Shyam Babu vs Shanta Bai
2022 Latest Caselaw 17014 MP

                                             1
                                                                    First appeal No. 727/2009.


         IN THE HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR

                                       BEFORE

                     SHRI JUSTICE SUJOY PAUL
                                &
              SHRI JUSTICE PRAKASH CHANDRA GUPTA

                        FIRST APPEAL No. 727 of 2009


BETWEEN :-

SHYAM BABU S/O GUTAI, AGED
ABOUT 48 YEARS, OCCUPATION:
SERVICE IN WCL R/O AMBEDKAR
NAGAR    JHOPADI      PATHAKHEDA,
BETUL, TEH. & DISTT. BETUL (M. P.)
                                                                      ....APPELLANT
(BY SHRI DINESH TRIPATHI - ADVOCATE)


AND


SHANTA BAI W/O SHYAM BABU, AGED
ABOUT 45 YEARS, R/O AMBEDKAR
NAGAR,   QTR.   NO.   LCH.   447,
PATHAKHEDA, TEH. & DISTT. BETUL
(M. P.)
                                                                   ....RESPONDENT
(NONE)


------------------------------------------------------------------------------------------
        Reserved on                           :        08/12/2022
        Pronounced on                         :        21/12/2022
-------------------------------------------------------------------------------------------
                                       2
                                                         First appeal No. 727/2009.


      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 has filed this appeal under section 28 of Hindu Marriage Act, 1955 against the judgment and decree dated 24/10/2009, passed by First Additional District Judge, Betul, in civil suit no. 30-A/2008 whereby the learned trial court has dismissed the application u/s 13(1) of the Hindu Marriage Act, 1955, filed by the appellant.

2. It is an admitted fact that earlier respondent/ wife was married to Kalyan Singh, elder brother of appellant. From the wedlock of respondent and Kalyan Singh, a son, Jaswant Singh was born. After death of Kalyan Singh, the appellant solemnized marriage with the respondent in accordance with customary rites, "Paath-Vivah". From the wedlock of the appellant and respondent, two daughters were born. The respondent got a job in Western Coal Field Ltd. on compassionate ground due to the death of her husband. There was estrangement between both the parties, it was impossible for them to live together. Therefore, before the panchas, chhod-chutti (divorce) was done between both the parties with their mutual consent, according to their customary rites. Since then, the parties are living apart. It is also an admitted fact that thereafter appellant had again married a woman named Jyoti. From the wedlock of the appellant and Jyoti, two daughters and a son were born.

3. The appellant/ husband filed an application u/s 13 of HMA stating that he is resident of Pathakheda, Ambedkar Nagar, District Betul. He renders his service in Western Coal Field Ltd. Earlier the respondent/wife was married to Kalyan Singh, elder brother of appellant, and from their

First appeal No. 727/2009.

wedlock a son was born. After the death of Kalyan Singh the appellant married with respondent/ wife as per their customary rites and from their wedlock 2 children were born. Wife later on joined working in Western Coal Field Ltd. on the compassionate ground resulting out of death of Kalyan Singh. With time, estrangement between both the parties increased and it became impossible for them to cohabit. The parties divorced (chhod-chutti) in the presence of panchas with their mutual consent according to their customary rites. Later on appellant married Jyoti and from their wedlock two daughters and a son were born. The respondent has deserted the appellant for 15 years and deprived him of conjugal relations. The appellant is mentally and physically disturbed from the aforesaid act of respondent. There is no possibility of restitution of relations between them. Therefore, it was prayed that the appellant be granted the decree of divorce.

4. The respondent denied all the pleadings except the admitted fact in her written statement, further she pleaded that since the appellant has kept Jyoti in his house as his wife, appellant physically assaults the respondent after getting intoxicated. The appellant is himself living with Jyoti and has deserted the respondent. The respondent has always wanted to make a good relationship with the appellant. She has not deserted the appellant but he himself has. Therefore, the petition is liable to be dismissed.

5. The learned trial court has framed three issues on the basis of the pleading of the parties and it was not found proved that there was divorce between the parties in accordance with the customary rites. It was also not found proved that the respondent did cruelty upon appellant, but it was found proved that the appellant did cruelty upon the respondent. Accordingly the petition was dismissed by the impugned judgment and decree by the learned trial court.

First appeal No. 727/2009.

6. The learned counsel for the appellant submits that the impugned judgment and decree is bad in law. Learned trial court has committed grave error in appreciating the evidence. The learned trial court should have taken into consideration that the marriage has already been broken and chhod- chutti has taken place as per customs prevailing in the society between the parties. The learned trial court has also erred in holding that the appellant has committed cruelty with the respondent, therefore, the respondent having sufficient reason for living separately. The trial Court has wrongly held that the appellant has compelled respondent to reside separately. Hence, impugned judgment and decree is liable to be set aside.

7. The respondent has not represented despite of service of summon.

8. We heard learned counsel for the appellant and perused the record.

9. The appellant/ husband has filed the petition for divorce on the three grounds as under:-

i. There was chhod-chutti (divorce) between the parties in accordance with the customary rites.

ii. The respondent has committed cruelty upon the appellant/ husband.

iii. The respondent/ wife has deserted the appellant for 15 years.

10. It is apposite to mention her the relevant provisions of Hindu Marriage Act, 1955 runs 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).............

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

First appeal No. 727/2009.

(ib) 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 2 [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 petition is cruelty the petitioner has not in any manner condoned the cruelty,

11. Appellant Shyam Babu (PW/1) stated that the parties had estrangement and it became impossible for them to cohabit. So, the parties have done chhod-chutti (divorce) according to their customs in presence of Panchas. They have been living separately for last 15 years,

12. Shantabai (DW/ 1) has denied that both the parties have divorced (chhod-chutti) each other therefore, statement of appellant not reliable.

13. Apart from that a petition can be filed for divorce on the grounds mentioned u/s 13 of the HMA. There is no provision for divorce in section 13 of the HMA on the ground of customary divorce i.e. chhod-chutti. Therefore, decree of divorce cannot be granted u/s 13 of the HMA on the aforementioned ground.

14. So far as the question of cruelty, Shyam Babu (PW/ 1) stated that the respondent/ Shantabai has deprived the appellant from the conjugal relations, because of which the appellant is mentally and physically

First appeal No. 727/2009.

disturbed. Shantabai (DW/1) stated that the appellant has kept a woman named Jyoti, since then the appellant physically assaults her after getting intoxicated. Admittedly, the appellant has kept Jyotibai and living alongwith her. Therefore, statement of appellant is not reliable and it is not proved that the respondent has committed cruelty upon him, instead of this it is proved that the appellant has committed cruelty upon respondent.

15. In respect of desertion, Shyam Babu (PW/ 1) stated that with mutual consent and in accordance with customs, there was chhod-chutti (divorce) between both the parties, since then both the parties are living separately. On the basis of aforementioned statement of appellant, it does not appear that the respondent has deserted him. It is not disputed that the appellant is living with a woman named Jyoti and 3 children are born from the wedlock of the appellant and Jyoti. Therefore, it is not proved that the respondent has deserted the appellant for 15 years rather of this it is proved that the appellant has deserted the respondent/ wife.

16. Apart from that Shyam Babu (PW/ 1) in paragraph 12 of cross- examination has admitted that after getting divorced from his wife/ respondent, he wants to get Jyoti's name registered in service record as his wife, because of which he has filed this petition for divorce. Further he admitted that if Jyoti's name is registered in the service book, then he will withdraw the divorce petition. Therefore, it appears that the appellant has not come in the court with clean hands.

17. On the view of foregoing analysis, it appears that the appellant has kept a woman named Jyoti for a long time and the appellant has himself deserted the respondent and he is living separately with Jyoti, this act of appellant causes cruelty and desertion upon the respondent. Therefore, as

First appeal No. 727/2009.

per section 23(1)(a) and (b) of the HMA, the appellant cannot in any way take advantage of his own wrong or disability while seeking for divorce.

18. In the view of aforementioned discussion it is clear that the appellant is unable to prove the alleged grounds of divorce against the respondent. The learned trial court has properly assessed the evidence available on record and rightly has dismissed the petition. Therefore, the appeal is liable to be dismissed.

19. Resultantly, appeal is dismissed and the impugned judgment and decree is affirmed. No order as to cost.

20. Registry directed to draw decree accordingly.

           (SUJOY PAUL)                          (PRAKASH CHANDRA GUPTA)
              JUDGE                                      JUDGE


     MISHRA

ARVIND KUMAR MISHRA
2022.12.21 17:25:56 +05'30'