Madhya Pradesh High Court
Chetan Sahgal vs Smt. Richa Sahgarl Sahgal on 3 October, 2023
Author: Sushrut Arvind Dharmadhikari
1
F.A. No. 1699 of 2019
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 03rd OCTOBER , 2023
FIRST APPEAL No. 1699 of 2019
BETWEEN:-
CHETAN SAHGAL S/O VINOD SAHGAL, AGED 30 YEARS, OCCUPATION:
STUDENT SARSWATI SHISHU MANDIR KE SAMNE SHUJALPUR MANDI
(MADHYA PRADESH)
.....APPELLANT
(SHRI SANTOSH KUMAR MEENA, LEARNED COUNSEL FOR THE
APPELLANT)
AND
SMT. RICHA SAHGARL SAHGAL W/O CHETAN SAHGAL, AGED ABOUT 28
YEARS, 14, JOY BUILDERS COLONY OLD PALASIA INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(MS RICHA SAHGAL , RESPONDENT PRESENT IN PERSON)
----------------------------------------------------------------------------------------------------------
Reserved on : 17.08.2023
Pronounced on : 03.10.2023
-----------------------------------------------------------------------------------------
This appeal having been heard and reserved for judgment
coming on for pronouncement this day, Hon'ble Shri Justice S.A.
DHARMADHIKARI pronounced the following
JUDGEMENT
F.A. No. 1699 of 2019
Heard finally with the consent of both the parties.
The present appeal has been filed by the appellant (husband)
being aggrieved by the impugned judgment and decree dated
01.07.2019 passed by the 1 st Additional Distrct Judge,Shujalpur, Distt.
Shajapur in Case No. 06/2019(HMA), whereby the application seeking
divorce under Section 13 of Hindu Marriage Act has been rejected.
2. The brief facts of the case are that the appellant and the
respondent got married on 12.05.2009 as per Hindu rights and customs
in Arya Samaj Mandir, Ujjain. It was an intercaste marriage as appellant
and respondent love each other, therefore, the factum of said marriage
had not been disclosed by the respondent(wife) to her father. When the
appellant (husband) asked about disclosing their marriage to
respondent's father, she informed that her father is a renowned Senior
Advocate in the City of Indore and is a very short tempered person. At
some suitable point of time, she will tell about their marriage to her
father. After solemnization of marriage at Arya Samaj Mandir, Ujjain,
respondent(wife) went back to her parental house at Indore. Thereafter,
she never lived at her matrimonial house and have not cohabited.
Whenever, appellant(husband) ask the respondent to come to the
matrimonial house, she use to refuse on the pretext that she has not
disclosed about their marriage to her father and in case,it came to his
knowledge, he will even get them separated and assured that at
appropriate time, she will disclose about their marriage to her father.
Appellant kept on believing on the false assurance given by the
respondent wife for long. However, on gaining knowledge about their
marriage, respondent's father got enraged, but later on he accepted their
F.A. No. 1699 of 2019
marriage. On the false pretext of arranging a re-marriage of appellant
and respondent at Shujalpur on 22.04.2014, respondent's father lodged a
report against appellant, his parents and brother u/S 498A of IPC. It is
also alleged against the respondent wife that after the factum of
marriage came to the knowledge of her father, she use to behave with
the appellant and his family members inappropriately and use to belittle
them and even at times, she hurled filthy abuses. On some occasion,
she even threatened the appellant that her father may sent the appellant
to jail by trapping him some false and fabricated cases. Even,
respondent wife has lodged cases against the appellant under Protection
of women against Domestic Violence Act and also preferred an
application u/S 125 of Cr.P.C. seeking maintenance. She has
approached the civil Court also by filing a Civil Suit before the District
and Sessions Judge regarding property of the appellant's father. Left by
his wife and burdened with multiple litigation slapped on him, the
appellant husband has filed the application u/S 13 of Hindu Marriage
Act for dissolution of marriage. The said application was dismissed by
the 1st Additional District Judge, Shujalpur on various grounds.
3. Being aggrieved by the said dismissal, appellant/husband
approached this Court by filing the instant appeal.
4. This Court after issuing notice to the respondent/wife had
appointed Mediator and directed the parties to appear before her on
25.11.2019. However, mediation proceedings did not succeed.
Thereafter, this Court had called upon the parties alongwith their
parents to explore the possibility of settlement wherein
appellant/husband has unequivocally stated that there is no room for
F.A. No. 1699 of 2019
any compromise or settlement and he requested that a decision be made
in this case on its merits. On the other hand, respondent/wife would like
to reside with the appellant.
5. Learned counsel for the appellant submitted that the appellant and
respondents are living separately since their marriage in the year 2009
i.e. almost 14 years. Respondent has filed various cases against the
appellant as well as his family members. Respondent has even moved to
Civil Court by filing civil suit against appellant's father regarding some
property. Even otherwise, she remained ex-parte before the trial Court.
Despite that, learned trial Court has dismissed his application u/S 13 of
HMA.
6. On the other hand, respondent/wife supported the judgment and
decree passed by the learned Court below.
7. Heard, learned counsel for the parties and perused the record.
8. During pendency of this appeal, respondent/wife has filed an
application, I.A. No(s). 1371/2023, 2060/2023, 3264/2023 and
4264/2023 under order 41 rule 27 of the Code of Civil Procedure for
taking additional documents on record.
9. By filing various applications under Order 41 Rule 27 of CPC ,
the respondent/wife present in person wants to bring the facts in the
knowledge of this Court that the appellant/husband during existence of
their marriage, appellant has solemnized second marriage. Alongwith
the applications, she has filed affidavits of certain persons alongwith
newspaper cuttings as well as a list of registered doctors with Medical
Council of Madhya Pradesh to substantiate her claim that the appellant
is engaged in medical profession and is a practicing doctor.
F.A. No. 1699 of 2019
10. Learned counsel for the appellant has refuted in writing the
contents of I.A. No. 1371/2023 by way of filing a reply which is duly
supported by an affidavit in which he has affirmed that the present
appellant has not remarried and the respondent has falsely alleged that
he is having extra marital affair. For the same, some photos and
screenshots of whatsapp chats have been filed.
11. The respondent has filed rejoinder to the reply disputing the
same.
12. In order to decide an application under Order 41 Rule 27 CPC,
the Apex court in the case of Sanjay Kumar Singh V State Of
Jharkhand reported in 2022 LiveLaw (SC) 268, has held as under:-
"4. It is true that the general principle is that the appellate
court should not travel outside the record of the lower court
and cannot take any evidence in appeal. However, as an
exception, Order 41 Rule 27 CPC enables the appellate court
to take additional evidence in exceptional circumstances. It
may also be true that the appellate court may permit
additional evidence if the conditions laid down in this Rule
are found to exist and the parties are not entitled, as of right,
to the admission of such evidence. However, at the same time,
where the additional evidence sought to be adduced removes
the cloud of doubt over the case and the evidence has a direct
and important bearing on the main issue in the suit and
interest of justice clearly renders it imperative that it may be
allowed to be permitted on record, such application may be
allowed. Even, one of the circumstances in which the
production of additional evidence under Order 41 Rule 27
CPC by the appellate court is to be considered is, whether or
not the appellate court requires the additional evidence so as
F.A. No. 1699 of 2019
to enable it to pronouncement judgment or for any other
substantial cause of like nature. As observed and held by this
Court in the case of A. Andisamy Chettiar v. A. Subburaj
Chettiar, reported in (2015) 17 SCC 713, the admissibility of
additional evidence does not depend upon the relevancy to the
issue on hand, or on the fact, whether the applicant had an
opportunity for adducing such evidence at an earlier stage or
not, but it depends upon whether or not the appellate court
requires the evidence sought to be adduced to enable it to
pronounce judgment or for any other substantial cause. It is
further observed that the true test, therefore is, whether the
appellate court is able to pronounce judgment on the
materials before it without taking into consideration the
additional evidence sought to be adduced."
13. Upon perusal of record, it is very much clear that the respondent
wife was ex-parte before the learned trial Court due to which she could
not produce any evidence on record to rebut the claim of
appellant/husband. Therefore, this fact that the appellant has remarried
is raised before this Court only in the instant appeal. It is trite that
whether the appellant is remarried or not is a fact which needs to be
ascertained with the aid of appreciation of evidence and by examining
the essential witnesses which could only be done by the trial Court and
this Court while exercising appellate powers cannot entertain a new fact
which was never placed before the trial Court while passing the
impugned judgment. Therefore, as per settled principal of law, an
appellate Court cannot travel beyond the pleadings. This Court is of the
view that the respondent is unable to show why this Court can rely upon
the photographs as well as on the whatsapp chats placed on record as
this Court cannot examine the credibility of these documents at the
F.A. No. 1699 of 2019
appellate stage. Upon perusal of the documents annexed with the
applications, this Court is of the view that they are neither a sine qua
non for the removal of the clouds of doubt in the instant matter nor have
a direct and important bearing on the main issue in the suit. Hence, all
the IAs' i.e. I.A. No(s). 1371/2023, 2060/2023, 3264/2023 and
4264/2023 stand rejected.
14. It is an admitted fact that though the appellant and respondent
have solemnized marriage in the year 2009, but as per the evidence
available on record, respondent has never lived with the appellant.
15. The appellant/ husband filed an application before the learned trial
court for divorce against respondent/wife, on the basis of two grounds
viz- cruelty and desertion, as provided u/s 13(1)(ia) and 13(1)(ib)
respectively. It is apposite to discuss the relevant part of the provision of
the Hindu Marriage Act, 1955, i.e. Section 13, which is reproduced 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) has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other
than his or her spouse; or (i a) has, after the
solemnization of the marriage, treated the petitioner
with cruelty; or (i b) has deserted the petitioner for a
continuous period of not less than two years
immediately preceding the presentation of the
petition; or]..."
16. Cruelty has not been defined under the Act. All the same, the
context where it has been used, which is as a ground for dissolution of a
marriage would show that it has to be seen as a human conduct and
behaviour in a matrimonial relationship. While dealing in the case of
F.A. No. 1699 of 2019
Samar Ghosh Vs. Jaya Ghosh reported in (2007)4 SCC 511, the Apex
Court opined that cruelty can be physical as well as mental:
If it is physical, it is a question of fact and
degree. If it is mental, the enquiry must begin as
to the nature of the cruel treatment and then as to
the impact of such treatment on the mind of the
spouse. Whether it caused reasonable
apprehension that it would be harmful or
injurious to live with the other, ultimately, is a
matter of inference to be drawn by taking into
account the nature of the conduct and its effect
on the complaining spouse.
Cruelty can be even unintentional:
The absence of intention should not make any
difference in the case, if by ordinary sense in
human affairs, the act complained of could
otherwise be regarded as cruelty. Intention is not
a necessary element in cruelty. The relief to the
party cannot be denied on the ground that there
has been no deliberate or wilful ill-treatment.
17. The Apex Court though did not ultimately give certain
illustrations of mental cruelty. Some of these are as follows:
(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.
(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.
F.A. No. 1699 of 2019
(xiii) Unilateral decision of either husband or
wife after marriage not to have child from the
marriage may amount to cruelty.
(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 scant regard for the feelings
and emotions of the parties. In such like
situations, it may lead to mental cruelty.
18. In respect of cruelty, the Apex Court in the case of A. Jaya
Chanda V Aneel Kaur reported in [2005 (1) Supreme 626], has held
as under:-
"12. To constitute cruelty, the conduct complained of
should be "grave and weighty" so as to come to the
conclusion that the petitioner spouse cannot be reasonably
expected to live with the other spouse. It must be something
more serious than "ordinary wear and tear of married life".
The conduct, taking into consideration the circumstances
and background has to be examined to reach the conclusion
whether the conduct complained of amounts to cruelty in
the matrimonial law. Conduct has to be considered, as
noted above, in the background of several factors such as
social status of parties, their education, physical and
mental conditions, customs and traditions. It is difficult to
lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute
cruelty. It must be of the type as to satisfy the conscience of
the Court that the relationship between the parties had
deteriorated to such an extent due to the conduct of the
other spouse that it would be impossible for them to live
together without mental agony, torture or distress, to entitle
the complaining spouse to secure divorce. Physical violence
is not absolutely essential to constitute cruelty and a
consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty within
the meaning of Section 10 of the Act. Mental cruelty may
consist of verbal abuses and insults by using filthy and
abusive language leading to constant disturbance of mental
peace of the other party.
F.A. No. 1699 of 2019
19. In the case of Prem Narayan Sahu V Smt. Manorma Sahu
[F.A. no. 60/2002, decided on 21/11/2013];, the court has held as
under:-
"6. As regards the allegation of desertion, the wife has
admitted in para 10 of her evidence that she has not gone to
her matrimonial home since 1986. The husband had sent a
legal notice dated 25.3.1986, Ex.P1, to the wife to return
home but to no avail. It is, therefore, clearly established that
the wife is living separately from her husband since last 27
years. As already stated above, after about five months from
the date of passing of ex-parte decree of divorce in favour of
husband, he remarried to a widow Saroj with whom he has
two children. The marriage of the husband with wife has
irretrievably broken down. A marriage which is dead for all
purposes cannot be revived by the court's verdict, if the
parties are not willing. In K. Srinivas Rao (supra) the
Supreme Court has held that this is because marriage
involves human sentiments and emotions and if they are
dried up there is hardly any chance of their springing back
to life on account of artificial reunion created by the court's
decree. The husband is, therefore, entitled for divorce on the
ground of desertion also. We accordingly set aside the
judgment and decree passed by the trial court and allow the
husband's petition for divorce.
20. In the case of Dinesh Nagda V Shanti Bai reported in 2011 (3)
JLJ 299, a coordinate bench of this court has held as under:-
"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 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
F.A. No. 1699 of 2019
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.
21. The Apex Court in the case of Naveen Kohli Vs. Neelu Kohli
reported in AIR 2006 SC 1675 held that repeated filing of criminal
cases by one party against the other in a matrimonial matter would
amount to cruelty and the same was reiterated by another judgment of
Apex Court in the case of K. Srinivas Rao Vs. D.A. Deepa reported in
2013(5) SCC 226.
22. Another aspect which can be considered is the fact that appellant
and respondent are living separately since their marriage and have not
cohabited. There is absolutely no scope of reconciliation between the
parties. An irretrievable marriage is a marriage where husband and wife
have been living separately since a long period of time and there is
absolutely no chance of their living together again. Even otherwise
multiple Court battles between them and the repeated efforts to settle
the disputes amicably by way of mediation have also failed which
clearly indicates towards the situation that no bond now survive
between them, it is a marriage which has been broken down
irretrievably. Moreso, it is not possible in every case to pin point an act
of 'cruelty' or blameworthy conduct of the spouse. The nature of
relationship, the general behaviour of the parties towards each other or
F.A. No. 1699 of 2019
long separation between the two are relevant factors which a Court must
take into account.
23. Appellant and respondent have solemnized marriage in the year
2009 and are living separately since then only. Now, after multiple
litigation, the matrimonial bond is completely broken and is beyond
repair. If such a relationship which is merely on papers continues, the
same may cause cruelty to both the sides.
24. In the instant case, where marital relationship has broken down
irretrievably, where there is a long separation and absence of
cohabitation with multiple Court cases between the parties, then
continuation of such a marriage would only lead to infliction of cruelty
by either of the parties to each other. It is also not out of place to
mention here that dissolution of the marriage in the instant case would
affect only the two parties as there is no child out of the wedlock.
25. In the given facts and circumstances as well as in the light of the
judgment passed by the Apex Court in the case of Naveen
Kohli(supra), we set aside the judgment and decree dated 01.07.2019
passed by the learned Court below and grant a decree of divorce to the
appellant/husband. Their marriage shall stand dissolved. The appeal is
allowed. No order as to cost.
26. Let a decree be drawn accordingly.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
sh/-
Digitally signed
by SEHAR
HASEEN
Date: 2023.10.03
17:17:04 +05'30'
