IMPORTANT POINT
Divorce—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—Denial of physical relationship to a spouse by other amounts to cruelty.

ORDER (CAV)

Parth Prateem Sahu, J.—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 responde