Shri Bodhi Ram Sonkar Vs Smt. Mohani Bai Sonkar

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2026:CGHC:1886-DB

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Digitally signed by HARNEET HARNEET KAUR KAUR Date: 2026.01.15 11:16:39 +0530

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR First Appeal (MAT) No. 255 of 2023

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Shri Bodhi Ram Sonkar S/o Shri Sukhiram Sonkar, Aged About 28 Years R/o Village Mundra, Police Station Mujgahan, Post Tekari, Tahsil Abhanpur, District Raipur Chhattisgarh.

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... Appellant/Plaintiff

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versus

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Smt. Mohani Bai Sonkar W/o Shri Bodhikar Sonkar, Aged About 27 Years D/o Shri Girdhari Sonkar, R/o Village And Post Arjunda, Police Station Arjunda, District Balod Chhattisgarh

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... Respondent/Defendant

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For Appellant : Mr.	Shivendu Pandya, Advocate
For Respondent : Mr.	Amit Nayak, Advocate
As Amicus Curaie : Mr.	Rahul Tamaskar, Advocate

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DB- Hon'ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Arvind Kumar Verma Judgment On Board 13.01.2026

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Sanjay K. Agrawal, J.

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Invoking jurisdiction of this Court under Section 19(1) of Family Court Act, 1984, the appellant/plaintiff has

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preferred this appeal against the impugned judgment and decree dated 27/06/2023 (Annexure A/1) passed by learned Second Additional Principal Judge, Family Court, Raipur in Case No. HMA/260/2017 whereby application filed by the appellant/plaintiff under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter the Act of 1955) seeking decree for dissolution of marriage on the ground of desertion has been rejected finding no merit.

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The aforesaid question arises on the following factual backdrop :-

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(a) The marriage of appellant/plaintiff/husband and respondent/defendant/wife was solemnized on 07/03/2014 as per Hindu rites and rituals and they were blessed with a male child namely Bhavya Sonkar. Thereafter, on account of matrimonial discord between them, respondent/defendant left her matrimonial home in March, 2015 which led the appellant/plaintiff to file application for dissolution of marriage under Section 13(1)(ib) of the Act of 1955 on 02/05/2017 stating inter alia that the respondent/defendant left her matrimonial home without reasonable cause and without the consent of the appellant/plaintiff and she has been living separately for more than two years, therefore, decree for dissolution of marriage under Section 13(1)(ib) of the Act of 1955 be granted in his favour.

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(b) Respondent/defendant opposed the application and filed her written statement stating that it is the appellant/plaintiff who has deserted her without any lawful cause and in her evidence, she took a plea that appellant/plaintiff has entered into second marriage and has two children out of that wedlock.

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(c) Learned Family Court, Raipur, by its impugned judgment and decree dated 27/06/2023 (Annexure A/1), rejected the application for dissolution of marriage filed by the appellant/plaintiff holding that the appellant/plaintiff has already entered into second marriage and has two children out of that wedlock which shows that he, himself, is not ready and willing to keep the respondent/defendant in his house.

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Mr. Shivendu Pandya, learned counsel for the appellant/plaintiff, would submit that the Family Court is absolutely unjustified in rejecting the application filed by the appellant/plaintiff by recording a finding which is perverse and contrary to the record as there is no pleading about him entering into second marriage either in the application filed before the Court or in the affidavit filed by the respondent/defendant and for the first time, this plea has been taken by the respondent/defendant in her crossexamination which the Family Court has found favour

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with and proceeded to reject the application filed by the appellant/plaintiff, which is unsustainable and bad in law.

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Mr. Amit Nayak, learned counsel for the respondent/defendant, would support the impugned judgment and decree and submit that learned Family Court is absolutely justified in rejecting the application for dissolution of marriage filed by the appellant/plaintiff on the ground of desertion.

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Mr. Rahul Tamaskar, learned Amicus Curiae, has brought to our notice that Section 13(1)(ib) of the Act of 1955 has to be read with Section 23(1)(A) of the Act of 1955 and he would submit that appellant/plaintiff does not have a vested right for getting the relief of a divorce merely on showing that the grounds in support of the relief as stated in the petition exist. The Court has to satisfy its conscience before passing a decree of divorce that the wrongdoer is not taking the benefit of his own wrong by getting the decree of divorce. In the instant case, the Family Court has clearly recorded the finding that appellant/plaintiff has entered into second marriage and has two children out of that wedlock, therefore, for his own wrong, he cannot be granted decree for divorce and the provision contained under Section 23(1)(a) of the Act of 1955 squarely applies herein. He would rely upon the

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decision rendered by the Supreme Court in the matter of

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Ashok Kumar Jain v. Sumati Jain 1

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We have heard learned counsel for the parties, considered their submissions made herein-above and went through the records with utmost circumspection.

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The question that arises for consideration in this appeal is, “whether the Family Court is justified in rejecting the application filed by the appellant/plaintiff under Section 13(1)(ib) of the Act of 1955 for grant of decree for dissolution of marriage on the ground of desertion holding that appellant/plaintiff has entered into second marriage and he, himself, is not ready and willing to keep the respondent/defendant with him ?

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In order to raise the plea at the Bar, 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 :-

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“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 -

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(i) XXX XXX (ia) XXX XXX

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(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;

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1 AIR 2013 SC 2916

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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.”

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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.

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In the matter of Lachman Utamchand Kirpalani v. Meena alias Mota 2, 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.

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2 AIR 1964 SC 40

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Section 13(1)(ib) of the Act of 1955 along with its explanation has to be read with Section 23(1)(a) of the Act of 1955, which provides as under :-

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“ 23. Decree in proceedings. - (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that -

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(a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and”

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A careful perusal of the aforesaid provision would show

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that under sub-section (a) of clause (1) of Section 23 of the Act of 1955, in any proceeding under the Act, if the Court is satisfied that any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, the Court shall grant the relief under Section 23(1)(a) of the Act of 1955. Therefore, even if a proceeding is undefended, it is obligatory on court to be satisfied under Section 23(1)(a) of the Act of 1955 that petitioner is not in any way taking advantage of his or her own wrong or disability for purpose of such relief. The Court is bound to take into consideration conduct of petitioner. If the petitioner has by his own misdeeds forced his spouse to leave him, he cannot be allowed to take

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advantage of his own wrong and ask for assistance of Court to perpetuate his own wrong doing.

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The Supreme Court, in the matter of Dharmendra Kumar

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v. Usha Kumar 3, has held that in order to be a ‘wrong’ within the meaning of Section 23(1)(a) of the Act of 1955, the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.

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Similarly, in the matter of T. Srinivasan v. Mrs. T. Varalakshmi 4, the Supreme Court has considered the act of the husband, refusing his wife to enter his house and also driving away her relatives who attempted to rehabilitate the wife, as positive wrongs amounting to ‘misconduct’ uncondonable for the purpose of Section 23(1)(a) of the Act of 1955 and observed in paragraph 1 as under :-

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“1. The finding recorded by the Courts below is that the husband obtained a decree for restitution of conjugal rights not to act in obedience thereof but, on the other hand, to keep the wife deprived of her right to perform her conjugal duties. The wife made a demand of the husband to let her join him but he refused to allow her enter the house, rather he drove her away as also her relations, whoever attempted to rehabilitate the wife. These acts of the husband were positive wrongs amounting to ‘misconduct’, uncondonable for the purposes of S. 23(1)(a) of the Hindu Marriage Act, 1955. Hence, he

3 AIR 1977 SC 2218

4 AIR 1999 SC 595

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was rightly denied relief under S. 13(1A) of the said Act. The appeals, therefore, fail and are hereby dismissed.”

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Likewise, in the matter of Ashok Kumar Jain (supra), their Lordships of the Supreme Court considered the act of the appellant/husband therein of disobeying the law and entering into second marriage without revealing to the respondent/wife and her parents and thereafter, also coming out with a fresh matrimonial advertisement as his cruel intention and after observing that he himself brought the situation to the point where the respondent/wife had no option but to leave the matrimonial home, held that as the appellant/husband was trying to take advantage of his own wrong, it will disentitle him from the relief enumerated under Section 23(1)(a) of the Act of 1955. Paragraphs 13 and 14 of the report states as under :-

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“14. Under sub-clause ( a ) of clause (1) of Section 23, in any proceeding under the Act, if the court is satisfied that any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, the court shall grant relief under Section 23(1)( a ) of the Act. Therefore, it is always open to the court to examine whether the person seeking divorce “is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief”. On such examination if it is so found that the person is taking advantage of his or her wrong or disability it is open to the court to refuse to grant relief.

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15. In the present case, both the courts noticed the relevant facts and came to a definite conclusion that the appellant has not only been

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cruel to the respondent, but has also brought the situation to the point where the respondent had no option but to leave the matrimonial home. In this situation as the appellant was trying to take advantage of his own wrong, the courts disallowed the relief as was sought for. We find that the order to that effect of the High Court does not suffer from any infirmity, illegality or perversity; no interference is called for”

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In the matter of Chetan Dass v. Kamla Devi 5, their Lordships of the Supreme Court have held that the husband, who committed wrong (adulterous life) cannot be given advantage of his own wrong and cannot be granted divorce on the ground of desertion on part of his wife who is still prepared to live with him and further observed as under :-

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“18. … In the present case, the allegations of adulterous conduct of the appellant have been found to be correct and the Courts below have recorded a finding to the same effect. In such circumstances, in our view, the provisions contained under Section 23 of the Hindu Marriage Act would be attracted and the appellant would not be allowed to take advantage of his own wrong. Let the things be not misunderstood nor any permissiveness under the law be inferred, allowing an erring party who has been found to be so by recording of a finding of fact in judicial proceedings, that it would be quite easy to push and drive the spouse to corner and then brazenly take a plea of desertion on the part of the party suffering so long at the hands of the wrong-doer and walk away out of the matrimonial alliance on the ground that marriage has broken down.”

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Coming to the facts of the instant case in light of the principle of law laid down by their Lordships of the

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5 AIR 2001 SC 1709

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Supreme Court in the aforesaid judgments (supra) clearly defining wrong/misconduct within the meaning of Section 23(1)(a) of the Act of 1955, it is quite established that marriage between the parties cannot be dissolved unilaterally by any of the parties to the marriage. Therefore, in a case where non-applicant has proved her/his right to live separate from the applicant, if a decree for divorce is granted on the ground of desertion than that will be not only a punishment to the person honest to relation for none of his or her fault but will be reward to the wrong doer and which is prohibited by law under Section 23(1)(a) of the Act of 1955. In the present case, learned Family Court has recorded a clear-cut finding that the appellant/plaintiff has entered into second marriage without getting any decree of divorce and thereby disobeyed the law and it would constitute as sufficient and reasonable cause for the respondent/defendant to live separately as per the explanation attached to Section 13(1) (ib) of the Act of 1955, which in our considered opinion, is a correct finding of fact which is absolutely in accordance with law. It is a cruel act on the part of the appellant/plaintiff as he, himself, brought the situation to a position where the respondent/defendant had no other option except to leave her matrimonial home and live separately and by way of filing application for decree of

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dissolution of marriage on the ground of desertion as enumerated under Section 13(1)(ib) of the Act of 1955, the appellant/plaintiff is trying to take advantage of his own wrong as he entered into second marriage, which is prohibited under Section 23(1)(a) of the Act of 1955.

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In view of the aforesaid legal discussion and analysis, we are of the considered opinion that learned Family Court has rightly rejected the application filed by the appellant/plaintiff seeking decree for dissolution of marriage on the ground of desertion under Section 13(1) (ib) of the Act of 1955 finding no merit and we do not find any good ground to interfere with the impugned judgment and decree passed by the Family Court.

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Accordingly, this appeal, being devoid of merits, is liable to be and is hereby dismissed leaving the parties to bear their own cost(s).

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Before parting with the record, we place on record our appreciation for Mr. Rahul Tamaskar, who appeared as Amicus Curiae and rendered his valuable assistance in short notice.

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SD/SD/- (Sanjay K. Agrawal) (Arvind Kumar Verma) JUDGE JUDGE

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Harneet

Shri Bodhi Ram Sonkar v. Smt. Mohani Bai Sonkar

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Shri Bodhi Ram Sonkar v. Smt. Mohani Bai Sonkar

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