic Violence Act and for maintenance under Section 125 of Cr.P.C. against the applicant. So the conduct of the non-applicant clearly shows that she has committed mental and physical cruelty against the applicant and his family members and she has also deserted the company of applicant without any sufficient and justifiable reason, but the learned Family Court did not appreciate all these facts and dismissed the application of applicant. The finding of the learned Family Court, in the opinion of this Court, is perverse and not in accordance with rule and documentary evidence of this case. Thus, the finding recorded by the learned Family Court is not sustainable in the eye of law. 27. As regards permanent alimony, the Hon’ble Apex Court in K. Srinivas (supra) held in para 36 as under :- “36. While we are of the opinion that decree of divorce must be granted, we are alive to the 22 plight of the respondent wife. The appellant husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant husband to give her permanent alimony. In the facts and circumstances of this case, we are of the opinion that the appellant husband should be directed to pay a sum of Rs.15,00,000/- (Rupees fifteen lakhs only) to the respondent wife as and by way of permanent alimony. “ 28. In the present case also, the non-applicant and her daughter are dependent upon Bharat Lal Patel (NAW-3), father of non-applicant. The applicant is giving Rs.13,000/- per month to the non-applicant as maintenance by virtue of order of learned Family Court in a case instituted under Section 125 of Cr.P.C. The applicant is working as Mining Subhedar in the SECL and he is getting a good/handsome salary. So we are of the opinion that the applicant should be directed to pay a sum of Rs.15,00,000/- (Rs. Fifteen Lakh only) to the non-applicant as and by way of permanent alimony. 29. In the result, the appeal is allowed. The impugned judgment and decree are set aside. The marriage between the 23 applicant and non-applicant is dissolved by a decree of divorce. The applicant-husband is entitled to a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (I) and (ia) of the Act, 1955. The applicant shall pay to the non-applicant permanent alimony in the sum of Rs.15,00,000/- within a period of six months from the date of receipt of copy of this judgment. There shall be no order as to costs. 30. The appeal is thus allowed. Let a decree be drawn up accordingly. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Pekde