Madhya Pradesh High Court
Janak Singh vs Smt Sandhya W/O Janak Singh on 13 February, 2025
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE SHRI ANAND PATHAK &
HON'BLE SHRI HIRDESH, JJ
ON THE 13st OF FEBURARY, 2025
FIRST APPEAL No.511 of 2021
JANAK SINGH
Versus
SMT. SANDHYA
--------------------------------------------------------------------------------------------
Appearance:
Shri Anant Kumar Bansal- learned counsel for appellant.
Shri Arshad Ali- learned counsel for respondent.
--------------------------------------------------------------------------------------------
JUDGMENT
Per Hirdesh, J:-
The instant first appeal has been preferred under Section 28 of Hindu
Marriage Act, 1955 [in short ''HM Act''] assailing ex parte judgment and
decree dated 17.03.2021 passed by First Additional District Judge, Gohad,
Bhind (M.P.) in HM Case No.101/2019, whereby the application filed by
appellant- husband under Section 13 of HM Act seeking decree of divorce
on the ground of ''cruelty and desertion'' has been rejected.
(2) As per averments of appellant-husband in his divorce application, his
marriage was solemnized with the respondent without any dowry on
11.07.2008. Since then, they were living as husband and wife, but after
marriage on 12th of July, 2008, when his wife stayed at his house for 5-6
days, she did not allow him to have physical relations with her on the pretext
that her marriage was done under pressure of her parents. Thereafter, she
went back to her maternal home along-with her brothers.
(3) It was further averred by appellant in divorce application that after 2-
3 months he brought back respondent to his house where she lived happily
for a few days, but after some time, she started quarelling with him and his
family members over trivial matters by not cooking food for them.
Respondent used to sleep without eating or drinking and would keep talking
to her parents or some unknown persons on mobile. Many times, she went
with unknown persons on her own without informing anybody. On
04.05.2011, in his absence, father, mother and brothers of respondent came
to his house and abused his parents.
(4) The parents of appellant took her back to their home at Etawah after
abusing or threatening to kill his parents. With regard to this, he submitted a
written complaint with Police Station Mau on 11.05.2011. A Panchayat was
organized at Etawah whereby respondent was brought back by him and his
relatives to Mau, but since then she did not live peacefully and threaten to
commit suicide. Regarding this, appellant has also submitted another written
complaint at Police Station on 23-06-2011. After a few days, respondent
tried to commit suicide by pouring kerosene on her and with regard to this,
appellant also filed a written complaint at police Station on 21.12.2011.
(5) Further averment of appellant in his divorce application is that
because of cruel behaviour of respondent, he started living with her in a
rented premises at Gwalior. Meanwhile, appellant got a job as Contract
Teacher Class-II. Thereafter, a girl child was born out of their wedlock on
06-12-2015. Even thereafter, respondent started harassing him by quarelling
over petty issues and started pressurizing him to give his full salary and
build a house for her in Gwalior, otherwise she would go to her maternal
home at Etawah. On his denial, respondent started beating him due to which,
owner urged for vacating his premises. Thereafter, they came to Mau along
with child. On 07.06.2016, respondent again started quarrelling with him
and called her parents. After committing ''marpeet'' with him and his family,
a false case of assault against him and his family members was registered on
behalf of respondent by creating a concocted or frivolous story. Thereafter,
respondent and her family went to Etawah by taking her all gold and silver
jewellery which were kept in appellant's house. Since then, respondent has
been living in her parental home with all her belongings and did not want to
turn home back, as a result of which he felt too much tensed because of
cruelty of the respondent. On may occasions, he tried to take his wife-
respondent back, but she did not return.
(6) Due to non-fulfillment of her marital duties, his wife- respondent
treated him cruelly. So, he filed an application in the Family Court under
Section 9 of HM Act for restitution of conjugal rights in which an ex parte
decree was passed by the Family Court on 23.10.2018 in HM Case No.65 of
2016, with a direction to respondent to live with him, but she was not ready
to live with appellant. Even she filed a false case against him before the
Family Court, Etawah under Dowry Prohibition Act and an application
under Section 125 of CrPC seeking maintenance. She has been residing in
Etawah with her maternal family by depriving him from pleasure of
companionship. She has not performed duty of wife, rather she has not
established any physical relation with him since 07.06.2016 without any
rhyme or reason. Despite several efforts made by him to bring her back, she
did not come. Under these circumstances, he prayed for a decree of divorce
on the ground of ''cruelty and desertion'' and their marriage held on 11 th of
July, 2008 be dissolved.
(7) On being noticed, respondent put her appearance on 23-01-2020 and
did not appear on next date of hearing i.e. 04-02-2020.
(8) In absence of respondent-wife and on the basis of pleadings of
appellant and material available therein, the Family Court framed an issue
and passed the impugned ex parte judgment and decree by rejecting the
divorce application filed by appellant on the ground that appellant has failed
to prove cruelty and desertion against respondent
(9) Being dissatisfied, the appellant has knocked the door of this Court
by preferring the instant first appeal.
(10) Counsel appearing on behalf of appellant submits that learned Family
Court has committed an error in rejecting divorce application of appellant
without evaluating the evidence properly. Consequent upon the application
filed on behalf of appellant under Section 9 of the HM Act for restitution of
conjugal rights, an ex parte decree was passed by the Family Court on 23-
10-2018, against respondent with a direction to establish the martial
relationship, despite that respondent did not come to live with appellant,
instead, she has filed a dowry case on the false grounds and maintenance
application in the Family Court, Etawah and since then, she is residing in
Etawah and is depriving the appellant of pleasure of companionship. Even
filing of such complaint is sufficient to constitute matrimonial cruelty and
the appellant is entitled for a decree of divorce on the ground of cruelty.
(11) In support of his contention, learned Counsel has relief on the
judgment of Supreme Court in the case of K. Srinivas vs. K. Sunita 2014
(III) MPWN 127. Relying on the judgment of coordinate Bench of this
Court in the case of Indu Chourasiya (Smt.) Vs. Trilok Chourasiya, 2018
(III) MPWN 2, it is contended that when the wife did not obey decree of
restitution of conjugal rights and prevented her husband from cohabitation
without any sufficient cause and thereafter, filed criminal complaint against
her husband and his family members, then the husband is entitled for decree
of divorce.
(12) Relying on the judgment of coordinate Bench of this Court in the
case of Satish Kumar Jain vs. Smt. Usha Jain, 2014 (III) MPWN 79 and
Basudev Jatav Vs. Smt. Rekha Jatav, 2014 (III) MPWN 62, it is contended
on behalf of appellant that respondent has not performed duties of a wife
and not established physical relations with appellant, abandoned/ deserted
him without any justification or reason since 07-06-2016 and despite several
attempts to keep her with him, respondent did not turn home back. Marriage
of parties has become broken down. Therefore, the husband is entitled for a
decree of divorce on the ground of irretrievable break down as well as on the
ground of cruelty and desertion on the part of wife. The learned Family
Court not considering behaviour of respondent, has committed a grave error
in dismissing the application of appellant under Section 13 of HM Act.
(13) It is further contended on behalf of appellant that respondent
intentionally did not appear before the Family Court. Neither any reply to
divorce application was filed by her nor any witness was examined nor any
documentary evidence was produced on her behalf before the Family Court
in defence. Therefore, it is prayed that the impugned judgment and decree
passed by Family Court deserves to be set aside, by allowing the instant
appeal.
(14) Per contra, learned counsel for respondent supported the impugned
judgment. It is submitted that in absence of respondent, appellant obtained
an ex parte decree on 23-10-2018 consequent upon application filed by him
under Section 9 of HM Act for restitution of conjugal rights. No information
of said decision was given to respondent by appellant, on the contrary,
appellant filed a divorce application on 05-11-2019. Although an ex parte
decree was passed on 23-10-2018. A registered notice dated 22-02-2021 was
received by respondent on 08-03-2021. As per the settled legal provisions
enshrined under the HM Act, only in the event of non-restitution of conjugal
rights for a period of one year or more after passing of decree of restitution
of conjugal rights, the opposite party may claim for a decree of divorce on
the said ground. There is no infirmity or illegality in the findings recorded
by Family Court. Respondent was always ready to live with her husband
along with minor daughter but appellant- husband was not ready to take her
back and mediation proceeding failed due to husband. Hence, prayed for
dismissal of this appeal.
(15) Heard learned counsel for both the parties and perused the impugned
judgment as well as record.
(16) Appellant Janak Singh (AW-1) and his mother Smt. Ramkali (AW-2)
in their statements have stated that after marriage in the year 2008 till 2016,
the respondent had treated the appellant with cruelty by bearing him and in
this regard, complaints have been lodged with police station vide Ex.P2 to
Ex. P4 but from perusal of said complaints, it is clear that they have been
lodged only in the year 2011 and no complaint has been presented on record
anywhere regarding the respondent's cruelty with the appellant before or
after the said period and no proper and valid reason has been produced
before the Court. Therefore, a presumption contrary to pleadings that
appellant himself in pleadings admitted that a daughter was born 06.12.2015
because of co-habitation after marriage.
(17) Further, appellant Janak Singh (AW-1) in his statement along with
affidavit deposed that on 07-06-2016, his wife- respondent called her father,
mother, brother and other relatives and beat him and his family members and
got a false case of assault registered against them and took away gold and
silvery jewellery kept in his house and went to Etawah about which he had
lodged a complaint in Police Station Mau regarding the incident but on the
one hand, no such document has been produced on record which shows that
the appellant had lodged a complaint with police station Mau regarding the
aforesaid incident took place on 07-06-2016 and no proper evidence could
be produced before the Court in this regard.
(18) On the other hand, the aforesaid statements of appellant are not
corroborated by the statement of his mother Smt. Ramkali (AW-2) because
the aforesaid alleged incident does not reveal from the evidence of his
mother Smt. Ramkali(AW-2). In the previous pleadings mentioned in the
application filed by appellant under Section 9 of the HM Act for restitution
of conjugal rights, the appellant has mentioned that on 19-09-2016 around
02:00 pm, his wife- respondent along with her brothers and other persons
broke the lock of his house and took away household goods and gold and
silver jewellery. Therefore, the veracity of evidence of appellant does not
appear to be credible.
(19) Further, appellant (AW1) and his mother Smt. Ramkali (AW-2) in
their evidence deposed that respondent used to quarrel over small matters,
threaten to commit suicide and mentally harass them by attempting suicide
in relation to which appellant has submitted complaints Ex. P2 to Ex.P4 with
police authorities but on perusal of such complaints, there does not appear
anything.
(20) On the contrary, perusal of charge sheet (Ex.P8) in connection with
Crime No. 108 of 2016 for offence punishable under Sections 323, 294, 506,
34 and enhanced Section 325 of IPC as well as other documents including
statement of respondent Ex.P15, shows that alleged offence of cruelty was
found proved against the appellant and his family members during
investigation by the police. Therefore, it cannot be believed that the
appellant was continuously abandoned by respondent for at least two years
immediately before filing of divorce application.
(21) From perusal of ex parte decree passed consequent to application
under Section 9 of HM Act filed by appellant for restitution of conjugal
rights, it is clear that after obtaining the said ex parte decree, no information
of the said decision and decree was given to respondent by appellant and it
is also not evident from the evidence on record that after passing the said ex
parte decree, the respondent did not follow the said decision and decree
deliberately for one year or more. The information of said decision was sent
to respondent on 22-02-2021. On the contrary, the appellant on 05.11.2019
filed a divorce application on the ground of cruelty and desertion prior to
receipt of notice on 08.03.2021.
(22) The evidence of appellant Janak Singh (AW-1) and his mother Smt.
Ramkali (AW-2) that after the marriage, respondent treated the appellant
cruelly and kept the appellant continuously abandoned without any reason
for at least two years immediately prior to filing of divorce application and
after ex parte decree passed on the application for restitution of conjugal
rights, and respondent deliberately denied conjugal rights with appellant for
a period of one year or more, are not found to be credible or reliable.
Therefore, the appellant is not entitled to obtain a decree of divorce for
dissolution of marriage with respondent took place on 11-07-2008 on the
ground of cruelty and desertion.
(23) In the result, we confirm the findings of the Family Court that
appellant has wholly failed to establish allegations of cruelty and desertion,
on the part of respondent. We, therefore, find it to be a fit and apt case where
husband's divorce application has been rightly dismissed by Family Court.
Appeal being devoid of merits, is hereby dismissed. The ex parte judgment
and decree dated 17.03.2021 passed by First Additional District Judge,
Gohad, Bhind (M.P.) in HM Case No.101/2019 is affirmed.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
