Ashu @ Raju vs Smt. Preeti
2022 Latest Caselaw 7737 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 AMAR NATH (KESHARWANI)

      HEARD AND RESERVED ON THE 28th OF APRIL, 2022
      JUDGMENT DELIVERED ON THE 14th OF JUNE, 2022

               FIRST APPEAL No. 189 of 2020

      Between:-
      ASHU @ RAJU S/O PARMANAND KATARIYA , AGED
      ABOUT 43 YEARS, OCCUPATION: VYAPAR R/O 501/7,
      NEHRU NAGAR, PATNIPURA, INDORE (MADHYA
      PRADESH)
                                           .....APPELLANT
      (BY SHRI ANKIT VERMA, ADVOCATE )

      AND

      SMT. PREETI W/O ASHU @ RAJU KATARIYA , AGED
      ABOUT 36 YEARS, OCCUPATION: NAUKARI, R/O
      543/7, NEHRU NAGAR, PATNIPURA, INDORE
      (MADHYA PRADESH)
                                         .....RESPONDENTS
      (BY SHRI SHAILENDRA SHRIVASTAVA, ADVOCATE )
     This appeal coming on for order this day, JUSTICE VIVEK
RUSIA passed the following:


                         JUDGMENT

The appellant/husband has filed this appeal under Section 19 of the Family Court Act against the judgment and decree dated 17.12.2019 passed by Second Additional Principal Judge, Family Court, Indore in HMA No.1052/2015 whereby petition filed by

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respondent/wife under Section 13 (1) (i-A) of Hindu Marriage Act by the respondent/wife has been allowed and marriage dated 12.11.2005 has been dissolved.

Facts of the case are as under:

[2] The marriage of the appellant/husband and respondent/wife was solemnized on 12.11.2005 under Hindu rituals and customs at Indore. Out of the said wedlock, the respondent/wife gave birth to a son on 14.03.2013 and is at present residing with her. The respondent/wife approached the Family Court by way of an application under Section 13 (1) (i-A) of the Hindu Marriage Act seeking a decree of dissolution of marriage by way of divorce on the ground of physical and mental cruelties by alleging that the appellant/husband after coming to the house late night under drunken condition used to abuse and taunt her as her father did not give sufficient amount of dowry. In order to maintain marital relations, with him she somehow tolerated all these atrocities. She has further alleged that the appellant/husband used to spend his entire earnings on the consumption of liquor. The appellant/husband took a personal loan by mortgaging a house situated at Samar Park Colony, Indore in her name. She was paying EMIs by way of deduction of her salary. She has also alleged that this appellant used to interrogate her regularly by doubting her character. Whenever she comes back to the house with her colleagues, the appellant/husband used to assault her. She gave birth son named Anant on 14.03.2013. On 25.04.2014, the appellant/husband opened her mobile and heard all calls conversations with her family members as well as colleagues recorded in it and at 01:04 pm, he assaulted her under the influence of liquor. The neighbors had to

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call her parents, thereafter her brother Vijay came and took her back to the parental house with her son Ananat. The FIR was lodged at Police Station Lasudiya and since then she is residing with her parents. It is further pleaded that the appellant/husband sent a legal notice dated 01.08.2015 by levelling allegations on her character and due to which she suffered humiliation between her colleagues. The appellant/husband has lodged a report at Police Station- Mahila Thana Palasiya Indore on false charges against her. He created a scene at the police station on 21.08.2015, therefore, the conduct of the appellant has caused physical and mental cruelty to her due to which it has become impossible to continue marital life, hence seeking a decree of divorce.

[3] The appellant filed a reply denying each and every allegation made in the petition. However, he has alleged that there was the closeness of his wife with office colleague Abhinav Jain working in the same company and due to which she was ignoring her marital obligation, son Anant as well as house management. She was advised by him and other relatives, but she used to treat them for implicating them in a false case of domestic violence. For the last three months, she is leading a free life in her parent's house and depriving him of marital obligation, even then he is willing to save the marital life and willing to live with her.

[4] On the basis of pleading, the Family Court has framed three issues for adjudication which are as under; -

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[5] In support of the allegation, the respondent/wife has examined herself as PW-1 but the appellant did not examine himself and any other witness, his right of evidence was also closed, therefore, on the basis of un-rebuttal evidence came on record, the learned Family Court has granted a decree of divorce, hence, this appeal before this Court.

[6] Learned counsel for the appellant submits that, the learned Family Court has wrongly granted the decree of divorce only based on ex-parte evidence of the respondent even though the appellant has not given any evidence but the decree ought not to have been granted on the sole testimony of respondent/wife. The allegations made by the respondent/wife only constitute minor matrimonial disputes between husband and wife which are normal in all families. These grounds would not constitute either physical or mental cruelty. Hence, by setting aside the impugned decree the matter be remitted back to the trial court for fresh adjudication if she is not willing to reside with the appellant as wife . [7] Learned counsel for the respondent refutes that the appellant/husband was ample opportunity to give evidence, but he was only interested in delaying the proceedings. On 22.06.2017, the last opportunity to file a reply was given with the direction to deposit the maintenance amount. Issues were framed. Vide order dated 04.07.2019 right of cross-examination was closed. The appellant challenged the aforesaid order by filing M.P. No.3690/2019 which came to be allowed on 17.02.2019. The order dated 04.07.2019 was set aside with a direction to the Family Court

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to give the opportunity to the appellant/husband, subject to the condition that the appellant would deposit the entire amount of maintenance as awarded by the Court below within a period of two months. The said order was produced before the Court but he did not deposit the maintenance amount, hence vide order dated 03.12.2019 his right was closed and final arguments were heard on 10.12.2019, therefore, this appellant/husband filed this appeal to keep the dispute pending in order to harass the respondent so she may not start her new inning of life, hence, the appeal is liable to be dismissed. It is further submitted that both are living separately since 2014 and there is no possibility of their reunion in future.

We have heard learned counsel for the parties at length. [8] By filing an application Section 13 (1) (i-A) of the Hindu Marriage Act, the respondent/wife sought a decree of divorce on the ground of physical and mental cruelty. In support of her averment made in the petition, she examined herself as PW-1 but she was not cross-examined by the appellant's counsel, hence deposition remained uncontroverted, hence, the trial court has found all the allegations established and granted the decree of divorce. [9] The appellant/husband came up before the trial court with a reply although denying all the allegations made in the petition regarding his conduct but made character assassination of the respondent/wife by way of special pleadings, the respondent/wife has performed her marital obligation from 2005 to 2013 and did not give any chance to make a complaint. He incurred all expenses during the pregnancy and delivered a child in 2013. She has started working in Infosys and getting Rs. 4,000/-. She came in contact with co-employee Abhinav Jain and who used to come house in his

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absence. The respondent/wife used to talk to him for hours together on phone. She was not taking care of his son. He has alleged to the extent that she was indulging with Abhinav Jain immorally and on his objecting, she gives threatening. Although, he has not entered into the witness box to support all these allegations but he has said so on the affidavit. In the legal notice sent to the respondent/wife, he made all these allegations against the wife which has caused mental cruelty to her. So far as physical cruelty is concerned, the respondent/wife made a complaint to the police station Lasudiya on 25.04.2014 which was registered NCR 242/2014 (Ex. P/2) for the offence under Section 323/506 of I.P.C. Thereafter, this appellant served a legal notice to her making all sort of allegation on her character. This Court has granted an opportunity to appear and lead the evidence subject to deposit amount of maintenance within a period of two months by an order dated 17.09.2019 but he has failed to avail such benefit, therefore, he has contested the case very casually. He has not taken any step toward the restoration of conjugal rights by filing a petition under Section 9 of the Hindu Marriage Act. It appears that the present appeal has been filed only to keep the respondent/wife to engage in a dead marital relationship.

[10] Even otherwise the appellant/wife and respondent/husband are living separately since 2014. Recently, the Apex Court in the case of Poonam Vs. Surendra Kumar in civil appeal no.9545/2010 dated 29.09.2021 has granted the decree of divorce in the 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

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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 para 101 the Apex Court has enumerated some instances of human behaviour which may be relevant in dealing with the case of mental cruelty and a long period of continuous separation conclude that the matrimonial bond is beyond repair and marriage becomes fixation only supported by a legal tie.

[11]. The Apex Court in the 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.

[12] 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 the 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

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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. 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."

[13]. 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 for last 17 years and there was no cohabitation between them.

[14]. In view of the above, no case is made out for interference, hence the judgment and decree dated 17.12.2019 passed by Second Additional Principal Judge, Family Court, Indore in HMA No.1052/2015 whereby petition filed by respondent/wife under Section 13 (1) (i-A) of Hindu Marriage Act has been allowed, is

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hereby affirmed and First Appeal filed by the appellant/husband is hereby dismissed.

                            ( VIVEK RUSIA )               (AMAR NATH (KESHARWANI))

                                JUDGE                                 JUDGE


                            praveen


Digitally signed by
PRAVEEN NAYAK
Date: 2022.06.16 11:07:42
+05'30'