Smt. Dipika Shukla vs Ashish Shukla
2021 Latest Caselaw 2792 MP

     HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                       JABALPUR

Case No.                          First Appeal No.403/2016
Parties Name                                    Smt.Dipika Shukla
                                                       vs.
                                                  Ashish Shukla
Date of Judgment                        29 /06/2021
Bench Constituted                 Justice Atul Sreedharan &
                                  Justice B.K.Shrivastava
Judgment delivered by             Justice B.K.Shrivastava
Whether approved for reporting YES
Name of counsel for parties       For Appellant : Dr. R.B.Dubey, Advocate

                                  For Respondent: Shri Shreyas Pandit,
                                  Advocate
Law laid down                     As per Paras 9, 11, 14, 16, 23, 26, 29, 32
Significant paragraph numbers      9, 11, 14, 16, 23, 26, 29, 32

                               (JUDGMENT )
                                 29.06.2021

Per: B.K.Shrivastava, J.

This appeal has been preferred by Smt. Dipika Shukla, who was the non-applicant before the trial court, under section 19 of the Family Court against the judgment dated 3.5.2016 passed by Second Additional Principal Judge of the Family Court, Jabalpur in Civil Suit No.259-A/2015. By the impugned order, the lower Court granted the divorce under sections 13(1)(i-a) (i-b) and section 13(1) (1A) of Hindu Marriage Act.

2. Husband Ashish Shukla/respondent herein filed the petition before the Family Court under sections 13(1)(i-a)(i-b) and section 13(1) (1A) of Hindu Marriage Act on 18.6.2013. Wife filed her written statement on 4.4.2004. It is an admitted fact that the appellant and the respondent are husband and wife. Their marriage was solemnized on 6.2.2006. Out of their wedlock, one son named Vinayak was born on 28.3.2007. It is also an admitted fact that the appellant/wife left the house of respondent/husband on 1.6.2008 with son

-:- 2 -:-

F.A. No.403 of 2016

named Vinayak and she is residing at Jabalpur while the respondent is residing at Bhopal.

3. It appears from the record that the husband/respondent filed an application under section 9 of the Hindu Marriage Act on 15.11.2010 before the Family Court, which was registered as Case No.128-A/2011. As per Para 6 of the judgment, the wife was not appeared on 27.3.2012 when the case was fixed for evidence of applicant/husband, therefore, the Court closed the case and passed the ex parte judgment and decree against the wife on 11.5.2012. The wife/appellant filed Appeal No.605/2012 against the aforesaid judgment dated 11.5.2012 directing restitution of conjugal right.

4. It is submitted by the learned counsel for the appellant that the order/judgment passed by the learned Family Court on 3.5.2016 is improper, erroneous and otherwise bad in law. The judgment is against the facts, circumstances and probability of the case. The trial court did not appreciate the evidence in proper way. The trial court erred in believing the oral and documentary evidence produced by the husband and disbelieving the evidence of wife. The wife was subject to cruelty. The husband tortured the wife, and was compelled to leave the house of husband, therefore, for sufficient reasons, the wife was living separately from her husband. The trial court committed the mistake by granting the decree upon the ground that the wife did not comply with the order passed under section 9 of the Hindu Marriage Act, because the wife preferred the appeal against the aforesaid judgment and she was not in the position to live with the husband. Therefore, it is prayed that the judgment and decree be set aside and the suit for divorce be dismissed.

5. The respondent/husband opposed all contentions of the wife/appellant. It is submitted that the trial court did not commit any mistake. The proper and authentic evidences were produced by the husband. The appellant herself did not comply the order of the Court, therefore, the trial court was right to pass the decree of divorce upon the ground that the wife did not comply the order passed under section 9 of the Hindu Marriage Act. The wife was deliberately

-:- 3 -:-

F.A. No.403 of 2016

not appeared in the aforesaid case and the case was decided ex parte against her.

6. It is submitted by the counsel for the appellant that the matter was not referred for reconciliation/mediation. The appellant was agree to join the company of respondent. In this regard, it appears from the record that on 12.12.2003, the matter was referred to the councillor in the light of section 89 of CPC read with Order 10 Rule 1 of CPC and section 9 of the Family Courts Act. On the same date, the councillor Smt. Manju Singh submitted her report that the matter has been compromised between the parties. The record of this Court shows that on 14.3.2018 this appeal was referred for mediation. Mediator Shri P.R.Bhave submitted a report on 9.4.2018 in which it is stated that :-

"After discussion with the non-applicant for certain period, the non-applicant emphatically submits that he is not willing to amicable settlement as for various reasons, it is not possible. To add to it, parties are not residing together since 2008."

Therefore, the judgment of the trial court cannot be set aside upon the aforesaid ground because the matter was already sent for reconciliation and at the appellate stage the case was also referred to the mediation.

7. It appears from the judgment of the trial court that one of their grounds of divorce is the non-compliance of the order passed under section 9 of the Hindu Marriage Act. It appears from the record that on 15.11.2020 an application under section 9 of the Hindu Marriage Act was filed by the husband before the Family Court upon which the Case No.128-A/2011 was registered. During the proceedings on 27.3.2012 the wife was not appeared, therefore, the Court proceeded ex parte against wife and passed the judgment and decree Ex.P.5 and Ex.P.6 on 11.5.2012. Thereafter, husband gave an information to the wife vide registered letter dated 22.5.2012 (Ex.P.1). The registry receipt of the aforesaid letter is Ex.P.2. The wife sent the reply of the aforesaid letter on 25.5.2012, which is Ex.P.3. It is stated in Ex,.P.3 that the copy of the order was not annexed with the letter dated 22.5.2012 and the wife intimated as under:-

-:- 4 -:-

F.A. No.403 of 2016

"In this context you are hereby informed that I have also applied for the CC of the order of the Hon'ble Family Court for filing the appeal against the said order in the Hon'ble High Court at Jabalpur you are therefore advised to wait for the final decision of the High Court."

Because the case was proceeded ex parte against the wife on 27.3.2012, therefore, she filed an application under Order 9 Rule 7 of CPC but the lower Court rejected the aforesaid application on 25.4.2012 upon the ground that the matter has been heard and fixed for judgment. The wife also filed the writ petition under Article 227 of the Constitution of India and the aforesaid Writ Petition No.7033/2012 was decided by the High Court on 7.5.2012. The aforesaid judgment shows that in the light of Arjun Singh Vs. Mohinder Kumar and others AIR 1964 SC 993, the High Court held that the matter was heard and reserved for judgment, therefore, the application under Order 9 Rule 7 of CPC was not tenable.

8. It is also appeared that the wife/appellant filed First Appeal No.605/2012 before this court against the aforesaid ex parte judgment dated 11.5.2012. That appeal was registered/admitted on 4.7.2012. Due to non- compliance of peremptory order, the appeal was dismissed on 26.2.2014. Then the wife filed M.C.C.No.1315/2020 on 21.12.2020 for restoration of the aforesaid First Appeal No.605/2012. The aforesaid M.C.C.No.1315/2020 is still pending. The fact of filing the appeal has been admitted by husband in Para 40 of his statement. This fact was also under the knowledge of trial court, because ordersheets dated 4.4.2014 and 30.4.2014 shows that the wife filed the application I.A.4 and I.A.5 in this regard.

9. Therefore, it can be said that the order dated 11.5.2012 was not the "final order". First appeal is the right of a party and the appeal is the continuation of the suit. The wife already filed the appeal and intimated the husband her intention to file the appeal by Ex.P.3. In the aforesaid situation, the trial court was not correct to grant the decree upon the aforesaid ground of non-compliance of the aforesaid order passed under section 9 of the Hindu Marriage Act, which was under challenge.

-:- 5 -:-

F.A. No.403 of 2016

10. As far as cruelty is concerned, the lower court mentioned in Para 30 that false complaint was lodged by the wife to the police, therefore, it is also one of the a grounds of cruelty. But it appears that during pendency of divorce case, wife lodged the complaint to the Police Chowki, Rampur, Gwarighat, Jabalpur. Till decision of the case for divorce, crime was not registered but later-on Crime No.534/2014 under section 498-A of IPC and section 3/4 of Dowry Prohibition Act was registered and after investigation, the challan has been filed upon which the criminal case is pending before the Judicial Magistrate First Class, Jabalpur. The husband/respondent himself filed M.Cr.C.No.26554/2017 under section 482 of CrPC before the High Court for quashment of the proceedings and in that case the stay in favour of the husband has been granted on 3.1.2018 upon the further proceedings.

11. In our opinion only institution of a criminal case will per se not constitute the cruelty for the parties of seeking divorce unless it is held by the Court of competent jurisdiction that the said complaint/allegation was false and vexatious. The matter is still pending before the Court, therefore, it cannot be said that the false report was lodged by the wife to the police. The same view has been adopted by a Division Bench of Patna High Court in Bhola Kumar Vs. Seema Devi AIR 2015 Patna 119.

12. It was also alleged by the husband that that operation of bank locker was not allowed by the wife neither to husband nor his parents. The husband filed an application under RTI Act on 24.12.2010 and the copies of two letters were provided vide Ex.P.7. Document dated 24.6.2010 and 16.8.2010 are annexed with the aforesaid Ex.P.7.

13. In first letter dated 24.6.2010 it is mentioned by the wife that the locker is in the name of wife, husband and father-in-law. Any one can operate the aforesaid locker. The husband and father-in-law having the key of aforesaid locker. It is also mentioned in the letter endorsed to Branch Manager, SBI, Nayagaon, Jabalpur that the applicant Dipika Shukla came to operate the locker with his husband and father-in-law but some altercation took place between them, therefore, the locker was not opened. The wife intimated the Bank that there is some dispute with the husband and his family, therefore, the

-:- 6 -:-

F.A. No.403 of 2016

locker should not be operated in her absence. Thereafter the second letter dated 16.8.2010 shows that all three persons were present and requested to the Bank for permission to operate the locker. This letter contends the signature of husband, wife and father-in-law. Third letter dated 16.8.2010 also contends the signature of all three persons and request has been made to the Branch Manager for closing the aforesaid Bank locker. The position is clear from the aforesaid three letters that the locker was in the name of aforesaid three persons. Because the wife was living separately from her husband, therefore, dispute related to the operation of locker was natural. The document also shows that the aforesaid dispute was resolved and the locker operated with the consent of all three persons and thereafter, the locker was closed. Therefore, this incident cannot be taken to presume the cruelty of wife against husband.

14. The trial court also held that the wife changed the name of son in the school without permission of husband, therefore, it is also an amount of cruelty. Ex.P.12 is the letter of the husband to the Principal, Wisdom Public School, Wright Town, Jabalpur for providing the copy of school leaving certificate of son. A copy of the aforesaid certificate is Annexure P-2 (may be D-2). It appears that in the aforesaid admission form the name of son is mentioned as "Vinayak Shree". It is submitted by the husband that the name was "Vinayak Shukla" but the wife changed the name as "Vinayak Shree" without consent of husband. Because both parties were living separately and the husband was in Bhopal and the wife was at Jabalpur, therefore, in the aforesaid situation it was not possible to obtain the consent of husband. It is also appeared that the original name of son has not been changed. Only surname "Shukla" is changed as "Shree". The father name Deepak Shukla is also mentioned in the aforesaid certificate. Therefore, only because of some change in the surname of son it cannot be said that the wife committed any cruelty against the husband as the name of father is as it is mentioned in the aforesaid record.

15. One ground of cruelty is related to the restriction upon the father to meet with his son. In this regard, the husband draws attention towards a document Ex.P.11. It is an application dated 8.2.2011 submitted by the husband Ashish Shukla to the Principal In-Charge of Wisdom Public School,

-:- 7 -:-

F.A. No.403 of 2016

Wright Town, Jabalpur. The husband requested to the school authority for permission to meet the child. The school authority refused to aforesaid permission by mentioning the remark as under:-

"As per request by the mother of Vinayak Shukla, as to be not allowed to visit other than the mother, I abide by the rules of the mother, to the school authority we are unable to forward it."

16. Therefore, looking to the aforesaid document, it appears that the wife and husband both living separately since 1.6.2008. The husband filed the aforesaid application to the school on 8.2.2011. When the wife alone was looking after the child, then because of safety of child, she instructed the school for not permitting any body to meet her child. The legal remedy was available with the husband.

17. As far as legal remedy is concerned, the intention of husband can be gathered by some documents and evidence in this regard. It appears that husband filed the Case No.6/2012 new No.21/2014 for custody of child on 28.3.2012 under section 6 of "Hindu Minorities and Guardianship Act" for custody of the child. Ex.P.13 is the aforesaid petition. It is also an admitted fact that the aforesaid suit was dismissed in the absence of husband and thereafter an application under order 9 Rules 3 and 4 of CPC was filed for restoration of the aforesaid suit but the restoration application also dismissed for want of prosecution on 24.11.2017 at 4:40 p.m.

18. Therefore, from the conduct of husband his intention may be gathered. He was not serious about the custody of son; otherwise the case and application for restoration would not dismissed in absence of husband. In the aforesaid situation, aforesaid ground of cruelty cannot be accepted.

19. It is also alleged by the husband that delivery expenses were borne by the husband himself. The wife alleged before the trial court that the delivery was at Jabalpur and all expenses were borne by her parents. The trial court did not believe the aforesaid contention upon the ground that the wife did not file the receipt of aforesaid expenses of hospital. The view of trial court in this regard is not proper because the presumption was in favour of wife.

-:- 8 -:-

F.A. No.403 of 2016

Because the wife was residing with her parents at the time of delivery at Jabalpur, therefore it may be presumed that the expenses will be borne by wife or her parents. If the husband claims that he paid all expenses, then the liability to produce the receipt was upon the husband. Adverse inference against the husband should be drawn because the husband did not produce any receipt of payment made by him related to the delivery expenses.

20. In this case, the petition for divorce was filed on 18.6.2013. Both parties were living separately since 1.6.2008, therefore, the main allegations of cruelty related to the period between 6.2.2006 (date of marriage) to 1.6.2008 (when the wife left the house of husband). The husband filed the petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights. Whether filing of application under section 9 of the Hindu Marriage Act amount to condoning the earlier act of cruelty, if any? The aforesaid question has been considered by Himachal Pradesh High Court in Jalmi Devi Vs. Ravi Kumar AIR 2006 (NOC) 1542=2006(1) Hindu LR 471 (H.P.). In the aforesaid case, in Para 16 Hon'ble the Court referred Para 13 of the case of Nirmala Devi as under:-

"16. I have given my careful consideration to the matter. One important fact which has to be kept in mind is that the petitioner originally filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Mr.Sharma, submits that without conceding and even assuming for the sake of arguments that there were any earlier acts of cruelty on behalf of the wife the same are deemed to be condoned by the husband once he files a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The question is, whether the filing of a petition under Section 9 of the Act for seeking a decree for restitution of conjugal rights amounts to condoning the earlier acts of cruelty, if any? In this behalf it would be apposite to refer to the observations of a Division Bench of this Court in Nirmala Devi Vs. Ved Prakash, which are as under :-

13...Condonation has not been defined anywhere. 'Condonation' is a word of technical import, which means and implies wiping of all rights of injured spouse to take matrimonial proceedings. In a sense condonation is reconciliation, namely, the intention to remit the wrong and restore the offending spouse to the original status which in every case deserves to be gathered from the attending circumstances. The forgiveness in order to constitute condonation need not be express. It may be

-:- 9 -:-

F.A. No.403 of 2016

implied by the husband of the wife's conduct and vice versa. Ordinarily, as a general rule, condonation of matrimonial offence deprives the condoning spouse of the right of seeking relief on the offending conduct. When a petition is filed claiming a decree for restitution of conjugal rights, it clearly stipulates that the person seeking relief has no grouse or cause of complaint against the other spouse and even if there was any cause or complaint, the same has either been condoned or forgiven. The intention being to resume normal cohabitation. As held in Dastane's case (supra), matrimonial offence is erased by condonation. In view of clear provisions contained in Clause (b) of Sub-section (1) of Section 23 of the Act, it is always for the person who has approached the Court to satisfy that the act of cruelty has not been condoned.... The conduct, in this case, of the husband in having moved the petition thereafter under Section 9 of the Act would amount to his intention to forgive the offending spouse in having made the statement before the Panchayat which alone was the ground made out which according to the husband was cruelty on the part of the wife. Admittedly, the allegation was made once and was not repeated thereafter. Due to the parties having lived together even for a short duration of 7/8 days on couple of occasions, as admitted by the husband, after the wife made the allegation amounts to the restoring of the offending spouse to the original status. By this act and conduct on the part of husband it can reasonably be inferred that the act stood condoned and as such husband was not entitled to the relief claimed.

21. The Hon'ble Court after referring the aforesaid para of Nirmala Devi (supra) observed in Para 17 as under :-

"17. Following the law as expounded by a Division Bench of this Court above it is clear that filing a petition for restitution of conjugal rights would prima facie amount to condoning the acts of cruelty. In the present case not only was the petition for restitution of conjugal rights filed but the matter was settled between the parties. There is a dispute between the parties whether thereafterthere was any cohabitation between the parties or whether the parties complied with the settlement arrived at. Be that as it may, in the absence of any specific allegations or proof to the contrary it has to be presumed that the husband had condoned the earlier acts of cruelty, if any. Therefore, in my opinion, the Court below gravely erred in considering the so called earlier acts of cruelty. A perusal of the petition for divorce and the statement of the husband shows that there are no allegations of cruelty or desertion relating to the period after the settlement arrived at between the parties."

-:- 10 -:-

F.A. No.403 of 2016

22. Aforesaid finding has been confirmed by Hon'ble the Supreme court in Ravi Kumar Vs. Jalmi Devi, AIR 2010 SC (Suppl) 544=(2010) 4 SCC 476.

23. Therefore, the position of law is clear that if the husband or wife files the application under section 9 of Hindu Marriage Act for restitution of conjugal rights, then it may be presumed that all acts of alleged cruelty have been condoned by the party, who filed the aforesaid application. In this case, the husband himself filed the application under section 9 of the Hindu Marriage Act, therefore, the aforesaid ground related to cruelty during the period of 6.2.2006 to 1.6.2008 cannot be considered as the ground of cruelty. The opinion of trial court is not correct in this regard.

24. In this case, the husband/petitioner before the lower court examined as P.W.1 and only one witness Amit Pandey (P.W.2) was examined by the husband. On the other side, the wife Dipika examined herself and the witnesses Deepanshu Kumar Dubey (brother), Satyendra Dubey (father), Anil Trayambak Deshpandey (friend of father), Pankaj Tiwari, Assistant Professor of MBA Department, Shree Ram College, Jabalpur where the wife was doing the MBA course, Ashutosh Dubey (uncle), Jyoti Dubey (mother) and Brij Bihari Pateria (maternal-brother of father of the wife, who resides at Bhopal). The aforesaid witnesses are D.W.1 to D.W.8.

25. If we see the judgment passed by the court below, then it appears that the court referred the chief-examination of husband in Paras 7 to 11. In last few lines of Para 11, the lower Court mentioned that Amit Pandey (P.W.2) supported the evidence of husband. No other discussion is found in reference to Amit Pandey. Amit Pandey is neither the relative nor the family remember of the husband. He is the close friend of husband. On other side, the lower court mentioned the evidence of wife in Paras 12 to

17. But no any detailed reason has been assigned for disbelieving the evidence. It is important to mention here that in Para 18 the lower Court itself stated that the statement of non-applicant/wife relating to misbehaviour, abusings, beatings and cruelty with her, is supported by the

-:- 11 -:-

F.A. No.403 of 2016

statements of P.W.2 to P.W.8. But surprisingly, the trial court after mentioning the aforesaid, did not place the reliance upon the evidence of aforesaid 8 witnesses. No any cogent reason has been given for believing the evidence of husband and disbelieving the evidence of wife.

26. As per the lower court, the evidence of other witnesses of wife are hearsay evidence. The aforesaid observation of the court is not correct. If the wife having some difficulty or the torture in her matrimonial home, then definitely she will tell to her father, mother and brother. These are the natural witnesses, therefore, only upon the ground that they are hearsay witnesses their evidence cannot be discarded. Father, mother and brother may give the evidence only upon the basis of time to time information given by their daughter/sister. If the husband causes any cruelty, then in normal course, the aforesaid act cannot be done in the presence of parents of the wife. In the aforesaid situation, the evidence should be examined very carefully.

27. In Para 13, the appellant/wife stated that the behaviour of respondent was not the normal behaviour. He always used to annoy and comment upon the articles given during the marriage and cash given by the parents of wife. In March, 2006, the husband bet the wife and abused her. Thereafter, the wife gave the information to her parents through phone. When her mother, father came to Bhopal and tried to convince the husband, the husband clearly denied to keep the wife and told them to take back her. Thereafter, the wife came to Jabalpur with her parents. This evidence of the wife also finds support from the evidence of her mother, father and brother. Even the aforesaid evidence is also supported by Brij Bihari Pateria (P.W.8), who resides at Bhopal. Before return to Jabalpur, mother and father of wife along with her had gone to the house of this witness.

28. In Para 13 it is also stated that husband always used to say that his marriage was solemnized without his consent, therefore, he is not agree to keep the appellant. Hence, the appellant may live with her parents at Jabalpur. In Para 14 she said that the husband used to beat her after an

-:- 12 -:-

F.A. No.403 of 2016

interval of 3-4 days and abused her. He spitted upon her face and also spitted in the food articles and thereafter compelled the wife for licking it. He always gave the threat for suicide and given vulgar remarks regarding the character of wife. He also harassed the wife by not providing the food articles and house-hold materials. Time to time the wife disclosed the aforesaid facts to her parents. The statements of parents also supported the aforesaid allegations. The lower court mentioned that the wife did not report the matter to the police earlier and also not collected any Panchayat. This observation is not proper. Normally, in the Indian culture each and every matter is not reported to the police or panchayat because the question of reputation of family is involved. Various types of abnormal behaviour and the cruel conduct has been disclosed by wife in her statement (in Para

15) and the aforesaid fact is also supported by the evidence of other witnesses. In Para 15 she also said that on 31.5.2008 the husband bet her and pushed her. Thereafter, upon the intervention of maid, he left the wife. After getting the aforesaid information, the mother, father and uncle reached to the Bhopal and tried to convince the husband but he gave the threat of suicide and insisted them to take back the wife. The lower court mentioned that no any medical examination has been proved. In the family matters, it is not necessary that each and every incident is reported to the police and medical examination would be conducted.

29. In Para 17 of her statement, the wife stated that when she was the student of MBA in Shree Ram College, Jabalpur, one day husband reached to the college and tried to obtain the information regarding the character of wife and also casted allegations against her character. This fact is clearly supported by the evidence of Pankaj Tiwari (D.W.5), who is the Assistant Professor of MBA Department of the aforesaid college. But the lower court ignored this fact. The aforesaid witnesses clearly stated that two times Ashish Shukla came to the College and at one occasion he came with one Nilay Tiwari of Mechanical Department. At that time he used vulgar language about the character of the wife and one time he told the witness that if he will give a photo of the wife with any boy, then he will pay him

-:- 13 -:-

F.A. No.403 of 2016

sufficient amount. This witness is an independent witness having no any interest. In detailed cross-examination no ground is found to disbelieve this witness. In Para 11, he also said that one time Ashish was loudly shouting and the aforesaid incident was seen by the several other persons. The aforesaid conduct of the husband also shows the cruelty of the husband towards his wife.

30. In Para 23 the lower court mentioned that the witness Deepanshu (brother) admitted the fact that his friend did not report to police about the incident in which the husband abused and bet the friend. Because the brother had gone with his friend and when they talked to sister/appellant at that time the friend put his hand upon her shoulder, then the accused bet him. Because the friend was also in the capacity of the brother of appellant, therefore, it is not expected that the incident should be reported to the police. No any reason is found to disbelieve the aforesaid evidence.

31. Therefore, it appears that the trial court committed mistake by not believing the evidence of the wife. On the other side, the lower court committed the mistake by placing the reliance upon the evidence of P.W.2. The evidence of P.W.2 is self-contradictory with P.W.1 (husband). It is an admitted fact of the case that at the time of second birthday of son, the wife was in her parental house. The birthday was celebrated at Jabalpur. In Para 13, husband Ashish said that in March, 2009 a party was organized but no information was given to him and his gift was also not accepted. On the other side his witness P.W.2 said in Para 18 that the second birthday of the son of Dipika was celebrated in the house of mother and father of Ashish because at that time Dipika was residing at the house of mother and father of Ashish. On the said date, the witness also tried to solve the dispute and Satya Narayan Katha was also organized. Prima facie it appears that the witness is giving the false statement. In the entire evidence, this witness also not disclosed any specific act of cruelty committed by the wife. Some dispute or altercation is normal between the husband and wife, therefore, it can be said that being a close friend this witness has given the false evidence in support of the husband.

-:- 14 -:-

F.A. No.403 of 2016

32. In Para 31 of the judgment, the lower court mentioned that the court did not find any reason to disbelieve the statement given by husband related to the mental and physical cruelty committed by the wife but in the entire judgment any specific allegation of the aforesaid cruelty is not mentioned. Some altercation during the normal behaviour cannot be treated as act of cruelty.

33. The court granted the decree upon the ground of desertion. The desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave, the desertion could be by such conduct of other spouse and compelled to live separately.

34. In the case of Ravi Kumar Vs. Jalmi Devi (2010) 4 SCC 476=(2010) AIR SCW 1564, the Supreme Court observed in Para 13 as under :-

"13. It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home."

35. The High Court of Delhi in MAT.APP.(F.C.)82/2014 dated 6.1.2017 Mrs. Nisha Rani Vs. Sh.Sohan Singh Nehra also considered the aforesaid point. In the aforesaid case, it was alleged that the husband/respondent was abused by his wife or by her mother. But the appellant denied the aforesaid incident in her reply. The Court observed that the appellant in her affidavit had elaborated the circumstances to show how she was tormented by her husband in her matrimonial house, why she had left the matrimonial home; the apathy shown by her husband towards her and their child by not even meeting the child once. The High Court observed that the appellant rather proved that she was a victim of domestic violence as was always abused, taunted by her husband. The Court came to the conclusion that wife had sufficient grounds to live separately. The Court also referred Para 13 of

-:- 15 -:-

F.A. No.403 of 2016

Ravi Kumar (supra) and said that the facts show that appellant was forced by the conduct of the respondent to leave the matrimonial home and that it is the respondent who is guilty of constructive desertion and had made the appellant and her daughter run from pillar to post even for their bare minimum maintenance and had rather failed to prove the behaviour of the appellant towards him was such that it ever caused a reasonable apprehension in his mind that it was not safe for him to continue the matrimonial relations with the appellant. Sp.L.P.No.14182 filed against the order of High court also dismissed by Apex Court on 28.8.2017 (Sohan Singh Nehra Vs. Nisha Rani).

36. The same position is found in this case. The wife left the house of husband but this act cannot be made the basis of presumption that the wife deserted the house. The cruel and abnormal behaviour of the husband compelled the wife to leave the house of husband. The wife is an educated girl and also mother of a child. In normal course any wife cannot escape from her liability or leave the house of husband. The husband is unable to prove any substantive ground for showing the cruelty of wife, therefore, the trial court committed the mistake by granting the decree of divorce.

37. In the light of aforesaid discussion, the appeal is allowed. The judgment and decree passed by the Second Additional Principal Judge, Family Court, Jabalpur on 3.5.2016 in Civil Suit No.259-A/2015 is hereby set aside.

        (ATUL SREEDHARAN)                              (B.K.SHRIVASTAVA )
             JUDGE                                            JUDGE

 TG/-

Digitally signed by
TRUPTI GUNJAL
Date: 2021.06.30
12:59:27 +05'30'