Divorce on cruelty ground requires proof of grave, sustained conduct causing mental agony on preponderance of probabilities; mere counter-complaints, non-appearance, and non-compliance with ex-parte decrees insufficient; no appellate interference absent perversity in trial findings.

JUDGMENT :

Sujit Narayan Prasad, J.

1. The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the order/judgment dated 29.05.2023 (decree signed on 08.06.2023) passed by the learned Principal Judge, Family Court, Seraikella-Kharsawan in Original Suit No. 18 of 2021, whereby and whereunder, the learned court has dismissed the suit filed under Section13(1)(i-a) of the Hindu Marriage Act, 1955.

2. The brief facts of the case as per the original matrimonial suit needs to be referred herein as under:

The petitioner and the respondent were married on 09.11.2008 at Adityapur according to Hindu Rights, rituals and customs. After marriage, the respondent came to the house of the petitioner and three children took birth from the wedlock, namely, Gunja Kumari, Roshan Kumar and Yash Kumar. It had been pleaded by the appellant/petitioner that the behaviour of respondent never remained cordial with the petitioner and his family members, always creating dispute and quarrel giving no regard to them and also abstaining from the house hold work and care of the children and in continuation with the same she filed a complaint against the petitioner in Mahila P.S. Seraikella.

It is further case that a compromise arrived with stipulation that the respondent would go to her parents’ house at Chandigarh and would return after 20 days to her matrimonial house, where she went with the younger son Yash Kumar on 18.06.2018, but did not maintain her commitment as the respondent did not return and surprisingly she filed complaint case against the petitioner and his family members alleging torture and cruelty in Mahila P.S. Sector No.17 at Chandigarh and the petitioner was pressurized to live separate from his parents at Chandigarh. On denial, the respondent did not agree to return at matrimonial house.

It had been submitted by the petitioner as has been referred in the impugned order/judgment by referring the filing of complaint case vide FIR No. 160 dated 27.11.2019 u/s 498A and case No. 125 of 2019 under Domestic Violence Act, that the cases are sub-judice before the Court of Solani Gupta J.M. 1^st Class at Chandigarh and the petitioner along with his family members are on bail. It is further stated that petitioner had file a case u/s 9 of the H.M.A. vide O.S. No. 86/2018 at Seraikella and in that case the respondent did not appear and the case decreed ex-parte on 29.07.2019, directing the respondent to join the company of petitioner, but she did not return along with the minor son Yash Kumar. In this context it is also pleaded that for recovery and custody of Yash Kumar, O.S. (Guardianship) Case No.18 of 2020 was filed on 06.02.2019 before Family Judge, Seraikella, but in that case too, despite summon and notice, she did not appear and the suit was allowed by passing ex-parte decree.

It is the case of the petitioner that the respondent has committed extreme mental and physical cruelty and has reason to believe that the relationship of the parties cannot be reconcile making it impossible to lead a marriage life and as such the prayer for decree of dissolution of marriage has been made that with further relief to consider the living of the children with the parties especially with the petitioner.

3. It is evident from the factual aspect as referred hereinabove w