Madhya Pradesh High Court
Smt. Suarcha Prajapati vs Yogesh Kumar Arya on 21 August, 2025
Author: Vivek Rusia
Bench: Vivek Rusia, Vishal Dhagat
NEUTRAL CITATION NO.2025:MPHC
NO.2025:MPHC-JBP:39940
F.A No.918/18 & 486/17
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 21st OF AUGUST, 2025
FIRST APPEAL No. 918 of 2018
YOGESH ARYA
Versus
SMT. SUARCHA PRAJAPATI
Appearance:
None for the appellant
appellant/husband.
Shri Shyam Yadav - Advocate for the respondent
respondent/ wife.
WITH
FIRST APPEAL No. 486 of 2017
SMT. SUARCHA PRAJAPATI
Versus
YOGESH KUMAR ARYA
Appearance:
Shri Shyam Yadav - Advocate for the appellant
appellant/ wife
None for the respondent
respondent/ husband.
ORDER
Per: Justice Vivek Rusia
Both these appeals are being disposed of by this common order.
These first appeals have been filed under Section 28 of the Hindu
Marriage Act, 1955 being aggrieved by judgment or decree dated 23.01.2017
passed by the Add. Distt. Judge, Hatta Distt. Damoh and judgment and decree
dated 13.03.2018 passed by Family Court Judge, Sagar.
NEUTRAL CITATION NO.2025:MPHC
NO.2025:MPHC-JBP:39940
F.A No.918/18 & 486/17
2. FACTS OF THE CASE, IN SHORT, ARE AS UNDER:
UNDER:--
2.1 The appellant and respondent are husband and wife by virtue of their
marriage solemnized on 12.08.201
12.08.2012 under
der Hindu rituals and customs.
customs The
respondent/wife
wife approached the Family Court, Sagar on 21.12.2013 by way of
petition under Section 13 of the Hindu Marriage Act seeking decree of divorce
by way of dissolution of marriage on the ground of cruelty. According to the
wife immediately after marriage
marriage, the family members of the husband started
taunting her.. In the month of September 2012, the husband took her to the house
of his sister in Gram Hatta
Hatta, where she got a job
b of guest faculty in the
government's school. It was also alleged that she was subjected to unnatural sex
by the husband which caused
used physical as well as mental cruelty upon her.
her
2.2 Thereafter, he started assaulting her publicly with filthy words. He
became a habitual drinker which was the cause of cruelty.. On 27.01.2013,
27.01.2013 after
snatching Streedhan, jewellery she was thrown away from the house. She
immediately approached her parents, but they refused to support her as she had
performed the love marriage against their wishes.. Thereafter, her husband
started threatening that he would kill her. From January 2013
2013, she had been
residing in her uncle's house and now it has become impossible for her in such a
cruel behavior to live with husband, hence marriage be dissolved by granting
decree of divorce.
2.3 The appellant/husband filed
led a written statement denying the allegations
by submitting that he was interested that she should perform
erform the study,
therefore, he got her admitted in B
B.Ed. Course. He also persuaded her to accept
the appointment of guest faculty for her independence. Apart
part from above he
NEUTRAL CITATION NO.2025:MPHC
NO.2025:MPHC-JBP:39940
F.A No.918/18 & 486/17
took a house for her at Hatta, Damoh
Damoh, therefore, the allegations of cruelty are
perse false.
2.4 It was also submitted that rather on 04.11.2013 when he went to her house
there she insulted him and specifically told that she does not want to live with
him as wife which led to him to file an application under Section 9 of the Hindu
Marriage Act for restitution of conjugal rights.
2.5 On the basis of pleadings, learned Family Court framed five issues which
are reproduced below:-
Sr. Issues
No.
1. Has the non-applicant
applicant harassed the applicant by having unnatural sex with her, beating her, after
marriage?
2. Has the non-applicant
applicant beaten the applicant, thrown her out of the house and abandoned her?
3. Has the applicant established physical relations with another man after marriage and lived an
adulterous life?
4. Is the applicant entitled to obtain a decree of divorce against the non
non-applicant?
5. Litigation expenses and relief?
2.6 The wife examined herself as PW
PW-1 in which she reiterated
terated the same
allegations which are pleaded in the memo of petition. The mother of the wife
Smt. Vandana Prajapati appeared as PW
PW-2 to
o support her in the Court. In
defense, the
he husband appeared as DW
DW-1 in the witness box and denied the
allegation of unnatural sex with the wife. Therefore, there are allegations and
counter allegations between them which shows that their love marriage has
come to an end, and they are not willing to reside with each other.
2.7 The learned Family Court Judge found th
that the allegations of cruelty with
wife are found established and it is not possible for her to live with the husband
hence, she is entitled for decree of divorce on the ground of cruelty and
NEUTRAL CITATION NO.2025:MPHC
NO.2025:MPHC-JBP:39940
F.A No.918/18 & 486/17
accordingly vide order dated 13.03.2018
13.03.2018, the decree has been granted.
granted Against
the judgment and decree dated 13.03.2018, now the husband has filed F.A.
No.918/2018.
3 Simultaneously, the husband also filed the petition under Section 9 of
Hindu Marriage Act for restitution of conjugal rights before
re learned Additional
District Judge, Hatta, Damoh
Damoh. On 16.06.2014, same was contested by the wife
by filing a reply. Two
wo issues were framed on 13.08.2015 and evidence were
recorded which are as under
under.
Sr. Issues
No.
1. Is the non-applicant
applicant Smt. Suarcha Prajapati living separately from the applicant Yogesh Kumar
Arya without any reasonable cause?
2. Is the applicant Yogesh Kumar Arya entitled to receive the decree of restoration of marital
relations or not?
3.1 Vide judgment and decree dated 23.01.2017, the decree of restitution of
conjugal right has been granted by the Additional District Judge, Hatta,
Hatta Damoh.
Against which now, the wife has filed F.A. No.486/2017.
OUR APPRECIATION AND CONCLUSION
4. Now there
re are two contradictory decrees, one
ne is restitution of conjugal
right at the instance of husband passed by Additional District Judge,
Judge Hatta and
one is a divorce decree at the instance of wife passed by Family Court, Sagar.
Admittedly, both the decrees cannot co
co-exist each other and we are required to
examine whether which decree is liable to be sustained, keeping in view the
evidence came on record. In fact, both the matrimonial proceedings ought to
have been clubbed before one Family Court
Court. The
he counsel for the parties are
NEUTRAL CITATION NO.2025:MPHC
NO.2025:MPHC-JBP:39940
F.A No.918/18 & 486/17
unable to answer as to why no one moved any application for analogous hearing
of the appeal. Although, once the divorce petition has been admitted then the
petition under Section 9 for Restitution of Conjugal Rights is not liable to be
proceeded for the simple reaso
reason that if one of the party of marital relation is
opposing the divorce, then it implied that he or she is interested in restitution of
conjugal right for which the separate decree is not liable to be taken.
5. However, in this case both the Courts proceeded with the evidence that
came on record and recorded the separate findings contrary to each other. The
Family Court, Sagar found that there has been a cruelty by the husband with
wife and Additional District Ju
Judge, Hatta, Damoh found that they are aged
about 26 years and 23 years respectively belong to the respectable and educated
family, their love and affection was started during the school days and thereafter
they entered into wedlock. It appears that under the
he influence of family
members, the wife has started making allegations and the dispute on a patty
issue has reached to the stage of divorce and it established that it can't be a valid
reason for divorce and accordingly granted the decree of restitution of conjugal
right. These findings are not base
based on evidence but orbiter dicta hence such
decree is unsustainable.
6. The mediation was taken place before the Family Court also, but it
remained unsuccessful. Here also
also, they were referred to the mediation, but they
bluntly refused to appear before the mediator for the purpose of settlement,
therefore, we are of the considered opinion that this marriage is not irretrievable,
and parties are not willing to face each other to settle their
heir dispute either to live
liv
separately or together.
NEUTRAL CITATION NO.2025:MPHC
NO.2025:MPHC-JBP:39940
F.A No.918/18 & 486/17
7. Since the decree of divorce has been passed although which the subject
matter of F.A. No.918/2018, but the decree of restitution of conjugal right is
unsustainable hence, the same is hereby set aside, therefore, F.A. No.486/2017
is hereby allowed.
8. So far as the validity of decree of divorce passed under Section 13 the
Hindu Marriage Act is concerned, the respondent/wife has made an allegation of
unnatural sex by husband in order to establish mental and physical cruelty.
cruelty She
has
as made allegation that the husband has categorically disclosed that he does not
want to keep her as wife and on 27.01.20
27.01.2013 she was thrown out from the house
by keeping her Streedhan, jewellery etc. She filed a petition immediately after
one year from the date of marriage and since then, she is living separately with
him.
9. The wife examined herself as PW
PW-1 and in cross-examination
nation she has
admitted that she never made any complaint about the unnatural sex made with
her. In support of her case, she examined her mother,, who was not happy with
marriage performed by her daughter with the appellant. She admits that her
daughter talked about the unnatural sex with her by her husband. According to
her, the respondent used to threaten her through mobile calls but for which, no
report was lodged. The respondent/husband examined himself as DW-1
DW in
which he disclosed that on 08.02.2013 when he went to bring her back, the
brother and father-in-law
law misbehaved with him, and he was assaulted and
abused by filthy language. Even the father-in-law
law pointed a gun upon him,
thereafter, he filed an application under Section 9, therefore, as per the version
of the respondent there was some dispute between them that reached to the state
NEUTRAL CITATION NO.2025:MPHC
NO.2025:MPHC-JBP:39940
F.A No.918/18 & 486/17
that the father had to point out the gun towa
towards
rds him and he was assaulted as
well, he too did not lodge any report. All the allegations are oral
al without any
support by relative and common friends hence hard to believe.
10. Although, it was a love marriage, but the relationship ended within a year
which
ch led to filing a counter case
cases against each other. They have been living
separately for more than 10 years, and the possibility of re-union
union is very bleak
and marriage is irretrievable. There can't be an
any direct evidence to support the
allegation of unnatural
ural sex by husband with wife
wife. In such type of cases wife
normally hesitates to make allegation. At the most she can inform this type of
unnatural act with her sister or mother
mother. In the case in hand, wife told her mother
about conduct of her husband which she deposed in the Court; hence the learned
Family Court has rightly found the mental and physical cruelty by the husband
with wife.
11. In view of the above, the appeal stands dismissed and the decree
dec of
divorce is hereby affirmed.
Let a copy of this order be kept in the record of connected appeal.
(VIVEK RUSIA) (VISHAL DHAGAT)
JUDGE JUDGE
Vatan
