Omprakash vs Smt. Sangeeta
2023 Latest Caselaw 16229 MP

                                                              1
                          IN   THE       HIGH COURT OF MADHYA PRADESH
                                               AT INDORE
                                                 BEFORE
                          HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                    &
                                  HON'BLE SHRI JUSTICE PRANAY VERMA
                                             ON THE 4 th OF OCTOBER, 2023
                                              FIRST APPEAL No. 795 of 2018

                    BETWEEN:-
                    OMPRAKASH S/O SHRIRAM BHAAWSAR, AGED 45 YEARS,
                    JAIMAN COLONY, TEHSIL AND DISTRICT BARWANI (MADHYA
                    PRADESH)

                                                                                          .....APPELLANT
                    (SHRI LOKENDRA GANGAREKAR, COUNSEL FOR THE APPELLANT)

                    AND
                    SMT. SANGEETA W/O OMPRAKASH BHAAWSAR, AGED 40 YEARS,
                    JAIMAN COLONY, TEHSIL AND DISTRICT BARWANI (MADHYA
                    PRADESH)

                                                                                         .....RESPONDENT
                    (SHRI RAJESH YADAV, COUNSEL FOR THE RESPONDENT)



                           Reserved on        : 08.09.2023
                           Pronounced on      : 04.10.2023



                          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
                                                        JUDGMENT

This First Appeal under Section 19 of the Family Courts Act read with Section 28 of the Hindu Marriage Act 1955 (hereinafter referred to as the Act) has been filed by

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the appellant being aggrieved by the judgment and decree dated 25.11.2017 passed by the Principal Judge, Family Court Dewas, Camp Court Barwani, District Barwani in H.M.A. Case No. 21-A/2016, whereby the application filed by the appellant/husband seeking divorce under Section 13 of the Act has been dismissed.

2 . T h e brief facts of the case are that the marriage between the appellant/husband and the respondent/wife was solemnized in the year 2004 as per Hindu rites and customs. From the wedlock, they have a son named Prince. After sometime, behaviour of the respondent/wife started changing. She used to quarrel with the appellant and raised doubt about his character, threatening to involve him in false case. Being aggrieved, appellant/husband filed a suit for divorce which was later withdrawn by him

vide order dated 26.11.2014 on the basis of assurance given by the respondent/wife that she will not misbehave with him in future. However, the respondent/wife again started misbehaving with the appellant/husband. She used to abuse him with filthy language and embarrass him in public.

3 . Subsequently, appellant/husband filed a suit for divorce under Section 13 of the Act on the ground of cruelty. The grounds raised in the divorce suit were that the respondent/wife used to raise doubt about his character and abuse him publicly. Appellant/husband and respondent/wife are living separately since 2016. It is further stated that the respondent/wife was earlier married to some other person in Gujarat, but due to unknown reasons, she was divorced, thereafter, appellant/husband got married to her. In rebuttal, the respondent/wife denied the allegations and stated that the appellant/husband used to physically and mentally harass the respondent/wife. Appellant/husband had relations with other females and when the respondent/wife objected, he used to beat her and even admitted their son in a boarding school to mentally torture the respondent/wife. Appellant/husband wants to indulge in illicit activities, therefore, he wants to get rid of the respondent/wife. Further, appellant and Signature Not Verified Signed by: SREEVIDYA Signing time: 10/4/2023 5:08:20 PM

respondent are residing separately under the same roof. After appreciation of evidence on record and considering the statement of the parties, the suit was dismissed vide the order impugned observing that the appellant/husband was not able to prove the allegations of cruelty.

4 . Being aggrieved, the appellant has filed the present appeal for decree of divorce.

5. After admitting the appeal, this Court made all efforts for reconciliation, but the same failed due to non-appearance of the respondent/wife before the Mediator on fixed dates. Thereafter, this Court had called upon the parties to explore the possibility of settlement, however, the respondent/wife was not present before the Court, hence the case was fixed for final hearing.

6. Learned counsel for the appellant/husband submits that the appellant and respondent are residing separately under the same roof since 2016. Respondent has not taken any initiative nor filed any application for restitution of conjugal rights against the appellant. Further, in cross-examination before the trial Court, respondent herself admitted that she doubted the appellant, without any cogent or reliable evidence, which comes within the definition of cruelty.

7. On the other hand, learned counsel for the respondent/wife supported the judgment and decree passed by the learned Court below.

8. Heard learned counsel for the parties. Perused the record.

9. It is an admitted fact that though the marriage of the appellant and respondent have been solemnised in the year 2004, but, they are residing separately since 2016. The appellant/husband filed application before the learned trial Court for divorce against respondent/wife on the ground of cruelty due to the fact that the respondent doubted his character making false allegation of adultery. Appellant/husband has approached the

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Court on various occasion while the respondent/wife has not made any effort to appear before the Court for mediation and reconciliation.

10. The appellant/ husband filed an application before the learned trial court for divorce against respondent/wife, on the basis of cruelty under Section 13 of the Act. It is apposite to discuss the relevant part of the provision of the 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]...''

11. 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 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 b y 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 Signature Not Verified there has been no deliberate or wilful ill-treatment.'' Signed by: SREEVIDYA Signing time: 10/4/2023 5:08:20 PM

12. 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.

(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.

T h e 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.''

13. In respect of cruelty, the Apex Court in the case of A. Jayachandra Vs. Aneel Kaur reported in [AIR 2005 Supreme Court 534], 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 Signature Not Verified Signed by: SREEVIDYA Signing time: 10/4/2023 5:08:20 PM

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 o f verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.''

14. In the case of Narendra vs. K.Meena, [2017 (1) MPLJ 306], the Apex Court has held as under :-

''13. This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003 (6) SCC 334 has held as under:- 7 . The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

14. Applying the said ratio to the facts of this case, we are inclined to hold that the unsubstantiated allegations levelled by the Respondent wife and the threats and attempt to commit suicide by her amounted to mental cruelty and therefore, the marriage deserves to be dissolved by a decree of divorce on the ground stated in Section 13(1)(ia) of the Act.'' Signature Not Verified Signed by: SREEVIDYA Signing time: 10/4/2023 5:08:20 PM

15. 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 t h e 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 Vs. D.A. Deepa reported in 2013(5) SCC 226 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.''

16. 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 establishing the second marriage of appellant with Radhabai. The reliance on the affidavit (Ex.D.15) given by Radhabai Signature Not Verified Signed by: SREEVIDYA Signing time: 10/4/2023 5:08:20 PM

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.''

17. The appellant/husband and respondent/wife are living separately since long 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 indicate 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 long separation between the two are relevant factors which a Court must take into account.

18. Though, the marriage between the appellant and respondent was solemnized in 2004, however, 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.

19. In the instant case, where marital relationship has broken down irretrievably, where there is long separation and absence of cohabitation with multiple Court cases between the parties, then continuation such a marriage would only lead to infliction of cruelty by either of parties to each other as it is apparent from the record that there has been a long period of continuous separation due to which it can fairly be concluded that Signature Not Verified Signed by: SREEVIDYA Signing time: 10/4/2023 5:08:20 PM

the matrimonial bond in the present case is beyond repair, otherwise mental cruelty would stand continued.

20. In the given facts and circumstances as well as in the light of the judgement passed in case of Prem Narayan Sahu (supra), we set aside the judgment and decree dated 25.11.2017 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.

21. Let a decree be drawn accordingly and record of the trial Court be sent back.

No order as to cost.

                          (S. A. DHARMADHIKARI)                                           (PRANAY VERMA)
                                   JUDGE                                                      JUDGE
                   vidya




Signature Not Verified
Signed by: SREEVIDYA
Signing time: 10/4/2023
5:08:20 PM