Madhya Pradesh High Court
Devkaran vs Sanjana on 24 November, 2022
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 24th OF NOVEMBER, 2022
FIRST APPEAL No. 416 of 2015
BETWEEN:-
DEVKARAN S/O RAMRANTAN SOLANKI, AGED
ABOUT 51 YEARS, OCCUPATION: GOVT.
SERVICE VILLAGE SHYANA TEHSIL SANWER
(MADHYA PRADESH)
.....APPELLANT
(SHRI. AVINASH SIRPURKAR, LEARNED SR. COUNSEL WITH
SHRI. YOGESH KUMAR GUPTA, LEARNED COUNSEL)
AND
SANJANA W/O DEVKARAN SOLANKI, AGED
ABOUT 41 YEARS, OCCUPATION: BUSINESS 16-E
SADHNA NAGAR INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI. AMAR SINGH RATHORE, LEARNED COUNSEL FOR THE
RESPONDENT)
This appeal coming on for orders this day, JUSTICE VIVEK RUSIA
passed the following:
ORDER
With the consent of the parties, heard finally.
Present appeal is filed against the judgment dated 25.3.2015 passed by I
Additional Principal Judge, Family Court whereby the petition filed by the
appellant u/S.13(1A) & (1B) of Hindu Marriage Act has been dismissed.
Facts of the case in short are as under:
The marriage of the appellant and the respondent was solemnised on
5.5.1992 under hindu custom and rituals. Out of the said wedlock the
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Signed by: VARGHESE
MATHEW
Signing time: 25-11-2022
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respondent gave birth to a female child named Harsha. After some time some
dispute arose between the parties and they started living separately.
The husband approached the civil court by way of HM Case
No.367/1995 seeking divorce on the ground of cruelty. The said case was
dismissed vide judgment dated 28.1.2000. Thereafter he preferred a First
Appeal No.66/2000 that too was dismissed on 16.3.2005.
The respondent simultaneously approached the civil court by way of
petition u/s.9 of the Hindu Marriage Act seeking restoration of conjugal rights.
Vide judgment dated 28.1.2000 a decree was granted in her favour against
which a First Appeal No.65/2000 was filed that came to be dismissed by this
Court. Thereafter the respondent initiated the execution proceeding
No.412/2005 against which a criminal revision was filed and that was dismissed
and an amount of Rs.1700/- was fixed which the appellant is complying.
In the year 2012 again the appellant approached the Family Court by
filing an application u/S.13(1A) & (1B) seeking divorce by way of dissolution
of marriage on the ground of cruelty. According to the appellant, in the year
2006 she forcibly entered into his house and created a nuisance. A report was
lodged. Therefore, he is having a fresh cause of action for seeking divorce on
the ground of cruelty. The respondent appeared, filed the reply denying the
allegations. Appellant examined himself as PW.1 and respondent examined
herself as DW.1. After evaluation of the evidence came on record the learned
Family Judge has held that appellant has failed to establish the cruelty after
2006. The court has rather held that the respondent tried to perform her marital
obligation but she was deserted by the appellant. Thereafter the court has also
considered that his marriage is irretrievably broke down as they are living
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separately since 1993. After considering the judgment passed by the Apex
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MATHEW
Signing time: 25-11-2022
14:16:11
Court in the case of Rishkesh Sharma Vs. Saroj Sharma (2007) 2 SCC 263
the court has dismissed the petition. Hence, this appeal before this court.
Shri Avinash Sirpurkar, learned Sr.Counsel submits that appellant and
respondent are living separately since 1993. There is no hope of their reunion
in near future. The marriage is virtually a dead marriage and it should be come
to an end by way of granting decree of divorce. In support of his contention,
he has placed reliance on the judgment passed by the Apex Court in the case of
Rishikesh Sharma Vs. Saroj Sharma (2007) 2 SCC 263.
Shri A.S.Rathore, learned counsel appearing for the respondent
submitted that once the appellant has lost in the year 2005 after dismissal of first
appeal and thereafter they never lived together, therefore, there is no question
of causing cruelty by the respondent with appellant. The appellant came out
with a false ground that after 2006 the respondent committed cruelty with him.
The learned trial court has rightly dismissed the suit and therefore, no case for
interference is made out.
We have gone through the record. In the first round of litigation the
appellant has failed to prove the allegation of cruelty, therefore, the suit was
dismissed and thereafter first appeal was also dismissed. Thereafter the decree
of restitution of conjugal rights has been granted in favour of the respondent,
therefore, this is the case in which the respondent wife is willing to perform
marital obligations but appellant without any sufficient reason has deserted her,
therefore, the long separation is not attributable to the respondent. Hence, the
decree of divorce cannot be granted.
So far the allegation of cruelty is concerned, twice the appellant has
failed to prove the allegation of cruelty. When the appellant and the respondent
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Signed by: VARGHESE
MATHEW
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are living separately then there is no question of committing cruelty after the
dismissal of the case.
So far the question of passing the decree of divorce on the ground that
marriage is irretrievable and there is no hope to come together, the Apex court
under Article 142 of the Constitution can dissolve the marriage. The judgment
relied on by the appellant is passed by the Apex Court exercising power under
Article 142 granting decree of divorce on the ground of long separation. In this
first appeal only grounds available u/S.13 of Hindu Marriage Act are liable to
be considered for grant of decree of divorce. No case for interference is made
out in the present appeal. Record be sent back.
The appeal is accordingly dismissed.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
VM
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 25-11-2022
14:16:11
