Jawaharlal vs Smt.Preeti
2022 Latest Caselaw 1922 MP

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  IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                                 BEFORE
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                                     &
        HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)

                     ON THE 3rd OF FEBRUARY, 2022

                    FIRST APPEAL No. 23 of 2010

 Between:-
 JAWAHARLAL S/O SHIVNARAYAN KASHIV, AGED ABOUT 49 YEARS,
 OCCUPATION: SERVICE A-5/3,AVAS NAGAR,DEWAS (MADHYA PRADESH)
                                                        .....APPELLANT
 (BY SHRI VISHAL BAHETI, LEARNED COUNSEL FOR THE APPELLANT)

 AND

 SMT.PREETI W/O JAWAHARLAL KASHIV, AGED ABOUT 40 YEARS,
 OCCUPATION: SERVICE 63,SANT NAGAR,UJJAIN (MADHYA PRADESH)
                                                    .....RESPONDENTS
 (BY SHRI RAJENDA SAMDANI, LEARNED COUNSEL FOR THE RESPONDENT)
                   (Heard through Video Conferencing)

                        (Heard on 03.02.2022)
                  (Order passed on 11.02.2022)
PER VIVEK RUSIA, J.:
      The appellant/husband has filed the present appeal under section
19(1) Family Courts Act,1984 against the judgment and decree dated
07.12.2009 passed by the Additional Principal Judge,Family Court Ujjain
in civil case No.30-A/2008 whereby appeal filed under section 13 of the
Hindu Marriage Act seeking dissolution of marriage has been dismissed.
      Facts

of the case in short are as under:-

The marriage of the appellant/husband and respondent solemnized on 29.05.1985 under Hindu rituals and customs at Indore. Out of the said wedlock respondent gave birth to two daughters. One daughter born on 19.04.1986 and the second one born on 29.11.1990. After the marriage the appellant used to visit Khandwa to meet the respondent and daughters. The appellant and respondent both were working in the then Madhya Pradesh State Electricity Board (MPSEB). Since they were not posted at

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the same place the appellant used to travel Bordehi to Khandwa and later on he himself got transferred to Betul and requested to respondent to apply for transfer to Betul so that they can live as husband and wife. According to the appellant without keeping him to the confidence the respondent got herself transferred to gram Kayatha and thereafter Ujjain and started living with her father and mother. Despite that he started visiting Ujjain to meet respondent and daughters. After sometimes he also got himself transferred at Ujjain and started living in the house of in-laws. But since their behavior towards him is not cordial therefore, he started living in a separate house. The non-applicant no.1 started interfering in the day to day life which has disturbed the peace and cordial atmosphere of the house. The sister of non-applicant/respondent has also started misbehaving with him and finally the non-applicant/respondent has left his house and started living with her father and mother. She has taken both the daughters with her. According to the appellant the sister of non- applicant no.1 has assaulted him by means of stick. But in order to maintain the relationship he has tolerated it. But there was no improvement in the behavior of non-applicant no.1 as she wanted to live with her parents she was not taking care of the daughters and she used to visit her parents house frequently. Appellant gave a proposal that he will brought his mother in the house to look after the daughters but non- applicant did not agree for that and from June 1990 to May 1991 the appellant lived alone and called his mother thereafter the respondent gave birth to second daughter. The appellant went to the hospital to meet her daughter but he was ignored by respondent and her parents. He was humiliated and got transferred at Itarsi and started living alone. He has requested the respondent to got herself transferred at Itarsi but she did not agree. In 1996 the appellant constructed a house in the Dewas city and sent a message to the respondent for living with him. On 30.03.1997 the appellant got himself transferred to Dewas but respondent did not came therefore, after lots of persuasion in the month of July 1997 she came to Dewas and admitted her children and lived with him. But again she went back to Ujjain along with the daughters and started living in a rented

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house. According to the appellant on 2 nd June, 2001 he went to Ujjain and requested respondent to live with him in Dewas but she denied even did not offer a tea to him and broke all the relationship with him. He came back to Dewas and started living alone. He again tried to contact the respondent on 19.09.2001 but she did not attend the calls. The appellant becomes disheartened and remove the name of respondent from the records like GPF pension etc. Since the appellant was not aware about the reasons behind the cruel behavior of the respondent. According to him she is educated and serving him MPSEB and sensible lady but why she is living separately from husband and depriving the appellant to live with daughters. There was no physical relationship established between them hence finally on 16.08.2007 he filed an petition under section 13 of the Hindu Marriage Act seeking dissolution of marriage on the ground of mental cruelty.

After notice the respondent filed reply denying all the allegations made in the petition. According to her after marriage when she went to village Tema she was told by mother-in-law that her son has married her keeping into the consideration of job, salary and properties of father and mother. She was told to give entire salary to him which has gave acute mental agony to her. She has admitted thereafter marriage she lived sometime with the appellant and thereafter due to posting at different places they lived separately but appellant used to visit and meet her. According to her they both lived as husband and wife upto 02.06.2001 in Ujjain city. She also alleged that after the marriage the behaviour of the appellant towards her was humiliating, cruel and disappointing. He used to take entire salary of her. He purchased the plot in Ujjain for which the money was paid by her. He was not cordial towards the daughter and because of her cruel behaviour the daughter suffers mental agony and started living in depression. She has also alleged that the appellant has got registered the house in Dewas and plot in Ujjain in his name. However, she denied the divorce and pleaded for dismissal of the petition.

On the basis of the pleading learned Family Court has framed eight issues. In support o claim appellant examined himself as P.W.-1, Gayatri

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as P.W.-2, Rukmani as P.W.-3 and got exhibited 4 documents as Exhibit A/1 to A/4. In defense non-applicant exhibited herself as D.W.-1, her mother as D.W.-2.

Since the appellant filed petition for divorce before district court Dewas. The respondent raised an objection about the territorial jurisdiction therefore, vide order dated 03.03.2008 the objection was upheld and the proceedings were transferred to Family Court Ujjain. After evaluating the evidence came on record it has been held that in the 25 years of marriage there was no cruel and serious incident of dispute took place between the parties which can said that the relation is dead between them. The court has found that they are living separately since 7 to 8 years and there was no physical relationship established between them but non-applicant cannot be held sole responsible for desertion. The appellant has not committed any serious effort to bring her back. The court has found that there is only a clash of ego between them. Both are financial stable and not depended between them hence, their marital relation cannot be treated as dead hence dismissed the case vide judgment dated 07.12.2009. Being aggrieved by the aforesaid judgment the appellant husband preferred this appeal.

Learned counsel for the appellant submits that except allegations and counter allegations the dates and events narrated by the appellant in the memo of appeal has not been disputed by the respondent. This is also not disputed that they are living separately since 2001 and now more than 19 years have passed the appellant has retired from the service and at present is aged about 64 years and meanwhile, respondent/wife has performed marriage of both daughters in which he was not called. He was deprived to give blessings to daughters in their marriage therefore, it is established that the respondent is not willing to continue to with the marital relationship with the appellant and which is a mental cruelty to him. Learned counsel has drawn attention of this court towards to the answer given by the respondent in the cross-examination that whether still she is living with her husband and she has answered in negative therefore, after so many years she is not interested to live with her husband

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therefore, in all respect the marriage has become dead and sham. Since they are living apart from more than 19 to 20 years it is an irretrievable breakdown of the marriage hence the appellant is entitled for the decree of divorce to live peacefully in the remaining life.

Shri Samdani, learned counsel for the respondent submits that now the appellant wants to divorce the respondent because he does not want to give any money or share in the property to her. Now he has retired and has received a handsome amount of the retiral benefit and if the divorce is given she will not get anything from it therefore, at this stage there is no question of grant of divorce. The appellant has failed to make out any ground and the family court has rightly dismissed the petition by observing that there was only an ego clash and minor dispute between the parties which can be resolved by way of mediation by making some extra efforts. The respondent cannot be solely responsible for desertion.

Heard counsel for the parties and perused the record. The marriage of the appellant and the respondent was solemnized on 25.05.1985. At the time of marriage both were working in the services of MPSEB hence there was no dispute about financial capacity of both the parties . Both were not dependent on each other. Time to time they were posted at different places but appellant used to visit the house of the respondent. Out of the said wedlock the respondent gave birth to two daughters on 19.04.1986 and 29.11.1990. They are living separately according to appellant w.e.f. 02.06.2021. The appellant filed a petition for divorce on 16.08.2007 which came to be decided on 07.12.2009 and thereafter this appeal is pending since 2010. Counsel for the appellant has informed that during this period both the daughters lived with respondent. Now both have got married and living with their husband. In both the marriages respondent has not invited the appellant and deprived to give blessings to his daughters. This fact has not been disputed by the counsel for the respondent. Although the family court has found that there was no dispute of serious and grave in nature between them. There was a clash of ego and both were working in the services of State Electricity of Board. Although the cruelty has not been established but the appellant and

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respondent are living separately since more than 21 years.

In these 21 years the respondent/wife has not been made any efforts to live with this appellant and discharge the marital obligations. She lived in the house of the parents and thereafter she lived separately in the same city. The respondent if she was willing to live with the appellant could have filed the application under section 9 of the Hindu Marriage Act, for restitution of conjugal rights. She has not claimed any amount for maintenance of her daughters that shows her level of ego with the appellant. However, under the Hindu Succession Act,1956 the daughters are still entitled to claim the share in the properties of the appellant even after divorce the same cannot be denied to them. But as per the contention of counsel for the respondents divorce should not be granted which would deprive the respondent to claim share in the retiral benefits and other properties of the appellant. In our considered opinion this should not be a thinking to maintain the relationship between husband and wife under hindu custom and rituals. The respondent/wife is not willing to live with the appellant/husband since 2001 and now denying the divorce only on the ground that divorce would dis-entitled her to claim the share in the property. This amount to cruelty to the husband. The specific question asked to her whether she is willing to live with the husband and she has denied it. Learned counsel for the respondent submits that in such a situation decree of separation under section 10 of the Hindu Marriage Act can be passed. Under section 31 of the Hindu Marriage Act a marriage may on a petition presented either by husband or wife be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner continues less than one to two years immediately pending the presentation of the petitioner. The dissolution has been explained in according to which desertion of the petitioner by other party to the marriage without reasonable cause or without the consent or against the wish of such party and willful neglect of the petitioner by the other party to the marriage. Therefore, on the basis of the pleadings evidence given by the appellant and the specific answer given by the respondent that she is not willing to live with the husband this amounts to desertion without

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any valid reason. Hence that entitles the appellant to grant the decree of divorce. Recently, the Apex Court in case of Poonam Vs. Surendra Kumar in civil appeal no.9545/2010 dated 29.09.2021 has granted the decree of divorce in exercise of power under Article 142 of the Constitution of India mainly on the ground that parties have not been able to sub-serve the very object of the marriage of companionship of each other from the very inception and have been living apart from more than 19 years. In another case Samir Gosh Vs. Jaya Gosh reported in the year 2007 (4) SCC 511 in the para 101 the Apex Court has enumerated some instances of human behavior which may be relevant in dealing with the case of mental cruelty and long period of continuous separation conclude that the matrimonial bond is beyond repair and a marriage becomes fixation only supported by legal tie.

The Apex Court in case of K. Srinivas Rao Vs. D.A. Deepa reported in AIR 2013 SCC 2176 has held in para-20 that "20. According to the appellant-husband on 6/12/2009 the brother of the respondent-wife came to their house and attacked his mother. His mother filed a complaint and the police registered a complaint under Section 354 of the IPC. The brother of the respondent- wife also lodged a complaint and an offence came to be registered. Both the cases are pending.

The Division Bench of this Court in case of Dinesh Nagda Vs. Shantibai reported in First Appeal No.272/2006 decided on 20.10.2011 which is reported in AIR 2012 has granted the decree of divorce in case of irretrievable breakdown of marriage and granted decree of divorce on ground under section 13(1)(B) of the Hindu Marriage Act. The para 20 of the judgment is reproduced below:-

"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

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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. 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."

Recently the Division Bench of this Court in Jabalpur in the case of Vibha Shukla Vs. Kailash Dwivedi in First Appeal No.547/2019 decided on 03.02.2022 the decree of divorce has been granted as the husband and wife is living separately since last 17 years and there was no cohabitation between them.

In view of the above, the appeal is allowed and the judgment and decree dated 07.12.2009 passed by the Additional Principal Judge, Family Court Ujjain in civil case No.30-A/2008 is hereby set aside.

   (VIVEK RUSIA)                                             (RAJENDRA KUMAR (VERMA))
       JUDGE                                                          JUDGE

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                Date: 2022.02.14 17:17:22 +05'30'