JUDGMENT : 1. The present appeal under Section 19(1) of the Family Courts Act, 1984 has been preferred against the judgment dated 05.08.2022 passed by the Principal Judge, Family Court, Durg (C.G.) in Civil Suit No. 365/2017. 2. Vide the judgment impugned, the trial Court dismissed the application filed under Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) by the appellant-husband for dissolution of marriage by decree of divorce. 3. Brief facts of the case are that marriage of appellant and respondent was solemnized on 28.02.1996 according to Hindu rites, ritual and customs and out of the wedlock they have one daughter namely Amy Tiwari. After sometime of marriage, the appellant went to his work place at Pulgaon as he was working as Drawing Teacher. However, after some time, relation between them started getting worse on account of illicit relation of respondent with one Ajay Gatagat. It was also pleaded that from 1996 to 2005, the respondent-wife made as many as 08 abortions and all the time Ajay Gatagat was present. In the year 2005, appellant-husband made his transfer to Raipur and after assurance by respondent-wife that she would not keep any relation with Ajay Gatagat, he started residing with respondent-wife. It was also submitted in the application that everything went well for few days, thereafter respondent-wife started talking to said Ajay Gagatat about 10 to 15 times a day, and on being objected, the respondent-wife used to got angry. The respondent-wife had hacked the applicant’s mobile and to defame him, she used to chat in his name and send messages to people. The respondent-wife, taking the advantage of her acquaintance with police, used to tap his phone illegally and used to threat him. Lastly, it was averred that there is no relation between the appellant and respondent for last two years. The respondent used to argue over trivial issues, abuse him, leave the house without informing, torture the appellant mentally and physically & had relation with another person, therefore, it was not possible for the appellant to live with respondent. Finally, an application under Section 13(1) of the Act was filed by the appellant on 28.02.1996 for dissolution of marriage by decree of divorce on the ground of cruelty. 4. The respondent, in her reply, denied all the allegations and stated that the appellant used to suspect the fidelity for respondent. Finally, an application under Section 13(1) of the Act was filed by the appellant on 28.02.1996 for dissolution of marriage by decree of divorce on the ground of cruelty. 4. The respondent, in her reply, denied all the allegations and stated that the appellant used to suspect the fidelity for respondent. The appellant has stayed out of town for about 10 years and whenever he used to come house, he physically abused her and even not born the expenses of her 09 abortions. Appellant’s parents are also residing with her. It was also stated in the reply that in the month of January, 2017, the appellant came into contact with one lady namely Taruna Mathur during school’s training programme, with whom the appellant wanted to spend his life. It was also stated that the appellant wanted to spend his life with fun and debauchery & respondent is fork between appellant and Taruna Mathur & the entire conspiracy has been hatched to remove her. The appellant wanted to abandon his son, wife and parents for his own pleasure. 5. The learned Family Court, after examining oral and documentary evidence, dismissed the application of appellant-husband holding that what the appellant has alleged to be cruelty towards him by the respondent are merely the normal wear and tear of marital life which happens in day-to-day life, which cannot be put in the category of cruelty and it has also not been proved that respondent had illicit relationship with any other person and respondent behaved in cruel manner with the appellant. Hence, the present appeal. 6. Learned counsel for the appellant submits that the impugned judgment passed by the learned Family Court is perverse and not sustainable in law. The learned Court has recorded a perverse finding with respect to fact that the appellant has treated his wife with cruelty. There is apparent error on the face of record, which needs interference by this Court in exercise of its jurisdiction. Learned counsel further submits that the appellant was not living with the respondent from 1996 to 2005, therefore, finding of learned Family Court that the abortions conducted during this period was the consequence of the conceiving with the appellant only on the testimony of respondent is at all not sustainable. Further, it is evident that the appellant was not present at Bhilai on all the alleged dates of consummation. Further, it is evident that the appellant was not present at Bhilai on all the alleged dates of consummation. Learned counsel also submits that it was duly proved by the appellant by the call details that respondent was in relation with another person but this fact was not taken into consideration by the learned Family Court. It has also failed in not considering the circumstantial evidence of illicit relation of respondent-wife with one Ajay Gatagat. The learned Family Court also failed to consider the admitted status of marriage which was irretrievably broken from more than 20 years which was admitted by both the parties. Learned counsel also submits that it was admitted by respondent that the house was actually financed in the name of respondent’s father by the appellant only and the dispute regarding title of the house is pending before Civil Court but the learned Family Court did not appreciate this aspect of the matter. Learned counsel further submits that the learned Family Court failed to appreciate this fact that the appellant had extended business help to the parents of respondent-wife for purchase of house and also provided vehicle bearing registration No. CG-07-MA-6782 and the appellant had proved all grounds of divorce successfully but the learned Family Court gave wrong and perverse finding and dismissed the civil suit. In these background of the case, the impugned judgment passed by the learned Family Court is liable to be set aside. In support of his submission, learned counsel placed reliance on the decisions of this Court in the matter of Smt. Bindeshwari Gambhi vs. Bhagwati Gambjhir and Another, 2022-CGHC-14851 (DB) and Dr. Ramkeshwar Singh vs. Smt. Sheela Singh @ Madhu Singh, 2022-CGHC-15007 (DB). 7. Per contra, learned counsel for respondent supporting the impugned judgment and placing reliance on the decisions of Supreme Court in the matter of Chetan Das vs. Kamla Devi, (2001) 4 SCC 250 and Deepti vs. Anil Kumar, 2023 SCC Online Del 5829, submits that the learned Family Court minutely appreciated oral and documentary evidence and has rightly rejected the application of appellant-husband, therefore, the appeal being without any merit is liable to be dismissed. 8. We have heard learned counsel for the parties and perused the material available on record. 9. 8. We have heard learned counsel for the parties and perused the material available on record. 9. It is an admitted position in this case that the marriage between the appellant and respondent was solemnized on 28.02.1996 and out of their wedlock one son namely Amy Tiwari was born on 25.09.2006. The appellant-husband filed the suit under Section 13 (1) of the Act on 19.05.2017 for dissolution of marriage by decree of divorce on the ground of cruelty and adultery & in order to prove cruelty and adultery, the learned trial Court on the basis of pleadings of both the parties framed issues, which are reproduced herein as under: ^^1- D;k fookg ls i’pkr vukosfndk dks vU; O;fDr ds lkFk voS/k laca/k Fkk\ 2- D;k vukosfndk us vkosnd ds lkFk dzwjrk dk crkZo fd;k gS\ 3- D;k vkosnd mDr vk/kkj ij fookg&foPNsn dh vkKfIr ikus dk vf/kdkjh gS\** 10. The appellant in support of his claim examined himself as AW-1 and four witnesses namely Nisha Nayak (AW-2), Prashant Walokar (AW-3), Krishna Kumar Tiwari (AW-4) and Pushpa Tiwari (AW-5), however, cross-examination of Pushpa Tiwari (AW-5) was not conducted by respondent-wife. 11. The respondent-wife also examined herself as NAW-1 and one witness namely Pawan Pandey (NAW-2). 12. The appellant-husband, in his statement, categorically stated that after marriage he stayed with respondent-wife for sometime and thereafter went to his place of posting at Pulgaon (Maharashtra) and respondent-wife was residing along at Bhilai as her parents after retirement shifted to Kerala. He has also stated that from 1996 to 2005 he was out of Bhilai and during this period, respondent-wife had 8-12 abortions. It was also pleaded that respondent-wife was in relation with one Ajay Gatagat, who was present at the time of all abortions. In support of his aforesaid contention, the appellant-husband has filed medical documents/prescriptions, medical reports, notices, letters and call details of his landline number vide Ex.P/1 to P/60. 13. Nisha Nayak (AW-2) has stated in her examination-in-chief that she was working as maid in the house of respondent-wife and in absence of appellant-husband, she had seen one uncle coming to the house of respondent-wife in night. She has also stated that when father and mother of appellant had gone to village Dhamgaon, the same uncle came to respondent’s house and stayed with respondent. She has also stated that when father and mother of appellant had gone to village Dhamgaon, the same uncle came to respondent’s house and stayed with respondent. They were staying in the room and she was asked to sleep in the varandah outside the room and used to lock the room from inside. In cross-examination, she has stated that she does not know about any complaint of theft lodged by Rekha Tiwari (respondent) against her and she has not committed any theft. 14. Shrikrishna Tiwari (AW-4) who is brother of appellant-husband has stated that he was living with his brother Dhruv Tiwari (appellant) and sister-in-law Rekha Tiwari (respondent). He has also stated that respondent Rekha Tiwari had developed relation with one Ajay Gatagat and since his brother Dhruv Tiwari was residing out of station, Rekha was frequently visiting with Ajay Gatagat and she was roaming with him till late night. He has also stated that he had always seen his sister-in-law Rekha Tiwari with Ajay Gatagat and whenever he went to meet Rekha Tiwari, he always found Ajay Gatagat with her and door used to be locked from inside. He has also stated that once he went to railway station to pick up his sister-in-law (respondent) who was coming from Kerala but even after knowing that he had come to pick her up, she went with Ajay Gatagat at 12.00 in the night to his house at Maroda and when he followed them and reached there, they locked the door from inside. In cross-examination, he has admitted the suggestion that he had not seen his sister-in-law Rekha Tiwari having illicit relationship with Ajay Gatagat, however, he himself stated that if both of them remain in same room and close door from inside, what people would think. 15. On the contrary, the respondent-wife denied all allegations levelled against her in her affidavit filed under Order 18 Rule 4 of CPC but she admits in Para 30 of her cross-examination that she knew Ajay Gatagat and she used to talk with him and his family members for hours. Respondent-wife has also admitted in Para 33 that she had 09 abortions. 16. Pawan Pandey (NAW-2) has stated that the appellant-husband was a very irresponsible and skeptic by nature & was suspecting fidelity of his wife (respondent). 17. Respondent-wife has also admitted in Para 33 that she had 09 abortions. 16. Pawan Pandey (NAW-2) has stated that the appellant-husband was a very irresponsible and skeptic by nature & was suspecting fidelity of his wife (respondent). 17. After evaluation of the evidence put-forth before the learned Family Court, it recorded the finding that the appellant-husband has failed to prove that respondent-wife after marriage had any illicit relation with some other person and appellant also failed to prove any cruelty being committed by the respondent-wife. It is clear from admission of respondent-wife that she used to talked with another person and she did not refute the evidence of Nisha Nayak (AW-3) and Krishna Kumar (AW-4) that in absence of appellant-husband, respondent-wife used to call Ajay Gatagat and both of them used to be in a room. Further, Nisha Nayak (AW-3) stated in para 1 of her examination in affidavit filed under Order 18 Rule 4 of CPC that on 8th July, 2017 respondent-wife called that uncle on mobile phone informing him that somebody was trying to enter her house from back side. She has also stated that when the parents of appellant-husband had gone to village Dhamgaon, the said uncle had stayed with respondent-wife in her house and she was asked to sleep outside the room in varandah and the room was locked from inside. 18. In cross-examination, no question was put to this witness on this material fact by respondent-wife and it was only asked that in which year she was working in her house and report of theft was lodged against her, to which she showed her ignorance. Thus, in absence cross-examination of this issue, the statement of Nisha Nayak (AW-2) would be more reliable to act upon. 19. The Hon’ble Supreme Court in the matter of Vinod Kumar vs. State of Haryana, (2015) 3 SCC 138 held that when there is no cross-examination on a factual matrix and that remained unchallenged that ought to be believed by the Court. It further lays down that Section 138 of the Evidence Act confers a valuable right of cross-examination the witness tendered in evidence by opposite party and the scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned: (1) to test his veracity. (2) to discover who he is and what is his position in life. (2) to discover who he is and what is his position in life. (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. 20. Krishna Kumar (AW-4), brother of appellant-husband, has also stated this fact and in cross-examination he remained firm on this fact that Rekha Tiwari (respondent-wife) and Ajay Gatagat used to live in one room and lock the door from inside. 21. It was pointed out by learned counsel for the appellant-husband that respondent-wife in her written statement also levelled allegation on character of appellant-husband of having relation with some another lady and in relief clause it was stated by respondent-wife as under: “Relief: The relief sought by the appellant may be granted to him and an order to protect the respondent and her family members from the cruelty being meted out by the appellant may be passed in the interest of justice.” 22. In Para 29 of her cross-examination, she admitted that before the divorce case was filed by Dhruv Tiwari, she did not file any objectionable complaint regarding his distorted skeptic mentality, having relations with another woman, being an adulterer and an alcoholic. 23. While dealing with the issue of cruelty and accusation against each other, this court in the matter of Dr. Ramkeshwar Singh (supra) held in Para 26 as under: “26. Further the nature of accusation made against each other in a matrimonial case would show that since 1996, the parties are living apart and litigating in different courts. Taking into such facts into consideration, we are of the view that there is irretrievable break-down of marriage which is beyond repairs. Under the circumstances, we allow the appeal and grant a decree of divorce to the husband. The marriage solemnized between the parties is dissolved and accordingly a decree be drawn.” 24. On close scrutiny of the evidence available on record, it is manifestly clear that during the subsistence of marital ties, the respondent-wife had illicit relation with other person and further it was duly established that conduct and behaviour of respondent-wife against appellant-husband was not cordial. Both the appellant-husband and respondent-wife made accusation of adultery against each other. On close scrutiny of the evidence available on record, it is manifestly clear that during the subsistence of marital ties, the respondent-wife had illicit relation with other person and further it was duly established that conduct and behaviour of respondent-wife against appellant-husband was not cordial. Both the appellant-husband and respondent-wife made accusation of adultery against each other. The appellant-husband by examining Nisha Nayak (AW-2), Krishna Kumar (AW-4) and producing calls details of respondent-wife has been successful in proving the fact of having illicit relation of respondent-wife with another person, which further gets corroborated from the admission of respondent-wife that she used to talk with another person namely Ajay Gatagat and his family members for hours. Thus, both the issues have been duly proved by the appellant, but the learned Family Court recorded perverse finding contrary to the evidence and dismissed the application of appellant-husband which is not sustainable in the eye of law. The finding recorded by the learned Family Court, in the opinion of this Court, is not in accordance with the oral and documentary evidence filed by the parties. 25. In view of the aforesaid discussion, the impugned judgment and decree dated 05.08.2022 is set aside and we allow this appeal to grant decree of divorce and it is ordered that the marriage dated 28.02.1996 henceforth shall be dissolved by a decree of divorce. 26. Let appellate decree be drawn accordingly. 27. There shall be no order as to costs.