CAV ORDER

1. Challenge in this appeal is to the impugned judgment and decree dated 30.07.2018, passed in Civil Suit No.04-A/2015, whereby learned Additional District Judge, Mungeli, District -Mungeli dismissed the application filed by appellant (husband) under Section 13 of the Hindu Marriage Act, 1955 (In short ‘the Act, 1955) seeking decree of divorce.

2. Brief facts of the case are that appellant (husband) filed an application under Section 13 of the Act, 1955 before the Court of Additional Digitally signed by BALRAM PRASAD DEWANGAN Date: 2024.12.17 District Judge Mungeli alleging inter-alia that appellant has performed love marriage with respondent on 04.07.2008 and thereafter, customary marriage between the parties was also solemnized on 29.04.2009. Out of their wedlock, one son Aryan is born, who is presently 7 years old. After their marriage, behaviour and conduct of respondent become abnormal. She used to compel appellant to reside separately and she left her matrimonial house without any justifiable cause. It is further pleaded that in order to satisfy her wishes, respondent regularly raised quarrel with him and came to her parents house without informing anyone in her matrimonial house. She spent her maximum time in Mobile Phone, saying that she has affair with one Mannu Jaiswal and she does not want to live with the appellant. It is also pleaded that the respondent has given him threat that she will involve him in a false case and thereby he will be removed from his service. Despite the appellant’s repeated efforts to reconcile and bring the respondent back, she has been living separately since 2013 and has filed multiple proceedings in both Family and Criminal Courts. In light of the respondent's continued refusal to cohabit and the irretrievable breakdown of the marriage, the appellant sought a decree of divorce on the grounds of mental cruelty and desertion.

3. Application filed under Section 13 of the Act, 1955 was replied by respondent (wife) and denied the allegations made therein. It is pleaded in the reply that, the appellant forcibly expelled her from the matrimonial home and left her at her parental home in Katghora. In the year 2014-15, she tried to return back to her matrimonial home, but she was not permitted to enter and was subjected to physical and mental torture for demand of dowry. It is pleaded that the allegations made by the appellant are false and application for divorce has been filed solely to evade his legal obligation for maintenance.

4. The learned trial Court on the basis of the pleadings made by the parties, framed three issues for consideration “ (i) whether applicant suffered physical and mental cruelty due to love affair of non-applicant with another person and the proceedings of criminal case, (ii) whether the appellant is entitled to get the decree of divorce and (iii) relief and cost”. Both the issues are decided against the plaintiff, suit was dismissed.

5. Learned counsel for appellant submits that learned trial Court has dismissed the suit/application filed by appellant without appreciating the evidence brought on record in appropriate manner. He contended that finding recorded by the learned trial Court is erroneous and contrary to the evidence available on record. It is contended that refusal of respondent to live with appellant, her persistent stay at her parental home without valid reason, and her demands to live separately from the appellant’s parents amount to mental cruelty. Respondent has refused to cohabit with appellant and her failure to discharge basic marital duties constitutes desertion and mental cruelty. The applicant is entitled to a decree of divorce on the grounds of desertion and mental cruelty, which the Trial Court erroneously overlooked. It is contended that the cause of marital discord was extramarital affair of respondent and the appellant has duly proved the extramarital affair of respondent by adducing oral evidence. The trial Court also failed to take not