Madhya Pradesh High Court
Dharmendra Pal vs Smt. Vandana @ Vandana Tittal on 27 February, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:4342
1 FA-1968-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 27th OF FEBRUARY, 2025
FIRST APPEAL No. 1968 of 2022
DHARMENDRA PAL
Versus
SMT. VANDANA @ VANDANA TITTAL
Appearance:
Shri Manas Dubey and Shri Yogendra Bhardwaj- learned Counsels for appellant-
husband.
Shri H. K.Shukla- learned Counsel for respondent- wife.
JUDGMENT
Per: Justice Hirdesh
The present first appeal under Section 19 of the Family Courts
Act, 1984 has been filed by appellant- husband challenging the
judgment and decree dated 20-10-2022 passed by Principal Judge,
Family Court, Gwalior in RCSHM No.10812 of 2016, whereby the
application under Section 13 of the Hindu Marriage Act (hereinafter
it would be referred to as ''HM Act'') filed on behalf of appellant-
husband seeking a decree of divorce on the ground of ''cruelty and
desertion'' has been dismissed.
(2) In brief, the facts of the case are that appellant filed a
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divorce application before the Family Court on the ground of cruelty
and desertion, inter alia, pleading that his marriage was solemnized
with respondent on 29th of April, 2007 as per Hindu rites and customs
in City Gwalior. At the time of marriage, respondent was educated
up-to intermediate level. He financed respondent's MA, PGDCA and
other Courses at his own expense. For the past five years prior to
filing of divorce application, respondent has been residing on the
second floor. She used to go to work in Hotel Radiance, Gwalior
from 09:00 am to 07:00 pm, where she receives a salary of Rs.6,500/-
per month and Rs.3,000/- as commission. Breakfast, lunch and other
facilities are provided by Hotel. After marriage, no one came from
the parental home of respondent for first Vidai. Then, his father and
brother-in-law Rakesh took her to her parental home. Respondent
became pregnant and wanted to have an abortion, while he and his
family were very happy about her pregnancy and did not want to her
abortion. Respondent reluctantly gave birth to a son, namely, Mayank
on 26th September, 2008 at Grover Hospital, Morar, the entire
delivery expenses of which were borne by him. After birth of son,
respondent did not take care of him. She wanted to take his son to her
parental home. She used to leave minor son with grandmother and go
to her parental home without informing anyone. Even after death of
her maternal uncle-in-law, she went away for 15 days. She did not do
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any household work. When he informed his in-laws about the
respondent, they used to say that he does not earn and does not take
care of their daughter's expenses and threatened with dire
consequences.
(3) Further allegation of appellant in his divorce application is
that respondent used to speak to him and his family members in
abusive language. When he tried to know the reason, she used to say
that the Goddess had told her that she would die in a month and then
she would be at peace. She broke and threw away her Mangalsutra in
front of him which she has not worn since. Similarly, on the occasion
of Karva Chauth, she did not observe importance of festival. On the
influence of her family, respondent started living separately since
2011. Since 2011, she has not established conjugal relations with
him. When he complained about this to his in-laws, respondent told
him that she had ended conjugal relations with him forever and felt
disgusted by idea of having conjugal relations.
(4) Further averment of appellant in his divorce application is
that respondent used to go to Bhopal, Ujjain and Mumbai without
informing him and his family which was tarnishing his and his
family's social reputation. She used to threaten to implicate him and
his family in a false dowry case. A Village Panchayat was called
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regarding refusal of the respondent to establish conjugal relations and
her abusive language. His friends, Kallu, Naveen and Hautam were
present at Panchayat meeting. On August 17, 2016, she abused in
filthy language against him and his family including his mother and
sister. At the same time, his father-in-law, mother-in-law and brother-
in-law came to his residence and demanded that second floor be
transferred in the name of respondent otherwise they will kill him.
They also threatened to file a false case that would keep him in a jail
for life. They tried to forcibly take away his son Mayank and left after
giving threats. Respondent filed a false case against him and his
family at Mahila Thana Padav under Sections 498-A, 506, 34 of IPC
and enhanced Sections 307, 328 of IPC. He and his family members
were acquitted in the case by the Sixth Additional Sessions Judge
vide judgment dated 12th of March, 2019. On these grounds, he filed
divorce application for dissolution of marriage between him and
respondent which was solemnized on 29th of April, 2007 on the
ground of ''cruelty and desertion''.
(5) Respondent denied allegations of appellant in her reply and
pleaded that her parents had given gold and silver jewellery,
household articles like TV, fridge, cooler, almirah, sofa and two lakh
rupees in cash along with a Discover Motorcycle according to
capacity of her parents at the time of her marriage. The entire
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expenses of her education were borne by her parents. She lives with
her parents and son in Chandan Nagar, Gwalior. All expenses of her
and her son are borne by her parents. After the marriage, appellant's
father and brother-in-law had come to fetch her for the first visit to
her parents home. Her behaviour towards her husband - appellant and
in-laws has always been respectful and affectionate. Due to marital
relationship with appellant, she gave birth to her son Mayank for
whose, the entire delivery expenses were borne by her parents. She
never wanted to have an abortion, rather the appellant and his family
pressurized her saying that they want a son and if it was daughter,
who would bear expenses? They never had a daughter in their family.
She never left her son alone. Appellant was also respected in her
maternal home. She always wears a Mangalsutra and observes Karva
Chauth fast according to rituals. She lived in a joint family with
appellant until she separated and did all household cores.
(6) Further, it was alleged by respondent that appellant is
addicted to gambling and drinking alcohol and after drinking, he used
to assault her and throw her and her son out of house in the midnight.
She continued to endure the atrocities in the hope that appellant's
behaviour would change, but there was no change in his behaviour.
He assaulted her and threw her along with her son out of house, after
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which she was compelled to file a complaint at Mahila Police Station,
on the basis of which, offence under Sections 498-A, 506, 34 of IPC
was registered. She never went anywhere outside Gwalior city. On
17th of August, 2016, appellant in a drunken state, abused her mother
and sister with obscene language, pulled her hair, threw her to the
ground and assaulted her with kicks and fists, saying that she had dis-
reputed his life and threatened to throw acid on her face and to kill
her parents. On 27th of September, 2016, the appellant and his family
members gave her poison with intention to kill her. An information
was given to Morar Police by Hospital Management. She was
subjected to physical and mental harassment by the appellant and his
family for giving less dowry in marriage, due to which she had to
endure mental pain.
(7) Further averment of respondent is that after being ousted
from house along with her son by appellant, no arrangement for their
maintenance has been made due to which, she was compelled to file a
case under Section 125 of CrPC against appellant in the Family
Court, Gwalior. Appellant has filed a case under Guardians and
Wards Act to obtain custody of her son. Appellant has made no effort
to keep her with him, whereas she has been continuously fulfiling her
duties as wife to make marital and conjugal life happy. She made
every possible efforts to live with appellant, but appellant under
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influence of his family members, abandoned her without any valid
reason and filed divorce application on false and baseless grounds.
Under these circumstances, she prayed for dismissal of divorce
application.
(8) Before the Family Court, the appellant himself examined as
AW-1 whereas, the respondent herself examined as NAW-1, her
mother Smt. Padma Tittal as NAW-2 and her younger brother Kapil
Tittal as NAW-3.
(9) After hearing the pleadings of both the parties, Family
Court framed issues. After marshalling the oral as well as
documentary evidence and other material available therein, vide
impugned judgment and decree dated 20-10-2022 dismissed the
divorce application filed by appellant- husband under Section 13 of
the HM Act on the ground ''cruelty and desertion''.
(10) Being dissatisfied, the appellant- husband is before this
Court by filing the instant first appeal.
(11) It is contended on behalf of appellant that the impugned
judgment is manifest illegal, contrary to law and perverse to the oral
as well as documentary evidence available on record. The learned
Family Court has not considered the ground of cruelty on the part of
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respondent although the learned Trial Court vide judgment dated 12th
of March, 2019 in connection with Sessions Trial Court 128 of 2017
acquitted appellant and his family from charges levelled against them
for offence punishable under Sections 498-A, 506, 34 and enhanced
Sections 307, 328 of IPC vide Crime No.171 of 2016 registered at PS
Mahila Thana Padav, Gwalior at the instance of respondent. After
acquittal, appellant had also filed an application for amendment in his
plaint averments before the Family Court. Relying on the judgment
of Hon'ble Supreme Court in the case of Rani Narasimha Sastry vs.
Rani Suneela Rani (2020) 18 SCC 247, Malathi Ravi vs. Dr. BV
Ravi, AIR 2014 SC 2881 , K. Shrinivas Rao vs. DA Deepa (2013) 5
SCC 226 and K.Shrinivas vs. Ku. Sunita (2014) 16 SCC 34, it is
contended on behalf of appellant that mental cruelty is sufficient
ground for a decree of divorce. Lodging of false complaint amount to
cruelty. Respondent has been living separately since 2016 and she
never shows any inclination to live with the appellant. Appellant tried
his best to establish marital life, but on each and every occasion, she
refused to go with her appellant- husband, even today she is not
willing to go and live with appellant. It is trite law that long
separation, mental and physical torture, unwillingness of party to live
together as husband and wife, has left no scope to repair their marital
bond, in such a situation, it shows scant regard for the feelings and
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emotions of the parties which may lead to ''mental cruelty'' and due to
irretrievable breakdown of marriage there is no useful purpose to
repair marital bond. Therefore, he appellant has left with no other
option, but to seek a decree of divorce from respondent on the ground
of ''cruelty and desertion''.
( 1 2 ) On the contrary, learned Counsel for respondent-wife
while supporting the impugned judgment and decree, submits that the
cruelty and desertion was at the behest of the husband not that of
wife. Wife always wanted to stay with her husband, however,
husband never wanted to keep her with him. Under these
circumstances, the impugned judgment and decree is well-justified,
which does not call for any interference. Hence, prayed for dismissal
of this appeal.
(13) Heard learned Counsel for parties and perused the record.
(14) The Hon'ble Supreme Court in Rani Narsimha Sastry
(supra) has observed that when a persecution launched against the
husband on a complaint made by the wife under Section 498-A of
IPC making serious allegations wherein husband is constrained
undergo trial which eventually resulted into acquittal, then in such
case, it cannot be accepted that no cruelty was meted out on the
husband, and he can make a ground for grant of decree of dissolution
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of marriage under Section 13(1)(1-a) of the HM Act.
(15) The concept of ''mental cruelty'' has been discussed in
catena of decisions by Hon'ble Supreme Court in in AIR 2002 SC 2582
(Praveen Mehta Vs. Inderjit Mehta), (2007) 4 SCC 511 {Samar Ghosh Vs. Jaya
Ghosh}, (2010) 4 SCC 339 {Manisha Tyagi Vs. Deepak Kumar}, (2012) 7 SCC
288 {Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal}, (2013) 2 SCC 114
{U. Sree Vs. U. Srinivas} and AIR 1975 SC 1534 {Dr. N. G. Dastane vs. Mrs. S.
Dastane}.
(16) The Hon'ble Apex Court in the case of Samar Ghosh
(supra) enumerated the illustrative instances of human behaviour
which may be relevant for dealing with the case of ''mental cruelty''.
"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) ** ** **
(iii) ** ** **
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(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) ** ** **
(viii) ** ** **
(ix) ** ** **
(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) ** ** **
(xii) Unilateral decision of refusal to have intercourse for
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considerable period without there being any physical incapacity
or valid reason may amount to mental cruelty.
(xiii) ** ** **
(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.
It is equally well-settled in law that lodging of false complaint
amounts to cruelty {See: AIR 2014 SC 2881 Malathi Ravi vs. Dr. BV
Ravi, (2013) 5 SCC 226 K. Shrinivas Rao Vs. D.A. Deepa, (2014) 16
SCC 34 K. Shrinivas Vs. Ku. Sunita and AIR 2003 MP 271 Johnson
M. Joseph alias Shajoo Vs. Smt. Aneeta Jhonson)}
(17) So far as the legal principles with regard to ''desertion'' is
concerned, the Hon'ble Apex Court in AIR 1957 SC 176
(Bipinchandra Jaisinghbai Shah Vs. Prabhavati), has explained that
for the offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there., namely, (1) the
factum of separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly two elements
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are essential so far as the deserted spouse is concerned: (1) the
absence of consent, and (2) absence of conduct giving reasonable
cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid. Desertion is a matter of inference to be
drawn from the facts and circumstances of each case. The inference
may be drawn from certain facts which may not in another case be
capable of leading to the same inference; that is to say, the facts have
to be viewed as to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and subsequent to
the actual acts of separation. If, in fact, there has been a separation,
the essential question always is whether that act could be attributable
to an animus deserendi.
[See:- AIR 1964 SC 40 (Lachman Utamchand Kirpalani Vs. Meena alias
Mota), (2002) 1 SCC 308 {Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri
Devi} to (2006) 4 SCC 558 {Naveen Kohli Vs. Neelu Kohli}]
(18) Mother of respondent (NAW-2) in Para 6 of her cross-
examination admitted the fact that her police statement as well as
Court statement were recorded in connection with offence under
Sections 307 and 498-A of IPC. The appellant and his family
members have been acquitted by the Court. In Para 7, she further
deposed that she is ready to send her daughter-respondent with
appellant after giving all the gold jewellery and four lac rupees and
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further deposed that her daughter-respondent if wants may go.
Brother of respondent (NAW-3) in Para 5 of his cross-examination
deposed that it is wrong to say that respondent has falsely registered
case under Sections 307, 498-A of IPC against appellant and his
family for cruelty. He further deposed that respondent was treated
cruelly by her in-laws for demanding ten lac rupees in dowry and was
given dye (hair colour) to drink. Respondent (AW-1) in Para 13 of
her cross-examination deposed that she did not remember whether
she read FIR lodged at Mahila Thana. She had received a copy of FIR
and did not remember whether she read that FIR before giving her
statement.
(19) Appellant (AW-1) in his statement deposed that on 17th
of August, 2016, the respondent abused in filthy language him and
his family members including his mother and sister and at the same,
time, his father-in-law, mother-in-law and brother-in-law came to his
residence and demanded for transferring the second floor of house in
the name of respondent otherwise, they would kill him and also
threatened to initiate false criminal proceedings that would send him
to jail for life. Thereafter, the respondent registered a false case
against him and his family members at Mahila Thana Padav for
offence under Sections 498-A, 506, 34 of IPC and enhanced Sections
307 and 328 of IPC.
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(20) It is not in dispute that marriage of appellant with
respondent was solemnized on 29th of April, 2007. Respondent is
living separately since 2011 and has not established conjugal
relations with him. On 08-10-2016 on the basis of complaint lodged
by respondent Crime No.171 of 2016 at PS Mahila Tahana, Gwalior
was registered against the appellant and his family members for
offence punishable under Section 498-A, 506, 34 and enhanced
Section 307, 328 of IPC and after completion of investigation, charge
sheet was filed before the competent Court of Criminal jurisdiction
and thereafter, the appellant and his family have been acquitted by the
learned Trial Court vide judgment dated 12th of March, 2019 in
connection with Sessions Trial No. 128 of 2017. The divorce
application was filed by the appellant on 31st of August, 2016 i.e.
much prior to filing of complaint by respondent. In between 2011-
2016 neither any complaint regarding demand of dowry nor
harassment was made by respondent at any police station or narrated
the incident to her parents. Although the allegation of respondent that
she was subjected to harassment of dowry and cruelty, but she has
not been able to substantiate her assertions as well as no other
witnesses on her behalf is not able to prove the allegations. The wife
has not been able to justify the ground on which the complaint was
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being made by her. Ultimately, if it is found that such allegations
were unwarranted and without basis and if that act of the wife itself
forms the basis for the husband to allege the mental cruelty has been
inflicted on him, certainly, in such circumstances, if a petition for
dissolution of marriage is filed on that ground and the evidence
tendered before the Family Court to allege mental cruelty, it could
well be appreciated for the purpose of dissolving the marriage on that
ground.
(21) Appellant before the Family Court had filed amendment
application regarding cruelty in his pleadings and the same was
allowed by the Family Court vide order dated 13-05-2019. Prolonged
differences between parties, false criminal complaint and in absence
of conjugal relationship between the parties are the important factors
which entitles the husband from divorce from his wife on the proven
grounds of cruelty. Even various efforts made, there is no solution to
establish the matrimonial bond and it appears that appellant had been
deserted by his wife respondent and she, on her own, does not want to
return to her matrimonial fold. Thus, there was completely
breakdown of conjugal relationship which is the bedrock of
matrimonial relationship between the parties. It was also found
proved that the Family Court did not take into consideration the
above broad facts and declined to grant a decree of divorce in favour
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of husband.
(22) In view of foregoing reasons, the instant appeal filed by
the appellant deserves to be and is hereby allowed. The
impugned judgment and decree dated 20-10-2022 passed by Principal
Judge, Family Court, Gwalior in RCSHM No. 10812 of 2016 is
hereby set aside. The the application under Section 13 of the HM Act
filed on behalf of appellant- husband seeking a decree of divorce on
the ground of ''cruelty and desertion stands allowed. The marriage
between the parties stands dissolved. A decree be drawn accordingly.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
