Madhya Pradesh High Court
Smt. Monika Dangi vs Raghvendra Dangi on 16 May, 2024
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 16 th OF MAY, 2024
FIRST APPEAL No. 657 of 2020
BETWEEN:-
SMT. MONIKA DANGI W/O SHRI RAGHVENDRA DANGI,
AGED ABOUT 30 YEARS, OCCUPATION: UMEMPLOYED
R/O FIROZAPUR, P.S. - TIGADA, DISTRICT TIKAMGARH
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAVI SHANKAR PATEL - ADVOCATE)
AND
RAGHVENDRA DANGI S/O INDRAJ SINGH DANGI,
AGED ABOUT 33 YEARS, R/O GRAM BANSIYA P.S.
SURKHI, DISTRICT SAGAR (MADHYA PRADESH)
.....RESPONDENT
(SHRI SANJAY KUMAR CHOUBEY - ADVOCATE - ABSENT)
Th is appeal coming on for hearing this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
The present first appeal has been filed under Section 19 of the Family
Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955
challenging the judgment and decree dated 30.09.2020 passed in Civil Suit
HMA No.18 of 2017 by the Principal Judge, Family Court, Sagar whereby the
application filed by the husband under Section 13 of the Hindu Marriage Act,
1955 for dissolution of marriage and seeking a decree of divorce on the ground
of cruelty has been allowed.
2. It is the case of the appellant that marriage of the appellant and the
respondent was solemnized according to Hindu rites and rituals on 08.07.2008.
After two years of marriage, when the appellant gave birth to a female child, the
behavior of the respondent and his family members suddenly changed and they
started harassing the appellant and demanded Rs.5.00 Lakhs in the name of
future expenses. Thereafter, the appellant was thrown out of the house on
16.04.2015. The appellant went to her parental house. She filed an application
under Section 125 of the Cr.P.C. for maintenance, but the respondent/husband
instead of calling her back, initiated proceedings under Section 13 of the Hindu
Marriage Act, 1955 seeking divorce on false and frivolous grounds.
3. It is argued that the appellant/wife was always willing to reside with the
respondent/husband and was willing to go to her matrimonial house, but no
efforts were made by the respondent/husband to take her to his house. Learned
Family Court has failed to appreciate the evidence available on record and
passed a decree of divorce on the ground that the wife herself deserted her
husband without any valid reason and is residing separately since 2014. The
factum of cruelty and demand of dowry could not be proved by her. But the
fact remains that no efforts were made by the respondent/husband at any point
of time to take her back at the matrimonial house. There is nothing on record to
show that efforts were made by the respondent/husband at any point of time.
Wife still wants to reside with the husband and does not want to break her
relationship with him.
4. Heard learned counsel for the appellant and perused the record.
5. From the perusal of the record, the admitted facts are that the marriage
between the parties was solemnized on 08.07.2008 as per Hindu rites and
rituals. Appellant resided with the respondent for some time and after two years
of marriage, she gave birth to a female child. She left her matrimonial home on
16.05.2015 and started residing with her parents. She filed an application under
Section 125 of the Cr.P.C.seeking maintenance for herself and her daughter and
the learned Family Court has partly allowed the application and granted
maintenance to the tune of Rs.700/- per month to the daughter but no
maintenance was granted to wife. Proceedings initiated by the appellant/wife
under the Domestic Violence Act have been dropped by the learned Judicial
Magistrate First Class, Tikamgarh as no case for domestic violence was
found. The appellant/wife has not made any efforts to reconcile the marital
relationship. The only ground taken by the wife is that there was harassment and
demand of dowry, therefore, under compelling circumstances, she left the
matrimonial house and was residing with her parents, but the facts remain that
there is nothing on record to show that any previous incident took place and
she reported the matter to the authorities. The appellant and the respondent are
residing separately since 2014.
6. The appellant in her examination has admitted the fact that she does not
want to live in the joint family of the respondent and she wants to live with the
respondent but subject to condition that he will reside separately with his family
in a rented house at Sagar. Therefore, it is clear that the appellant wants to
reside with the husband subject to her own terms and conditions without
keeping in mind the convenience and needs of the respondent and his family.
The respondent in his deposition has stated that there is no matrimonial relations
between them since 2013. During the proceedings under Section 125 of the
Cr.P.C., mediation proceedings took place in which she refused to reside with
the respondent and his family, but wants to reside with the husband specially on
certain conditions. Therefore, the mediation proceedings have been declared
unsuccessful.
7. Learned Family Court has taken into consideration the aforesaid aspect of
the case and has passed the impugned judgment dissolving the marriage. There
is nothing on record to show that at any point of time, any efforts were made by
the wife to reconcile her relationship with the husband and deserted the husband
without any valid reason. There is no document to show that she ever has filed
any application under Section 9 of the Hindu Marriage Act. A categorical
finding with respect to desertion to the husband for a period of six years has
been recorded by the learned Family Court which could not be disputed by the
counsel for the appellant.
8. The Hon'ble Supreme Court in Debananda Tamuli vs. Kakumoni Kataky
reported in (2022) 5 SCC 459 has held as under:
"7. We have given careful consideration to her submissions. Firstly,
we deal with the issue of desertion. The learned counsel appearing for
the appellant relied upon the decision of this Court in Lachman
Utamchand Kirpalani [Lachman Utamchand Kirpalani v. Meena,
(1964) 4 SCR 331 : AIR 1964 SC 40] which has been consistently
followed in several decisions of this Court. The law consistently laid
down by this Court is that desertion means the intentional
abandonment of one spouse by the other without the consent of the
other and without a reasonable cause. The deserted spouse must
prove that there is a factum of separation and there is an intention on
the part of deserting spouse to bring the cohabitation to a permanent
end. In other words, there should be animus deserendi on the part of
the deserting spouse. There must be an absence of consent on the part
of the deserted spouse and the conduct of the deserted spouse should
not give a reasonable cause to the deserting spouse to leave the
matrimonial home.
12. Thus, in our considered view, the ground of desertion under clause
(i-b) of sub-section (1) of Section 13 of the HM Act has been made out
as the desertion for a continuous period of more than two years
before the institution of the petition was established in the facts of the
case. But, after having carefully perused the evidence on record, we
find that no case is made out to disturb the findings recorded by the
courts on the issue of cruelty."
In the present case there are no reasons assigned by the wife and she is
residing separately from her husband without any reason for more than two
years, hence, the case clearly falls under Clause (i-b) of sub-section 1 of
Section 13 of the Hindu Marriage Act and ground of desertion is clearly made
out.
9. Cruelty has not been defined under the Act of 1955. The context where it
has been used which is a ground for dissolution of a marriage would show that
it has to be seen as a human conduct and behavior in matrimonial relationship.
The Hon'ble Supreme Court while dealing with the case of Samar Ghosh vs.
Jaya Ghosh reported in (2007) 4 SCC 511 opined that the cruelty can be
physical as well as mental. The same reads as under:
"46......The cruelty may be mental or physical, intentional or
unintentional. 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. There may, however, be cases where
the conduct complained of itself is bad enough and per se unlawful or
illegal. Then the impact or the injurious effect on the other spouse
need not be enquired into or considered. In such cases, the cruelty will
be established if the conduct itself is proved or admitted. 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 willful ill-treatment.
101(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."
(Emphasis supplied)
10. The Hon'ble Supreme Court further in the case of Narendra v. K. Meena
reported in (2016) 9 SCC 455 has held as under:
"12. The respondent wife wanted the appellant to get separated from
his family. The evidence shows that the family was virtually
maintained from the income of the appellant husband. It is not a
common practice or desirable culture for a Hindu son in India to get
separated from the parents upon getting married at the instance of the
wife, especially when the son is the only earning member in the family.
A son, brought up and given education by his parents, has a moral
and legal obligation to take care and maintain the parents, when they
become old and when they have either no income or have a meager
income. In India, generally people do not subscribe to the western
thought, where, upon getting married or attaining majority, the son
gets separated from the family. In normal circumstances, a wife is
expected to be with the family of the husband after the marriage. She
becomes integral to and forms part of the family of the husband and
normally without any justifiable strong reason, she would never insist
that her husband should get separated from the family and live only
with her.
13. In the instant case, upon appreciation of the evidence, the trial
court came to the conclusion that merely for monetary considerations,
the respondent wife wanted to get her husband separated from his
family. The averment of the respondent was to the effect that the
income of the appellant was also spent for maintaining his family. The
said grievance of the respondent is absolutely unjustified. A son
maintaining his parents is absolutely normal in Indian culture and
ethos. There is no other reason for which the respondent wanted the
appellant to be separated from the family--the sole reason was to
enjoy the income of the appellant. Unfortunately, the High Court
considered this to be a justifiable reason.
14. In the opinion of the High Court, the wife had a legitimate
expectation to see that the income of her husband is used for her and
not for the family members of the respondent husband. We do not see
any reason to justify the said view of the High Court. As stated
hereinabove, in a Hindu society, it is a pious obligation of the son to
maintain the parents. If a wife makes an attempt to deviate from the
normal practice and normal custom of the society, she must have some
justifiable reason for that and in this case, we do not find any
justifiable reason, except monetary consideration of the respondent
wife. In our opinion, normally, no husband would tolerate this and no
son would like to be separated from his old parents and other family
members, who are also dependent upon his income. The persistent
effort of the respondent wife to constrain the appellant to be
separated from the family would be tortuous for the husband and in
our opinion, the trial court was right when it came to the conclusion
that this constitutes an act of "cruelty".
11. In the present case, the evidence available on record shows that the wife
was living separately from the husband for more than two years without there
being any explanation for the same. She has not made any attempt to go back to
her matrimonial house. She filed an application for grant of maintenance but the
same was rejected. There is no document brought on record to show any
efforts were being made by the wife to challenge the same. No other
proceedings were initiated by her to come back to her matrimonial home. No
application for restitution of conjugal rights was filed. She has made clear
statement that she wants to live with the husband specially on certain terms but
was not ready to live with his parents. A son maintaining his parents is normal in
Indian society and culture. It is a pious obligation of the son to maintain his
parents in Hindu society. The efforts of the wife to constrain the husband to live
separately from his parents and his family amounts to torturous act and can
rightly be said to be falling under the definition of cruelty. Thus, the learned
Family Court has not committed any error in holding that the appellant/wife was
residing separately since 2014 without any valid reasons and deserted her
husband continuously for more than two years and, therefore, the
respondent/husband is entitled for a decree of divorce. Thus, learned Family
Court considering overall facts and circumstances of the case and relying upon
the judgments in the cases of Naveen Kohli vs. Neelu Kohli reported in (2006)
3 MPLJ and Shikha Tamrakar vs. Rohit Kumar Tamrakar reported in AIR
2014 MP24 has allowed the application filed under Section 13 of the Hindu
Marriage Act, 1955 and right granted a decree of divorce in favour of the
respondent/husband, which does not call for any interference in the present
appeal.
12. The first appeal sans merit and is accordingly dismissed. No order as to
costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
sj
