Madhya Pradesh High Court
Santosh Choudhary vs Smt. Seema Choudhary on 5 August, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 5 th OF AUGUST, 2025
FIRST APPEAL No. 1283 of 2018
SANTOSH CHOUDHARY
Versus
SMT. SEEMA CHOUDHARY
Appearance:
Shri Sameer Verma, learned counsel for the appellant.
Shri Pramod C. Nair, learned counsel for the respondent.
ORDER
Per: Justice Binod Kumar Dwivedi
Appellant/husband has preferred this appeal under Section 19 of the
Family Courts Act, 1984 assailing legality of judgment and decree passed by
15th Additional District Judge, Indore in Hindu Marriage Case No. 12/2015,
whereby the suit filed on behalf of the appellant under Section 13(1)(1-a)(1-
b) of Hindu Marriage Act (hereinafter referred for short 'HMA') with further
relief of divorce has been dismissed.
02. It is not disputed that the appellant/husband and respondent/wife
are legally married couple. Marriage was solemnized as per Hindu rituals and
customs on 10.11.1998 at Village Pipalada, Tehsil & Dist. Indore. Out of
their wedlock, one son was born on 18.12.2002. It is also not in dispute that
respondent/wife is living with her father-in-law, mother-in-law, brother-in-
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law (Devar) and sister-in-law (Devrani) as a member of joint Hindu family. It
is also not disputed that appellant/husband is Constable in S.A.F., posted at
Police Headquarters, Jahangirabad, Bhopal.
03. Brief facts as unfolded in petition filed by the appellant are that
at the time of marriage, appellant/husband was serving in military and after
sometime of marriage, he has left military service. After marriage,
respondent/wife has gone to her parents and after six months, she came back
to live with the appellant/husband and after sometime, she went away to live
with her maternal uncle-in-law (Mama Sasur ). Respondent told to appellant
that she did not like him as he consumes liquor. When he refuted the
consumption of liquor, she again alleged that appellant/husband might have
developed relationship with other women. She was not showing any interest
in marital relationship. She was not showing any interest in feeling of
attachment with the appellant/husband. Even she was not happy when she
became pregnant. Due to this, appellant/husband also became uninterested in
the respondent and after completing his M.A. examination, he joined police
services. Respondent/wife lived in matrimonial house at Kampel and never
enquired about the appellant/husband. After giving birth to male child on
18.12.2002, the appellant/husband went to meet respondent/wife in the
hospital, but she had gone to parental house and after living for about 7
months came back to matrimonial house. Despite making efforts,
respondent/wife did not contact appellant/husband. In the year 2004,
appellant/husband posted at Neemuch and when he asked respondent/wife to
live with him at Neemuch, she clearly refused to reside with him stating that
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she did not like him. She was not ready to fulfill marital obligations. In the
year 2006, appellant/husband came to Indore and taking a room on rent,
started living with his uncle N.R. Choudhary. He also admitted his son in the
school, but during this period, respondent/wife was picking quarrel with him
alleging him of bad character and was pressurising him to live in her
matrimonial or parental house. Despite repeated advice, she did not mend her
ways, therefore, he was constrained to send her to matrimonial house. Since
2006 both of them are living separately. She has deserted her without
sufficient reasons, therefore, petition under Section 13(1)(1-a)(1-b) of HMA
was filed.
04. The allegations levelled against the respondent/wife has been
refuted by her filing written statement. She has alleged that appellant has
concocted false grounds to file divorce petition for getting rid of the
appellant/husband. She has always been ready to fulfill her marital
obligations. The appellant/husband has developed romantic relationship with
a lady colleague and when she asked whereabouts of that lady, the
appellant/husband has filed the divorce petition on false grounds.
05. On the pleadings of the parties raised in the plaint and W.S.,
learned Family Court framed relevant issues relating to dispute and after
giving opportunity to adduce evidence in support of their pleadings, and also
affording reasonable opportunity of hearing, passed the impugned judgment
and decree which is subject matter of this appeal.
06. Learned counsel for the appellant/husband has vehemently
submitted that respondent/wife herself has deserted the appellant and despite
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his repeated and streneuous efforts, she did not resume co-habitation with
him. She is living in the matrimonial house along with other members of the
family. She has levelled false allegations of illicit relationship with his
colleague, some other lady which is cruelty in itself.
07. To buttress his point, learned counsel for the appellant has placed
reliance on the judgment passed by Delhi High Court in the case of Akash
Alias Anjali vs. Vijay Choudhary, 2021 Supreme (Del) 1708.
08. Learned counsel further submits that learned Court below has
failed to appreciate the evidence in right perspective and discarded the
instances of cruelty committed by the respondent/wife against the
appellant/husband, therefore, the impugned order suffers from grave legal
and factual error. Therefore, he urges the Court to allow the appeal by setting
aside the impugned order and granting the decree of divorce as prayed for by
the appellant/husband.
09. Per contra, learned counsel for the respondent/wife supporting
the impugned judgment and decree submits that respondent/wife has always
remained helpful and respectful to the appellant/husband. It is the
appellant/husband himself who has not taken her to reside with him. Giving
birth to male child born out of the wedlock is itself a proof that she has
fulfilled her marital obligations. Despite altogether in different attitude of the
appellant/husband, respondent/wife has not left matrimonial house. She is
living in the matrimonial house along with her father-in-law, mother-in-law,
brother-in-law and sister-in-law. Has she been of petulant nature or a lady not
respectful towards her in-laws, she might not have adjusted in the
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matrimonial family. Members of the appellant/husband knowing fully well
that appellant/husband is at fault, did not come to support him in course of
this family dispute. No ground for grant of divorce has been made out on the
basis of evidence available on record. Hence, learned Court below
appreciating the evidence in right perspective has refused to grant decree of
divorce. The impugned judgment and decree is not suffering from any factual
and legal error. No interference is warranted in this appeal. Appeal is devoid
of any substance. Appellant cannot be allowed to get benefit of his own
neglect and disrespectful behaviour towards his legally wedded wife, who is
still living in the matrimonial home in hope that one day good sense will
prevail over the appellant/husband and he will resume co-habitation with her.
On these grounds, learned counsel for the respondent prays for dismissal of
the appeal.
10. Heard and considered the rival submissions raised at bar and
perused the record.
11. Before adverting to the facts of the case in hand, it is pertinent to
consider the legal provisions under HMA and also exposition of law as
propounded by the Hon'ble Apext Court in catena of judgments relating to
decree of divorce on the ground of mental cruelty.
12. Word "cruelty" has not been defined in the H.M.A. Indeed it
could not have been defined. It has been used in relation to human conduct
or human behaviour. It is the conduct in relation to or in respect of
matrimonial duties and obligations. It is a course of conduct of one which is
adversely affecting the other. The cruelty may be mental or physical,
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intentional or unintentional. What is cruelty in one case may not amount to
cruelty in another case. It is a matter to be determined in each case having
regard to the facts and circumstances of that case.
13. The cruelty simpliciter is now a ground for divorce under Section
13 of the HMA. Section 13 of the HMA provides, so far as it is material:
"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-a) has, after the solemnization of the marriage, treated
the petitioner with cruelty; or"
14. In case of V. Bhagat Mrs. D. Bhagat, (1994) 1 SCC 337: AIR
1994 SC 710, Supreme Court in para 16 has held as under:-
"16. Mental cruelty in Section 13(1)(i-a) can broadly be
defined as that conduct which inflicts upon the other
party such mental pain and suffering as would make it
not possible for that party to live with the other. In other
words, mental cruelty must be of such a nature that the
parties cannot reasonably be expected to live together.
The situation must be such that the wronged party
cannot reasonably be asked to put up with such conduct
and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to
cause injury to the health of the petitioner. While
arriving at such conclusion, regard must be had to the
social status, educational level of the parties, the society
they move in, the possibility or otherwise of the parties
ever living together in case they are already living apart
and all other relevant facts and circumstances which it is
neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty in
another case. It is a matter to be determined in each case
having regard to the facts and circumstances of that
case. If it is a case of accusations and allegations, regard
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must also be had to the context in which they were
made."
15. Similarly in case of Ravi Kumar v. Julmidevi, [(2010) 4 SCC
476] the apex court reiterated that cruelty in matrimonial cases may be of so
many forms. Para 19 to 21 may be reproduced to elucidate the concept of
cruelty in matrimonial cases:
"19. It may be true that there is no definition of cruelty
under the said Act. Actually such a definition is not
possible. In matrimonial relationship, cruelty would
obviously mean absence of mutual respect and
understanding between the spouses which embitters the
relationship and often leads to various outbursts of
behaviour which can be termed as cruelty. Sometime
cruelty in a matrimonial relationship may take the form
of violence, sometime it may take a different form. At
times, it may be just an attitude or an approach. Silence
in some situations may amount to cruelty.
20.Therefore, cruelty in matrimonial behaviour defies
any definition and its categories can never be closed.
Whether the husband is cruel to his wife or the wife is
cruel to her husband has to be ascertained and judged
by taking into account the entire facts and
circumstances of the given case and not by any
predetermined rigid formula. Cruelty in matrimonial
cases can be of infinite variety--it may be subtle or
even brutal and may be by gestures and words. That
possibly explains why Lord Denning in Sheldon v.
Sheldon [(1966) 2 WLR 993 : (1966) 2 All ER 257
(CA)] held that categories of cruelty in matrimonial
cases are never closed.
21. This Court is reminded of what was said by Lord
Reid in Gollins v. Gollins [1964 AC 644 : (1963) 3
WLR 176 : (1963) 2 All ER 966 (HL)] about judging
cruelty in matrimonial cases. The pertinent observations
are : (AC p. 660)
"... 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 about them the better. In
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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 aforesaid passage was quoted with approval by this
Court in N.G. Dastane (Dr.) v. S. Dastane [(1975) 2
SCC 326] ".
16. The above observations are intended to emphasize that the Court
in matrimonial cases is not concerned with ideals in family life. The Court
has only to understand the spouses concerned as nature made them, and
consider their particular grievance. As Lord Reid observed in Gollins v.
Gollins [(1963) 2 All ER 966, 972] :
"In matrimonial affairs we are not dealing with
objective standards, it is not a matrimonial offence to
fall below the standard of the reasonable man (or the
reasonable woman). We are dealing with this man or
this woman."
17. Chandrachud, J. (as he then was) in N.G. Dastane v. S. Dastane
[(1975) 2 SCC 326, 338 : AIR 1975 SC 1534 : (1975) 3 SCR 967, 978] in
para 32 observed as:
"The court has to deal, not with an ideal husband and an
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 overlook or gloss over mutual faults and failures."
18. In case of Samar Ghosh Vs Jaya Ghosh[ (2007) 4 SCC 511]
allowing the appeal, the Supreme Court in para 98 to 101 has held as under:
"98. On proper analysis and scrutiny of the judgments
of this Court and other courts, we have come to the
definite conclusion that there cannot be any
comprehensive definition of the concept of "mental
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cruelty" within which all kinds of cases of mental
cruelty can be covered. No court in our considered view
should even attempt to give a comprehensive definition
of mental cruelty.
99. Human mind is extremely complex and human
behaviour is equally complicated. Similarly human
ingenuity has no bound, therefore, to assimilate the
entire human behaviour in one definition is almost
impossible. What is cruelty in one case may not amount
to cruelty in other case. The concept of cruelty differs
from person to person depending upon his upbringing,
level of sensitivity, educational, family and cultural
background, financial position, social status, customs,
traditions, religious beliefs, human values and their
value system.
100.Apart from this, the concept of mental
cruelty cannot remain static; it is bound to change with
the passage of time, impact of modern culture
through print and electronic media and value system,
etc. What may be mental cruelty now may not remain
a mental cruelty after a passage of time or vice
versa. There can never be any straitjacket formula or
fixed parameters for determining mental cruelty
in matrimonial matters. The prudent and appropriate
way to adjudicate the case would be to evaluate it on
its peculiar facts and circumstances while
taking aforementioned factors in consideration.
101. 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) On comprehensive appraisal of the
entire matrimonial life of the parties, it becomes
abundantly clear that situation is such that the wronged
party cannot reasonably be asked to put up with such
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conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount
to cruelty, frequent rudeness of language, petulance of
manner, indifference and neglect may reach such a
degree that it makes the married life for the other spouse
absolutely intolerable.
(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
the resultant danger or apprehension must be very
grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard
of conjugal kindness causing injury to mental health or
deriving sadistic pleasure can also amount to mental
cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness
and dissatisfaction and emotional upset may not be a
ground for grant of divorce on the ground of mental
cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and
tear of the married life which happens in day-to-day life
would not be adequate for grant of divorce on the
ground of mental cruelty.
(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) If a husband submits himself for an operation of
sterilisation without medical reasons and without the
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consent or knowledge of his wife and similarly, if the
wife undergoes vasectomy or abortion without medical
reason or without the consent or knowledge of her
husband, such an act of the spouse may lead to 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. 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."
19. In case of Ramchander v. Ananta,[(2015) 11 SCC 539] Supreme
court in para 10 has held that cruelty can be inferred from the fact and
circumstances:
"10. The expression "cruelty" has not been defined
in the Hindu Marriage Act. Cruelty for the purpose
of Section 13(1)(i-a) is to be taken as a behaviour by
one spouse towards the other, which causes a
reasonable apprehension in the mind of the latter that it
is not safe for him or her to continue the matrimonial
relationship with the other. Cruelty can be physical or
mental. In the present case there is no allegation of
physical cruelty alleged by the plaintiff. What is alleged
is mental cruelty and it is necessarily a matter
of inference to be drawn from the facts and
circumstances of the case. It is settled law that the
instances of cruelty are not to be taken in isolation but
to take the cumulative effect of the facts and
circumstances emerging from the evidence on record
and then draw a fair inference whether the plaintiff has
been subjected to mental cruelty due to conduct of the
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other spouse. In the decision in Samar Ghosh case
[Samar Ghosh v.Jaya Ghosh, (2007) 4 SCC 511] this
Court set out illustrative cases where inference of
"mental cruelty" can be drawn and they are only
illustrative and not exhaustive."
20. In the light of the law propounded by the Apex Court in the
aforementioned judgments, we would dwell upon factual matrix of the case
in hand for assessing whether the appellant/husband could make out a case
for divorce on the ground of "cruelty" or desertion as given in Section 13(1)
(ia) and 13(1)(1-a)(1-b) of HMA and whether learned Family Court has
failed to appreciate the evidence adduced by the parties in right perspective
as per the prevailing norms of law.
21. Instant case is unique in the sense that respondent/wife even
being deserted by her husband in hope that one day good sense will prevail
over the appellant/husband has not left her matrimonial house and she is
undisputedly residing with members of family of the appellant i.e. father,
mother, brother and Bhabi. It is a case depicting the loyalty of the
respondent/wife as typical Indian woman, who puts all her efforts to save her
family life.
2 2 . As per Hindu concept, marriage is a sacred, eternal and
indissoluble union, an ideal Indian wife, even when deserted by her husband,
continues to embody strength, dignity and virtue. Her conduct is rooted in
dharma, cultural values and sanctity of marital bond.
23. Despite the pain of abandonment, she remains rooted in her
dharma as a wife. She does not allow bitterness or despair to erode her sense
of responsibility towards the marriage and the family, she has become a part
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of, therefore, respondent/wife in the instant case has not left her matrimonial
home, living with her in-laws, she uphold her self-respect and dignity. She
neither begs for her husband's return nor maligns him, but lets her quiet
endurance and noble conduct speak up for her strength. She has ensured that
on or of both her Maika (natal family) and Sasural (in-laws) is never
tarnished by her deeds, words or actions. Despite the absence of her
husband, she remained committed to her in-laws. She is serving them with
care and affection, as she would have, if her husband was present, thereby
reinforcing her moral stature. She does not use her sufferings for gain of
sympathy, instead she channeled it inward, reflecting the Hindu ideal of the
woman as Shakti - not weak, but submissive and powerful in her endurance
and grace. Even when she left alone, she does not forsake, the Mangalsutra,
the Sindoor or the symbols of her marriage status as her marriage to her is
not a contract, but a Sanskara - an indelible sacramant.
24. In the instant case, unusually respondent/wife has not left the
matrimonial home despite her constant agony of living alone, away from her
husband. Otherwise usually it is seen in the family disputes that wife after
levelling several allegations against the husband and in-laws leaves
matrimonial house to live separately or along with her parents which is not
the case in the instant case. The grounds which have been advanced for
getting divorce from the respondent are very shallow and hollow in nature
and supported by evidence which could inspire confidence. Specific grounds
taken by the appellant/husband that respondent/wife has never been ready
and willing to fulfill her marital obligation is falsified by the fact itself that
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out of their wedlock son is born, who as of now has become major and living
along with other members of family where respondent/wife herself is living.
The other allegations levelled against the respondent/wife for making out a
case of cruelty is that she has levelled allegation of illicit relation that
appellant/husband has developed with some other lady colleague, but in the
peculiar factual matrix of the case, this cannot be taken as a fact creating a
cruelty as mentioned in Section 13(1)(ia) of HMA because respondent/wife,
who has not been taken by the appellant/husband to live with her since last
near about 19 years. In sheer frustration she is constrained to think and in
utter frustration entertained apprehension, alleged that husband is having
some romantic relationship with other woman, therefore, he was not taking
her to live with him. This allegation has not been made publicly against the
appellant/husband on her own may be result of ill advice, but this fact has
been mentioned in written statement to refute the allegations levelled by the
appellant/husband against the respondent/wife.
25. In the considered view of this Court this is not a case where of
and on unsubstantiated allegations are levelled against the husband for his
character assassination which may constitute mental cruelty under HMA. In
the case of Akash Alias Anjali (supra), the facts were that appellant was
continuously pressurising the respondent/husband for living separately and
when the husband went and lived at parental home of the wife on her
insistence, but even in parental house, he alleged that husband is having
illicit relations with her Bhabi and also other women of the locality with the
result it became very embarrassing and humiliating for him to live in the
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parental home of the respondent along with her. But in the instant case,
despite appellant/husband had made a distance from respondent/wife for a
long time, she did not relinquish her obligations as Indian Bahu, but
preferred to live in the matrimonial house not only to preserve her dignity,
but also to serve her father-in-law and mother-in-law, therefore, the case
relied upon by the appellant/husband did not help him in any way. The
instances cited by the appellant are false and concocted which do not come
to his rescue. He cannot be allowed to reap fruits of his own faults and
misdeeds. Latin maxim "nullus commodum capere potest de injuria sua
propria" translates to "no one can take advantage of their own wrong" will
come into play. It is also noteworthy in the instant case that except appellant
and his friends Krushnamohan Yadav and Sunil Chhadiya, none of
appellant's family members have come before the Court to support him in
this family dispute which amply proves that the allegations levelled against
the respondent/wife are false which have been refuted by respondent as well
as her witnesses. In the case of Shobha Rani vs. Madhukar Reddi (1988) 1
SCC 105 : 1988 SCC (Cri) 60 at page 108, the Apex Court has elaborately
dealt with the expressions cruelty by holding that to constitute cruelty as a
ground of divorce, the conduct complained should be "grave and weighty"
so far as come to the conclusion that petitioner's spouse cannot be reasonably
expected to live with the other spounse. 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
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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 has further been
held by the Apex Court that the foundation of a sound marriage is tolerance,
adjustment and respecting one another. Tolerance to each other's fault to a
certain bearable extent has to be inherent in every marriage. Petty quibbles,
trifling differences should not be exaggerated and magnified to destroy what
is said to have been made in heaven. All quarrels must be weighed from that
point of view in determining what constitutes cruelty in each particular
case. A too technical and hyper-sensitive approach would be counter-
productive to the institution of marriage. The Courts do not have to deal with
ideal husbands and ideal wives. It has to deal with particular man and woman
before it. The ideal couple or a mere ideal one will probably have no
occasion to go to Matrimonial Court.
26. In the instant case even after deserted by husband neither the
respondent/wife has chosen to leave the matrimonial home nor she has filed
any criminal case against the appellant/husband making allegations which
might have ruined career and life of the appellant, in itself proves the level of
tolerance, respectful and helpful attitude of respondent/wife towards his
husband/appellant. Respondent/wife has revealed her strong determination
and character which a typical Indian woman/wife has.
27. From perusal of the evidence on record, we are of the considered
view that nothing has came out which could form a basis for inferring cruelty
on the part of the respondent/wife, rather it is the appellant/husband, who by
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deserting the respondent/wife has meted out cruelty of false degree against
her. Appellant could not make out any case for grant of decree of divorce,
which has been considered by the Court below in right perspective. Court
below has not committed any error of law or fact in holding that
appellant/husband is not entitled for decree of divorce under Section 13(1)(1-
a)(1-b) of HMA. The well reasoned impugned order passed by the learned
Family Court needs no interference by way of this appeal.
28. Ex-consequenti, this appeal which is devoid of any substance,
fails and is hereby dismissed upholding the judgment passed by the Court
below.
Parties shall bear their own costs.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
soumya
