JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. The present appeal is against the judgment and decree dated 30/10/2021 (ANNEXURE A/1) passed by the learned Family Court, Raigarh, District Raigarh, C.G. in Civil Suit No.31-A/2020 whereby the application filed by the wife seeking divorce on the ground of cruelty was dismissed. Being aggrieved by such judgment and decree, the instant appeal is by the wife/appellant.

2. The respondent was ex-parte before the family Court. Here before this Court too despite service of the notice, the respondent/husband has not made any representation.

3. The brief facts of the case are that the parties were married on 02/02/2006 and out of such marital relation one son and one daughter were born, who at the time of filing of the petition were stated to be 10 years and 13 years of age. Wife contended that the dispute occurred because of the excessive drinking of liquor-whisky which resulted into severe intoxication and consequently the husband used to beat the wife and used to sell the entire household goods. It is stated that the brother of the appellant/wife used to cater the daily needs of family including the payment of the school fees of the children. It was also stated that the husband was not doing anything and because of such habit of consumption of liquor, the condition of the entire family deteriorated and when the husband was advised to work, in counter he used to beat the wife. It was further stated that on 26/05/2016 she was assaulted and abused under intoxicated state by the husband as such she was forced to live along with her two children at her parental home.

4. It was further stated that initially an application seeking divorce was filed on similar grounds and during such proceeding, the husband promised that he would leave the drinking habit and would mend his behaviour and will not torture the appellant/wife. On such promise made by the husband, the earlier proceedings for seeking divorce was withdrawn by the wife. After sometime of the withdrawal of the earlier divorce petition, again the behaviour of the husband aggravated to cause torture and after consumption of liquor, he used to abuse and assault the wife and children. The wife further contended that when she demanded educational fees of the children, the husband refused to pay the same instead assaulted and abused the wife. Such incident was reported to the police and after preliminary enquiry, the parties arrived at a settlement thereafter the wife was staying at her parental home till the husband mend his way but that did not improve eventually the application for divorce was filed for second time.

5. The husband did not enter his appearance instead sent a written statement and denied the plaint allegations. He stated that because of the behaviour of wife he was constrained to stay apart and the wife used to extend threat as also mental cruelty was committed on him. It was stated that the husband wanted to restore the marriage but because of the behaviour of the wife it all went in vain. The husband also contended that he was assaulted by the wife as such he also made a report to the police, therefore, the cruelty was done by the wife instead of the husband and, therefore, she is not entitled for a decree of divorce.

6. Perusal of the record would show that the husband did not appear to adduce evidence. The appellant/wife herself examined as PW-1 and her brother Abhinav Sharma (PW-2) was also examined.

7. In order to examine the cruelty, the principles laid down by the Supreme Court in Samar Ghosh v Jaya Ghosh, (2007) 4 SCC 511 would be a relevant guideline wherein the Court has indicated certain illustrative instances at para 101 whereby the inference of mental cruelty can be drawn. Para 101 reads 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 t