Madhya Pradesh High Court
Hirdayshay vs Nutanbai on 9 December, 2021
Author: Sheel Nagu
F.A. No.54/2001
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No F.A.54-2001
Parties Name Hirdayshay
Vs.
Nutanbai
Date of order 09/12/2021
Bench Constituted Division Bench :
Justice Sheel Nagu &
Justice Purushaindra Kumar Kaurav
Judgment delivered by Justice Purushaindra Kumar Kaurav
Whether approved for reporting Yes
Name of counsel for parties For Appellant: Shri Sanjay Kumar Saini
Advocate
For Respondent :None present.
Law laid down Held :
1. The husband and wife lived together
only for about two years intermittently,
since February, 1988 and thereafter, the
husband had to either serve the notice or
to take the recourse of issuance of search
warrant through S.D.M. Despite making
persistent efforts to persuade wife to
return, she did not join the company of
husband and she filed two cases against
the husband, both resulted in dismissal.
Thus, the intention of wife is clear i.e to
bring the cohabitation to an end without
reasonable cause and, therefore, the
ground for divorce under section 13(1)(i)-
b of the Hindu Marriage Act, 1955 is
made out.
2. Irretrievable breakdown of marriage is
not a ground for divorce under section 13
of the Act of 1955. However, the
circumstances such as parties being living
separately for a considerable long time,
like, for three decades (in the present
case). Such separation has created
F.A. No.54/2001
2
unbridgeable distance between the two
and such marriage is beyond repair on
account of bitterness created by the acts of
the parties and, therefore, such weighty
circumstances can always be taken into
consideration while deciding the case of
divorce between the parties.
3. Filing of a case for maintenance or a
private complaint for offences punishable
under Section 498-A and 294 of the I.P.C
in itself would not amount to cruelty.
Significant paragraph Nos. para- 7.
JUDGMENT
(09/12/2021)
This is an appeal filed by the appellant/husband under Section 28 of
the Hindu Marriage Act, 1955 (hereinafter referred to as the "Act") against
the judgment and decree dated 19.12.2000 passed by Second Additional
District Judge, Balaghat in Hindu Marriage Case No. 2-A/99, whereby his
case filed under Section 13 of the Act, has been dismissed.
2. The brief facts of the case necessary for the adjudication of this appeal
are as under:-
(i) The marriage of appellant/husband with the respondent/wife was
solemnized in the month of February, 1988 as per Hindu rites and Customs
at village Bagholi Tehsil-Baihar, District-Balaghat (M.P.). Out of their
wedlock a male child, namely, Pawan Kumar was born in December, 1988
who continued to live with the appellant/husband. On 15.05.1991, their
second child, namely, Ved Prakash was born, who continued to live with the
respondent/wife since his birth.
(ii) Since 1991-92, the respondent/wife is living separately from her
husband/appellant at her parental village Bagholi Tehsil-Baihar, District-
Balaghat in an independent house.
(iii) On 30.04.1992, appellant/husband sent a notice to respondent/wife
calling her to live together. After about 11 days from the said notice, she
F.A. No.54/2001
came back to the house of respondent/husband. However, without any
reason or intimation, she left him again. Therefore, on 09.07.1992 another
registered notice was sent by the appellant/husband to the respondent/wife.
However, neither the said notice was replied nor did she come back to
appellant/husband. On 05.08.1992, the respondent/wife lodged a report
against the appellant/husband and his family members, at Police Station
Paraswada, District-Balaghat alleging that she had been subjected to cruelty
by the appellant/husband and her in-laws on account of non-fulfilment of
demand of dowry. In absence of any substance, the police did not register
the case against anyone of them.
(iv) On 14.07.1995, the respondent/wife filed a Case No. 72/95, under
Section 125 of Cr.P.C. against the appellant/husband for grant of
maintenance, before the Court of JMFC, who vide order dated 24.09.1998
directed the appellant/husband to pay maintenance of Rs. 200/- to
respondent/wife and Rs. 150/- to his son,namely, Ved Prakash.
(v) On 05.07.1999, the respondent/wife filed a private complaint under
Section 200 of Cr.P.C. for offence punishable under Section 498-A and 494
of IPC which was registered as Case No. 129/2003. The same was dismissed
by the concerned court vide order dated 07.11.2008.
(3) The case of the appellant/husband is that without any reasonable cause,
his wife has deserted him since 1991-92. He further states that the
respondent/wife tried to falsely implicate him and his parents, and with an
oblique motive, she lodged a report at the Police Station so also filed a
private complaint. According to the appellant/husband, in order to rope the
appellant and his parents into a false criminal case, the respondent/wife
jumped into the well whereas there was no marital relationship between
them for more than 9 months before the birth of second child. Therefore, the
appellant prayed for decree of divorce on the ground of adultery, cruelty and
desertion under Section 13(1)(i), 13(1)(i-a) and 13 (1) (i-b) of the Act
respectively.
F.A. No.54/2001
(4) The respondents-wife's case is that on account of perpetrated cruelty, she
was compelled to live separately and, therefore, it cannot be said that the she
had ever deserted the appellant without any reason. She alleged that no false
case was registered against the appellant/husband. She further stated that
when the grandmother of the appellant/husband died in the year 1992, she
stayed with husband for few days, therefore, the birth of the second child is
out of the same wedlock.
(5) The learned trial court framed the issues, recorded evidence of both the
parties and after considering the material available before it, dismissed the
petition.
(6) We have heard the learned counsel appearing for the appellant/husband,
however, no one appeared on behalf of the respondent/wife, despite service
of notice.
(7) We have carefully perused the record and the evidence therein. We
now proceed to analyse the evidence as under :-
Desertion-
(i) The appellant/husband examined (P.W.1) Chintaman who is his
neighbour. In his deposition, he has stated that after marriage of the
appellant with the respondent, the respondent stayed peacefully with the
appellant only for about two months. Thereafter, she used to leave the house
of appellant frequently without any reason or intimation. This witness
further states that the father of respondent/wife took the respondent with him
without intimation and, therefore, the father of the appellant/husband
reported the matter to the police. The appellant/husband appeared as (PW-2)
and has reiterated the facts mentioned in his petition under Section 13 of the
Act. Another witness Nanak Ram Chouhan (P.W.3) appeared on behalf of
the appellant and has also supported the case of the appellant/husband. PW-
2-Appellant and PW-3-Nanak Ram Chouhan have stated that when the
respondent-wife left the house of the appellant, the appellant had to
approach the Sub Divisional Magistrate for issuance of the search warrant. It
F.A. No.54/2001
is only thereafter, the respondent-wife was searched.
(ii) The respondent/wife appeared as DW-1 and has stated that she was
subjected to mental and physical cruelty not only by the appellant but also
by his parents. They forcefully asked her to leave the house of her husband
and to stay with her parents. She also stated that when the grand mother of
the appellant/husband died, she went to her husband and stayed with him for
about 4 months. During the said period, she became pregnant and gave birth
to the second child, namely,Ved Prakash. Pursuant to search warrant issued
by the Sub Divisional Magistrate-Baihar, she appeared before the said
authority and, thereafter, she stayed with her husband for some time. On
behalf of the respondent-wife her father Gopal Prasad also appeared as DW-
2 and he has supported the case of the respondent-wife.
(iii) The Supreme Court in the case of Rohini Kumari Vs. Narendra Singh1
has held that desertion means an intentional permanent forsaking and
abandonment of one spouse by the other without the consent of the other
with no reasonable cause. It is a total repudiation of the obligation of the
marriage.
If the evidence of the present case is examined on the anvil of the
aforesaid legal pronouncement, it is seen that the husband and wife have
lived separately for about 30 years. The marriage was solemnized in the year
1988. It is only for about 2 years they remained together intermittently, and
during initial years of their marriage also the appellant had either to sent a
notice for calling the wife or sent a search warrant through Sub Divisional
Magistrate. From the evidence of Chintaman (PW-1), it is clear that, not only
by the appellant but by village people also, persistent efforts were made to
convince the respondent and her father to send the respondent for discharge
of her marital relationship with the appellant/husband. It appears that to
avoid the company of the husband/appellant, the respondent/wife filed two
cases against her husband which appears to be an afterthought and both have
1 AIR 1972 SC 459
F.A. No.54/2001
resulted in dismissal. Thus, it appears that the intention of respondent/wife
to bring the cohabitation to an end without reasonable cause.
(iv) On the basis of aforesaid analysis, this court is of the opinion that the
appellant/husband has successfully proved his case of desertion by his
spouse without any reasonable cause. If that be so, the appellant is entitled to
get the decree. Hence, the suit is decreed under section 13(1) (i-b) of the Act
on the ground of desertion. Moreso, at this stage, it is seen that now it is not
possible for the parties to live together and the best course would be to
dissolve their marriage by passing a decree of divorce so that they may live
their remaining life peacefully as per their will. It is a case where the
husband has been able to prove that a wife has not turned-up in-spite of the
attempts made by the husband, his parents and relatives.
(v) Although, in this case, we have granted the decree of divorce on the basis
of facts and material available on record but at the same time we have also
kept in mind that husband and wife are living separately for about three
decades. This separation has created unbridgeable distance between the two.
The marriage has irretrievably broken-down which, ofcourse is not a ground
for divorce under the Act but where marriage is beyond repair on account of
bitterness created by the acts of the parties, the Court can always take into
consideration the said fact as a very weighty circumstance amongst other. A
marriage which is dealt for all purposes cannot be revived by the courts if
the parties are not willing. While scrutinizing the evidence on record and to
determine whether the ground for divorce are made out and the relief can be
granted, the fact of irretrievable breakdown of marriage can certainly be
borne in mind. (See B. Bhagat Vs. D. Bhagat2).
8. So far as, the grounds with respect to cruelty and adultery are concerned,
we have examined the pleadings and evidence of both the parties and have
also considered the reasons given by the learned trial court. Filing of a case
for maintenance or a private complaint for offence punishable under Section
2 (1994) 1 SCC 337
F.A. No.54/2001
498-A and 294 of IPC in itself would not amount to cruelty. There is no
evidence with respect to adultery also. The respondent-wife had stated that
she went to live with appellant/husband when the grandmother of the
appellant died and it is during the said period, she became pregnant and gave
birth to the second child, namely, Ved Prakash. In view of aforesaid and in
absence of any evidence regarding adultery, no decree on the ground of
adultery can be granted.
9. In view of the aforesaid, the appeal is allowed in part the judgement
and decree passed by the trial Court is partly set aside. The suit is decreed
only on the ground of desertion under Section 13(1) (i-b) of the Act.
10. Parties to bear their own costs.
(SHEEL NAGU) (PURUSHAINDRA KUMAR KAURAV )
JUDGE JUDGE
Akanksha/mkl
Digitally signed by AKANKSHA MAURYA
Date: 2021.12.10 16:14:17 +05'30'
