Rishi Dixit vs Smt.Upma Dixit
2022 Latest Caselaw 13380 MP

                                     1




IN THE HIGH COURT OF MADHYA PRADESH
            AT GWALIOR
                          BEFORE
           HON'BLE SHRI JUSTICE RAVI MALIMATH,
                      CHIEF JUSTICE
                            &
           HON'BLE SHRI JUSTICE ANAND PATHAK
                  ON THE 12th OF OCTOBER, 2022
                   FIRST APPEAL No. 100 of 2014

BETWEEN:-
RISHI DIXIT S/O LATE SHRI SATYA PRAKASH DIXIT,
AGED ABOUT 37 YEARS, OCCUPATION: SERVICE, R/O-
DR. L.N. PATHAK KA MAKAN, AWADHPURI COLONY,
NARAYAN KI GAGIA, JIWAJI GANJ, LASHKAR,
GWALIOR (MADHYA PRADESH)

                                                      .....APPELLANT
(BY SHRI RAVINDRA SAXENA - ADVOCATE)

AND
SMT. UPMA DIXIT D/O SHRI RAM SWAROOP SHUKLA,
AGED ABOUT 39 YEARS, OCCUPATION: SHIKSHA
KARAMI CLASS 3, R/O- RAM SWAROOP SHUKLA KA
MAKAN GANDIKHANA, DATIA (MADHYA PRADESH)

                                                     .....RESPONDENT
(BY SHRI PRASHANT SHARMA - ADVOCATE)

............................................................................................................
      This appeal coming on for hearing this day, Hon'ble Shri Justice
Anand Pathak passed the following:
                                     ORDER

The present appeal under Section 19 (1) of the Family Court Act has been preferred against the judgment and decree dated 28.03.2014 passed by the Additional Principal Judge Family Court Gwalior, in case No.58-A/2011, whereby application under Section 13 of the Hindu

Marriage Act preferred by the appellant seeking divorce has been rejected. Divorce was sought on the basis of mental cruelty and desertion.

2. Precisely stated facts of the case are that appellant is working as police constable and respondent is working as Assistant Teacher and both entered into wedlock on 28.06.2005 and out of their marriage, they were blessed with a child namely Riddhi on 15.06.2006, which according to the parties is differently abled.

3. As per allegation, after sometime of the marriage, respondent started misbehaving with family members of appellant and verbally abused them and her disposition was of raising ruckus and commotion in the family household. Therefore, disputed arose between the two. Thereafter, she left her matrimonial house for maternal home and four years prior to filing the application in year 2011 (around since 2007) she was living in her maternal home. While referring the evidence produced by the appellant, learned counsel submitted that court below erred in not appreciating the evidence led and submission advanced, thus caused illegality and perversity.

4. Learned counsel for the respondent opposed the prayer and submitted that there is no iota of evidence exists regarding mental cruelty and desertion. The respondent never deserted the appellant. Now she is still ready to live with appellant and in her matrimonial family household. Counsel on the basis of evidence led by the parties submitted that no evidence surfaced regarding mental cruelty and desertion and court below rightly rejected the application. He supported the impugned judgment.

5. Heard counsel for the parties at length and perused the record.

6. This is the case where appellant / husband is seeking decree of divorce from the Family Court against the respondent / wife on the basis of mental cruelty and desertion.

7. In the case in hand, appellant raised the point regarding mental cruelty. So far as legal position regarding mental cruelty is concerned, same is being explained by the Apex Court in the case of Dr. N.G. Dastane Vs. Mrs. S. Dastane, AIR 1975 SC 1534, the relevant extract of the judgment is reproduced as under:

"The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances."(1) The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them over- look or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins (2) ALL ER 966"In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a prior assumptions we make bout them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."

The said judgment still holds the field and is source of wisdom time and again in respect of mental cruelty.

8. The aforesaid decision was referred to with approval in AIR 2002 SC 2582 (Praveen Mehta Vs. Inderjit Mehta), (2007) 4 SCC 511 {Samar Ghosh Vs. Jaya Ghosh},(2010) 4 SCC 339 {Manisha Tyagi Vs. Deepak Kumar}, (2012)7 SCC 288 {Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal}, (2013) 2 SCC 114 {U. Sree Vs. U. Srinivas}. In all these cases, the judgment rendered in the case of Dr. N.G. Dastane (supra) is relied upon. In the case of Samar Ghosh (supra), the Supreme Court has enumerated the illustrative instances of human behaviour which may be relevant for dealing with the cases of mental cruelty:

"No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) ** ** **

(iii) ** ** **

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and there sultant danger or apprehension must bevery grave, substantial and weighty.

(vii) ** ** **

(viii) ** ** **

(ix) ** ** **

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) ** ** **

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) ** ** **

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scantergard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

It is equally well settled in law that lodging of false complaint amounts to cruelty.{See: (2014) 7 SCC Malathi Vs.B.B. Ravi, (2013) 5 SCC 226 K. Shrinivas Rao Vs. D.A. Deepa,(2014) 16 SCC 34 K. Shrinivas Vs. Ku. Sunita and AIR 2003 MP271 Johnson M. Joseph alias Shajoo Vs. Smt. Aneeta Jhonson)}

9. If the law so pronounced by the Apex Court is tested on the anvil of evidence led, then it appears that no evidence much less any concrete evidence surfaced in the testimony of appellant or witnesses appeared on his behalf to suggest that respondent / wife caused mental cruelty to him or his family members. In fact testimony of respondent wife before the trial court indicates that she refuted the allegations of mental cruelty and even she made submissions that she is ready to take voluntarily retirement from her service to live with appellant and his family members.

10. She categorically denied in her cross-examination that she used to raise ruckus and commotion in the family and used to insult her husband or his parents. From whole testimony of wife (DW-1), it appears that she was always ready to live in family household and her conduct was not such which constitute mental cruelty.

11. Incidentally, (even surprisingly) she did not file any criminal case against the appellant for alleged offence under Section 498-A of the IPC read with Section 3/4 of the Dowry Prohibition Act or any proceedings under Domestic Violence Act, 2005 which itself shows that she always wanted to mend the ways and was hopeful regarding course correction, albeit failed in her endeavours. This itself indicates the temperament of wife to live in matrimonial household and it was the appellant who rejected and rebuked the respondent. Burden of proof was over the appellant to prove his case on the anvil of mental cruelty and desertion, but the appellant failed in establishing the case on both these counts. On the basis of above discussion, it appears that appellant did not establish the case on the basis of mental cruelty or desertion.

12. So far as plea of desertion is concerned, same also stands rejected because her testimony indicates that she is ready to live in her matrimonial house. In para 23 of her statement, she admits that even during the pendency of case, her husband used to visit her and in her oral submission also during counseling, she stated that they are regularly in touch on WhatsApp through mobile. She also raised plea that she is always ready to live with her husband and never deserted him. In her cross-examination, she further admits that at times, she visited her husband' house on exigency of death of her father-in-law. Cumulatively it can be logically inferred that point of desertion has not been proved.

13. At the time of hearing, appellant and respondent appeared before this court and on a specific query being made by this Court, respondent / wife is ready and eager to live in matrimonial household with the appellant. She is also ready for welfare of her child and herself, but it was the appellant who categorically refuted to take her back.

14. In the considered opinion of this Court, court below has rightly passed the impugned judgment repelling the contentions of appellant, whereby he sought divorce on the basis of mental cruelty and desertion. Therefore, no case is made out for interference in the well reasoned order passed by the court below.

15. Resultantly appeal sans merit and is hereby dismissed.

                        (RAVI MALIMATH)                                          (ANAND PATHAK)
                         CHIEF JUSTICE                                               JUDGE


  Rashid

RASHID KHAN
2022.10.18 12:10:05 +05'30'
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