Madhya Pradesh High Court
Sanjay Patil vs Sarika on 28 August, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:23999
1 FA-132-2009
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 28 th OF AUGUST, 2025
FIRST APPEAL No. 132 of 2009
SANJAY PATIL
Versus
SARIKA
Appearance:
Shri Prateek Maheshwari - Advocate for the appellant.
ORDER
Per: Justice Vivek Rusia
The appellant/husband has filed this first appeal under Section 19 of the
Family Courts Act, 1984 against the judgment and decree dated 23.01.2009,
whereby the Second Additional Principal Judge, Family Court, Indore has
dismissed the petition filed under Section 13(1) (1-a and 1-b) filed under the Hindu
Marriage Act, 1955.
Facts of the case, in short, are as under:-
2. The facts of the case are that the marriage of appellant with respondent
was solemnized on 22.04.2002 in Pune. After the marriage, there is no issue
between them. According to the appellant after the marriage the behavior of the
respondent cruel, she used to threaten the appellant and his family member for
lodging an F.I.R. of dowry demand and the suicide. On 24.11.2002 she made
effort to commit suicide and the information to that effect was given to the police.
The appellant submitted an application to the Mahila Paramarsh Kendra on
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2 FA-132-2009
09.05.2003 and compromise was arrived on 02.06.2003 and thereafter, they lived
together for some period.
3. Again she started behaving in the same manner and the left the house of
the appellant on 30.07.2003. He filed a petition for divorce on 21.10.2003, in
which the compromise was arrived and she came back to his house on 28.11.2004.
The appellant withdrew the said case on 31.01.2005. Thereafter, again she
deserted on 30.07.2005. The appellant filed an application for divorce on
23.08.2005 but the same was withdrawn on 19.12.2006.
4. The respondent/wife lodged an F.I.R. against the appellant and seven
other family members before the Police Station : Banganga, Indore and the
appellant and others were tried under Section 498, 323/34, 506 of IPC. Vide
judgment dated 25.08.2008, they all have been acquitted from all the charges.
5. In the aforesaid circumstances the appellant again filed a petition under
Section 13 of Hindu Marriage Act, 1955 before the Family Court seeking decree
of divorce on the ground of desertion and cruelty. The notice was served on the
respondent but she did not participate in the proceedings by filing a written
statement, hence, she was proceeded ex-parte. The appellant examined himself as
[PW-1]. After examining the entire facts and circumstances, vide judgment dated
23.01.2009 the learned Court has dismissed the petition solely on the ground that
lodging a criminal case and acquittal does not construed a cruelty and earlier also
he approached the Family Court twice to get a decree of divorce but withdrew the
same. Hence, this appeal before this Court.
Submission of appellant's counsel
6. Shri Prateek Maheshwari, learned counsel appearing for the appellant
submits that the evidence given by the appellant remain unrebutted, she remained
ex-parte before the Family Court. Before this Court also the notice was served, she
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3 FA-132-2009
appeared through counsel and filed an application under Section 24 of the Hindu
Marriage Act and got the maintenance fixed and thereafter, she did not appear.
The counsel engaged by her pleaded no instructions thereafter she was served by
way of fresh process fee as well as paper publication. She is not appearing before
this Court because she is happily working as a Principal in a Bal Bharti Public
School, Nabinagar. The information received from the website of the said school
which is produced before us.
7. It is further submitted that they are living separately since last more than
twenty years and the marriage is irretrievable and there is no hope to revive the
same, hence, the decree of divorce be granted. In support of his contention he has
placed reliance on a judgment passed by this Bench in the case of Rajesh vs. Neha
(First Appeal No.1082 of 2016) in which the Apex Court's judgments have been
considered wherein the word "Cruelty" has been explained, which could make out
the case for divorce.
Appreciation and conclusion
8. The facts of the case now cannot be said to be a disputed question of
facts because the respondent did not appear before the Family Court by filing
reply, she did not cross-examine the present appellant, therefore, the evidence
led by him remains unrebutted. Twice, appellant approached the Family
Court, but withdrew the case because the compromise was arrived at. In every
divorce case, it is mandatory to make an effort to settle the dispute by way of
mediation and conciliation, thus, by virtue of conciliation, cases were
withdrawn which does not bar to entertain subsequent divorce petition based
on change in circumstances.
9. In the present case, the respondent dragged not only the appellant but
7 other family members to the Court by lodging an FIR under Section 498,
323/34, 506 of IPC. Vide judgment dated 25.08.2008, the learned Sessions
Court had acquitted all of them which itself construed cruelty. Apart from
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4 FA-132-2009
that, they are living separately since last 20 years. Respondent has not made
any effort by filing an application under Section 9 of Restitution of Conjugal
Rights. Therefore, it shows that she was not willing to perform the marital
obligation. She herself deserted the appellant and started living with her
parents.
10. In the case of K. Srinivas Rao vs. D.A. Deepa reported in (2013) 5 SCC
226, the Hon'ble Apex Court has held as under:-
"16. Thus, to the instances illustrative of mental cruelty noted in Samar
Ghosh [(2007) 4 SCC 511], we could add a few more. Making
unfounded indecent defamatory allegations against the spouse or his or
her relatives in the pleadings, filing of complaints or issuing notices or
news items which may have adverse impact on the business prospect or
the job of the spouse and filing repeated false complaints and cases in
the court against the spouse would, in the facts of a case, amount to
causing mental cruelty to the other spouse."
11. In view of the aforesaid law laid down by the Hon'ble Apex Court,
this First Appeal stands allowed and the marriage between the parties
dated 22.04.2002 is hereby dissolved. The impugned judgment and decree dated
23.01.2009 is hereby set aside . Let a fresh decree be drawn accordingly.
12. Let record be sent back to the concerned Family Court.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Divyansh
