Jashpur, Chhattisgarh v. 1
Case Details
1 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR FA(MAT) No. 112 of 2022 Reserved on 26/06/2025 Delivered on 08/07/2025 1 - Baleshwar Mahanandi S/o Devfal Mahanandi Aged About 44 Years R/o Village Basen, Police Station Kansabel, District Jashpur Chhattisgarh. Presently R/o Occupation Asi (Police Department) P.S. Trikunda, District Balrampur Ramanujganj Chhattisgarh. (Plaintiff), District : Jashpur, Chhattisgarh ... Petitioner(s) versus 1 - Smt. Sudema Mahanandi W/o Baleshwar Mahanandi Aged About 37 Years R/o Village Basantbihar Colony, Infront Of Saraswati Shishu Mandir School, Jashpur District Jashpur Chhattisgarh. (Defendant) ... Respondent(s) For Petitioner(s) : Mr. Arun Kumar Shukla, Advocate For Respondent(s) : Mr. J. K. Saxena, Advocate (Division Bench) Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad 2 C A V Order Per, Amitendra Kishore Prasad, J. 1. The present appeal has been filed by the appellant-husband being aggrieved by the judgment and decree passed by the Learned Family Court, Jashpur (C.G.) dated 11.02.2022 (Annexure A/1) in
Facts
Civil Sui No.23-A/2019, whereby the Trial Court had dismissed the application seeking divorce under Section 13(i-a) of the Hindu Marriage Act. 2. Facts of the present case, in brevity, is that the appellant filed a application under Section 13(1-a) of the Hindu Marriage Act, 1955,
Legal Reasoning
the Division Bench of this Court in the case of Surendra Kumar Swarnkar Vs. Smt. Sudha Devi Swarnkar1, wherein submitting that the husband is entitled for a decree of divorce. 7. Learned counsel for the respondent-wife submits that she has filed a detailed written statement wherein she has categorically denied and objected the allegations and averments made by the appellant-husband in the divorce application. It is further submitted that since the year 2008, after the appellant-husband was transferred from Pathgaon to Jashpur, his behaviour changed 1 FA (MAT) No.190 of 2022 7 drastically. He allegedly began consuming alcohol and engaged in gambling. The appellant also started neglecting his family responsibilities and refused to pay the school fees of their children. Whenever the respondent-wife attempted to discuss these issues with him or sought to reason with him, he physically assaulted her. Moreover, it is submitted that the appellant- husband demanded 15 lakhs from the respondent-wife as a ₹ condition to allow her and their children to live with him. In 2012, when the appellant was posted at Rajpur, he abandoned the respondent and their children and began living separately. Due to being left in a state of hardship, the respondent-wife started working at the clinic of one Dr. Shishir Minz in Jashpur to earn a livelihood. Subsequently, in 2013, she was appointed on a contractual basis as an Auxiliary Nurse Midwife (A.N.M.) in the Health Department in order to support herself and the children. It is further pleaded that ever since the appellant-husband abandoned his family in 2012, his family members also began to harass and torture the respondent-wife. As a result, she was constrained to lodge a complaint under the Domestic Violence Act against the appellant and his family members. In those proceedings, the learned trial Court was pleased to grant interim maintenance in favour of the respondent-wife and the children. Learned counsel further submits that it was in fact the appellant- husband who committed cruelty upon the respondent-wife, and that she made repeated efforts to amicably resolve the matter. 8 However, the appellant was unwilling to compromise. In 2016, when the appellant was transferred to Kusmi Police Station, the respondent-wife went there in an attempt to reconcile. However, instead of resolving the matter, the appellant assaulted her and declared that he would not live with her. Consequently, an FIR was lodged by the respondent-wife at Kusmi Police Station. It is additionally submitted that from February 2019 onwards, the appellant-husband has allegedly been cohabiting with one Radhika Chouhan, treating her as his wife. It is contended that the present application for divorce has been filed only to legitimize this illicit relationship and obtain a decree of divorce on false and fabricated grounds. In view of the aforementioned facts and circumstances, learned counsel for the respondent-wife submits that the appellant has failed to prove any legal grounds for divorce. Therefore, the present appeal is devoid of merit and is liable to be dismissed. 8. Learned counsel for the respondent-wife further supporting the impugned judgment and decree and submits that the learned Family Court minutely appreciated oral documentary evidence and rightly dismissed the application of the appellant-husband. He goes on to submit that that the appellant-husband is not entitled to get a decree of divorce, the appellant-husband in fact committed cruelty and desertion without any lawful reason. The wife has tried her level best to stay with her and it was the husband who 9 deserted himself. Therefore, the wife has to lodge complaint under the Domestic Violence Act. It is also and admitted position that they are having 3 children who are at the verge of attaining the age of majority. Now the husband is residing separately without any lawful reason and left her and entire family including their children, not taking care of all of us so this appeal being without any merits is liable to be dismissed. 9. We have heard learned counsel for the parties and perused the material available on record. 10. It is not in dispute before the Family Court that the marriage between the applicant-husband and the respondent-wife was solemnized in the year 2001, and that three children were born out of their wedlock. The applicant-husband filed a application seeking divorce, and in support thereof, he has annexed a copy of the order-sheets. It is further noted that in proceedings initiated under the Domestic Violence Act before the Chief Judicial Magistrate, Jashpur, an order was passed directing the appellant- husband to pay a sum of 9,000/- per month towards ₹ maintenance (Annexure A-1). This, however, is the only documentary evidence filed by the appellant-husband in an attempt to establish the alleged cruelty by the respondent-wife. Upon a thorough perusal of the evidence led by the parties, it is observed that the appellant-husband (AW-01) has failed to substantiate any specific incident or pattern of cruelty committed 10 by the respondent-wife. There is no concrete evidence on record to support the allegations of either cruelty or desertion, as pleaded by the appellant. The deposition of the husband merely contains vague and generalised allegations, lacking specific details or corroboration. During cross-examination, the appellant-husband admitted that after his transfer from Balrampur to Kusmi, he began living separately from his wife and children. He further admitted that while he was posted at Kusmi, the respondent-wife did visit him. However, he denied that she came with the intention of residing with him and instead claimed that she came to demand money. Though the appellant denied having physically assaulted the respondent-wife, he admitted that a complaint had been lodged by her, as evidenced by Exhibit D/1. In the cross- examination also the husband could not brought any reasonable evidence to substantiate cruelty. Thus, the evidence brought on record by the appellant-husband is insufficient to establish any legal grounds under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. The burden of proving cruelty or desertion lies upon the appellant, and in the present case, the same has not been discharged. 11. On the other hand, the respondent-wife has examined herself as DW-01 and has filed Exhibit D/2, a written complaint submitted by her to the Police Station, Balrampur, wherein she has detailed the continued ill-treatment and misbehaviour on the part of the 11 appellant-husband. She has also brought on record that a false criminal case was instituted against her by the appellant’s family members, particularly her mother-in-law. The said case included charges under Sections 394, 506, 323, and 452 read with Section 34 of the Indian Penal Code, 1860, as well as under Sections 4 and 5 of the Chhattisgarh Tonhi Pratadna Nivaran Act, 2005. In connection with this matter, the respondent-wife was granted anticipatory bail, which further substantiates her claim of harassment by the appellant’s family. These facts and documents, taken collectively, indicate a consistent pattern of cruelty and mental harassment faced by the respondent-wife at the hands of the appellant-husband and his family, which stands in direct contradiction to the appellant’s allegations.
Arguments
seeking a declaration that his marriage to Smt. Sudema Mahanandi, solemnized in December 2001 at Village Bagbahar Shiv Mandir, be declared null and void. The appellant claimed that after living together as husband and wife, out of their wedlock three children were born out, aged about 18 years, 16 years and 13 years respectively, the respondent's behavior changed around 2012-13, leading to separation and in this way she has committed cruelty against the husband. The husband tried for conciliation, however, it was in vain. They are living separately since more than 7-8 years. Wife has filed an application under Domestic Violence Act. He is paying maintenance to his daughter. They are not liking each other as such a decree of divorce may be passed. Husband has kept one Radhika with himself, therefore, he want divorce so he may marry to Radhika. In response, the wife, Smt. Sudema 3 Mahanandi denied the allegations and countered that she was subjected to dowry harassment by the appellant and his family members. She also alleged that the appellant attempted to remarry on the suggestion of his parents. When the husband was transferred to Rajpur, he left her along with their children. Therefore, when she went to meet and stay with the husband at Kusmi, where he was posted, he denied to keep her with himself. She anyhow manage and get a contractual appointment as A.N..M. and she is managing herself and their children. The trial Court framed four material issues and, after considering the evidence, dismissed the appellant's application on December 13, 2007. Feeling aggrieved, the appellant has preferred a first appeal against the judgment and decree. 3. Learned family Court after appreciating oral and documentary evidence, the application for divorce filed by the present appellant- husband under Section 13(1)(a) of Hindu Marriage Act, and the said application was dismissed holding that he has failed to prove cruelty and desertion by the respondent wife. 4. Learned counsel for the appellant submits that it has been pleaded that after a few years of marriage, the respondent-wife began to mentally and physically harass the appellant-husband, while making unreasonable demands, including a demand for 15₹ lakhs. It is alleged that she claimed the amount was being demanded by the husband in order to allow her and the children 4 to reside with him. He further submits that the respondent-wife also filed a complaint against the appellant, accusing him of procuring a false and fabricated caste certificate. It is further submitted that the respondent-wife has been working as a nurse in village Sarudihi, District Jashpur, since the year 2013, and is financially capable of bearing her own expenses. The appellant made several attempts to reconcile and settle the disputes amicably, but such efforts were in vain as the respondent-wife refused to compromise. Counsel further contends that in the year 2014, the respondent-wife filed an application under the Domestic Violence Act, which further contributed to the mental harassment faced by the appellant-husband. It is submitted that the respondent-wife's conduct and behaviour have changed significantly and that she has been residing separately from the appellant since the year 2013–14. Despite the appellant’s efforts to restore the marital relationship, no reconciliation has been possible. The learned counsel submits that, in light of the order dated 06.10.2017, there remains little or no possibility of resumption of cohabitation or restitution of conjugal life. It is also submitted that the appellant has already paid a sum of 50,000/- ₹ as retribution, and 9,000/- towards the maintenance of the ₹ children. Subsequently, the appellant filed an application for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, before the trial court seeking a decree of divorce on grounds of cruelty. However, the said petition was dismissed by the trial court. 5 Learned counsel for the appellant further submits that in her written statement, the respondent-wife has denied the allegations made in the divorce application. She has claimed that after the marriage, she lived with her husband at Jamnipali and shared a normal marital relationship, including physical relations. 5. Learned counsel for the appellant further submits that the respondent-wife, along with her family, subjected the appellant- husband and his relatives to false and baseless allegations of dowry harassment. It is further contended that the respondent- wife and her family even pressured the appellant-husband to solemnize a second marriage, alleging that the respondent-wife was not cohabiting with him or fulfilling her marital obligations. It is submitted that after the marriage, the respondent-wife stayed with the appellant at Jamnipali for only about three months. Thereafter, until April 2007, she resided at her parental home in Farswani, and did not make any sincere efforts to return to the matrimonial home. Owing to the continued desertion and mental cruelty, the appellant-husband filed an application for divorce before the trial court. However, the trial court, vide its judgment and decree dated 13.12.2007 (Annexure P/1), dismissed the Appeal. Learned counsel submits that the said impugned judgment and decree is not sustainable in law and deserves to be quashed. In light of the continued cruelty and desertion. 6. Learned counsel for the appellant submits that the judgment 6 impugned herein is contrary to the evidence laid by the parties, the Family Court ought to have considered this fact that due to cruelty and desertion the parties are not living together. The wife has continuously making false complaint against the appellant- husband, in her reply, she has falsely submits that the appellant contracted a second marriage which is false statement and this itself is a cruelty against the appellant-husband. There is no possibility of reliving and the marriage between two parties is irreparable and there is no possibility of any reconciliation. Since long the spouse are not having any matrimonial relations. The wife has lodged a complaint under Domestic Violence Act. It is a wife who has deserted herself and as such the decree of divorce has to be given since they are not living together from the year of 2013-14. He further placed reliance upon the judgment passed by
Decision
12. In view of the above, and upon a comprehensive examination of the pleadings, evidence, and documents placed on record, it is apparent that both mental and physical cruelty was inflicted upon the respondent-wife by the appellant-husband and his family members. It is also an admitted position that the appellant is habitually engaged in consuming liquor and gambling. Despite enduring these adverse circumstances, and solely for the welfare and betterment of their children, the respondent-wife made sincere efforts to reconcile and went to reside with the appellant- husband at Kusmi. However, instead of resolving the differences, the appellant abused and assaulted her and the children. The 12 allegations of cruelty and desertion made by the appellant- husband appear to be false, vague, and unsubstantiated. On the contrary, the material on record indicates that the appellant- husband has contracted a second marriage unlawfully, and is now seeking a decree of divorce merely to legitimize his extramarital relationship, all the while failing to discharge his responsibilities toward the respondent-wife and their children. 13. The Hon’ble Supreme Court in the matter of Darshan Gupta Vs. Radhika Gupta 2 has held in para 50 which is reproduced herein under :- “50. At the present juncture, it is questionable as to whether the relief sought by the learned counsel for the appellant on the ground of irretrievable 9 breakdown of marriage is available to him. The reason for us to say so is based on a judgment rendered by this Court in Vishnu Dutt Sharma v. Manju Sharma3, wherein this Court has held as under: (SCC p. 384, paras 10-13) "10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. 11. Learned counsel for the appellant has stated that this Court in a some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal 2 (2013) 9 SCC 1 3 (2009) 6 SCC 379 13 position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. 12. If we grant divorce on the ground of irretrievable breakdown, b then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for Parliament to enact or amend the law and not for the courts. Hence, we do not find force in the submission of the learned counsel for the appellant. 13. Had both the parties been willing we could, of course, have granted a divorce by mutual consent as contemplated by Section 13-B of the Act, but in this case the respondent is not willing to agree to a divorce." 14. So far as the ground of irretrievable breakdown of marriage is concerned, the same has been duly considered and answered by the Hon’ble Supreme Court in the cases of Darshan Gupta (supra) and Vishnu Dutt Sharma (supra). In view of the law laid down therein, the submission advanced by the appellant-husband on this ground is devoid of merit and is accordingly rejected. 15. From the aforesaid evidence and upon close scrutiny of the record, it becomes evident that it is the appellant-husband who has committed acts of cruelty and desertion. Despite sincere efforts made by the respondent-wife and their children to restore the matrimonial relationship, the appellant-husband has shown no willingness to cohabit or fulfill his matrimonial obligations. It is pertinent to note that the appellant-husband has not filed any 14 application under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights. Nor has he initiated or participated in any community mediation or reconciliation efforts aimed at reuniting the family. The overall conduct of the appellant clearly demonstrates that he has voluntarily chosen to live separately, not only from his wife, but also from his children, thereby neglecting his duties as a husband and father. The Family Court, while evaluating the evidence on record, has rightly held that the appellant-husband is not entitled to a decree of divorce, and has correctly dismissed the petition seeking dissolution of marriage between the parties. 16. Like the Hindu Marriage Act and many other divorce laws, a spouse is allowed to seek divorce on the ground of cruelty. The onus, burden of proof and the legal obligation to prove the fact in on the spouse alleging cruelty. In the present matter, the spouse seeking divorce must prove the allegation of cruelty. The spouse alleging cruelty needs to demonstrate that the other spouse behaviour was not just normal marital discords but amounting to cruelty. Mental cruelty which is a common form of cruelty, in any divorce case it is required that the spouse to show the other spouse action, spouse’s caused them significant mental pain and suffering, making it impossible to continue the marriage. In a divorce case where cruelty is cited as a ground, the burden of proof is rest on the spouse seeking the divorce to demonstrate 15 that they have been subjected to cruelty. This means the spouse alleging cruelty must present evidence and convince the Court that there is spouse conduct has caused significant harm or suffering making it intolerable to continue the marriage. 17. In the present matter the appellant-husband failed to prove cruelty against the wife. After considering entire evidence available on record, this Court has no hesitation in accepting findings and approach of the learned Family Court appears to be valid and practical. Therefore, in our considered opinion, the findings recorded by learned Family Court are based on proper appreciation of oral and documentary evidence and do not require any interference by this Court. 18. The judgment relied upon by learned counsel for the appellant does not support the appellant’s case, as the facts therein are clearly distinguishable from the present matter. As such, the cited case law is of no assistance to the appellant-husband. 19. The appeal, being devoid of merit, is accordingly dismissed. No order as to costs. Sd/- Sd/- (Rajani Dubey) Judge ABHIGYA SAXENA Digitally signed by ABHIGYA SAXENA Saxena Sd/- Sd/- (Amitendra Kishore Prasad) Judge