Madhya Pradesh High Court
Shailendra vs Smt. Disha on 18 August, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:22611
1 FA-551-2014
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 18th OF AUGUST, 2025
FIRST APPEAL No. 551 of 2014
SHAILENDRA
Versus
SMT. DISHA
Appearance:
Shri Amar Singh Rathore - Advocate for the appellant.
Ms. Aditi Mehta - Advocate for the respondent.
JUDGMENT
Per: Justice Binod Kumar Dwivedi
This appeal under Section 19 of the Family Courts Act (for short
hereinafter referred to as 'Act') has been filed assailing the judgment and
decree dated 22.03.2014 passed in H.M.A.Case No.311/2012 wherein the
learned Principal Judge, Family Court, Indore has dismissed the divorce
petition of the appellant/husband filed under Section 13 of the Hindu
Marriage Act,1955 (for short hereinafter referred to as 'HMA').
2. It is undisputed that the appellant was married to respondent/wife
on 03.02.2006 as per Hindu rites and rituals and after marriage she gave birth
to a girl child on 10.01.2007 and the child is currently residing with the
respondent/wife.
3. The brief facts of the case are that respondent's sister resides in
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Dewas and the respondent often visits her place to meet sister's husband
Ratnesh with whom she has developed illicit relationship. When she was
objected by the appellant/husband from going to Dewas, she picked up
quarrel with him. On 23.01.2009 at 11:30 P.M. the respondent threatened to
implicate him and his family members in false case and tried to commit
suicide by hanging herself. The appellant prevented her from doing so and
called up her parents in Indore to inform them about the said incident, but
they did not turn up. Therefore, the maternal uncle of the respondent residing
in Ujain was called up. On receiving information, he came to appellant's
house along with his wife and tried to reconcile the matter. The respondent
did not listen to them and uttered that she will not live with the appellant and
if she is forced to do so she will commit suicide. The behaviour of the
respondent was very rude to her in-laws. She used to rebuke them without
any reason. She also prevented the appellant from physical relationship. On
28.05.2009 the respondent left her matrimonial house and came to her
parents house at Indore and she is residing with her parents ever since then.
The respondent left the company of the appellant without good and sufficient
reason and due to her cruel behaviour there is no possibility for the appellant
to live with her anymore.
4. The appellant filed divorce petition before the Family Court
wherein on notice, respondent appeared and filed reply denying all the
averments and allegations and prayed for rejection of the case. The learned
Family Court passed the impugned judgment and decree and dismissed the
divorce petition of the appellant. Hence, this first appeal has been filed
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assailing the impugned judgment and decree.
5. Learned counsel for the appellant/husband submits that the
learned Family Court failed to appreciate the evidence available on record in
right perspective. Appellant-Shailendra Gupta (PW-1) in his statement before
the Court has made out a case of cruelty against the respondent for grant of
decree of divorce, but the learned Family Court had failed to appreciate the
same. The judgment and decree passed by the learned Family Court is based
on conjectures and surmises. The legal evidence available on record has been
ignored, therefore, the impugned judgment and decree is suffering from
factual and legal error. Hence, prays for allowing the appeal by setting aside
the impugned judgment and decree and granting a decree of divorce.
6. Per contra, learned counsel for the respondent/wife has supported
the impugned judgment and decree passed by the learned Family Court
stating that the allegations raised against her are baseless and the same have
not been found substantiated by evidence. The appellant is trying to take
benefit of his own errant behaviour whereby he has levelled irresponsible
allegations against her. The learned Family Court has appreciated the
evidence in right perspective and finding that no case for granting decree of
divorce has been made out has dismissed the petition. The appeal filed by the
appellant sans merit and hence, liable to be dismissed.
7. Heard the rival contentions of the learned counsel for the parties
and perused the record.
8. 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
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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, 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.
9. To appreciate the provisions relating to decree of divorce on the
ground of cruelty & desertion, it is befitting to reproduce relevant provisions
of Section 13 of the Act which reads 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) .....
(ia) has, after the solemnization of the marriage, treated the
petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less
than two years immediately preceding the presentation of the
petition; or]
..........
1A) Either party to a marriage, whether solemnized before or after
the commencement of this Act, may also present a petition for the
dissolution of the marriage by a decree of divorce on the ground-
(i)....
(ii) that there has been no restitution of conjugal rights as between
the parties to the marriage for a period of one year or upwards
after the passing of a decree for restitution of conjugal rights in a
proceeding to which they were parties."
10. The Hon'ble Apex Court in catena of judgments held that no
uniform standard can ever be laid down for guidance as to which type of
behaviour constitutes mental cruelty. It depends upon the social status of the
parties to the marriage, their sensitivity and upbringing. It has further been
held by the Apex Court that the foundation of a sound marriage is tolerance,
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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. The fact which may not be deemed
cruelty by one set of persons may be taken as such by the other set of
persons. It is also well settled that mere trivial irritations, quarrels, normal
wear and tear of the married life which happens in day-today life would not
be adequate for grant of divorce on the ground of mental cruelty. The
relevant paragraph 101 of the judgment of the Apex Court in the case of
Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 may be factually reproduced
which runs as under:-
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
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
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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 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.
11. In case of Ramchander v. Ananta [(2015) 11 SCC 539]
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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 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."
12. Chandrachud, J. (as he then was) in N.G. Dastane v. S. Dastane
N.G. Dastane v. S. Dastane [(1975) 2 SCC 326, 338 : AIR 1975 SC 1534 :
(1975) 3 SCR 967, 978] [(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."
13. In the instant case, allegations levelled against the
respondent/wife were of committing cruelty towards the appellant/husband,
having illicit relationship with her brother-in-law (Jija Ratnesh, resident of
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Dewas) and also that before filing petition for divorce she had deserted the
appellant for a period of more than two years without any proper and
sufficient reasons for making out a case for divorce under Section 13(ia) and
13(ib) of HMA. The appellant has examined himself as (PW-1), Neelu Gupta
(PW-2) and Ashok Sharma (PW-3).
14. To controvert the allegations the respondent/wife has examined
herself along with one Kamal Kishore (DW-2) as witness. There is no direct
evidence with regard to allegations levelled against the respondent/wife. The
appellant/husband Shailendra Gupta (PW-1) has stated in his statement
before the Court that after the birth of the daughter, the respondent used to
visit her Maika (Parents place) and also without informing him used to visit
his brother-in-law (Jija's) place. She used to utter that she cannot leave her
brother-in-law and on this ground she misbehaved with the members of his
family and when he had objected, she threatened him to commit suicide. For
that one day on 23.01.2009 at 11:30 P.M. she made an attempt to commit
suicide by making noose. This incident was reported to her parents on phone
and when they expressed their inability to come, her maternal uncle and aunt
were given information of telephone and they turned up to the place of the
appellant and counselled the respondent. It has also been alleged in the
statement that respondent has levelled false allegations against the sister of
the appellant Neelu Gupta (PW-2) therefore she filed a suit of defamation.
Similar statements have been made by Ashok Sharma (PW-3), but
respondent-Disha (DW-1) has refuted the allegations by stating that her
sister-in-law Neelu Gupta is residing with the appellant and when she was
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pregnant and on her examination when it came to know that she is having a
girl in her womb, she was forcibly administered some pills for abortion. On
27.01.2009 an attempt was made to her life and the life of her daughter and
when she raised hue and cry for help, bald allegations were made by the
appellant against the respondent that she is making an attempt to commit
suicide. Appellant asked for Rs.5 lacs as dowry and she was compelled to
leave the matrimonial house. Thereafter, she has filed a case under Section 9
of the HMA for restitution of conjugal rights against the appellant.
15. The allegations levelled against the respondent with regard to
committing cruelty are not substantiated by cogent evidence. No report has
been lodged with regard to the incident wherein the respondent was trying to
commit suicide by hanging herself. The evidence adduced on behalf of the
appellant to substantiate the allegations levelled against the respondent have
not been found of such a nature of inspiring confidence of the Court. It is
also note worthy that the alleged incident of committing suicide has not been
reported to the police and in the absence of any cogent evidence, the Court
below has not found the aforesaid allegations substantiated. The conduct of
the respondent in filing application under Section 9 of the HMA for
restitution of conjugal rights in itself proves that she was willing to live with
the appellant and not deserted him willfully or without any sufficient reasons.
16. The allegations with regard to the illicit relationship of the
respondent with her brother-in-law has also not been found proved by way of
cogent evidence. The respondent has refuted the aforesaid allegations
levelled by the appellant.
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17. In view of above, in the considered view of this Court the
appellant has utterly failed to prove any of the allegations levelled against
the respondent which could make out a case for granting divorce in his
favour. The judgment passed by the Court below is based on due
appreciation of evidence which does not warrant any interference by this
Court by way of this appeal.
18. Ex-consequenti this appeal has no substance, fails and is hereby
dismissed. The judgment passed by the Court below is upheld.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
RJ
