Madhya Pradesh High Court
Smt. Renu Rawat vs Vikram Singh Rawat on 27 February, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
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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. 1506 of 2022
SMT. RENU RAWAT
Versus
VIKRAM SINGH RAWAT
AND
FIRST APPEAL No. 1127 OF 2022
VIKRAM SINGH RAWAT
Versus
SMT. RENU RAWAT
Appearance:
Shri Atul Gupta and Ms. Ayushi Vyas- learned Counsel for wife Smt. Renu Rawat
(appellant) in First Appeal No. 1506 of 2022 and for Husband - Vikarm Singh Rawat
in FA No. 1127 of 2022
Shri R. K. Sharma- learned Senior Counsel assisted by Shri Abhijeet Singh Tomar
for husband- Vikram Singh Rawat in First Appeal No. 1506 of 2022 and Wife- Smt.
Renu Rawat in FA No. 1127 of 2022.
JUDGMENT
Per: Justice Hirdesh
First Appeal No. 1506 of 2022 has been filed by wife under Section
28 of Hindu Marriage Act, 1955 (in short '' HM Act'') challenging the
judgment and decree dated 24-06-2022 passed by learned Second Additional
Sessions Judge, Sabalgarh, District Morena in Regular Civil Suit HMA
No.94 of 2021, whereby application filed by wife under Section 9 of HM
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Act for restitution of conjugal rights has been rejected.
(2) First Appeal No.1127 of 2022 has been filed by husband under
Section 28 of HM Act challenging the same judgment and decree dated 24-
06-2022 passed by learned Second Additional Sessions Judge, Sabalgarh,
District Morena in Regular Civil Suit HMA No. 51 of 2018, whereby
application filed by husband under Section 13 of HM Act seeking a decree of
divorce on the ground of '' cruelty and desertion'' has been rejected.
(3) It is an admitted fact that marriage of both the parties was
solemnized on 25th of April, 2012 as per Hindu rites and rituals in Village
Shyampur and out of their wedlock, a son, namely, Shyam (Krishna) was
born on 05-09-2015. Since crux of both first appeals is same, therefore, they
are heard together and disposed of by this common judgment.
(4) The factual matrix of both appeals, in short, is that on 05-09-2018,
the husband filed a divorce application under Section 13 of HM Act seeking
a decree of divorce on the ground of ''cruelty and desertion'' alleging therein
that after birth of his son Shyam (Krishna), his wife started living separately
in her parental house in Village Shyampur and when he said her that she
could not leave his parents because there was no one else to take care of
them, on that, his wife remained adamant and began to harass him and his
parents by fighting over trivial matters and using foul and abusive language.
On 1st November, 2015, his wife called her brothers Anil and Mansingh and
her sisters-in-law Sunwa and Mamta to Sabalgarh. Despite his son Shyam
being ill, she left his sick child and quarrelled with him and his mother and
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father, and left for her parental home at Village Shyampur with her brothers
and sisters-in-law. He filed a written complaint at PS Sabalgarh on 4th of
November, 2015 and on 6th of November, 2015, Sabalgarh Police registered
a non-cognizable report (NCR) and handed over the custody of his son
Shyam (Krishna) to his wife even though he was still under medical
treatment. It was further alleged that there was no dowry in marriage,
however, his wife filed a false complaint regarding demand of dowry at
Morena Counselling Centre in order to harass him and his family. She was
not ready and willing to reach a compromise nor did she want to live with
him. She has been living separately at her parents' house since 1st November,
2015. Despite several attempts at reconciliation by him through his relatives,
his wife does not want to live with him or fulfil her marital obligations. Her
behaviour towards him and his family is cruel and inhumane, making it
impossible for him to live together. There is no collusion between them.
Therefore, he sought a decree of divorce and their marriage solemnized on
25th of April, 2012 be dissolved.
(5) The wife filed her response refuting the allegations made by her
husband and pleaded that her husband does not want to keep her with him.
He is a greedy person and has abandoned her due to non-fulfilment of
demand of dowry. She still wishes to live a happy married life with her
husband at his residence, but he is trying to remarry. Her husband has filed
the divorce application for dissolution of marriage on false facts. Hence,
prayed for its dismissal.
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(6) The wife in her application filed under Section 9 of HM Act for
restitution of conjugal rights on 13-12-2021 averred that her father was
murdered and since then, her husband has been harassing and torturing her
demanding dowry. About 3-4 years ago, due to non-fulfilment of dowry of
demand, she was forced to leave with her son after murder of her father. It
was further alleged that all her jewellery and household articles given by her
father was also kept by her husband. She came to her maternal home and
narrated the entire incident to her mother and brother. When her brother
telephoned her husband, her husband told her that her father had given less
dowry in their marriage. Her husband alleged that he is a Government
Teacher and his social standing has been tarnished and he would keep her, if
demand of four-wheeler is fulfilled. After this, her brother along with
relatives went to her in-laws house and after reconciliation, left her at her in-
laws house, however, her husband flatly refused to keep her. On 8 th of
December, 2020, her brother along with relatives once again came to her in-
laws house. Even then, her husband again flatly refused to keep her and said
that he will not keep her without fulfiling the demand of car. Her husband is
a greedy person. She is ready to live with her husband and fulfil marital life.
It was further alleged that on 8th of December, 2020, her husband assaulted
her, ousted her from his house and threatened to marry someone else. On
these grounds, she prayed for restitution of conjugal rights.
(7) In counter, the husband submitted his reply to the application of
wife filed under Section 9 of HM Act and alleged that on 1 st of November,
2015, his wife quarrelled with him and his parents and left for maternal home
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at village Shyampur with her brothers and sisters-in-law leaving behind his
sick son Shyam. A written complaint about the incident was lodged by him at
PS Sabalgarh, on the basis of which, Non-cognizable Report (NCR) was
filed by police on 6th of November, 2015 and the minor child was handed
over to his wife by police. His wife behaved cruelly. Their marriage was
ideal marriage, in which there was no exchange of dowry. After that, his wife
filed a false complaint of dowry at District Counselling Centre, Morea in
order to harass him and his family. She was not ready to either compromise
nor did she want to live with him. She has been living separately from him at
her maternal home since 1st November, 2015. Even several attempts were
made to reconcile through relatives, his wife does not want to live with him.
She has failed to establish marital life from 1st of November, 2015 till date.
Therefore, prayed for dismissal of application for restitution of conjugal
rights.
(8) After considering the pleadings and arguments of both the parties
and material available on record including the evidence of their witnesses,
namely, Shrilal Rawat examined on behalf of wife, Jagnnu Rawat and
Ramdayal Rawat examined on behalf of husband, the learned Family Court
framed issues and dismissed both the applications filed by wife and husband
respectively, vide common judgment and decree dated 24-06-2022.
(9) Being dissatisfied, the wife has filed instant First Appal No.1506 of
2022 while the husband has filed instant First Appeal No.1127 of 2022.
(10) It is contended on behalf of husband that learned Family Court
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has committed an error in dismissing his divorce application without going
through oral and documentary evidence of husband and his father Ramdayal
Rawat. The wife has deserted the company of husband since 01-11-2015
without any reasonable cause and also committed cruelty with him and his
family members mentally and physically. After more than three years of
filing of divorce petition i.e. on 05-09-2018, the wife filed an application
under Section 9 of HM Act for restitution of conjugal rights on 13-12-2021
and the same has been rightly dismissed by Family Court. The wife along
with minor son is living separately from the husband since 01-11-2015 in
her parental home, whereby the husband has been depriving of his love and
affection towards his minor son. Despite several attempts were made in
mediation proceedings, there is no chance of them living together as husband
and wife in future. Despite best efforts made by this Court, compromise
between the parties could not be done and husband is not ready to keep his
wife along with him. Both the parties are living separately since 2015 i.e.
almost for last about 09-10 years and there is no chance of reunion. Because
of registration of false case including domestic violence act, the husband has
lost his Govt job of Teacher. Therefore, the husband is entitled for a decree
of divorce on the ground of cruelty and desertion. In support of his
contention, learned Counsel for husband has relied on the judgment of Disha
Kushwah vs. Rituraj Singh (2019) 4 JLJ 308.
(11) On the other hand, learned Counsel for the wife opposed the
contentions of husband and submitted that after filing of Domestic Violence
case and failure of Mediation Proceedings at Morena, the husband filed
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divorce application. In the mediation proceedings, her father-in-law
Ramdayal Rawat was adamant to get her husband remarried due to non-
fulfilment of demand of dowry. The learned Family Court did not appreciate
the evidence brought by the parties properly and merely on the basis of
surmises and conjectures dismissed her application for restitution of
conjugal rights and ought to have allowed the same though no cruelty was
found proved on the part of the wife. Therefore, the dismissal of her
application under Section 9 of HM Act is not in accordance with law and
deserves to be set aside.
(12) Heard learned Counsel for parties and perused the record.
(13) So far as allegation of husband that he is entitled for a decree of
divorce on the ground of ''cruelty and desertion'' is concerned, the concept
of ''mental cruelty'' has been discussed in catena of decisions by
Hon'ble Apex Court Court 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}. 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
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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) ** ** **
(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
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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
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.
(14) So far as 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
are essential so far as the deserted spouse is concerned: (1) the
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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}]
(15) Conjugal rights are the rights accompanied by the persons, who
are married. When it comes to the recovery of marital rights, there are few
basic aspects to consider. Neither the husband nor the wife should be able to
take away the other's rights without good reason.
(16) Section 9 of HM Act which deals with restitution of conjugal
rights as under :-
"9. Restitution of conjugal rights- When either the husband or the
wife has without reasonable excuse, withdrawn from the society
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of the other, the aggrieved party may apply, by petition to the
District Court, for restitution of conjugal rights and the court, on
being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be
granted, may decree restitution of conjugal rights accordingly."
[Explanation :- Where a question arises whether there has been
reasonable excuse for withdrawal from the society, the burden of
proving reasonable excuse shall be on the person who has
withdrawn from the society.]
(17) The purpose of Section 9 of the Hindu Marriage Act, 1955 is to
maintain the sacrifice aspect of marriage by eliminating disparities that arise
between spouses. This can be accomplished by granting Section 9 relief of
restitution of marital rights. This remedy of restitution of conjugal rights is a
beneficial privilege because it allows deserted spouses to be together and
cohabit. However, it is also used incorrectly in several instances. This section
deals with the restitution of conjugal rights. It states that if one spouse has
withdrawn from the society of the other without any reasonable excuse, the
aggrieved party can file a petition in competent court for the restitution of
conjugal rights. The court, if satisfied that there is no legal ground for the
withdrawal and that the petitioner is not in any way at fault, may pass a
decree for the restitution of conjugal rights, which would require the other
spouse to return to the matrimonial home and resume cohabitation. The
concept of restitution of conjugal rights in India has its origins in the
traditional Hindu law, which recognized the importance of maintaining the
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sanctity of marriage and preserving the unity of the family.
(18) Under traditional Hindu law, a wife was obligated to live with her
husband and perform her duties as a wife, and if she refused to do so without
any just cause, the husband could seek a judicial separation. The concept was
codified in the Hindu Marriage Act, 1955 which was one of the first
legislation in India to provide for the restitution of conjugal rights. The
provision in Section 9 of the Act allows a spouse to seek a court order
requiring the other spouse to resume cohabitation and fulfil their marital
obligations.
(19) From bare perusal of Section 9 of the Act, it is amply clear that
when either the husband or wife has, without reasonable excuse, withdrawn
from the society of the other, on being satisfied of the truthfulness of the
statements made in such petition and that there is no legal ground for not
granting application, the Court may pass the decree of restitution of conjugal
right. From the explanation attached to the Section, it is also very much clear
that when question arises as to whether there has been reasonable excuse for
withdrawal from the society of the spouse, the burden of proving reasonable
excuse shall be on the person who has withdrawn from the society of the
other spouse.
(20) Wife (Smt. Renu Rawat) in Para 06 of her cross-examination
although deposed that she did not file a petition for restoration of conjugal
rights after matter was resolved in Family Counselling Centre, Morena
because of the fact that divorce case has been going on since 2018 and she
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filed an application for restoration of conjugal rights in 2022 because of the
fact that due to corona pandemic situation, eight-ten months have been
passed and her previous lawyer was unwell. After arrangement of new
lawyer, she has filed an application for restoration of conjugal rights. In Para
8, she deposed that in Family Counselling Centre, Morena, she was ready
and willing to compromise, but her husband was not. She wants to live with
her husband willingly. When she went at persuasion of relatives for staying
with her husband for five months, her mother-in-law and sister-in-law did not
allow her to talk with her husband, so that no marital relations could be
established between them during those five months. Similarly, Shrilal Rawat,
who has been examined on behalf of wife in his cross-examination denied
that Renu is living at her parents' house on her own and she does not want to
live with her husband. He further admitted that a Panchayat was convened
and it was incorrect to say that her brothers and sisters-in-law were called by
wife and on 1st of November, 2015, all of them had beaten up the husband.
(21) Husband (Vikram Singh Rawat) although in Para 3 of his
examination-in-chief deposed that on 01-11-2015, his wife called her brother
and relatives to Sabalgarh and at that time, his son was sick and after leaving
his sick child, his wife left for maternal home Shyampur with her brother and
sisters-in-law and in this regard, a complaint was filed by him at PS
Sabalgarh on 04-11-2015 vide report (Ex.P-1) on the basis of which, NCR
under Section 155 of CrPC was registered on 06-11-2015 and in Paras 4 and
5, he further deposed that his wife has been living separately at her parents'
house since 01-11-2015 and her behaviour towards him and his parents is
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inhumane and cruel, but the reports do not bear either any seal or signature as
well as name of recipient. As per allegation of husband that he had also
submitted an application before the Superintendent of Police vide Ex.P4, but
in Para 14 of his examination, he admitted that the matter of fighting and
quarelling by his wife is not written in it and further admitted that he did not
take any action to keep his wife with him. In Para 16, the husband admitted
the fact that his wife had filed a complaint at PS Sabalgarh on 12th of June,
2018 and he received a notice from Family Counselling Centre, Morena on
the basis of document Ex.D1 and they appeared at Family Counselling
Centre on 22nd July, 2018 and also admitted that on 12th of August, 2018,
he said that he did not want to keep his wife with him. In Para 6 of his main
cross-examination-in-affidavit filed under Order 18 Rule 4 of CPC admitted
that he did not send any notice through Advocate to his wife to come and
live with him before filing of divorce. He in his cross-examination admitted
that he was not in Government job at the time of marriage. In Para 7, he
further admitted that he did not organise any Panchayat or file a complaint
regarding his wife's fighting and quarrelling before 01-11-2015. In Para 8, he
admitted that he had not gone to bring his wife back nor had he taken a
Panchayat. He had sent relatives to bring his wife back, but he did not
remember which relative he had sent to bring his wife back and did not tell
date, month or year when he had sent the relative to bring his wife back. If
his wife still wants to come with him, he will not take her.
(22) Similarly, Ramdayal Rawat, father of Vikram Singh in his main
examination-in-affidavit admitted the fact that they did not file any report at
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Police Station from 01-11-2015 to 03-11-2015. In Para 10, he admitted the
fact that the police called him, his son Vikram and police handed over the
minor child to the wife on 06-11-2015. and he does not know as to whether
any application was given to police on 06-11-2015 or not?
(23) Although Jagannu Rawat, who has been examined on behalf of
husband, in his examination-in-affidavit filed under Order 18 Rule 04 of
CPC deposed that Renu (wife) is a quarrelsome woman and since marriage,
she has been pressurizing husband (Vikram Singh) to live in her maternal
home and admitted that the husband was not employed, but from the
evidence of this witness there appears some inconsistencies, therefore, his
evidence cannot be acceptable as wholly reliable because of the fact that he
is cousin and relative of Vikram Singh.
(24) So far as the allegation of husband that as per reports documents
Ex.P1 to Ex.P3 his wife was forcibly taken from his house is concerned, the
said fact is not corroborated by oral evidence of witnesses. Further, so far as
complaint Ex.D1 given by wife on 12th of June, 2018 to SHO Sabalgarh is
concerned, there is no evidence that the wife had given application Ex.D1 on
false, and fabricated grounds. There is no mention of any assault or abuse by
the wife against her husband and his family members in documents Ex.P5 to
Ex.P7. It is not found proved that the wife had assaulted her husband or his
family members and caused physical and mental cruelty to him and his
family. There are significant contradictions between oral and documentary
evidence produced by husband. There is clear-cut statement of husband that
he will not go to his in-laws house to bring his wife back and in Para 17 of
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his testimony, the husband has clearly deposed that he does not want to keep
his wife with him which do not suggest that the wife deliberately abandoned
her husband without any valid reason.
(25) It is settled principle of law that restitution of conjugal rights is a
compulsory renewal of cohabitation between husband and wife who have
been living separately. The significant feature of application for restitution
of conjugal rights is that it is a remedy aimed at preserving the marriage and
not at dissolving it, as in the case of divorce or judicial separation.
(26) On perusal of impugned judgment and decree, it appears that the
learned Family Court did not commit any error in rejecting the divorce
application filed by husband on the ground of cruelty and desertion but
learned Family Court recorded a finding that wife was not justified and she
had no good reason to stay away from her husband and she had withdrawn
from the society of the husband without any reasonable excuse, as she did
not produce any documentary evidence or any witness in support of her
evidence and failed to discharge burden of proof under Section 101 of
Evidence Act, but from the evidence of wife and other witnesses, it cannot be
presumed that the wife is refusing to live with her husband without any
sufficient reason and depriving her husband of her marital rights.
Accordingly, the application filed under Section 9 of the HM Act for
restitution of conjugal rights deserves to be allowed and the same is hereby
allowed.
(27) For the forgoing discussion, First Appeal No.1506 of 2022 has
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been filed by wife under Section 28 of the Hindu Marriage Act, 1955 (in
short '' HM Act'') against judgment and decree dated 24-06-2022 passed by
Second Additional Sessions Judge, Sabalgarh, District Morena in Regular
Civil Suit HMA No. 94 of 2021 is set aside and the first appeal filed by wife
is allowed. Decree be drawn accordingly.
(28) Similarly, First Appeal No. 1127 of 2022 has been filed by
husband under Section 28 of the HM Act challenging the same judgment and
decree dated 24-06-2022 passed by Second Additional Sessions Judge,
Sabalgarh, District Morena in Regular Civil Suit HMA No. 51 of 2018 is
hereby affirmed. The first appeal filed by husband is dismissed.
(29) Copy of this judgment be kept in connected FA No.1127/2022.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
