Chattisgarh High Court
Arjun Singh Banjare vs Smt. Archana Banjare on 12 October, 2022
1
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA(MAT) No. 64 of 2021
{Arising out of judgment and decree dated 28-12-2020 passed by the
Second Additional Principal Judge, Family Court, Durg, in civil suit
No.122/2014}
1. Arjun Singh Banjare S/o Dr. N.L. Banjare Aged About 34 Years,
R/o Ward No. 50, Borsibhata, Durg, Thana Pulgaon, Tehsil And
District Durg Chhattisgarh
---- Appellant
Versus
1. Smt. Archana Banjare W/o Shri Arjun Singh Banjare Aged About
34 Years C/o Shri D.R. Kurre, 640/A, Sector-4, BALCO Nagar
Korba Chhattisgarh
Posted At S.M.S. Horticulture Krishi Vigyan Kendra, Lakhanpur,
Sutarra, Katghora, District Korba Chhattisgarh
---- Respondent
FAM No. 229 of 2017
{Arising out of judgment and decree dated 23-11-2017 passed by the
Judge, Family Court, Korba, in civil suit No.128-A/2014}
1. Smt Archana Banjare W/o Arjun Banjare, Aged About 27 Years
R/o Qr. No. 638-640/02, A/04, BALCO Nagar Korba, District
Korba, Chhattisgarh,
---- Appellant
Versus
1. Arjun Singh Banjare S/o Dr. N.L.Banjare, Aged About 27 Years
R/o Ward No.50, Village And Post Borsi Bhatha Bhilai, Tahsil
And District Durg, Chhattisgarh
---- Respondent
For Arjun Singh Banjare Mr. Rahul Tamaskar, Advocate
(Husband)
For Smt. Archana Banjare Ms Fouzia Mirza, Sr. Adv. with Ms
(Wife) Smita Jha, Advocate
2
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice Radhakishan Agrawal
Judgment on Board
Per Goutam Bhaduri, J.
12-10-2022
1. Since the issue involved in these two appeals is interlinked,
they are being heard together and decided by this common
judgment.
2. First Appeal (M) No.229/2017 is filed by wife (Smt. Archana
Banjare) against the judgment and decree dated 23.11.2017 passed
in Civil Suit No.128-A/2014 by which learned Judge, Family
Court, Korba has dismissed the application of wife for grant of
divorce on the ground of cruelty.
3. First Appeal (MAT) No.64/2021 is filed by husband (Arjun Singh
Banjare) feeling aggrieved by the judgment and decree dated
28.12.2020 passed in Civil Suit No.122/2014 by which learned 2 nd
Additional Principal Judge, Family Court, Durg, has dismissed the
application of husband filed under Section 9 of the Hindu
Marriage Act, 1955 (for short "the Act, 1955") for restitution of
conjugal rights.
4. The allegation made by the wife that they got married on
10.3.2013 as per the Hindu rituals at Korba. Thereafter the wife
joined the matrimonial home at Durg. During her stay, it is
alleged that she was subjected to torture for demand of dowry by
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
the husband and his family members. After consuming liquor, the
husband used to abuse and pressurize her to bring a car in dowry.
The wife being posted in Agriculture Department, Katghora joined
at her place of posting and whenever she gets leave, she used to
come to her matrimonial home. Whereas the husband being
unemployed used to ask her for money. It is further alleged that
she was subjected to torture for bringing a car in dowry and also
threatened by her husband that if the said demand is not satisfied,
he will remarry. Quoting a particular incident occurred on
26.5.2013, she alleged that when she had opposed the demand of
dowry, she was abused, assaulted and thrown out of the house by
husband and his mother and since then she is living at her parental
home. On 10.4.2014 she lodged First Information Report (FIR)
against her husband and his family members for demand of dowry.
She also alleged that the husband used to make false complaint in
her office, as a result, several notices were issued to her from
office, which had caused mental agony & cruelty to her. She
further alleged that for the last 14 months they were living
separately and marriage between them had completely came to an
end, therefore, the decree of divorce be passed in her favor by
dissolving the marriage dated 10.3.2013.
5. On the other hand, the husband stated in reply that they were
known to each other since 2003 and they had performed love
marriage. It was stated to give support, whenever the wife went
outside to appear in different competitive examinations, he used to
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
accompany her and eventually they got married on 10.3.2013. He
stated that the family members of the wife were not happy with
their marriage, therefore, they forcefully took her away for which
the husband made a report on 10.12.2010 at police station Civil
Lines, Raipur. Thereafter, on several occasions, he tried to bring
back his wife, but eventually all efforts failed and she was under
wrong influence of her father. He further stated that it is at the
instance of her father, wife denied their initial marriage
solemnized on 9.4.2010 at Arya Samaj Temple and thereafter filed
an application for declaring said marriage to be void, but that
application was dismissed. The husband further contended that in
the proceeding under Section 9 of the Act, 1955, which was filed
by the husband, false evidence was given by father of wife
distorting the fact that marriage was never solemnized. Whereas,
on 11.10.2012 a decree was passed in favor of the husband by the
Family Court, Durg directing wife to join the company of husband
within a month.
6. Further quoting various incidents, the husband stated that
whenever she used to get leave she used to go to her parental
home instead to her in-laws place. He further stated that on
30.5.2013 she joined her place of posting of service and thereafter
she did not joined back the company of husband. It is stated as
husband, he tried to reconcile and save the marriage but failed. It
is stated that even notices were issued but wife did not come back.
He also stated that in order to create ground, the wife lodged FIR
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
under Section 498-A of IPC and avoided to join back the company
of husband. He further stated that false allegation was attributed
to the husband for the reason that the parents of the wife were not
happy with their marriage and therefore, pleading different
grounds, the application for divorce was filed by wife and prayed
for dismissal.
7. In support of her case, wife examined herself as PW-1 and two
other witnesses as PW-2 and PW-3. Husband examined himself
as DW-1 and his father as DW-2.
8. The learned Court below after evaluating the facts and evidence,
dismissed the application for divorce, as such wife has filed FAM
No.229/2017. The husband also filed an application for restitution
of conjugal rights, which was also dismissed by the Family Court,
Durg, so he has preferred another appeal bearing FAM
No.64/2021.
9. Learned senior counsel appearing for the wife in FAM
No.229/2017 would submit that evidence exists that the wife was
subjected to mental and physical cruelty. She referred to the
documents and various complaints made along with the statement
of the wife to show that false allegations were made and report
was lodged against the wife. She would further submit that the
husband used to file application under the Right to Information
Act, 2005 (for short 'the RTI Act') in her office asking for
different details including her presence, therefore, the wife had to
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
reply to those queries which humiliated her and caused mental
torture. Learned counsel would further submit that certain
intimate videos were also made viral on internet and sent to the
relatives of the wife and thereby her entire image was tarnished
before the family which also caused the mental agony. Learned
counsel would also submit that the nature of complaint so made to
the office where she was working, had caused insult before the
officials which cannot be ignored and the same would amount to a
mental cruelty. Reference was also made to the various complaints
made to the office as also the police. It is stated that because of
such behaviour report was lodged against the husband for creating
scene in the office, which had damaged the image before the
colleagues, therefore, it would also amount to cruelty. Learned
counsel would next submit that both are living separately since
2013 and for all practical purposes the marriage has come to an
end, therefore, a decree of divorce be granted in favor of the
wife.
10. Learned counsel appearing for the husband, per contra, would
submit that wife was forcefully taken away by her parents for
which a report was lodged by husband. Since the parents of wife
were not happy with the love marriage, they intervened in the
marital life and caused disturbance though the husband had made
all possible efforts to save the marriage. He referred to the
document Ex.D/4 to submit that firstly the marriage took place at
Arya Samaj on 9.4.2010, but since the parents of wife were not
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
happy, she was taken away, as such, an application was filed by
husband for restitution of conjugal rights. It is stated that after the
decree, she joined the company and subsequently so called
another marriage was solemnized 10.3.2013 at Korba between
them. He would refer to the documents Ex.D/9 to show that
initially application filed by the wife seeking divorce was rejected
in the year 2014, therefore, there was no ground existed in favor
of the wife to seek decree of divorce further. He would further
submit that even thereafter a report was made under Section 498-
A of the IPC in the year 2014, which led to registration of crime.
This was only to create a ground of cruelty and lastly the husband
as on date stands acquitted against such report and the appeal too
was dismissed. With respect to the report made about making
certain video viral, learned counsel for the husband would submit
that the trial against such report is still pending and not concluded,
therefore, no presumption can be drawn as of now. He would
submit that in the given facts and circumstances of the case, no
cruelty is made out.
11. Learned counsel for the appellant would place reliance upon the
decisions rendered by the Supreme Court in R. Srinivas Kumar v
R. Shametha1 and learned counsel for the respondent would place
reliance upon the decision rendered by the Supreme Court in the
matter of Munish Kakkar v Nidhi Kakkar2.
1 (2019) 9 SCC 409
2 (2020) 14 SCC 657
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
12. We have heard learned counsel for the parties at length, perused
the record and the evidence.
13. Primary challenge seeking divorce by wife is on the ground of
cruelty.
14. The wife has stated that on 10-3-2013 the marriage was performed
at Korba as per rituals. Thereafter, when she joined the
matrimonial home she was subjected to torture by the in-laws both
physically and mentally. As against the husband, she stated that
she was beaten by him in an inebriated condition and demand of
car was made. She further stated that since the husband was not
working and she being employed he used to demand money.
Document Ex.P/6 has been filed, which is addressed to the Vice
Chancellor, Indira Gandhi Krishi Vishwa Vidyalaya (IGKVV),
Raipur, a complaint by husband. The said complaint was made by
husband with a copy to as many as 22 different persons. Perusal
of the said complaint would show that personal allegations were
made to the office where the wife is working that their marriage
was solemnised on 9-4-2010, but the said marriage was not
accepted by the in-laws, therefore, he filed an application under
Section 9 of the Act, 1955 before the Family Court, in which
restitution of conjugal rights order was passed. Consequently, on
10-3-2013 another marriage was performed following the social
rituals.
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
15. The complaint further purports that the wife thereafter since was
working at Korba, stayed back there and even has not responded
to his phone calls. He further stated that a false case was
registered against him for the offence under Section 498-A of the
IPC and repeated reports were made to the police. He also alleged
that the wife had given the false evidence and one K.B. Ware,
brother-in-law of wife, had also given false affidavit. The
complaint also purports that false report was made that the
husband went to the office and created a scene and in respect of
the said report staff namely; J.P. Bhaskar, D.K. Tawar, etc. were
also involved. The husband alleged that forcibly he was made to
leave the office. Copy of the complaint, wherein personal
allegations against the wife including involvement of the staff was
made, was given to different people. Nature of the complaint so
made to the officials and sending copy of the same to various
people including the office staff, police, etc. cannot be stated to be
reasonable.
16. The legal concept of cruelty is generally described as conduct of
such character as to have caused to life, limb or health (bodily and
mental) or to give rise to reasonable apprehension of such danger.
The cruelty may be physical or mental, intentional or
unintentional. The concept of cruelty would vary from time to
time, place to place and from individual.
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
17. The cruelty as defined by D-TOLSTY in his book The Law and
Practice of Divorce and Matrimonial Causes (6th Edition Page
61) :
Definition of Cruelty:- Cruelty which is a ground
for dissolution of marriage may be defined as
willful and unjustifiable conduct of such a
character as to cause danger to life, limb and
health, bodily or mental, or as to give rise to
reasonable apprehension of a such danger.
18. The shorter oxford dictionary defines cruelty as the quality of
being cruel disposition of inflecting, suffering, delight or
indifference to another's pain mercilessness, hard heartedness.
19. In Black Law Dictionary (8th Edition 2004) mental cruelty has
been defined--As a ground for divorce, one spouse's course of
conduct (not involving actual violence) that creates such anguish
that it endangers the life, physical health, or mental health of the
other spouse.
20. The concept of cruelty in Halsbury's Laws of England (Volume 13,
4th Edition Para 1269) :-
"The general rule in all cases of cruelty is that the
entire matrimonial relationship must be
considered, and that rule is of special value when
the cruelty consists not of violent acts but of
injurious reproaches, complaints, accusations or
taunts. In cases where no violence is averred, it is
undesirable to consider judicial pronouncements
with a view to creating certain categories of acts or
conduct as having or lacking the nature or quality
which renders them capable or incapable in all
circumstances of amounting to cruelty; for it is the
effect of the conduct rather than its nature which is
of paramount importance in assessing a complaint
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
of cruelty. Whether one spouse has been guilty of
cruelty to the other is essentially a question of fact
and previously decided cases have little, if any,
value. The Court should bear in mind the physical
and mental condition of the parties as well as their
social status, and should consider the impact of the
personality and conduct of one spouse on the mind
of the other, weighing all incidents and quarries
between the spouses from that point of view;
further, the conduct alleged must be examined in
the light of the complainant's capacity for
endurance and the extent to which that capacity is
known to the other spouse. Malevolent intention is
not essential to cruelty but it is an important
element where it exits."
21. In 24 American jurisprudence, mental cruelty has been defined as
under:-
"Mental Cruelty as a course of unprovoked
conduct towards one's spouse which causes
embarrassment, humiliation, and anguish so as to
render the spouse's life miserable and unendurable.
The plaintiff must show a course of conduct on the
part of the defendant which so endangers the
physical or mental health of the plaintiff as to
render continued cohabitation unsafe or improper,
although the plaintiff need not establish actual
instances of physical abuse."
22. The Supreme Court in the matter of Vinita Saxena v Pankaj
Pandit3, has held that in order to evaluate the kind of cruelty the
human values, educational standard, individual temperament, etc.
as well as the intensity, gravity and stigmatic impact of the
conduct of each case must be considered.
23. Giving various applications to the officials and also inculpating
official staff with an allegation that they are helping his wife and
hatching conspiracy and sending a copy of it to the various police
3 (2006) 3 SCC 778
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
officials will definitely have stigmatic effect on an employee
among his or her colleague. This complaint so made by the
husband some may treat it with sympathetic view, but taking
advantage of the complaint, some of office staff may humiliate a
person in public, which would ultimately lower her dignity in the
society & office.
24. The wife though lodged a report against the husband and his
family members for the offence punishable under Section 498-A
of the IPC vide Ex.P/1 and application under Section 12 (1) of the
Protection of Women from Domestic Violence Act 2005 (Ex.P/3)
(for short 'the DV Act') would show that compatibility between
the couple is completely absent. It is not in dispute that acquittal
has been recorded, but at the same time the nature of allegation
cannot be ignored specially under the DV Act wherein the
physical assault was also reported.
25. FIR (Ex.P/5) under the IT Act was filed against the husband.
Perusal of it would show that a complaint was made that the
husband from his mobile No.8817154070 had made an obscene
video viral to other mobile numbers saying that it is an obscene
video of his wife. It was further stated in the FIR that the viral
video was also sent to various staff in the Krishi Vigyan Kendra,
Katghora wherein she was working and the video was also sent to
her brother on his mobile number 8109313010 and her uncle.
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
26. Further on behalf of the husband certain documents have been
filed to show that earlier an order was passed in his favour under
Section 9 of the Act, 1955 for restitution of conjugal rights as also
the application which is Ex.D/7 to show the conduct on his part
that he made all efforts to get back the company of his wife. He
also filed an application under Section 97 Cr.P.C. vide Ex.D/11. At
the same time documents (Ex.D/12) have been filed to show that
certain information was obtained under the RTI Act about
presence of wife seeking attendance register, medical certificate
and leave applications. The nature of conduct shown by the
husband would appear that correspondences were made in the
official address of the wife to get the information under the RTI
Act. Such an act will have a stigmatic impact and humiliation for
any person if the near and dear one seeks such type of information
and the same will tarnish ones image. Though the FIR lodged for
making video viral is pending till date but nature of allegations
made by husband would show that trust in between the parties has
completely been lost.
27. In order to find out the cruelty apart from a physical cruelty,
mental cruelty has been defined by the Supreme Court in the case
of Samar Ghosh v Jaya Ghosh4 which are reproduced herein
below:-
101. No uniform standard can ever be laid
down for guidance, yet we deem it appropriate
to enumerate some instances of human
4 (2007) 4 SCC 511
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
behaviour which may be relevant in dealing
with the cases of 'mental cruelty'. The
instances indicated in the succeeding
paragraphs are only illustrative and not
exhaustive.
(i) On consideration of complete
matrimonial life of the parties, acute
mental pain, agony and suffering as
would not make possible for the parties
to live with each other could come
within the broad parameters of mental
cruelty.
(ii) On comprehensive appraisal of the
entire matrimonial life of the parties, it
becomes abundantly clear that situation
is such that the wronged party cannot
reasonably be asked to put up with such
conduct and continue to live with other
party.
(iii) Mere coldness or lack of affection
cannot amount to cruelty, frequent
rudeness of language, petulance of
manner, indifference and neglect may
reach such a degree that it makes the
married life for the other spouse
absolutely intolerable.
(iv) Mental cruelty is a state of mind.
The feeling of deep anguish,
disappointment, frustration in one
spouse caused by the conduct of other
for a long time may lead to mental
cruelty.
(v) A sustained course of abusive and
humiliating treatment calculated to
torture, discommode or render miserable
life of the spouse.
(vi) Sustained unjustifiable conduct and
behaviour of one spouse actually
affecting physical and mental health of
the other spouse. The treatment
complained of and the resultant danger
or apprehension must be very grave,
substantial and weighty.
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
(vii) Sustained reprehensible conduct,
studied neglect, indifference or total
departure from the normal standard of
conjugal kindness causing injury to
mental health or deriving sadistic
pleasure can also amount to mental
cruelty.
(viii) The conduct must be much more
than jealousy, selfishness,
possessiveness, which causes
unhappiness and dissatisfaction and
emotional upset may not be a ground for
grant of divorce on the ground of mental
cruelty.
(ix) Mere trivial irritations, quarrels,
normal wear and tear of the married life
which happens in day to day life would
not be adequate for grant of divorce on
the ground of mental cruelty.
(x) The married life should be reviewed as
a whole and a few isolated instances over a
period of years will not amount to cruelty.
The ill-conduct must be persistent for a
fairly lengthy period, where the relationship
has deteriorated to an extent that because of
the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to
live with the other party any longer, may
amount to mental cruelty.
(xi) If a husband submits himself for an
operation of sterilization without medical
reasons and without the consent or
knowledge of his wife and similarly if the
wife undergoes vasectomy or abortion
without medical reason or without the
consent or knowledge of her husband, such
an act of the spouse may lead to mental
cruelty.
(xii) Unilateral decision of refusal to have
intercourse for considerable period without
there being any physical incapacity or valid
reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband
or wife after marriage not to have child
from the marriage may amount to cruelty.
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
(xiv) Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is
beyond repair. The marriage becomes a
fiction though supported by a legal tie. By
refusing to sever that tie, the law in such
cases, does not serve the sanctity of
marriage; on the contrary, it shows scant
regard for the feelings and emotions of the
parties. In such like situations, it may lead
to mental cruelty.
28. The Supreme Court in the matter of Raj Talreja v Kavita Talreja5
the legal position as to when a false complaint would amount to
cruelty was also examined, as below :
"10. Cruelty can never be defined with
exactitude. What is cruelty will depend upon the
facts and circumstances of each case. In the present
case, from the facts narrated above, it is apparent that
the wife made reckless, defamatory and false
accusations against her husband, his family members
and colleagues, which would definitely have the
effect of lowering his reputation in the eyes of his
peers. Mere filing of complaints is not cruelty, if there
are justifiable reasons to file the complaints. Merely
because no action is taken on the complaint or after
trial the accused is acquitted may not be a ground to
treat such accusations of the wife as cruelty within
the meaning of the Hindu Marriage Act, 1955 (for
short the Act). However, if it is found that the
allegations are patently false, then there can be no
manner of doubt that the said conduct of a spouse
levelling false accusations against the other spouse
would be an act of cruelty. In the present case, all the
allegations were found to be false. Later, she filed
another complaint alleging that her husband along
with some other persons had trespassed into her
house and assaulted her. The police found, on
investigation, that not only was the complaint false
but also the injuries were self-inflicted by the wife.
Thereafter, proceedings were launched against the
wife under section 182 IPC".
29. Further in a recent decision of Joydeep Majumdar v
Bharti Jaiswal Majumdar6, a similar issue was dealt with by the
5 AIR 2017 SC 2138
6 (2021) 3 SCC 742
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
Supreme Court where the wife had marred the reputation of the
husband by defamatory complaints to husband's superiors in
army, which led to a Court of inquiry held by the Army authorities
against the husband. His reputation was damaged and career
progress suffered. The Supreme Court held "when the reputation
of the spouse is sullied amongst his colleagues, his superiors and
the society at large, it would be difficult to expect condonation of
such conduct by the affected party."
30. In the case in hand, the conduct of the husband would show that
he exceeded his limits by making a false complaint against the
wife to several officers/persons and also created scene at times in
the office of wife. If the wife has made allegations about making
some intimate video viral by husband it further goes to show that
the relation in between the parties came to be severed. Seeking
details of attendance register, etc. by the husband, under the RTI
Act from the office of the wife, will have adverse impact on the
image and goodwill of the wife and it further causes humiliation
when a close relative acts in such manner.
31. Perusal of the document would show that because of the complaint
of the husband wherein allegations were also attributed to the
different colleague employees of wife, a report was made by the
Office In-charge one G.P. Bhaskar that the husband of appellant
had come to the office and created a scene, which naturally will
lead to awkward situation for an employee and may have a
FA(MAT) No.64 of 2021 &
FAM No.229 of 2017
stigmatic impact on wife in future and it appears that relation in
between the parties have become dead.
32. In view of the above, we are of the considered view that the
parties cannot live together as there is irretrievable break down of
marriage has taken by the conduct of the parties. At this juncture,
it is necessary to mention here that despite efforts, mediation
proceedings conducted between the parties fail.
33. In the result, the impugned judgment dated 23-11-2017 dismissing
the application of wife for divorce is set aside. The marriage
solemnised between the parties on dated 10-3-2013 is dissolved
by a decree of divorce.
34. Consequently, in view of finding of this Court in the preceding
paras of this judgment, the application filed by the husband under
Section 9 of the Act, 1955 for restitution of conjugal rights, is
dismissed.
35. As a sequel, FA (MAT) No.64 of 2021 filed by the husband is
dismissed and FAM No.229 of 2017 filed by the wife is allowed.
36. The parties shall bear their own cost(s). Decree be drawn
accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
Nisha/Gowri
