Madhya Pradesh High Court
Smt. Mohini @ Pooja vs Ramkrishna @ Aaditya Pateria on 22 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 22 nd OF MAY, 2024
FIRST APPEAL No. 2049 of 2019
BETWEEN:-
SMT. MOHINI @ POOJA W/O SHRI RAMKRISHNA @
AADITYA PATERIA D/O SHRI SURESH DIXIT, AGED
ABOUT 27 YEARS, OCCUPATION: HOUSEWIFE R/O
VISHWANATH COLONY TEHSIL AND DISTRICT
CHHATARPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SUKH NANDAN PANDEY - ADVOCATE)
AND
RAMKRISHNA @ AADITYA PATERIA S/O SHRI
HARGOVIND PATERIA (SINAURI WALE) R/O TAJ
COLONY NAUGAON DISTRICT CHHATARPUR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI SURDEEP KHAMPARIYA - ADVOCATE)
T h is appeal coming on for orders this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
JUDGMENT
This is an appeal filed by the appellant-wife under Section 19 of the Family
Courts Act, 1984, challenging the judgment and decree dated 13.11.2019
passed in Hindu Marriage Case No.32-A of 2019 by the Principal Judge, Family
Court, Chhatarpur (M.P.), whereby an application preferred by her under
Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, for granting decree of
divorce on the ground of cruelty and desertion, was dismissed. On the
contrary, the learned Family Court has allowed the application of the
respondent-husband filed under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights.
2. T he facts of the case, in substance, are that the appellant is the legally
wedded wife of the respondent. Their marriage was solemnized on 04.12.2012
according to the Hindu rites and rituals at Nowgoan. At the time of marriage,
sufficient dowry has been given. After the marriage, the appellant started living
with the respondent at her matrimonial home.
3. It is the case of the appellant that the respondent and his family members
started subjecting her to mental and physical cruelty for bringing insufficient
dowry and further demanded an additional dowry of Rs. 3 Lakhs. She was
subjected to marpeet and mental torture by them. For all these reasons, she
started living separately but her husband took her to the matrimonial home for
one or the other reason and threatened her with dire consequences and she was
subjected to marpeet. It was further pleaded that when her husband tried to cut
her wrist with a blade and on being objected to, the blade got stuck on her
wrist, the appellant somehow fled away from her matrimonial home and
informed the police by dialing '100' but they managed the police. Moreover, the
appellant informed the Superintendent of Police and the Station House Officer
Nowgoan on 17.11.2018 with regard to the cruelty being committed by her
husband and his family members. But no action has taken place. Thereafter, she
was continuously receiving threats to face dire consequences. On 28.01.2019,
an application was filed by the appellant-wife before the Family Court at
Chhatarpur for grant of decree of divorce on the grounds of cruelty and
desertion but the same was dismissed. Therefore, the instant appeal.
4. It is argued that the learned Family Court has failed to consider the vital
aspect of the matter regarding the cruelty being meted out to her and that no
effort was made by the husband to take back the wife in his matrimonial house
in a proper perspective. In reply, the respondent-husband denied all the adverse
averments and contended that no cruelty was meted out to the appellant by him
as alleged. The allegation of desertion was controverted.
5. O n the basis of the pleadings of the parties, the issues were framed and
after affording opportunity of hearing to the parties, the learned Family Court
has held that the appellant-wife failed to prove the grounds of cruelty and
desertion for dissolution of the marriage. Hence, the application filed by her
under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act was dismissed.
The factum of cruelty as alleged by the appellant was not made out. On the
contrary, learned Family Court has allowed the application preferred by the
respondent-husband under Section 9 of the Hindu Marriage Act for restitution
of conjugal rights.
6. Being aggrieved and dissatisfied with the impugned judgment dated
13.11.2019, the appellant-wife is before this Court. The averments made in the
application reveal that the solemnization of marriage between the parties is
undisputed fact on record. It is argued that the respondent-husband and his
family members had subjected the appellant-wife to mental and physical cruelty
for bringing insufficient dowry and the respondent-husband had never tried to
get the appellant-wife back to her matrimonial home.
7. The respondent-husband would submit that the learned Family Court has
properly appreciated the facts and pleadings of the case, as also the oral and
documentary evidence adduced by the parties and has rightly dismissed the
application filed by the wife seeking for a decree of divorce.
8. The learned Family Court framed the issues based on the rival contentions
of the parties. The wife examined herself and her mother Sangeeta Dixit as PW1
and PW2 and exhibited number of documents in evidence while the husband
examined himself and his father as DW1 and DW2.
9. The wife as PW1 pleaded that the marriage was solemnized on 04.12.2012
and she started living with her in-laws at Nowgoan. Sufficient dowry has been
given in the marriage. After the marriage, the respondent-husband and her family
members started subjecting her to cruelty and harassment on the ground that
she has brought less dowry. She stayed in the matrimonial house for about 3
years. They demanded Rs.3 Lakhs and on this count, the husband used to beat
her. She has stated that she came to Chhatarpur to complete her graduation and
stayed in a rented home where her husband used to come and demand an
amount of Rs.3 Lakhs and would also commit marpeet with her. She has been
residing separately from her husband for more than 2 years and no efforts were
made by him to take her back to the matrimonial house. She submitted
applications to the Superintendent of Police in terms of Ex.P/1 and Ex.P/2
regarding cruelty and harassment meted out to her. She further reported the
matter of causing injury on her to the Station House Officer at Police Station
Nowgoan vide Ex.P/4. She in her cross-examination has admitted that her
husband was unemployed and the relations between her and her husband were
not cordial. The standard of proof required in matrimonial disputes is of the
preponderance of evidence. The statement of this witness on the above account
remained unchallenged. Her testimony is duly corroborated by the statement of
her mother.
10. On the other hand, the husband as DW1, in order to justify her conduct
of living separately, alleged that he tried to get her back to matrimonial house
but she refused to do so. He admits that the marriage was solemnized with the
consent of both the parties.
11. Heard the learned counsels for the parties and perused the record.
12. The term "cruelty" has not been defined in the Hindu Marriage Act, 1955.
Cruelty may be of two kinds, one is physical cruelty and second is mental
cruelty. So far as mental cruelty is concerned, according to us, the cruel
treatment by the spouse beyond the degree of tolerance power which a normal
person can tolerate and it should be up to the degree that the spouse is unable
to live with the husband or wife as the case may be. There cannot be a definite
yardstick to measure mental cruelty and it is to be decided on the basis of
circumstances of each case. However, if the behaviour of the spouse is such
that it is crossing the limits which a prudent or sensible person is not expected
to do then it may amount to mental cruelty.
13. In case of Naveen Kohli vs Neelu Kohli reported in (2006) 4 SCC 558, it
is held by the Hon'ble Supreme Court in para 66 as follows :-
"6 6 . 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
s u ch 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
a s to satisfy the conscience of the Court that the relationship
between the parties had deteriorated to such 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
complainee 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."
14. It is a settled law that the burden of proving desertion - the "factum" as
well as the "animus deserendi" - is on the petitioner, and he or she has to
establish beyond reasonable doubt, to the satisfaction of the court, the
desertion throughout the entire period of two years before the petition as well as
that such desertion was without a just cause. In other words, even if the wife,
where she is the deserting spouse, does not prove just cause for her living apart,
the petitioner husband has still to satisfy the Court that the desertion was
without a just cause.
15. The learned Family Court after referring to the evidence tendered by both
the parties, has dismissed the application filed by the appellant-wife holding that
the allegation of cruelty as well as desertion has not been proved by her and on
the contrary, has allowed the application under Section 9 of the Hindu Marriage
Act filed by the respondent-husband. While doing so, the Family Court had
referred in detail to the evidence that had been tendered insofar as the
allegations against each other are concerned.
16. The record indicates that the marriage was solemnized between the parties
on 04.12.2012 according to the Hindu rites and rituals. After some time of the
marriage itself, the respondent-husband and his family members started
subjecting the appellant-wife to cruelty on the ground that she has brought less
dowry. They have committed marpeet with her. She called the police by dialing
'100'. She further submitted written application to the police authorities on
17.11.2018 but no action has been taken. She was thrown out of her
matrimonial house and under the compelling circumstances and due to cruel
behaviour meted out to her by the husband, she decided to reside separately at
Chhatarpur on a rented house. She was threatened by her husband with dire
consequences if she reported the matter to the police. The respondent further
demanded an amount of Rs.3 Lakhs in dowry. It is further reflected from the
record that an application under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights was moved by the husband on 17.07.2019 on the
ground that she wants to live with her parents and every now and then she used
to go to her parental house and when the husband went to the in-laws house,
she had refused to come back to the matrimonial house. The application was
objected to by the wife by filing a reply. However, the same was allowed by the
learned Family Court vide impugned judgment.
17. When we carefully evaluate the impugned judgment and decree of the
learned Family Court and scrutinise its findings in the background of the facts
and circumstances of the present case, then it becomes obvious that the
approach adopted by the Family Court in dismissing the application filed by the
wife for a decree of divorce is far from satisfactory. The learned Family Court
ought to have considered the repercussions and consequences of the
proceedings initiated by the parties against each other in the proper perspective.
The appellant-wife has given written applications to the police authorities
regarding cruelty and harassment being meted out to her by the husband and his
family members for bringing less dowry but the said aspect has not been
considered by the Family Court. She was ousted from her matrimonial home.
Due to cruel behaviour meted out by the husband and his family members, the
appellant-wife resided in a rented home at Chhatarpur where the respondent-
husband used to come to bring her back to his house but after some time, again
he started harassing her and committed marpeet with her and further demanded
an amount of Rs.3 Lakhs from her parents. The act of the husband amounts to
cruelty. The wife proved that the husband treated her with cruelty and caused
life threats to her.
18. It is apparent that learned Family Court has not appreciated the evidence
of the wife in a proper perspective keeping in view that certain important facts
and serious allegations levelled by her were not at all controverted by the
husband leading to the ultimate result that those facts which found place in the
pleadings and deposed in evidence were duly proved.
19. From the discussion as aforesaid, we are of the considered view that the
learned Family Court has failed to appreciate the evidence adduced by the
appellant in a right perspective, and therefore, the findings returned by the
learned Family Court that the appellant-wife could not make out a case for
divorce on the grounds mentioned in the application cannot be approved.
Having thus considered, the learned Family Court has committed an error in
dismissing the application preferred by the appellant-wife under Section 13(1)(i-
a) and (i-b) of the Hindu Marriage Act and in allowing the application filed by
the respondent-husband under Section 9 of the Act for restitution of conjugal
rights. Thus, we hold that the appellant-wife is entitled for a decree of divorce.
20. In the result, the impugned judgment and decree passed by Principal
Judge, Family Court, Chhatarpur in Hindu Marriage Case No.32-A of 2019
dated 13.11.2019 are hereby set aside. Consequently, the application filed by
appellant-wife under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act is
allowed and the marriage solemnized between the appellant and the respondent
on 04.12.2012 is dissolved by a decree of divorce.
21. In view of the above discussion, the appeal stands allowed and disposed
off.
22. Let a decree be drawn up accordingly. Record of the Family Court be
returned along with a copy of this judgment and decree.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
VV
