Navodit Mishra vs Smt. Richa Mishra
2022 Latest Caselaw 1042 Chatt

                                       1

                                                                          AFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                                Order reserved on 23.11.2021
                               Order delivered on 25/02/2022
                            FAM No.24 of 2018
   •   Navodit Mishra, S/o Late Dr. N.K. Mishra, aged about 40 years, R/o
       Vikash Nagar, 27 Kholi, P.S. Civil Line, Tahsil & Distt. Bilaspur (CG)

                                                                 ---- Applicant
                                   Versus
   • Smt. Richa Mishra, W/o Navodit Mishra, aged 38 years, R/o Vikash
       Nagar, 27 Kholi, P.S. Civil Line, Tahsil & Distt. Bilaspur (CG).
       Current address - Father Shri Nemdhar Diwan, R/o Village Bharbod,
       Post Office Odiya, Police Station & District Bemetara (CG)
                                                               ....Respondent
For Applicant               :      Mr. B.P. Sharma, Advocate with Miss
                                   Trisha Das, Advocates
For Respondent              :      Mr. Shubhank Tiwari, Advocate.

                      Hon'ble Mr. P. Sam Koshy
                                   &
                  Hon'ble Mr. Parth Prateem Sahu, JJ
                                 CAV Order
Per Parth Prateem Sahu, J;

   1. Plaintiff/appellant preferred this appeal under Section 19 (1) of

       the Family Courts Act, 1984 challenging judgment and decree

       dated 13.12.2017 passed in Civil Suit No.1-A/2016 whereby

       plaint of plaintiff/ appellant for grant of decree of divorce on the

       grounds enumerated in Section 13 (1) (i-a), (i-b) and (iii) of the

       Hindu Marriage Act, 1955 (for short 'the Act of 1955') was

       dismissed by learned Judge, Family Court, Bemetara.

   2. Facts

relevant for disposal of this appeal are that appellant got

married with respondent on 25.11.2007 according to Hindu rites

and rituals. Marriage between two was solemnized at Triveni

Hall, Bilaspur. After marriage, respondent wife came to her

matrimonial home and started residing there. After few months

of marriage, in the month of July, 2008 respondent went to her

parental home to celebrate 'Rakhshabandhan' and 'Teeja'

festivals and returned to her matrimonial home after about 8-9

months. On 11.7.2009 father of appellant died due to heart

attack. Respondent in August 2009 went to her parents house

along with her brother for celebrating her birthday and Teeja

festival. In the year 2010 again she went to her parents house,

continuously resided there for about four years. She came back

to her matrimonial home on 26.7.2014 along with her brother

and bhabhi. In August, 2014 respondent again went back to her

parents' house to celebrate Teeja festival. She came back to

Bilaspur in month of November, 2014. She again left her

matrimonial home on 13.3.2015 and went to her parents'

house. Thereafter, plaintiff/appellant filed an application under

Section 13 (1) (i-a), (i-b) and (iii) of the Act of 1955 before

Family Court, Bilaspur seeking dissolution of marriage dated

25.11.2007 by way of decree of divorce. Grounds raised in

plaint are that within few days of marriage conduct of

respondent was of treating appellant with cruelty; she was

continuously harassing him mentally saying that he is having

bulky physique and he is not good looking; after death of

appellant's father she went back to her parents' house, resided

there continuously for about four years, during this period

whenever appellant contacted her on mobile phone and asked

her to come back, she used to ask appellant to come and settle

in Bemetara, place of residence of respondent's parents.

Appellant was continuously deserted by respondent wife for

about four years i.e. from 11.8.2010 to July, 2014. Respondent

joined service on the post of Shiksha Karmi Grade-1 in

Bemetara District without informing appellant. She got entered

name of her parents and brother in her service record as her

nominees and not of appellant. Whereas, at the time of

marriage, it was informed to parents of respondent that as

appellant is only child of his parents, respondent will not do any

job or service. However, respondent without informing

appellant or his parents, applied for government job and joined

service. There was no cohabitation between appellant and

respondent for continuous long period; acts and conduct of

respondent amount to treating appellant with cruelty. Hence

made prayer for grant of decree of divorce.

3. After notice, respondent-wife filed an application under Section

24 of the CPC for transfer of suit from Family Court, Bilaspur to

Family Court, Bemetara, which was allowed and suit filed by

appellant at Family Court, Bilaspur was transferred to Family

Court, Bemetara.

4. Respondent wife submitted her reply to application filed under

Section 13 (1) (i-a), (i-b) and (iii) of the Act of 1955 denying

facts pleaded therein. It was pleaded that within fifteen days of

marriage, plaintiff/appellant started annoying her on trivial

issues and treating her with mental and physical cruelty.

Unnatural behaviour of her was denied. Even after mental and

physical harassment, she resided in her matrimonial home till

11.8.2008 with a hope that one day there will be change in

attitude of her husband, but it does not happen. When

respondent went to her parents' house for celebrating her first

Teeja festival after marriage, appellant did not come to take her

back, she herself came back to her matrimonial home in

Bilaspur. It was pleaded that during her stay after 2009 till

August, 2010, appellant treated her with cruelty as he did not

behave and maintain relationship as husband and wife.

Thereafter she returned back to her parental home on

11.8.2010. During stay in her parental home from 11.8.2010 to

July, 2014, she made several mobile calls to appellant, but he

never responded the same nor made any attempt to contact

her. Respondent joined as Shiksha Karmi Grade-1 for the

reason that she was continuously treated with physical and

mental cruelty by appellant. Appellant objected to respondent's

joining on the post of Shiksha Karmi and pressurized her to

resign from service. Objection with regard to maintainability of

application under Section 13 (1) (i-a), (i-b) and (iii) of the Act of

1955 was also raised in the reply by respondent stating that no

ground of desertion as enumerated under Section 13 (1) (i-b) of

the Act of 1955 is made out by appellant for seeking divorce.

Respondent was subjected to ill-treatment and harassment by

appellant since beginning saying that it could have been better

if he would have married with some other girl. It was further

pleaded that respondent is still ready to continue her

matrimonial relationship with appellant.

5. Based on pleadings of parties, Family Court framed issues,

after conclusion of trial, on appreciation of pleadings,

documentary and oral evidence brought on record by

respective parties, dismissed plaint of plaintiff/ appellant by

impugned judgment.

6. Mr. B.P. Sharma, learned counsel for appellant would submit

that within few months of marriage, respondent called her

parents stating that she is finding it difficult to adjust herself in

her matrimonial home. She gave phone call on 9.5.2008.

Brother and father of respondent came to Bilaspur on

10.5.2008. When father and brother of respondent asked her,

she replied that she is having no difficulty, which shows her

immature act, conduct and mental status of respondent. This

incident took place within six months of marriage. After

marriage, respondent went to her parental home for the first

time on Rakhi & Teeja festivals, but she did not come back to

her matrimonial home for about 8-9 months. When appellant

tried to bring back respondent from her parents' house, he was

informed that she is continuing her studies. Respondent came

to her matrimonial home only in the year 2009, resided there

for few months, again went back to her parental home. In July,

2009 father of appellant died but in August, 2009 she went

back to Bemetara for celebrating birthday when her company

was required to family. On 11.8.2010 she again went to her

parents' home to celebrate Teeja festival and thereafter did not

return back to her matrimonial home for four years.

Respondent deserted appellant for a continuous period of four

years and thereby deprived him from enjoyment of marital life.

Hence, there exists ground of desertion as also cruelty. Apart

from this, respondent ill treated and harassed appellant stating

that he is fatty and not a good looking person. She did not

establish relationship of husband and wife since beginning of

marriage, when this fact was intimated by appellant to his

father, he suffered heart attack and died in July, 2019. This act

of respondent amounts to mental cruelty upon appellant.

Mental status of respondent since beginning was not to reside

in the company of appellant and not to discharge her marital

obligations and duties, therefore, without bringing to knowledge

of appellant or his family members, respondent filled

application Form for employment in Bemetara and joined

service as Shiksha Karmi Grade-I in District Bemetara.

Mentioned name of her parents and brothers as her nominees

in service record. Copy of service record of respondent is

placed on record as Ex.P-2. When appellant asked respondent

to come back to Bilaspur, it was stated that she will not leave

her job, he along with his parents after disposing of property

may settle in Bemetara i.e. place of residence of parent of

respondent, where she was residing. Condition imposed by

respondent for continuing matrimonial relationship itself shows

that respondent does not want to continue marital relationship

with appellant. Hence, the Family Court erred in dismissing

plaint of appellant for grant of decree of divorce. In support of

his submissions, he places reliance upon decision in cases of

Rita Nijhawan vs. Balkishan Nijhawan reported in AIR 1973

Delhi 200; Siraj Mohmed Khan Jan Mohamad Khan vs.

Harizunnisa Yasikkhan reported in (1981) 4 SCC 250; Vinita

Saxena vs. Pankaj Pandit reported in (2006) 3 SCC 778; U.

Shree vs. U. Srinivas reported in (2013) 2 SCC 114; Indra

Sharma vs. V.K. Sharma reported in 2013 (15) SCC 755;

Vidya Viswanathan vs. Kartik Balakrishnan reported in

(2014) 15 SCC 21.

7. Controverting submissions of learned counsel for appellant, Mr.

Shubhank Tiwari, learned counsel for respondent would submit

that it is appellant who was not taking care of respondent wife

in matrimonial home. Within few days of marriage she was ill-

treated, harassed physically and mentally by appellant.

Referring to Paragraphs 33 & 45 of evidence of appellant (PW-

1), he submits that allegations levelled upon respondent in

plaint in view of evidence of plaintiff, are not correct.

Nomination made in service record by respondent is of the year

2011, whereas marriage of respondent and appellant was

solemnized in November 2007. During these four years (prior

to joining service), appellant has not treated respondent

properly; there was continuous dispute between appellant and

respondent, therefore, respondent made her parents and

brother nominee in service record. Allegation that there was no

relationship of husband and wife between appellant and

respondent is also not correct in view of Paragraphs 33 & 46 of

evidence of appellant. Pleadings made in plaint with regard to

agreement between parties prior to marriage that respondent

will not do job is not correct because prior to date of marriage,

respondent passed B.Ed. certificate examination. From an

educated girl/lady no such expectation can be made. In fact, it

was stated by parents of respondent that they are happy

because they are getting an educated girl as daughter-in-law.

It is submitted that family of appellant is an orthodox Brahmin

family. Source of income stated by appellant and his family

members at the time of marriage was false, therefore,

respondent was forced to join service. At one point of time,

appellant stated that she can reside with him if she leaves her

job. In evidence before the Court appellant stated that he is not

ready to continue relationship with respondent even if she

resigns from her service. It is submitted that doing a

government job even against will of husband does not amount

to cruelty. It is also argued that as per pleadings in plaint,

respondent left her matrimonial home in the month of March,

2015 and within three months thereof appellant filed application

for grant of decree of divorce, hence the ground for seeking

decree of divorce on account of desertion is not made out

against respondent. For filing application for grant of divorce on

the ground of desertion, as per Section 13 (1) (i-b) of the Act of

1955, period of desertion shall not be less than two years

immediately preceding the presentation of petition. It is case of

appellant himself that respondent lastly left matrimonial home

in the month of March, 2015 and application under Section 13

of the Act of 1955 was filed on 30.6.2016.

As appellant failed to make out ground for decree of

divorce as envisaged under Section 13 of the Act of 1955, the

Family Court upon appreciation of pleadings and evidence has

rightly dismissed suit seeking decree of divorce. Hence,

impugned judgment does not call for any interference.

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

record.

9. From perusal of plaint it is evident that appellant filed suit for

grant of decree of divorce o n the grounds of 'cruelty' and

'desertion', as envisaged under Section 13 (1) (i-a), (i-b) and

also under Section 13 (1) (iii) of the Act of 1955. Appellant in

his plaint in different paragraphs in so many words pleaded that

there was no husband and wife relationship from beginning of

marriage as respondent does not want to make relationship as

husband-wife and also in his evidence. Family Court formulated

Issue No.1 of physical and mental harassment and cruelty with

appellant-husband and Issue No.2.

10. So far as ground of 'desertion' as pleaded in plaint, is

concerned, pleadings and evidence of parties reflect that

appellant pleaded that respondent lastly resided in his house till

13.3.2015 and thereafter she left her matrimonial home.

Application for grant of decree of divorce is filed on 30.6.2015

i.e. within four months from the date when parties last resided

under one roof. Section 13 (1) (i-b) of the Act of 1955

envisages that a decree of divorce can be granted on the

ground that other party has deserted the petitioner for a

continuous period of not less than two years immediately

preceding the presentation of the petition. Language used

under Section 13 of the Act of 1955 is clear and unambiguous

that before filing an application for divorce on the ground of

desertion, period of desertion by either spouse should not be

less than two years. From the pleadings made in plaint by

appellant himself, it is evident that application for grant of

divorce is filed within four months of desertion by respondent.

As per provisions contained in Section 13 (1) (i-b) of the Act of

1955, application filed by appellant for grant of divorce on the

ground of desertion is not maintainable. Hence, the Family

Court while dismissing application seeking decree of divorce

has rightly held that appellant failed to make out ground of

desertion.

11. So far as second ground raised in application that appellant

was treated with cruelty by respondent, as envisaged in

Section 13 (1) (i-a) of the Act of 1955 is concerned, in the

pleadings appellant pleaded that from begining of marriage

there was no relationship as husband and wife between them;

respondent wife used to mentally harass appellant by calling

him to be fatty and not a good looking person. Pleading with

regard to residing separately continuously for about four years

by respondent in her parental home i.e. from August 2010 to

July 2014, is not disputed. There is admission by respondent

in her evidence to this effect. Respondent further admitted in

her evidence that during the period of four years, she did not

make any attempt to talk to appellant. From this admission of

respondent-wife that she continuously resided for four years in

her parents' house without communication is sufficient to show

that there was no cohabitation between respondent and

appellant during aforementioned period. This admission of

respondent is in Paragraph-31 of her evidence. It is also

admitted by respondent that on the date of her examination

before Family Court, about ten years of their marriage was

completed; out of which, she resided only for about 4½ years in

her matrimonial home and for remaining period she resided in

her parental home. In Paragraph 42 of her evidence,

respondent though denied suggestion that there was no

physical relationship between them for about four years, but the

same is contradictory to her statement made in Paragraph 31

of her evidence, which clearly shows that there was no

relationship between the parties for about four years.

Respondent came back to her matrimonial home in the month

of July, 2014, after long time of four years. She resided only for

one month and again went back to her parental home in

August, 2014. Respondent came back to her matrimonial home

in November, 2014 and resided till 13.3.2015. During this

period also there was no cohabitation between the parties, as

admitted by respondent herself in Paragraph 46 of her

evidence. It is case of appellant that he was treated with

cruelty by respondent as she did not permit him to establish

relationship with her as husband and wife.

12. In evidence of respondent wife, she admitted that from August,

2010 to 2014, she continuously resided at her parents' house in

Bemetara. In these years', she did not give any call to appellant

husband. As per evidence available, she applied for and joined

her job without intimation to her husband or in-laws. She also

admitted in Paragraph 40 of her deposition that she did not

make any attempt to get herself transferred to Bilaspur or within

District Bilaspur i.e. her matrimonial district. In Paragraph 41 of

her evidence, she also admitted that appellant also suggested

her to do job in Bilaspur instead of Bemetara. Paragraph-50 of

her deposition is also having significance on the issue which

reads as under:-

"50- ;g dguk lghs gS fd eS ukSdjh ugha NksMuk pkgrh

vkSj oknh ?kj] tehau cspdj csesrjk ughs vk ldrk] ;g

erHksn dk ,d dkj.k gSA"

13. With regard to ground of mental cruelty that too on the ground

of not establishing relationship as husband and wife; exchange

of words between them, it is their evidence only which is

important for consideration. Cohabitation between husband and

wife is one of essential part of a marriage and not submitting by

either spouse for relationship may be one of grounds of treating

other spouse with cruelty.

14. In case at hand, appellant husband filed an application seeking

divorce on the ground of cruelty also. From the pleadings and

evidence brought on record, ground of cruelty, which has been

pleaded and stated, is of mental cruelty. Mental cruelty is not

specifically defined under the Act of 1955, but it has to be

ascertained from nature of act, behaviour and conduct of one

spouse against another. Hon'ble Supreme Court in case of

Chetan Dass vs. Kamla Devi reported in (2001) 4 SCC 250

while considering issue with respect to mental cruelty by one

spouse against another has observed as under:-

"14.Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust,

regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society....."

15. In case of Parveen vs. Inderjit Mehta reported in (2002) 5

SCC 706 while dealing with provisions of Section 13 (1) (i-a) of

the Act of 1995 Hon'ble Supreme Court has examined 'mental

cruelty' and observed as under:-

"21.Cruelty for the purpose of section 13 (1) (i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty.

The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."

16. In case of Jayachandra v. Aneel Kaur reported in (2005) 2

SCC 22 Hon'ble Supreme has held that mental cruelty is a

state of mind and feeling with one of spouses due to behaviour

or behaviour pattern by other. Unlike the case of physical

cruelty, mental cruelty is difficult to establish by direct evidence.

It is necessarily a matter of inference to be drawn from the facts

and circumstances of case. The inference has to be drawn from

attending facts and circumstances taken cumulatively.

17. In case of Samar Ghosh vs. Jaya Ghosh reported in (2007) 4

SCC 511 Hon'ble Supreme Court has set some illustrations of

cruelty. In those illustrations, one of the illustration is with

regard to unilateral decision of refusal to have intercourse for

considerable period. Relevant portion of judgment is extracted

below for ready reference:-

"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.

(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.

(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 sterilization 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 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."

18. In Samar Ghosh' case (supra) Hon'ble Supreme Court has

further held that cruelty in one case may not amount to cruelty

in another case and may depend upon social status, customs,

tradition, religious belief, human values and value system. In

case of Vidhya Viswanathan's case (supra) Hon'ble Supreme

Court held that not allowing a spouse to establish physical

relationship for a long time amounts to mental cruelty to other

spouse.

19. In case of Vinita Saxena (supra) Hon'ble Supreme Court has

held that cruelty is not defined and is used in relation to human

conduct or behaviour. It is conduct in relation to or in respect of

matrimonial duties and obligations. It is a course of conduct

and one which is adversely affecting other. Cruelty may be

mental or physical, intentional or unintentional. There may be

cases where conduct complained of itself is bad enough or per

se unlawful or illegal. Then the impact or injurious effect on

other spouse need not be inquired into or considered. In such

cases the cruelty will be established if the conduct itself is

proved or admitted.

20. In case of Ramchander vs. Ananta reported in (2015) 11 SCC

539 Hon'ble Supreme Court considering the ground of cruelty

raised in an application filed by husband seeking divorce has

held thus:-

"10.The expression 'cruelty' has not been defined in the Hindu Marriage Act. Cruelty for the purpose of Section 13 (1) (i-a) is to be taken as a behaviour by one spouse towards the other, which causes a reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Cruelty can be physical or mental. In the present case there is no allegation of physical cruelty alleged by the plaintiff.

What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of 'mental cruelty' can be drawn and they are only illustrative and not exhaustive."

21. Aforementioned rulings of Hon'ble Supreme Court indicate

what is mental cruelty and what would be consideration to

accept the plea of mental cruelty. Mental cruelty and its effect

cannot be calculated in arithmetical manner, it varies from

individual to individual; society to society and also from status

of person. Agonised feeling or for that matter of sense of

disappointment can take place by certain acts causing a

grievous dent at mental level. Inference has to be drawn from

the attending circumstances.

22. Now if the facts of case at hand are considered in light of

aforementioned rulings of Hon'ble Supreme Court, it is

apparent that there is admission on the part of respondent wife

that within some time of marriage she gave phone call to her

parents making allegation against appellant husband and his

family members; when her father and brother came to house of

appellant, she stated that there is nothing. Marriage between

appellant and respondent was solemnized on 25.11.2007. In

the month of July, 2008 when she went to her parents house

for celebrating festival of Rakshabandhan and Teeja. She

resided there continuously for about nine months, as admitted

by respondent in Paragraph-9 of her deposition. As per her

evidence, she returned back to her matrimonial home in the

month of July, 2009. Father-in-law of respondent died on

11.7.2009. In August, 2009 she again went to her parents

home. On 11.8.2010 respondent again went to her parents

house and resided there continuously for about four years.

After marriage, respondent applied for the post of Shiksha

Karmi without informing to appellant or in-laws. She joined as

Shiksha Karmi Grade-I, without giving information to appellant

or any of her in-laws. Respondent did not mention name of

appellant as her husband and nominee in service record.

Respondent further admitted in her evidence that during her

stay in her parents house for about four years, she did not

contact appellant, which shows conduct, attitude and behaviour

of respondent towards appellant.

23. Marital relationship is a relationship of trust, respect and

emotions. After marriage each spouse is having marital

responsibilities and duties towards each other. From the facts,

as appearing in record, as also evidence of respondent wife, it

is apparent that from August, 2010 there was no relationship as

husband and wife between two, which is sufficient to draw an

inference that there was no physical relationship between

them. Physical relationship between husband and wife is one of

the important part for healthy married life. Denial of physical

relationship to a spouse by other amounts to cruelty. Hence,

we are of the view that appellant was treated with cruelty by

respondent wife.

24. Another aspect of the case, as is appearing from evidence of

respondent wife, is that respondent joined service in the year

2011 without any information and knowledge of appellant. She

admitted that though job and post on which she is working is

inter-district transferable post, but she never applied for her

transfer from District Bemetara to District Bilaspur. In

concluding paragraph of her deposition, she has stated that

she does not want to leave her job; appellant could not come to

Bemetara after selling his house, land etc., which is one of

causes of differences/dispute between them. Respondent also

admitted that appellant asked her to do job in Bilaspur and not

in Bemetara. In the evidence of respondent it has nowhere

come that she wanted to come to Bilaspur and reside with

appellant; she had also made all attempts and endeavour for

the same. Evidence of respondent reflects that her intention is

to live in Bemetara only. Parties are Brahmin by caste, as per

social tradition, after marriage it is wife who has to come and

reside at the place of her husband along with her in-laws.

Respondent also after her marriage came to Bilaspur but now

she does not want to leave her parents' place i.e. Bemetara.

Making of one line statement that she wants to continue her

marital relationship with appellant husband, will not be sufficient

when from her conduct/behaviour it is not appearing that she

actually intended for the same.

25. For the foregoing discussions and in light of above mentioned

rulings of Hon'ble Supreme Court, we are of the view that

appellant has made out a case for grant of decree of divorce on

the ground of mental cruelty. Accordingly, impugned order is

set aside. Application filed by appellant under Section 13 (1) of

the Act of 1955 is allowed. The marriage dated 25.11.2007

between appellant and respondent stands dissolved. Decree

be drawn-up accordingly. No order as to costs.

              Sd/-                                             Sd/-
           (P. Sam Koshy)                             (Parth Prateem Sahu)
              Judge                                         Judge




Roshan/-