Madhya Pradesh High Court
Kunal Kant Saxena vs Smt.Sangeeta Saxena on 20 December, 2022
Author: Sujoy Paul
1
First Appeal No. 16/2010
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
FIRST APPEAL No. 16 of 2010
BETWEEN :-
KUNAL KANT SAXENA S/O LATE RADHIKA
PRASAD, AGED ABOUT 51 YEARS, R/O 7
SHASTRI NAGAR SHIVPURI PRESENTLY
RESIDING AT 86 PINK CITY EASTERN RING
ROAD INDORE (M.P.)
....APPELLANT
(BY SHRI P.S. GAHARWAR - ADVOCATE)
AND
1, SMT. SANGEETA SAXENA W/O KUNAL
KANT SAXENA, D/O CHANDRA SAROJ
SAXENA AGED ABOUT 45 YEARS, R/O
F-48/6 SOUTH T.T.NAGAR BHOPAL
(MADHYA PRADESH).
2. ASHUTOSH PANDEY S/O D. N. PANDEY,
R/O 216-4, GOVT. QUARTER KOTRA,
SULTANABAD, DISTT. BHOPAL (M.P.)
....RESPONDENTS
(BY SHRI AMIT VERMA - ADVOCATE)
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Reserved on : 08/12/2022
Pronounced on : 20 /12 /2022
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2
First Appeal No. 16/2010
This First Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri
Justice Prakash Chandra Gupta, delivered the following:
JUDGMENT
Appellant/ husband filed this appeal u/s 19 of the family courts
act, 1984 r/w section 28 of the Hindu marriage act, 1955, against the
judgment and decree dated 10/12/2009 passed by the IInd additional
principal judge, family court, Bhopal in RCS no. 433A/2004, whereby
the learned trial court has dismissed the petition u/s 13(1) of the Hindu
Marriage Act, 1955, filed by the appellant.
2. It is an admitted fact that marriage of appellant/ husband and
Respondent no.1/ wife was solemnized on 27.06.1985, as per Hindu
rites and customs in Jhansi, Uttar Pradesh. From wedlock of both the
parties, son, Sandal Saxena (PW/ 2) and daughter, Sargam Saxena
(PW/ 1) were born on 01/06/1986 and 28/01/1991 respectively.
Husband was transferred on 20/08/2001 from Bhopal to Indore,
thereafter, he used to live in Indore with his children. Husband was
posted at Shivpuri from 1985 to 1992, at Gopalganj (Bihar) from 1992
to 1995, at Sagar from 1995 to 1996, at Khurai from 1996 to 1997, at
Bina from 1997 to 1999 and at Bhopal from 1999 to 2001. It is also an
admitted fact that the wife was appointed as a teacher in 1988 in
Government Girls School Mangrauni, distt.- Shivpuri. She used to up-
down from Shivpuri to Magrauni. An intimation was given by wife that
on 29/09/2000, husband had physically assaulted Sandal Saxena (PW/
First Appeal No. 16/2010
2), an FIR was lodged against the husband and after investigation a
charge-sheet was filed u/s 323 and 294 of the Indian Penal Code
against the appellant/ husband.
3. The appellant/ husband filed a petition u/s 13 of the Hindu
Marriage Act, 1955, stating that after solemnization of marriage, wife
came to husband's home at Shivpuri and after 2-3 days, she went to her
parental home and she lived there for approximately 2 months. When
husband was transferred to Ringnod, distt- Ratlam, wife had denied to
go with him. During posting of husband at Shivpuri (1985-1992),
relation between the parties had become strained and she repeatedly
used to go to her parental home. She used to leave home without
informing about the same to anyone in the house. She used to
misbehave with her husband and his parents. After 5 months from the
birth of Sandal (PW/2), she left the home without informing to her
husband. Then her husband on 01/11/1986 had reported at P/S
Shivpuri. Thereafter, she was found in the house of Anant Trivedi at
Jhansi. She told on being asked, that she likes Anant Trivedi, she
wanted to marry him but her parents solemnized the marriage with the
appellant without her will. During posting of Mangrauni, she had
relation with Irshad. In year 1989, she was transferred to Masoori,
Distt.- Bhind on the post of lecturer. Alongwith Irshad she used roam
in street and go to hotel and rest-house on his motorcycle and used to
come late at night.
4. During posting of Gopalganj, Bihar of husband, wife used to go
to him but her behaviour was not good. She always used to quarrel and
intimidate. Wife and children used to live in Bhopal while the husband
was posted at Sagar, Khurai, Bina and Bhopal (1995-2001), the wife
First Appeal No. 16/2010
was posted as a lecturer as Kasturba Girls School North TT Nagar,
Bhopal. At that time responded no.2 was also posted as an assistant
teacher in that school, during which wife/ respondent no 1 and
respondent no 2 developed a strong bond which resulted into love
affair. Husband stopped wife to meet respondent no. 2 and taught her
but she did not agree. In the month of February 1992, the wife fought
with the husband and torn her clothes herself, broke and threw the
articles of house, resultingly she attempted suicide, past 2 days of the
incident, husband got her admitted in a Akshay hospital in Bhopal and
intimated about the incident at P/S Habibganj, but a cousin of wife,
Upmanyu Saxena (DW/ 2) was posted as SI at P/S Habibganj, who
suppressed the matter.
5. On the occasion of birthday of Sargam Saxena (PW/ 1) on
28/01/2000, the wife had left the house before several invited guests
had come and came back after 2 days on 30/01/2000, meanwhile the
husband saw his wife with respondent no. 2, roaming around on his
motorcycle on 29/01/2000. Behaviour of wife had led to husband's
mental distress, his reputation was diminishing in the society,
therefore, he filed application before Parivar Paramarsh Kendra for
counselling. But despite calling repeatedly by summons, she was never
present for counselling. Thereafter, wife, her-real brother Amar
Choudhary and Upmanyu Saxena threatened to kill the husband and
his children. Due to cruel behaviour of wife the husband left home on
09/08/2000 and filed a written complaint at P/S Habibganj, Bhopal. On
10/08/2000, Upmanyu Saxena (DW/ 2) alongwith respondent no 1,
wife, came at husband's office and apologised and assured that in
First Appeal No. 16/2010
future wife will not misbehave with him, husband returned to home on
the same day.
6. On 29/09/2000 on a small cause the wife assaulted Sandal
(PW/2) with tongs and on being intervened by the husband, she ripped
off her clothes and bit her lips with teeth, lodged a false report against
the husband, there upon police filed a charge-sheet against the husband
u/s 323 and s.294 of IPC in Bhopal court. Therefore, on being seriously
bothered by the wife, he left home on 20/05/2001 and started living in
the training hostel of Bank. He intimated the police but no action was
taken. On 18/01/2001 when appellant was in Jaipur, respondent no 2
came to his home at night and then both of his children had seen wife
and respondent no 2 in an objectionable position, then the wife asked
children to sleep and locked them in a room. After a while, respondent
no 2 left the house and followed by the wife, who left at 01:00 AM by
scooter. She returned at 05:00 AM. Husband returned from Jaipur on
20/01/2001, both the children and guard Ramphal told him about the
aforementioned incident. Appellant/ husband inquired with the wife,
then she verbally abused and quarrelled with him. Therefore, the
appellant/ husband finally left his home on 20/05/2001 to live in a
rented apartment.
7. Appellant/ husband also pleaded that thereafter respondent no 2
used to come frequently at night to make illicit relationship with wife
of appellant. This incident has been witnessed by several colony
members and the guard and they had intimated about the same to the
appellant. From the behaviour of respondent/ wife both the children
went directly to the appellant's house on 01/08/2001 to live with him
and respondent/ wife was alone in his house. Then respondent no 2
First Appeal No. 16/2010
went to house of appellant at night and was seen by guard while the
wife and respondent no 2 were indulged in an obscene act. The same
was told by guard Ramphal to the patrolling police at night. Then on
02/08/2001 at 04:00 AM patrolling police caught respondent no 2
while he was leaving. The police took him to the P/S but because of
influence of SI Upmanyu Saxena (DW/ 2) no action was taken against
respondent no 2. The wife has not been contacted with husband and
children since 03/10/2001.
8. Respondent no. 1/ wife has denied all averments. In her written
statement, except admitted fact and has stated that after the marriage,
behaviour of appellant/ husband was not good with her. At the
beginning husband and his family members wanted money as dowry
and used to taunt her for less dowry. Husband is an alcohol addict. He
always physically assaults respondent no1/ wife after getting
intoxicated and later on he used to apologise for his act after getting
normal. Looking at the future of family and children, respondent no.1/
wife used to forgive him. Husband got a house constructed after taking
loan from bank and sold the ornaments worth Rs. 60,000/- of the wife
without her consent. Father of the wife also gave appellant/ husband a
sum of Rs. 45,000/- for the construction of house. Husband was
annoyed from the birth of daughter, Sargam Saxena (PW/ 1), and used
to say that respondent has created a load on him. Respondent no.1/
wife has always taken responsibility of maintenance of children,
appellant/ husband never took this responsibility. Respondent no 1/
wife has always supported the appellant/ husband. In 1997, appellant
bought a Maruti car, then the margin money was paid by the wife.
Appellant/ husband used to put on false allegation on the wife and
First Appeal No. 16/2010
stated that he is making distinct stories to get divorced from his wife
and started to complain to police for small causes. At last he
blackmailed the children and without the will of the wife took the
children with him.
9. Respondent no. 1/ wife also pleaded that criminal case no.
35278/2006 State of Madhya Pradesh V. Mohan Kumar and ors. was
instituted on the report of appellant/ husband and was decided on
20/09/2006 by Judicial Magistrate Ist class, Bhopal. Thereby,
respondent no.1/ wife was acquitted, therefore, it is clear that the
allegations levelled by the appellant/ husband on the respondent no 1./
wife were false and fabricated. Respondent no.1 / wife has never left
her matrimonial home without telling the appellant. She has never had
illicit relationship with Anant Trivedi, Irshad and Ashutosh Pandey
(respondent no. 2). She never misbehaved with appellant/ husband and
never deserted him. All allegations levelled by the appellant/ husband
upon respondent no. 1/ wife are baseless, false and frivolous. The
appellant/ husband himself deserted the respondent no. 1 and had a
cruelsome behaviour with her. Therefore, petition filed by the
appellant, is liable to be dismissed with cost.
10. Respondent no.2 filed a separate written statement and denied all
averments of the petition and pleaded that all the allegations levelled
upon him by the petitioner are false, frivolous and baseless. Hence,
petition is liable to be dismissed.
11. The learned trial court has framed 4 issues. Petitioner has
examined Sargam Saxena (PW/ 1), Sandal Saxena (PW/ 2), himself
Kunal Saxena (PW/ 3) and elder brother Kamalkant Saxena (PW/ 4) in
First Appeal No. 16/2010
support of the petition whereas defence, the wife, Sangeeta Saxena
examined herself (DW/ 1), cousin Upmanyu Saxena (DW/ 2), younger
sister Sarika alias Deepa, father Chandra Saroj Saxena and mother
Sudha Saxena. Respondent no. 2 also examined himself. The learned
trial court after appreciating the evidence, did not believe the husband
and his witnesses and has dismissed the petition of divorce.
12. Shri PS Gaharwar learned counsel for appellant/ husband has
submitted that impugned judgment and decree is perverse. The learned
trial court has erred by disbelieving the statement of petitioner/
husband and his witnesses. The learned trial court has committed a
grave error in holding that the appellant could not prove the cruelty,
desertion and adultery by respondent no. 1. findings of the learned trial
court in respect of issues are against the evidence available on the
record. Learned counsel for the appellant has placed reliance on the
case of Dinesh Nagda V Shanti Bai [2011 (3) JLJ 299]; Prem Narayan
Sahu V Smt. Manorma Sahu [F.A. no. 60/2002, decided on
21/11/2013]; A. Jaya Chanda V Aneel Kaur [2005 (1) Supreme 626];
Narendra V K. Meena [Civil Appeal no. 3253/2008, decided on
06/10/2016] and Rani Narsimha Sastry V Rani Suneela Rani [Civil
Appeal no. 8871/2019 decided on 19/11/2019].
13. Learned counsel for the respondent No. 1, Shri Amit Verma,
supported the impugned judgment and decree and submitted that the
learned trial court has rightly given findings on the issues on the basis
of evidence available on the record. Learned counsel for the respondent
no 1 placed reliance upon the case of Shyam Sundar Kohli V Sushma
Kohli @ Satya Devi [2004 (7) SCC 747]; Asha Soni V Ram Swarup
Soni [1991 (2) DMC 615]; Krishna Kumar Sinha V The Kayastha
First Appeal No. 16/2010
Pathshala (Prayag) [AIR 1966 Allahabad 570]; Jyotishwar Sen V
Anjana Sen [I (2011) DMC 18 (Guwhati)]; Savitri Pandey V
Premchand Pandey [(2002) 2 SCC 73]; Avadhesh Mani Mema V Saroj
Amita Mema [1990 (1) DMC 327] and Bharati Devi V Sheo Narayan
[I (1984) DMC 150 (MP)].
14. We have heard learned counsels for the parties and perused the
records.
15. During pendency of this appeal, respondent no.1/ wife has filed
an application, I.A. no. 13356/2013, under order 41 rule 27 of the Code
of Civil Procedure on 20/11/2013 for taking additional documents on
record. We have also heard the parties on I.A. no 13356/2013.
16. Learned counsel for the respondent no.1/ wife submits that in
criminal case no. 35278/2006, respondent no.1 has been acquitted by
judgment dated 20/09/2006 (Annexure R1), copies of mark-sheet of
Sandal Saxena (PW/ 2) (Annexure R2, R3), copies of manual deposit
receipt of Sandal Saxena (PW/ 2) (Annexure R4), a copy of manual
deposit receipt of Sargam Saxena (PW/ 1) (Annexure R5), copy of the
SBI account statement of respondent no.1/ wife (Annexure R/6),
photographs of a woman namely Manisha Saxena and appellant and
others (Annexure R7-R9) are necessary documents for the purpose of
determining material question in controversy between the parties.
Therefore, application may be allowed and annexed documents may be
taken on record as additional evidence. Application is supported by
affidavit of respondent no.1/ wife.
17. Appellant has not chosen to file reply of I.A. no. 13356/2013.
learned counsel for the appellant submits that the annexed documents
First Appeal No. 16/2010
are not necessary to decide the case, therefore, the application is liable
to be rejected.
18. The Apex court in the case of Sanjay Kumar Singh V State Of
Jharkhand [2022 LiveLaw (SC) 268], has held as under:-
"4. It is true that the general principle is that the
appellate court should not travel outside the record
of the lower court and cannot take any evidence in
appeal. However, as an exception, Order 41 Rule 27
CPC enables the appellate court to take additional
evidence in exceptional circumstances. It may also
be true that the appellate court may permit
additional evidence if the conditions laid down in
this Rule are found to exist and the parties are not
entitled, as of right, to the admission of such
evidence. However, at the same time, where the
additional evidence sought to be adduced removes
the cloud of doubt over the case and the evidence
has a direct and important bearing on the main
issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to be
permitted on record, such application may be
allowed. Even, one of the circumstances in which
the production of additional evidence under Order
41 Rule 27 CPC by the appellate court is to be
considered is, whether or not the appellate court
requires the additional evidence so as to enable it to
pronouncement judgment or for any other
substantial cause of like nature. As observed and
held by this Court in the case of A. Andisamy
Chettiar v. A. Subburaj Chettiar, reported in (2015)
17 SCC 713, the admissibility of additional evidence
does not depend upon the relevancy to the issue on
hand, or on the fact, whether the applicant had an
opportunity for adducing such evidence at an earlier
stage or not, but it depends upon whether or not the
appellate court requires the evidence sought to be
adduced to enable it to pronounce judgment or for
any other substantial cause. It is further observed
First Appeal No. 16/2010
that the true test, therefore is, whether the appellate
court is able to pronounce judgment on the
materials before it without taking into consideration
the additional evidence sought to be adduced."
19. In the instant case the respondent no.1/ wife, in paragraph 20A
of her written statement has clearly pleaded that she was acquitted on
20/09/2006 in criminal case no. 35278/2006. Therefore, on the ground
of acquittal it shows that the allegations levelled by the appellant
against respondent no.1/ wife were false and it proves that the
aforementioned allegation was framed in order to get divorced, and
because of the aforementioned case, the respondent no.1/ wife had to
bear a lot of mental agony. The appellant has not denied the
aforementioned pleadings in his petition. Therefore, it is clear that the
appellant has not disputed the factum of acquittal of respondent no.1/
wife in the aforementioned criminal case.
20. Alleged judgment of criminal case was passed on 20/09/2006
and the impugned judgment was passed on 10/12/2009. The
Respondent no.1/ wife could have filed the alleged judgment before the
trial court but she had not filed before the learned trial court. Learned
counsel for the appellant is unable to show that why the annexed
documents are necessary for the proper adjudication of the matter.
Perusal of the case it appears that the annexed documents are neither a
sine qua non for the removal of the clouds of doubt in the instant
matter nor have a direct and important bearing on the main issue in the
suit and in interest of justice clearly renders it imperative that it may be
allowed to be permitted on record. Therefore, IA no. 13356/2013 is
rejected.
First Appeal No. 16/2010
21. The appellant/ husband filed a petition before the learned trial
court for divorce against respondent no. 1, wife, on the basis of 3
grounds namely- adultery, cruelty and desertion, as provided u/s 13(1)
(i), 13(1)(ia) and 13(1)(ib) respectively. It apposite to discuss the
relevant part of the provision of the Hindu Marriage Act, 1955, i.e.
section 13 and section 23, which is reproduced as under:-
"13. Divorce.- (1) Any marriage solemnized,
whether before or after the commencement of this
Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of
divorce on the ground that the other party--
[(i) has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other
than his or her spouse; or
(i a) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
(i b) has deserted the petitioner for a continuous
period of not less than two years immediately
preceding the presentation of the petition; or]..."
"23. Decree in proceedings.- (1) In any proceeding
under this Act, whether defended or not, if the court
is satisfied that ;
(a) any of the grounds for granting relief exists and
the petitioner [except in cases where the relief is
sought by him on the ground specified in sub-clause
(a), sub-clause (b) or sub-clause (c) of clause (ii) of
section 5] is not in any way taking advantage of his
or her own wrong or disability for the purpose of
such relief, and
(b) where the ground of the petition is the ground
specified in clause (i) of sub-section (1) of section
13, the petitioner has not in any manner been
accessory to or connived at or condoned the act or
acts complained of, or where the ground of the
First Appeal No. 16/2010
petition is cruelty the petitioner has not in any
manner condoned the cruelty,"
22. In respect of cruelty, in the case of A. Jaya Chanda (Supra), a
coordinate bench of this court has held as under:-
"12. To constitute cruelty, the conduct complained of
should be "grave and weighty" so as to come to the
conclusion that the petitioner spouse cannot be
reasonably expected to live with the other spouse. It
must be something more serious than "ordinary wear
and tear of married life". The conduct, taking into
consideration the circumstances and background has to
be examined to reach the conclusion whether the
conduct complained of amounts to cruelty in the
matrimonial law. Conduct has to be considered, as
noted above, in the background of several factors such
as social status of parties, their education, physical and
mental conditions, customs and traditions. It is difficult
to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute
cruelty. It must be of the type as to satisfy the conscience
of the Court that the relationship between the parties
had deteriorated to such an extent due to the conduct of
the other spouse that it would be impossible for them to
live together without mental agony, torture or distress,
to entitle the complaining spouse to secure divorce.
Physical violence is not absolutely essential to constitute
cruelty and a consistent course of conduct inflicting
immeasurable mental agony and torture may well
constitute cruelty within the meaning of Section 10 of
the Act. Mental cruelty may consist of verbal abuses and
insults by using filthy and abusive language leading to
constant disturbance of mental peace of the other party.
23. In the case of Prem Narayan Sahu (Supra), a coordinate bench
of this court has held as under:-
"6. As regards the allegation of desertion, the wife
has admitted in para 10 of her evidence that she has
First Appeal No. 16/2010
not gone to her matrimonial home since 1986. The
husband had sent a legal notice dated 25.3.1986,
Ex.P1, to the wife to return home but to no avail. It is,
therefore, clearly established that the wife is living
separately from her husband since last 27 years. As
already stated above, after about five months from the
date of passing of ex-parte decree of divorce in favour
of husband, he remarried to a widow Saroj with whom
he has two children. The marriage of the husband with
wife has irretrievably broken down. A marriage which
is dead for all purposes cannot be revived by the court's
verdict, if the parties are not willing. In K. Srinivas Rao
(supra) the Supreme Court has held that this is because
marriage involves human sentiments and emotions and
if they are dried up there is hardly any chance of their
springing back to life on account of artificial reunion
created by the court's decree. The husband is, therefore,
entitled for divorce on the ground of desertion also. We
accordingly set aside the judgment and decree passed
by the trial court and allow the husband's petition for
divorce.
24. In the case of Dinesh Nagda (Supra), a coordinate bench of this
court has held as under:-
"20. So far as the issue of desertion is concerned,
Section 13(1)(ib) of the Act requires desertion for a
continuous period of not less than two years
immediately preceding the presentation of the divorce
petition. In the present case, the respondent Shantibai
has admitted that she is living separately with her
parents since 1995-1996 (since 9-10 years prior to
giving the affidavit before the trial Court, on
26/7/2005). The statement of the appellant also
indicates that the respondent is living separately with
her parents since 1995-96. The appellant has stated
that he had no marital relation with the respondent
since last 10-11 years. He has stated that for that
reason he is having "dry life" for last several years.
First Appeal No. 16/2010
The aforesaid position is also reflected from the
statements of the other witnesses. The respondent's
plea that she is living separately on account of the
second marriage of the appellant cannot be accepted
because the respondent has failed to produce any
reliable evidence establishing the second marriage of
appellant with Radhabai. The reliance on the affidavit
(Ex.D.15) given by Radhabai does not establish
second marriage since she has only stated that she is
living in the appellant's protection for certain reasons,
but she has not stated that she is living as wife of the
appellant. Though the respondent has stated that she is
ready to live with the appellant, but the father of the
respondent has categorically stated that it is not
possible for the respondent to live with the appellant.
The respondent has failed to establish any reasonable
cause for living separately for last about 15 years.
Thus, it is clear that the respondent has deserted the
appellant and ground for divorce under Section 13(1)
(ib) of the Act is made out.
25. In the case of Narendra (Supra), Apex court has held as under:-
"15. Taking an overall view of the entire evidence and
the judgment delivered by the trial Court, we firmly
believe that there was no need to take a different view
than the one taken by the trial Court. The behaviour
of the Respondent wife appears to be terrifying and
horrible. One would find it difficult to live with such a
person with tranquility and peace of mind. Such
torture would adversely affect the life of the husband.
It is also not in dispute that the Respondent wife had
left the matrimonial house on 12th July, 1995 i.e.
more than 20 years back. Though not on record, the
learned counsel submitted that till today, the
Respondent wife is not staying with the Appellant. The
daughter of the Appellant and Respondent has also
grown up and according to the learned counsel, she is
working in an IT company. We have no reason to
disbelieve the aforestated facts because with the
First Appeal No. 16/2010
passage of time, the daughter must have grown up
and the separation of the Appellant and the wife must
have also become normal for her and therefore, at
this juncture it would not be proper to bring them
together, especially when the Appellant husband was
treated so cruelly by the Respondent wife.
26. In the case of Rani Narsimha Sastry (Supra), the following
was held:-
"14. In view of the forgoing discussion, we conclude
that the appellant has made a ground for grant of
decree of dissolution of marriage on the ground as
mentioned in Section 13(1)(i-a) of the Hindu
Marriage Act, 1955.
27. In case of Krishna Kumar Sinha (Supra), division bench of
Allahabad High Court has held as under:-
"65. It was contended by Mr. Bhargava that since
there is no evidence in rebuttal on behalf of the
plaintiff, the evidence produced by the appellant
regarding the nucleus of joint family property is
entitled to acceptance despite its infirmities we
however, fail to see how a finding regarding the
existence of nucleus of joint family property can be
recorded on the basis of the evidence produced by the
appellant in this case. It is true that in judging the
acceptability of an evidence the absence of contrary
evidence is also a factor to be taken into
consideration, but the falsity of even an unrebutted
evidence may be so patent or the evidence may be so
unworthy of credence or so unsatisfactory that the
Court cannot regard the fact which is sought to be
proved by such evidence as having been proved an
evidence may be destroyed or it may be said,
sufficiently rebutted by its inconsistencies its
improbabilities and its inherent defects and thus cease
First Appeal No. 16/2010
to be a fit basis for a finding. For the rejection of such
evidence no evidence in opposition is necessary.
28. In the case of Asha Soni (Supra), single bench of this court has
held as under:-
"3. Having heard the learned counsel for the parties, I
find it difficult to support the impugned decree for
divorce passed by the Court below. Cruelty is a ground
for divorce under section 13(1)(ia) of the Act, but the
term "cruelty" has not been defined. The accepted legal
meaning of this expression has been conduct of such a
character as to have caused danger to life, limb or health
(bodily or mental), or as to give rise to a reasonable
apprehension of such danger. It may be said that in order
to constitute cruelty for the purpose of divorce, there
must be such treatment of the petitioner which causes
suffering in body or mind whether in realization or
apprehension in such a way as to render cohabitation
harmful or injurious having regard to the circumstances
of each case, keeping always in view the character and
condition of the parties. In this context, I find nothing on
record to warrant a conclusion that the respondent was
entitled to a decree for divorce on the ground of cruelty.
In paragraph 5 of his deposition as A.W. 1, the
respondent Ram Swarup stated that the behaviour of the
appellant was disrespectful. How it was disrespectful, he
tried to explain by saying that the appellant refused to
work by saying that she was not a maid servant and that
she threatened to leave the matrimonial home, if she was
asked to work. According to his father Hariram Soni (AW
3), the relations became strained, because the respondent
refused to take the appellant to her parents, as the wife of
his elder brother had undergone operation. In paragraph
4 of his deposition, he said that the behaviour of the
appellant was good for a period of about one month from
the date of marriage, but thereafter, it became indecent.
How the behaviour became indecent was not explained
by furnishing necessary details of relevant facts, which
First Appeal No. 16/2010
might have provided basis for forming an opinion about
legal cruelty justifying a decree for divorce. The
respondent was, therefore, not entitled to any decree for
divorce on the ground of cruel treatment.
29. In the case of Avadhesh Mani Mema (Supra), division bench of
this court has held as under:-
"8. Before examining the series of acts and conduct
constituting cruelty it is essential to refer 23(1)(b) of the
Act which casts an obligation on the Court to consider
the question of condonation. Condonation operates as
bar to the granting of relief. If the Court is satisfied from
the evidence on record that petitioner has condoned the
cruelty, the Court has no discretion in the matter.
Condonation need not be express, it may be implied from
the conduct of the parties and circumstances of the case.
There may not be an agreement in the strict sense but
there must be an intention to forgive on the part of the
offended spouse and willingness to be forgiven by the
other.
30. In the case of Shyam Sundar Kohli (Supra), Hon'ble the
Supreme Court has held as under:-
"12. On the ground of irretrievable breakdown of
marriage, the court must not lightly dissolve a marriage.
It is only in extreme circumstances that the court may
use this ground for dissolving a marriage. In this case,
the respondent, at all stages and even before us, has
been ready to go back to the appellant. It is the
appellant who has refused to take the respondent back.
The appellant has made baseless allegations against the
respondent. He even went to the extent of filing a
complaint of bigamy, under Section 494 IPC against the
respondent. That complaint came to be dismissed. As
stated above, the evidence shows that the respondent
was forced to leave the matrimonial home. It is the
First Appeal No. 16/2010
appellant who has been at fault. It can hardly lie in the
mouth of a party who has been at fault and who has not
allowed the marriage to work to claim that the marriage
should be dissolved on the ground of irretrievable
breakdown. We, thus, see no substance in this
contention.
31. In the case of Jyotishwar (Supra), division bench of Guwhati
High Court has held as under:-
"14. During the course of argument, learned counsel for
the appellant placing reliance upon the judgment of the
Supreme Court, in the matter of Durga Prasanna
Tripathi v. Arundhati Tripathy (AIR 2005 SC 3297)
submitted that if the marriage is irretrievably broken
then there would be no use compelling the parties to live
together and the Court should make every endeavour to
break the marriage ties. The facts in the matter of Durga
Prasanna Tripathy (supra) were altogether different.
There it was proved before the Court that the parties
had developed an absolute disliking for each other and
despite that the wife on one side and the husband on the
other were contesting litigation. In paragraph 29 of the
said judgment the Supreme Court observed that in the
three cases considered in the said judgment disclosed
that reunion was impossible. The Court also observed
that it was a matter of record that dislike for each other
was burning hot. In the present matter, undisputedly the
dislike is one way traffic. The husband asserts that he
does not like the wife because she is unchaste.
Unfortunately, on any imaginary foundation if the
husband develops a disliking for the wife then the
husband cannot be allowed to take advantage of his own
wrong. It is not the case of the plaintiff-appellant that he
wife prior to 1992 was living an unchaste life. If prior to
1992 the wife was living an adulterous life then the
husband should have pleaded the said ground in his
earlier petitions.
15. Reliance was also placed upon the judgment of the
Supreme Court in the case of Naveen Kohli v. Neelu
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Kohli (AIR 2006 SC 1675) to contend that the
endeavour of the Court should be to bring an end to the
marriage which does not survive and where the parties
are unnecessarily suffering. In the said matter again the
facts were totally different. The Supreme Court came to
the conclusion that if the marriage has irretrievably
broken then only the Court should pass a decree. In
paragraph 96 of the said judgment, the Supreme Court
further observed that the Government should take into
consideration to make a law that irretrievable breaking
of marriage should also provide a ground for divorce. "
32. In the case of Savitri Pandey (Supra), the apex court has held
as under:-
"17.The marriage between the parties cannot be
dissolved only on the averments made by one of the
parties that as the marriage between them has broken
down, no useful purpose would be served to keep it
alive. The legislature, in its wisdom, despite observation
of this Court has not thought it proper to provide for
dissolution of the marriage on such averments. There
may be cases where, on facts, it is found that as the
marriage has become dead on account of contributory
acts of commission and omission of the parties, no
useful purpose would be served by keeping such
marriage alive. The sanctity of marriage cannot be left
at the whims of one of the annoying spouses. This Court
in V. Bhagat v. D. Bhagat [(1994) 1 SCC 337 : AIR 1994
SC 710] held that irretrievable breakdown of the
marriage is not a ground by itself to dissolve it. "
33. In the case of Bharati Devi (Supra), a single bench of this court
has held as under:-
"3. The first contention in support of the appeal had
been that out of the two specific acts of cruelty sought to
b established at the stage of trial one namely the assault
by he on the sister-in-law of the respondent, was not
pleaded therefore, and, that part of the evidence must be
First Appeal No. 16/2010
ignored. In this the learned counsel for the appellant
seems to be right. It is now well settled that specific acts
of cruelty must be pleaded to enable the opposite party to
meet those allegations and fake and general complaint
will not help any party. As the assault on respondent's
sister-in-law was not specifically pleaded, any evidence
led on this issue will have to be ignored."
34. Now the evidence produced by both the parties in the case is to
be considered in the light of legal provisions and principles laid down
in the aforementioned judgments.
35. In respect of issue no. 1, relating to cruelty, husband Kunal Kant
Saxena (PW/ 3) has stated that his wife had denied to go with him
when his posting was in Ringnod Central Bank. During 1985-1992
when he was posted at Shivpuri and used to live in joint family, his
wife used to insist him to let her go to maternal home repeatedly. Her
behaviour was not good and scornful with his parents and siblings. She
used to go to Jhansi, giving excuse of birthday celebration or any other
function of her friend, Rekha Sharma, but on being asked to Rekha, she
denied about occurrence of any function on the given dates of function
by wife. After 01/06/1986 when Sandal Saxena (PW/ 2) was born,
respondent no.1/ wife went to her maternal home, without his will. On
05/11/1986 she had left home with her son, stating that she is going to
market but she did not return. He started searching for her. He reached
Jhansi at 10:00 PM and told about the incident to his in-laws.
Thereafter, he returned to Shivpuri and intimated the police. During
inquiry ASI Bhadoriya went to Jhansi alongwith this witness and with
the help of Uttar Pradesh Police, recovered his wife and child from the
house of Anant Trivedi. Thereafter, he took his wife and child to
Shivpuri.
First Appeal No. 16/2010
36. Brother of husband, Kamal Kant Saxena (PW/ 4) has stated that
after marriage both the husband and the wife used to live in Shivpuri
and respondent no 1/ wife used to go to her maternal home frequently
and she used to meet alone with unknown persons. Her husband used
to object for the same, which led to arguments between the two.
37. Sangeeta Saxena (DW/ 1) stated that she never denied to go
Ringnod alongwith her husband on place of his posting. When her
husband was posted at Gopalganj (Bihar), Sagar, Khurai, Bina etc., she
has always been with him. Earlier, they were having a cordial
relationship. But later on he started having liquor and used to
physically assault her after getting intoxicated.
38. Statement of Kunal Kant Saxena (PW/ 3) is not fully supported
by his brother Kamal Kant Saxena (PW/ 4). Rekha Sharma and ASI
Bhadoriya were material witnesses in this point but the appellant has
not examined them. The appellant has not produced alleged report,
which he had lodged at P/S Shivpuri, however the appellant has
produced an alleged handwritten statement (Ex.P/ 1) of himself dated
14/11/1986 but there was no sign and seal of the concerning Police
Station for the receiving of it. Therefore, aforementioned statement of
appellant is not trustworthy.
39. Kunal Kant Saxena (PW/ 3) stated that on 28/01/2000 on
occasion of birthday of his daughter, on arrival of the guests, his wife
denied to come from the school in the birthday function on being asked
by the husband. Thereafter, she did returned home during night on
30/01/2000. Per contra as per pleading, on 28/01/2000 before coming
First Appeal No. 16/2010
of the guests she left the home. Therefore, the aforementioned
statement of appellant is not reliable.
40. Kunal Kant Saxena (PW/ 3) has stated that respondent no 1/
wife has attempted suicide twice. At first instance it was committed by
her when she was confronted by her husband about Ashutosh Pandey.
She told him that she has consumed poison but soon after that he took
her to Akshay hospital and intimated the police. Police seized a
suicide note from the wife but the case was suppressed by Upmanyu
Saxena (DW/ 2). Thereafter in year 1999 on occasion of birthday of
son, an argument took place between the parties, following which she
attempted to hang herself in furtherance to commit suicide, which was
stopped by the witness with the help of neighbours by breaking in the
room locked by her. Meanwhile the wife called Upmanyu Saxena
(DW/ 2). Upmanyu Saxena (DW/ 2) came and took wife and children
alongwith him. In this respect Sandal Saxena (PW/ 2) in paragraph 21
of cross-examination has stated that her mother consumed poison when
he was studying in class 7th due to consumption of poison. His mother
was admitted in Akshay hospital for treatment. But in respect of first
instance of attempt to suicide, Kamal Kant Saxena (PW/ 3) admitted in
his cross-examination that he came to know that Sangeeta Saxena
(DW/ 1) is admitted in hospital in consequence of food poisoning.
Sangeeta Saxena (DW/ 1) has denied in her cross-examination that she
attempted to commit suicide. Upmanyu Saxena (DW/ 2) has also
denied in his cross-examination that Sangeeta Saxena (DW/ 1) has
attempted suicide and the incident was reported in the P/S Habibganj,
but he suppressed the matter. Appellant has not produced the alleged
report and documents relating to the treatment of wife. Appellant has
First Appeal No. 16/2010
neither examined the neighbours, who helped him to break-in nor the
doctors who treated respondent no.1/ wife. Therefore, statement of
appellant is not reliable and it is not proved that respondent no.1/ wife
has attempted to commit suicide.
41. Kunal Kant Saxena (PW/ 3) deposed that, respondent no.1/ wife
took the children forcefully with her and he filed a written complaint
(Ex.P/ 19) to the P/S Shahjahanabad. Kamal Kant Saxena (PW/ 4) in
paragraph 9 of cross-examination stated that Sarika Saxena took
Sandal Saxena (PW/ 2) to her home from his home and his mother
allured him and took alongwith her from there. But Sandal Saxena
(PW/ 2) stated that when he used to live in uncle's house, his aunt
(mousi) Sarika had come to meet him and asked him to come home, so
he went alongwith her. He wrote a letter (Ex.P/ 1) on being asked by
aunt (mousi) if he wants to live with his parents. He again wrote a
letter (Ex.P/ 2) but in cross-examination he admitted that no one
pressurized him to write the two letters. Sandal Saxena (PW/ 2) also
stated that his mother took him to her home from her aunt's (mousi)
home. Sarika alias Deepa stated that Sandal Saxena (PW/ 2) met her
at home of Kamal Kant Saxena (PW/ 4) and Sandal Saxena (PW/ 2)
came with her voluntarily, thereafter, Sangeeta Saxena (DW/ 1) came
to her house and Sandal Saxena went with his mother voluntarily. Her
statement is also supported by Sangeeta Saxena (DW/ 1).
42. Appellant has filed an intimation (Ex.P/ 20) in P/S
Shahjahanabad on 20/08/2001 whereby he intimated the police that
Sandal Saxena (PW/ 2) has returned home younger sister of respondent
no1/ wife, Sarika alias Deepa stated that Sandal Saxena had come to
her house with his own will and when she intimated Sandal Saxena
First Appeal No. 16/2010
(PW/ 2) that his mother is upset, thereafter, Sandal Saxena (PW/ 2)
went to his home with his mother. Therefore, statement of appellant
and his witnesses is not reliable and it does not appear that the
respondent no1/ wife had forcefully taken Sandal (PW/ 2) with her
from appellant's home. Apart from that respondent no 1/ wife being
mother of child, if she had taken her children with her, it cannot be
assumed that she forcefully took the children with her.
43. Kunal Saxena (PW/ 3) stated that respondent no. 1/ wife used to
deny to make relationship with him. She had stopped to take care of
children. But he has not clarified that what was the type of relationship
denied by her to be made with him. Sargam Saxena (PW/ 1) in
paragraph 15 of cross-examination stated that she and her brother used
to live with their mother at Bhopal and their mother used to take care
of them. At that time respondent no.1/ wife was in service. Her mother
used to go for duty and she used to live in Jhula Ghar and she used to
give tiffin to her in Jhula Ghar. She further admitted that during this
period her mother regularly took care of her. Therefore, it does not
appear that the respondent no.1/ wife had denied over to make relation
with appellant and stopped taking care of children.
44. Kunal Saxena (PW/ 3) stated that he denied his wife for
sterilization surgery, and he sent registered letter (Ex.P/ 13) to his wife
but she had denied to receive the letter (Ex.P/ 13). In paragraph 27 of
cross-examination she admitted that in June 2001, she got TT surgery
done. In this respect it appears that the respondent no.1/ wife is a
government servant and she was already having 2 children, therefore,
the learned trial court has rightly held that, the aforementioned act of
wife does not come in ambit of cruelty.
First Appeal No. 16/2010
45. Kunal Saxena (PW/ 1) stated that the respondent no.1/ wife had
threatened to kill him. In this respect he had filed a written complaint
(Ex.P/ 7) and (Ex.P/ 10) to P/S Habibganj, but (Ex.P/ 7) is a letter to
intimate the SHO Habibganj that appellant left home due to
misbehaviour of wife and he also intimated his new address. It has not
been mentioned in the letter that the respondent no.1/ wife had
threatened to kill the appellant/ husband. There is no readable signature
in the letter (Ex.P/ 7 and P/10) and does not bear seal of concerning
Police Station. Therefore the learned trial court has rightly not relied
on the statement of appellant and complaint (Ex.P/ 7 and P/10).
46. Kunal Kant Saxena (PW/ 3) stated that on 29/09/2000
respondent no.1/ wife had assaulted his son Sandal Saxena mercilessly
without any reason. Thereafter she lodged a report against the
appellant. In which he was acquitted. He produced case diary statement
(Ex.P/ 8) of Sandal Saxena (PW/ 2) and deposition sheet (Ex.P/ 9).
Statement of Kunal Kant Saxena (PW/ 3) is also supported by Sandal
Saxena (PW/ 2) and Sargam Saxena (PW/ 1). Sangeeta Saxena (DW/
1) stated that in year 2000, appellant had put on allegations of theft on
Sandal Saxena (PW/ 1) and was beating him mercilessly, where she
intervened and she lodged a report in police station alongwith her son.
As per case diary statement (Ex.P/ 8), Sandal Saxena had given
statement that his father was putting on allegations that he took
Rs.500/- from his pocket, then his mother said why are you doubting
on child, then his father verbally abused his mother and physically
assaulted her with fist and kicks. His mother's nose was bleeding. But
in his deposition (Ex.P/ 9), Sandal Saxena (PW/ 2) has not supported
the case of prosecution and prosecution has declared him hostile and
First Appeal No. 16/2010
cross-examined him. Then he admitted that he had given statement to
police that his father had interrogated him about theft of Rs.500/-,
where he denied the allegation. Further he denied that his mother
intervened in between, then his father had beaten her by fist and kicks.
Further he admitted that blood was oozing out of his mother's mouth
and he clarified that the blood was not oozing out of because of any
fight but because of intervening. Therefore, it appears that acquittal of
aforementioned criminal case is not disputed by respondent no.1/ wife.
It also appears that Sandal Saxena (PW/ 2) was declared hostile by the
prosecution in the criminal case and Sandal (PW/ 2) has admitted that
his father appellant interrogated him for the theft of Rs.500/- and the
mother was injured during intervening, which supports the statement of
Sangeeta Saxena (DW/ 1) that appellant had beaten her. Therefore, it
does not appears that respondent No. 1 has lodged a false FIR against
the appellant, hence, the learned trial court has rightly held that
aforementioned statement of Kunal Kant Saxena (PW/ 3) is not reliable
that the respondent no.1/ wife had beaten his son and on intervening,
respondent had also beaten him.
47. Kunal Kant Saxena (PW/ 3) stated that on being asked by the
respondent no.1/ wife on 27/12/2003 and 29/12/2003, Mohan Mishra
and Murli Mishra had come to the bank hiding their identity had a
conversation to take loan and tried to get to know the address of the
appellant. On having doubt appellant/ husband, he filed a complaint
(Ex.P/ 27) about the same in P/S Sanwer, Indore and also filed a
complaint (Ex.P/ 28) to S.P. Indore. In this respect he also produced a
cutting of the newspaper but none of them was admitted as they were
just a cutting piece of newspaper and not the whole newspaper
First Appeal No. 16/2010
alongwith the publisher was not examined by the appellant, therefore,
aforementioned cutting pieces of newspaper are not admissible.
48. Kunal Saxena (PW/ 3) further stated that the police had filed
chargesheet (Ex.P/ 32), thereafter a supplementary charge-sheet (Ex.P/
36) was also filed against the respondent no.1/ wife. It appears from
the aforementioned documents that on the basis of the written
complaint filed by the appellant an FIR (Ex.P/ 33) was lodged and
chargesheet was filed against Mohan Mishra, Murli Sharma, V.S.
Rajput and Sangeeta Saxena (DW/ 1). Sangeeta Saxena (DW/ 1)
admitted in her cross-examination that a criminal case was tried against
her and other co-accused persons.
49. Respondent no.1/ wife in para 20A of her written statement
clearly pleaded that criminal case no. 35278/2006 State of M.P. v
Mohan Kumar and ors. was pending before judicial magistrate first
class, Indore and she was acquitted on 20/09/2006. The appellant has
not denied aforesaid pleading in his petition. Therefore, it appears that
in the aforementioned criminal case, which was instituted on
complaint of appellant, the respondent no.1/ wife was acquitted by the
court. Hence, it also appears that the appellant had lodged false
complaint against respondent no.1/ wife in which she was acquitted
after the trial, which shows cruelty by appellant/ husband upon
respondent no.1/ wife.
50. Sangeeta Saxena (DW/ 1) stated that appellant used to demand
money as dowry, her husband used to drink liquor and used to assault
her for which she complained to the police. In year 1990, her husband
took loan from the bank to construct a house, at that time he sold
First Appeal No. 16/2010
ornaments of her worth Rs.75,000/-. Her father had also given him
Rs.45,000/-. In year 1998, appellant bought a Maruti car then she had
given him a sum of Rs.70,000/-. Her husband used to say that he will
plot such stories that children will come in his side. He further denied
her to meet with the children and asked to get divorced in order to meet
with the children. Father of respondent no.1/ wife, Chadra Saroj
Saxena also stated that he has given a sum of Rs.45,000/- to the
appellant on being demanded by him. In paragraph 8 of cross-
examination he denied that the appellant had returned the sum of
money which was demanded by him in furtherance of construction of
house, which was given by the witness, therefore, it appears that the
appellant has admitting that he demanded and took a sum of
Rs.45,000/- from his father in law i.e. Chandra Saroj Saxena but the
appellant has not filed any document to show that he returned the
aforementioned sum of money to his father in law. Letter (Ex.D/ 7) has
been filed by Sangeeta Saxena (DW/ 1), in which Kunal Kant Saxena
(PW/ 3) was demanding for a sum of Rs.45,000/- from the father of
respondent no.1/ wife for the construction of the house, therefore,
statement of respondent no.1/ wife and her father is also supported by
letter (Ex.P/ 7) which was sent by appellant. No amount of cross-
examination could cause a scratch on the correctness of the statement
of respondent no.1/ wife and Chadra Saroj Saxena. Hence, their
statement is reliable. Hence, the learned trial court has rightly held that
the behaviour of appellant/ husband has been cruelsome with his wife
and it does not appear from the statement of appellant and his
witnesses that respondent no.1/ wife committed cruelty on her
husband.
First Appeal No. 16/2010
51. Therefore, the learned trial court in issue no. 1, has rightly held
that the appellant/ husband has failed to prove that the respondent no.1/
wife, after solemnization of marriage, has caused cruelty upon the
appellant.
52. In respect of issue no. 2, which relates to desertion, Kunal Kant
Saxena (PW/ 3) stated that his wife, brother in law Amar Choudary and
Upamanyu Saxena (DW/ 2) threatened to kill him on 08/08/2000,
hence, he left home permanently on 09/08/2000 and gave information
(Ex.P/ 7) to the police, but he returned back to home on advice of other
bank co-workers on 10/08/2000. He further said that thereafter, there
was no improvement in the behaviour of his wife and he was worried
that his wife can falsely implicate him and he can lose his job. Hence,
he left the home again on 20/05/2001 and he gave intimation (Ex.P/
10) to the police. In paragraph 37 of cross-examination, he admitted
that he was living with his wife since 10/08/2000-20/05/2001. It is not
disputed by respondent no.1/ wife that firstly, appellant had left her on
09/08/2000 and lastly on 20/05/2001, therefore, it appears that the
appellant is living separately from his wife since 20/05/2001 and he
filed divorce petition on 05/10/2004.
53. From the statement of appellant it appears that he himself left his
house lastly on 20/05/2001 and started living in a different place. It is
not found proved that the respondent no.1/ wife had done cruelty upon
appellant/ husband, furthermore, no evidence shows that respondent
no.1/ wife had compelled the appellant/ husband to live separately.
Therefore, it does not show that the respondent no.1/ wife has deserted
the appellant for a continuous period of more than 2 years immediately
preceding the presentation of the petition.
First Appeal No. 16/2010
54. In view of the statement of Kunal Kant Saxena (PW/ 3) and
Sangeeta Saxena (DW/ 1), it appears that appellant/ husband himself
left home firstly on 09/08/2000 and lastly on 20/05/2001. it has not
been found that the respondent had deserted the appellant, therefore, it
appears that the appellant himself left home. Hence, as provided under
Section 23 of the Hindu Marriage Act, 1955, he cannot take advantage
of his own wrong in respect of desertion.
55. In respect of issue no. 3, the learned trial court has not framed
issue in respect of illicit relationship of Sangeeta Saxena (DW/ 1) with
Anant Trivedi and Irshad. In paragraph 29 of impugned judgment,
learned trial court discussed that, as per rule, the appellant has
mentioned name but has not given date, place and address of the
persons with whom the respondent no.1/ wife had sexual intercourse,
in the petition. In this respect, Single Bench of this court in the case of
Jaideep Shah V Rashmi Shah Miss Rashmi Vyas 2011(2)MPLJ680, has
opined as under:-
"7. In a petition under Section 13(1)(i) of the Hindu
Marriage Act, 1955, an allegation of voluntary sexual
intercourse by the spouse with a third party is required
to be adjudicated. The High Court in exercise of power
under Section 14 and 21 of the Hindu Marriage Act,
1955 has framed Rules. Under Rule 2(7)(e)(2) of the
Rules, in a petition seeking dissolution of marriage on
the ground of adultery, the date and place of the
adultery and the name and address of the person with
whom the adultery was committed by the respondent is
required to be stated. Rule 5 enjoins a duty on the Court
to issue notice to the respondent and co-respondent, if
any. The aforesaid Rule is in consonance with the
principles of natural justice as the finding recorded in
the suit would adversely affect the reputation of the
concerned person and, therefore, such a person should
First Appeal No. 16/2010
have an opportunity to defend his reputation before such
a finding is recorded. My aforesaid conclusion finds
support from a Division Bench decision of Karnataka
High Court reported in Arun Kumar Agrawal, supra. So
far as the reliance placed by the learned counsel for the
respondent No. 2 on the decision of this Court
in Neelam Tiwari, supra is concerned, in the said case,
the adulterer was not impleaded as a party in the
petition for divorce before the trial Court. In appeal, an
objection was raised that since the adulterer was not
impleaded as co-respondent, therefore, the petition filed
under Section 13 of the Hindu Marriage Act, 1955 was
bad on account of non-joinder of necessary party. In the
aforesaid context, the learned Single Judge of this Court
held that Rules framed by this Court does not
mandatorily require the impleadment of the adulterer.
The ratio laid down in the aforesaid case is of no
assistance to learned counsel for the respondent No. 2,
in the facts and circumstances of the case. ."
56. Therefore, it is clear that, as per Rule 2(7)(e)(ii) of Madhya
Pradesh High Court rules under the Hindu Marriage Act vide (M.P.
Rajpatra Part 4(G), dated 17 May, 1957) in a petition of divorce on the
ground of adultery, rape or sodomy, the date and the place of the act/
acts and the name and address of the person/ persons with whom these
acts were committed by the respondent are required to be mentioned.
In this case the respondent only mentioned the name of Anant Trivedi
and Irshad, but has not made him a party or has not given their
complete address, date and place of the act. Therefore the learned trial
court has rightly held that on the aforementioned ground in respect of
Anant Trivedi and Irshad, the petition is not acceptable.
57. Apart from that the learned trial court has also considered the
evidence in respect of alleged act of respondent no.1/ wife with Anant
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Trivedi and Irshad and held that it is not found proved that respondent
no.1/ wife had sexual intercourse with Anant Trivedi and Irshad.
58. In this respect, Kunal Kant Saxena (PW/ 3) stated that the
respondent no.1/ wife has strong relationship with Anant Trivedi and
Irshad, but has not stated that the respondent no.1/ wife had sexual
intercourse with them. Sangeeta Saxena (DW/ 1) has denied that she
made strong relationship with Anant Trivedi and Irshad. The appellant
has not given any suggestion in the cross-examination of Sangeeta
Saxena (DW/ 1) that she had sexual intercourse with Anant Trivedi and
Irshad. Hence, aforementioned statement of appellant is not reliable.
Therefore, the learned trial court has rightly held that it is not proved
that respondent no.1/ wife had sexual intercourse with Anant Trivedi
and Irshad.
59. So far as the issue no. 3 is concerned in respect of sexual
intercourse by respondent no.1/ wife with Ashutosh Pandey/
respondent no. 2, Kunal Kant Saxena (PW/ 3) stated that respondent
no.1/ wife was posted at Kasturba Higher Secondary School, Bhopal
and used to live in Kamla Nagar. Respondent no. 2, Ashutosh Pandey
was also posted in the same school. At that time this witness was
posted at Bina and Khurai and used to come home late at night in
Bhopal and there he came to know that in his absence, Ashutosh
Pandey used to come. Thereafter he shifted to Kotra, Sultanabad,
Bhopal with his wife and children. Then he saw his wife and Ashutosh
Pandey used to sit on Sofa and talk when he used to come early from
the regular time. His wife and Ashutosh Pandey were having a strong
bond. They both used to shake hands in front of the witness. On
objection made by the husband, wife used to reply that it is modern era
First Appeal No. 16/2010
and all this is common. When Ashutosh Pandey used to come to home,
his wife used to send the children out of the house, at that time
Upmanyu Saxena also started coming to his home.
60. Kunal Kant Saxena (PW/ 3) further stated that from January
1999, he started to live in Shahpura, P/S Habibganj Bhopal, in a rented
house and there too Ashutosh Pandey started to come in his absence.
He further stated that on a night he did not return home from his
workplace i.e. Khurai, when he returned the next day in evening to his
home, then guard told him that a person i.e. Ashutosh Pandey had
come alongwith respondent no.1/ wife in Maruti car and that person
stayed in his house throughout the night. His children also informed
him that they were locked in their room by their mother and at 10:00
PM she went somewhere by car, then this witness was sure that his
wife was having illicit relationship with Ashutosh Pandey. He also
stated that he intimated the aforementioned incident to Upmanyu
Saxena (DW/ 2). Thereafter Upmanyu Saxena (DW/ 2) called the
guard and Ashutosh Pandey and guard had identified Ashutosh Pandey
as the one who came alongwith Sangeeta Saxena (DW/ 1) in the night.
61. Kunal Kant Saxena (PW/ 3) stated that he was in Jaipur and
returned from there on 20/01/2001 then, his children told him that in
his absence on 18/01/2001, at night Ashutosh Pandey had came to his
home. Between 12:00-01:00 AM, a quarrel took place between his wife
and Ashutosh Pandey. Ashutosh Pandey locked the door from outside
and went from there. Then respondent no.1/ wife started to shout to
open the door, which was opened by the guard, after which at 01:00
AM, wife went out on her scooter and returned at 05:00 AM. On
01/08/2001, his children had directly come to him from school. His
First Appeal No. 16/2010
wife was alone at his home, then respondent no 2, Ashutosh Pandey
went to house of appellant at night which was seen by the guard
Ramphal. The same was told by guard Ramphal to the patrolling police
at night. Then on 02/08/2001 at 04:00-5:00 AM patrolling police
caught Ashutosh Pandey while he was leaving. The police locked him
up in P/S Habibganj, but by influence of Upmanyu Saxena, he was
released later.
62. On the basis of aforementioned statement of Kunal Kant Saxena
(PW/ 3), it appears that he is a direct witness to only a few incidents
which are, when respondent no.1/ wife and Ashutosh Pandey/
respondent no.2 used to sit on Sofa and talk when this witness used to
come early from the regular time. They both used to shake hands in
front of the witness. It also appears that he is hear-say witness to all the
other averments made by this witness as they were either told to him
by his children or by guard Ramphal.
63. Children of Kunal Kant Saxena (PW/ 3), Sargam Saxena (PW/1)
and Sandal Saxena (PW/ 2) have supported the statement of appellant
but these witnesses have given a general statement and have not given
specific date of incidents.
64. Sangeeta Saxena (DW/ 1) in paragraph 27 of the cross-
examination, denied that Ashutosh Pandey used to come in the absence
of husband and then she used to lock the children in a room, she had a
strong relationship with Ashutosh Pandey. In paragraph 29 of cross-
examination she has denied that, after her husband used to leave house,
Ashutosh used to come at night and she used to go alongwith him and
return in the morning. In paragraph 30 of cross-examination she has
First Appeal No. 16/2010
denied that Ashutosh Pandey was caught by police while he had come
but Upmanyu Saxena (DW/ 2) suppressed the matter. Upmanyu
Saxena (DW/ 2) in paragraph 10 of cross-examination has denied that
in February, 1999, Ashutosh Pandey was caught by police from the
house of Kunal Kant Saxena (PW/ 3) in his absence, but he (DW/ 2)
suppressed the matter.
65. Ashutosh Pandey stated that he never went to the home of
appellant and all the allegations levelled by appellant in respect of
illicit relationship with respondent no.1 are false. In paragraph 4 of
cross-examination he denied that on 29/01/2000, the appellant saw
Sangeeta Saxena (DW/ 1) with Ashutosh Pandey on his motorcycle. In
paragraph 5 of cross-examination, he denied that he used to go to the
house of Sangeeta Saxena (DW/ 1) in the absence of appellant and
used to stay there throughout the night. In paragraph 6 of cross-
examination he also denied that on 18/01/2001 when appellant was in
Jaipur, he went to home of appellant and was caught by children in an
objectionable state. In paragraph 7 of cross-examination, he denied that
on 01/08/2001, he went to meet Sangeeta Saxena (DW/ 1) and police
had caught him red-handed.
66. Therefore, it appears that Sangeeta Saxena (DW/ 1), Upmanyu
Saxena (DW/ 2) and Ashutosh Pandey have denied all the suggestion
of the appellant in their cross-examination. It also appears that the
appellant has not dared to ask Sangeeta Saxena (DW/ 1) in cross-
examination that she had sexual intercourse with the Ashutosh
Pandey/ respondent no. 2. The appellant could have examined the
guard Ramphal and those patrolling police personal who caught the
respondent no.2 and took him to the police station, but he did not
First Appeal No. 16/2010
examine the aforementioned witnesses. Therefore, statement of
appellant and his witnesses is not reliable.
67. Apart from that Sangeeta Saxena (DW/ 1) stated that the
appellant had written letters (Ex.D/ 8 & D/9), in which he was
apologised. On perusal of the case it appears that letter (Ex.D/8) was
written on 27/01/2001 and date is not mentioned on letter (Ex.D/ 9). As
per letter (Ex.D/ 8), the appellant had written that, he has no doubt on
the character of respondent no.1/ wife. As per letter (Ex.D/ 9),
appellant has apologised to respondent no.1/ wife and has written that
his wife has been a subject of atrocity by him and he has doubted as
well as levelled allegations on her character. He promised that he will
not repeat these type of mistakes in future. He will try to live happily
alongwith her. In paragraph 38 of cross-examination, Sangeeta Saxena
(DW/ 1), denied suggestion of appellant that appellant has not written
letter (Ex.D/ 9) and she has misused his signature on blank page. In
paragraph 39 of cross-examination she further denied that the appellant
had written letter (Ex.D/ 8) in sake of future of children. Therefore, it
appears that the appellant has admitted his signature on (Ex.D/ 9) and
also admitted letter (Ex.D/ 8) is written by him. He has not proved that
he had signed on blank paper of letter (Ex.D/ 9), which was misused
by respondent no.1/ wife. In this situation, it appears that the appellant
has written letters ((Ex.D/ 8 & D/9). Therefore, even for the sake of
arguments, if it is considered that respondent no.1/ wife had strong
relation with Ashutosh Pandey/ respondent no.2, then too appellant/
husband has forgiven for her acts.
First Appeal No. 16/2010
68. Therefore the learned trial court has rightly held in issue no.3
that the appellant has failed to prove that the respondent no.1/ wife had
sexual intercourse with Ashutosh Pandey/ respondent no. 2.
69. Though admittedly, it shows that the husband and wife are living
separately since 20/05/2001 i.e. for more than 20 years. On this ground
learned counsel for the appellant submits that marriage of the parties
has irretrievably broken down and marriage is dead for all purpose,
therefore, on this ground decree of divorce may be granted.
70. Per-contra learned counsel for the respondent no.1/ wife submits
that there is no provision for divorce on the ground of irretrievable
breaking down of marriage in the Hindu Marriage Act, 1955.
Therefore, on this ground divorce cannot be granted in the favour of
the appellant.
71. In this respect, there is no provision for divorce on the basis of
irretrievable breaking down of marriage in the Hindu Marriage Act,
1955. The Apex Court in the case of Navin Kohli (Supra) in para 96
observed that the government should take into consideration to make a
law that irretrievable breaking of marriage should also provide a
ground for divorce. The apex court can pass a decree for divorce in
case of irretrievable breaking down of marriage by exercising its
inherent power under article 142 of the Constitution of India.
72. On the foregoing discussion, it appears that the learned trial
court has rightly assessed the evidence available on record. The learned
trial court has not committed any error by passing the impugned
judgment and decree. Therefore, the appeal is liable to be dismissed.
First Appeal No. 16/2010
73. Consequently, the appeal is dismissed. Impugned judgment and
decree is affirmed. The parties to bear their own cost.
74. Decree be drawn accordingly.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
MISHRA
ARVIND KUMAR MISHRA
2022.12.20 16:44:06 +05'30'
