Rashmi Kumari vs Sanjay Tiwari on 17 April, 2026

Author: Sanjay K. Agrawal

Bench: Sanjay K. Agrawal

                                    1




                                                   2026:CGHC:17569-DB
                                                                 NAFR

             HIGH COURT OF CHHATTISGARH AT BILASPUR

                   First Appeal (MAT) No. 284 of 2025


Rashmi Kumari W/o Sanjay Tiwari, D/o Vijendra Kumar Sharma, Aged
about 36 years, R/o Ramgarh (Near Treat Hotel), Thana Chowk, District
Ramgarh, Jharkhand.
                                               ... Appellant/Defendant


                                 versus


Sanjay Tiwari S/o Chandrapal Tiwari, Aged about 38 years, R/o
Murtipara, Koriya Colliery, Police Station and Tahsil Chirmiri, District
Bharatpur-Manendragarh-Chirmiri, Chhattisgarh.
                                               ... Respondent/Plaintiff


For Appellant                : Mr. Rishikant Mahobia, Advocate
For Respondent               : Mr. Shashikesh Yadav, Advocate


                DB- Hon'ble Shri Justice Sanjay K. Agrawal
                 Hon'ble Shri Justice Sachin Singh Rajput
                          Judgment On Board
                                17.04.2026

Sanjay K. Agrawal, J.

1. Invoking jurisdiction of this Court under Section 19(4) of the

Family Courts Act, 1984, the appellant/defendant has preferred

this appeal against the impugned judgment and decree dated

12/06/2025 (Annexure A/1) passed by learned Judge, Family

Court, Manendragarh in Civil Suit No. 44A/2025 whereby

application filed by the respondent/plaintiff under Section 13(1)

(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter the Act

of 1955) seeking decree for dissolution of marriage on the

grounds of mental cruelty as well as desertion has been allowed.

(For the sake of convenience, parties will hereinafter be referred

to as per their status shown before the Family Court).

2. The aforesaid challenge has been made on the following factual

backdrop :-

(a) Plaintiff/Husband filed a suit stating inter alia that his marriage

was solemnized with the defendant/wife on on 23/11/2016 as per

Hindu customs and rituals and out of their wedlock, they have

been blessed with a baby girl namely Rudranavi Tiwari, aged

about 6 years, who is currently residing with the defendant/wife.

It is the case of the plaintiff that after a considerably short period

of time pursuant to their marriage, defendant started misbehaving

and quarreling with the plaintiff and his parents and in the year

2020, she went to her parental house and never returned to her

matrimonial house. Plaintiff went to take the defendant and

insisted her to come back to her matrimonial house but she

refused and argued with him and she has been living separately

from the plaintiff since six years. As such, it has been prayed by

the plaintiff that decree for dissolution of marriage be granted in

his favour on the basis of grounds of mental cruelty as well as

desertion as enumerated under Sections 13(1)(ia) and (ib) of the

Act of 1955.

(b) Notice was served to the defendant through registered post

which was received by her on 27/05/2025, however, she did not

appear before the Court. Ultimately, learned Family Court,

Manendragarh, proceeded ex-parte against the defendant and

framed the following points for consideration and answered them

as stated below :-

(04) विचारणीय बिन्दू :-

(01) क्या प्रतिवादी, वादी की विवाहिता पत्नी है ? "प्रमाणित" (02) क्या प्रतिवादी ने वादी के साथ क्रू रता का व्यव्हार किया है ? "प्रमाणित"

(03) क्या प्रतिवादी ने वादी का दो वर्ष से अधिक अवधि से अभित्यजन किया है ? "प्रमाणित"

(04) अनुतोष ?

(c) In sum and substance, the Family Court, by its impugned

judgment and decree dated 12/06/2025 (Annexure A/1), allowed

the application for dissolution of marriage filed by the plaintiff

holding that the grounds of cruelty as well as desertion have duly

been established by the plaintiff and granted decree of divorce in

his favour.

3. Mr. Rishikant Mahobia, learned counsel for the

appellant/defendant, would firstly submit that the Family Court

ought to have served summons on the defendant by way of

process of the Court and merely registered post would not suffice.

He would further submit, on the merits of the matter, that merely

because defendant remained ex-parte in the matter, the Family

Court could not have granted decree for dissolution of marriage in

favour of the plaintiff as he has failed to duly establish the grounds

of cruelty and desertion. Mere trivial irritations, quarrels, normal

wear and tear of the married life which happens in day-to-day

would not be adequate for grant of divorce on the ground of

mental cruelty and merely because the defendant has been

residing separately from the plaintiff for 6 years would not be

adequate for grant of divorce on the ground of desertion. As such,

the impugned judgment and decree granted by the Family Court is

liable to be set aside.

4. Mr. Shashikesh Yadav, learned counsel for the

respondent/plaintiff, would support the impugned judgment and

decree and submit that learned Family Court is absolutely justified

in proceeding ex-parte as despite having been served with

registered notice, defendant did not appear before the Court right

in time when the case was called up for hearing and furthermore,

the Family Court, having been satisfied with the ex-parte evidence

brought on record, rightly proceeded to grant decree for

dissolution of marriage in favour of the plaintiff on the grounds of

cruelty and desertion, by recording findings which are well-

merited and absolutely in accordance with law. Thus, the instant

appeal is liable to be dismissed.

5. We have heard learned counsel for the parties, considered their

submissions made herein-above and went through the records

with utmost circumspection.

6. The question that arises for consideration in this appeal is,

"whether the Family Court is justified in granting decree for

dissolution of marriage in favour of the plaintiff on the grounds of

mental cruelty as well as desertion, as enumerated under Sections

13(1)(ia) and (ib) of the Act of 1955, respectively ?

I. Ground of Cruelty under Section 13(1)(ia) of the Act of 1955 :-

7. At this stage, it would be relevant to notice the provision

contained under Section 13(1)(ia) of the Act of 1955, which

provides as under :-

"13. Divorce. - (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -
(i) XXX XXX (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty, or"

8. A careful perusal of Section 13(1)(ia) of the Act of 1955 would

show that husband or wife would be entitled for decree of

dissolution of marriage on the ground of cruelty if after

solemnization of marriage, one spouse has treated the other

spouse with cruelty.

9. The word 'cruelty' has not been specifically defined in the Hindu

Marriage At, 1955. However, the Black's Law Dictionary, Eighth

Edition, defines 'cruelty' as the intentional and malicious infliction

of mental or physical suffering on a living creature, esp. a human

and defined 'legal cruelty', 'mental cruelty' and 'physical cruelty'

as under :-

"legal cruelty. Cruelty that will justify granting a divorce to the injured party, specif., conduct by one spouse that endangers the life, person, or health of the other spouse, or creates a reasonable apprehension of bodily or mental harm. [Cases: Divorce →27. C.J.S. Divorce 22.] mental cruelty. As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse. See EMOTIONAL, DISTRESS. [Cases: Divorce →27. C.J.S. Divorce 22.] physical cruelty. As a ground for divorce, actual personal violence committed by one spouse against the other. [Cases: Divorce→27(3,6). C.J.S. Divorce 24, 27, 29-31]"

10. The word 'cruelty' has not been specifically defined in the Act of

1955. However, the Supreme Court in the matter of Samar Ghosh

v. Jaya Ghosh1 has laid down some situations or instances of 1 (2007) 4 SCC 511

human behaviour that would constitute mental cruelty. Paragraph

101 of the report states as under :-

"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty".

The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(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 sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the 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."

11. It is doubtless that burden must lie on the petitioner to establish

his or her case for, ordinarily, the burden lies on the party which

affirms a fact, not on the party which denies it. This principle

accords with common sense as it is so much easier to prove a

positive than a negative. The petitioner must therefore, prove that

the respondent has treated him with cruelty within the meaning

of Section 10(1)(b) of the Act.[See : Dr. N.G. Dastane v. Mrs. S.

Dastane2]

12. In the instant case, plaintiff himself has only stated in the plaint as

well as in his statement before the Court that immediately after

one year of their marriage, defendant started quarreling and

arguing with the plaintiff and his parents and ultimately, in

November, 2020, she went to her parental house at Jharkhand

along with their daughter and started residing there and though

the plaintiff went there several times insisting her to come back to

her matrimonial house, but she refused to come back. As such,

nothing specific has been stated by the plaintiff, either in the

plaint or in his statement before the Court, that would evidently

amount to cruelty. As has been held by the Supreme Court in the

matter of Samar Ghosh (supra), 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 within the meaning of Section 13(1)(ia) of the

2 AIR 1975 SC 1534

Act of 1955. Thus, the Family Court is absolutely unjustified in

holding that the ground of cruelty has been duly established by

the plaintiff and thereby, granting decree of divorce on the ground

of cruelty under Section 13(1)(ia) of the Act of 1955.

II. Ground of desertion under Section 13(1)(ib) of the Act

of 1955 :-

13. Now, so far as the ground of desertion is concerned, it would be

appropriate to notice the provision contained under Section 13(1)

(ib) of the Act of 1955 along with explanation, which states as

under :-

"13. Divorce. - (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -
        (i)      XXX       XXX
        (ia)     XXX       XXX
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;

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."

14. A careful perusal of Section 13(i)(ib) of the Act of 1955 would

show that husband or wife would be entitled for decree of

dissolution of marriage on the ground of desertion if the other

party to the marriage is residing separately for a period of two or

more years without reasonable cause or consent or against the

wishes of such party.

15. In the matter of Lachman Utamchand Kirpalani v. Meena alias

Mota3, their Lordships of the Supreme Court have clearly held that

for offence of desertion so far as deserting spouse is concerned,

two essential conditions must be there : (1) factum of separation

and (2) intention to bring cohabitation permanently to an end

(animus deserendi). Similarly, two elements are essential so far as

deserted spouse is concerned : (1) absence of consent and (2)

absence of conduct giving reasonable cause to spouse leaving

matrimonial home to form necessary intention aforesaid.

16. In the instant case, plaintiff (PW-1) and his witness Neeraj Singh

Yadav (PW-2) have only testified before the Court that defendant

has been living separately for the last 6 years and plaintiff has

been deprived of his matrimonial life. Apart from that nothing

specific has been stated by either of them to demonstrate that the

defendant left her matrimonial house and started residing

separately without the knowledge or consent of the plaintiff or

that there was absence of conduct which gave reasonable cause 3 AIR 1964 SC 40

to the defendant to leave her matrimonial house, which are two

absolutely essential conditions for a deserted spouse in order to

prove the ground of desertion, as has been held by the Supreme

Court in the matter of Lachman Utamchand Kirpalani (supra). As

such, there is no evidence available on record at all to establish

the ground of desertion and therefore, the Family Court is

absolutely unjustified in holding that the ground of desertion has

also been established by the plaintiff.

Conclusion :-

17. In view of the aforesaid legal discussion, we are of the considered

opinion that the Family Court has gravelly erred in allowing the

application filed by the plaintiff and thereby, granting decree for

dissolution of marriage in his favour on the grounds of cruelty and

desertion as enumerated under Sections 13(1)(ia) and (ib) of the

Act of 1955. Accordingly, the impugned judgment and decree

dated 12/06/2025 (Annexure A/1) passed by the Family Court is

hereby set aside. Since we have already discussed the matter on

merits and set aside the judgment and decree passed by the

Family Court, we do not propose to enter into the dispute of

mode of service.

18. Accordingly, this appeal is allowed to the extent indicated herein-

above. No order as to cost(s).

19. Decree be drawn-up accordingly.
                   SD/-                           SD/-
           (Sanjay K. Agrawal)                  (Sachin Singh Rajput)
                JUDGE                                 JUDGE


Harneet
 