Madhya Pradesh High Court
Smt. Asha Rathore vs Mohan Singh Rathore on 15 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 15th OF JANUARY, 2025
FIRST APPEAL No. 1712 of 2022
SMT. ASHA RATHORE
Versus
MOHAN SINGH RATHORE
Appearance:
Mohd. Sazid - learned counsel for the appellant/wife.
Shri Ajay Pal Singh - learned counsel for the respondent/husband.
JUDGMENT
Per: Justice Sushrut Arvind Dharmadhikari
With the consent of parties, heard finally.
This First Appeal under Section 19 of the Family Courts Act
(hereinafter referred to as the Act) has been filed by the appellant being
aggrieved by the judgment and decree dated 19/10/2022 passed by the
Principal Judge, Family Court, Narmadapuram in Marriage Petition No.
RCSHM 90-A/2018, whereby the application filed by the
respondent/husband seeking divorce under Section 13 of the Hindu Marriage
Act, 1955 has been allowed.
2 . The brief facts of the case are that the marriage between the
appellant/wife and the respondent/husband was solemnized in the year 1976
as per Hindu rites and customs. From their wedlock, they have a son named
Rahul. After sometime, in the year 1982 differences between the appellant
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and respondent arouse. Appellant left the house and shifted to her parent's
house at Mhow and she is presently living in Bhopal with her son, therefore,
application for divorce was filed by the respondent/husband on the ground of
desertion and cruelty. Appellant filed written statement and denied the
averments made in the plaint and opposed the prayer of plaintiff. Learned
Family Court after recording evidence adduced by the parties has allowed the
application of the respondent and granted the decree of divorce in favour of
the respondent/husband. Being aggrieved, the appellant has filed the present
appeal for setting aside the impugned decree of divorce.
2. During pendency of the appeal, this Court made all efforts for
reconciliation, as per Mediator's report dated 01/05/2024, parties are willing
to live separately and respondent/husband is ready to pay maintenance
amount to the appellant/wife for her life time.
3. Learned counsel for the appellant/wife submitted that the learned
Family Court has failed to appreciate the evidence adduced by the parties in
its proper perspective. The findings recorded by learned Family Court
regarding issue Nos. 1 and 2 are apparently perverse because as per the
evidence question of cruelty and desertion was not proved by the respondent.
It is further submitted that the learned Family Court has failed to consider
that there is justified reason for living separately due to which application
filed under Section 125 Cr.P.C. filed by the appellant/wife was allowed, thus,
question of desertion does not arise in this matter. On one hand
respondent/husband stated that the appellant deserted him but on the other
hand, he has failed to establish that he has not taken possible effort for
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restitution of conjugal rights. Under these circumstances, learned counsel for
the appellant/wife prays for setting aside of impugned judgment and decree.
4. On the other hand, learned counsel for the respondent/husband
supported the impugned judgment and decree passed by the learned Court
below.
5. Heard learned counsel for the parties and perused the record.
6. It is an admitted fact that though the marriage of the appellant and
respondent has been solemnized in the year 1976, but, they are residing
separately since 1982. The respondent/husband filed application before the
learned Family Court for divorce against appellant/wife on the ground of
desertion and cruelty. During pendency of the appeal, this Court made all
efforts for reconciliation and as per Mediator's report dated 01/05/2024,
parties are willing to live separately and respondent/husband is ready to pay
the maintenance amount to the appellant/wife for her life time.
7. The respondent/ husband filed an application before the learned
Family court under Section 13 of the Act for divorce against appellant/wife
on the ground of cruelty. It would be apposite to discuss the relevant part of
the provision of the Act, 1955, i.e. Section 13, which is reproduced as
under:-
''13. Divorce.- (1) Any marriage solemnized, whether before or after
the commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground that
the other party--
[(i) has, after the solemnization of the marriage, had voluntary sexual
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intercourse with any person other than his or her spouse; or (i a) has, after the
solemnization of the marriage, treated the petitioner with cruelty; or (i b) has
deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or]...''
8. Cruelty has not been defined under the Act. All the same, the
context where it has been used, which is as a ground for dissolution of a
marriage would show that it has to be seen as a human conduct and
behaviour in a matrimonial relationship. While dealing in the case of Samar
Ghosh Vs. Jaya Ghosh reported in (2007)4 SCC 511 , the Apex Court opined
that cruelty can be physical as well as mental:
''If it is physical, it is a question of fact and degree. If it is mental, the
enquiry must begin as to the nature of the cruel treatment and then as to the
impact of such treatment on the mind of the spouse. Whether it caused
reasonable apprehension that it would be harmful or injurious to live with the
other, ultimately, is a matter of inference to be drawn by taking into account
the nature of the conduct and its effect on the complaining spouse.''
Cruelty can be even unintentional :
''The absence of intention should not make any difference in the case,
if by ordinary sense in human affairs, the act complained of could otherwise
be regarded as cruelty. Intention is not a necessary element in cruelty. The
relief to the party cannot be denied on the ground that there has been no
deliberate or wilful ill-treatment.''
9. The Apex Court though did not ultimately give certain
illustrations of mental cruelty. Some of these are as follows:
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''(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.
.......
(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) Unilateral decision of either husband or wife after marriage not
to have child from the marriage may amount to cruelty.
(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.''
10. In respect of cruelty, the Apex Court in the case of A. Jayachandra
Vs. Aneel Kaur reported in [AIR 2005 Supreme Court 534], has held as
under:-
''12. To constitute cruelty, the conduct complained of should be "grave
and weighty" so as to come to the conclusion that the petitioner spouse
cannot be reasonably expected to live with the other spouse. It must be
something more serious than "ordinary wear and tear of married life". The
conduct, taking into consideration the circumstances and background has to
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be examined to reach the conclusion whether the conduct complained of
amounts to cruelty in the matrimonial law. Conduct has to be considered, as
noted above, in the background of several factors such as social status of
parties, their education, physical and mental conditions, customs and
traditions. It is difficult to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute cruelty. It must be
of the type as to satisfy the conscience of the Court that the relationship
between the parties had deteriorated to such an extent due to the conduct of
the other spouse that it would be impossible for them to live together without
mental agony, torture or distress, to entitle the complaining spouse to secure
divorce. Physical violence is not absolutely essential to constitute cruelty and
a consistent course of conduct inflicting immeasurable mental agony and
torture may well constitute cruelty within the meaning of Section 10 of the
Act. Mental cruelty may consist of verbal abuses and insults by using filthy
and abusive language leading to constant disturbance of mental peace of the
other party.''
11. In the case of Narendra vs. K.Meena, [2017 (1) MPLJ 306] , the
Apex Court has held as under :-
''13. This Court, in the case of Vijaykumar Ramchandra Bhate v.
Neela Vijaykumar Bhate, 2003 (6) SCC 334 has held as under:-
7. The question that requires to be answered first is as to whether the
averments, accusations and character assassination of the wife by the
appellant husband in the written statement constitutes mental cruelty for
sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The
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position of law in this regard has come to be well settled and declared that
levelling disgusting accusations of unchastity and indecent familiarity with a
person outside wedlock and allegations of extramarital relationship is a grave
assault on the character, honour, reputation, status as well as the health of the
wife. Such aspersions of perfidiousness attributed to the wife, viewed in the
context of an educated Indian wife and judged by Indian conditions and
standards would amount to worst form of insult and cruelty, sufficient by
itself to substantiate cruelty in law, warranting the claim of the wife being
allowed. That such allegations made in the written statement or suggested in
the course of examination and by way of cross-examination satisfy the
requirement of law has also come to be firmly laid down by this Court. On
going through the relevant portions of such allegations, we find that no
exception could be taken to the findings recorded by the Family Court as
well as the High Court. We find that they are of such quality, magnitude and
consequence as to cause mental pain, agony and suffering amounting to the
reformulated concept of cruelty in matrimonial law causing profound and
lasting disruption and driving the wife to feel deeply hurt and reasonably
apprehend that it would be dangerous for her to live with a husband who was
taunting her like that and rendered the maintenance of matrimonial home
impossible.
12. In the case of Prem Narayan Sahu V Smt. Manorma Sahu [F.A.
No. 60/2002, decided on 21/11/2013];, the court has held as under:-
''6. As regards the allegation of desertion, the wife has admitted in para
10 of her evidence that she has not gone to her matrimonial home since
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1986. The husband had sent a legal notice dated 25.3.1986, Ex.P1, to the
wife to return home but to no avail. It is, therefore, clearly established that
the wife is living separately from her husband since last 27 years. As already
stated above, after about five months from the date of passing of ex-parte
decree of divorce in favour of husband, he remarried to a widow Saroj with
whom he has two children. The marriage of the husband with wife has
irretrievably broken down. A marriage which is dead for all purposes cannot
be revived by the court's verdict, if the parties are not willing. In K. Srinivas
Rao Vs. D.A. Deepa reported in 2013(5) SCC 226 the Supreme Court has
held that this is because marriage involves human sentiments and emotions
and if they are dried up there is hardly any chance of their springing back to
life on account of artificial reunion created by the court's decree. The
husband is, therefore, entitled for divorce on the ground of desertion also.
We accordingly set aside the judgment and decree passed by the trial court
and allow the husband's petition for divorce.''
13. In the case of Dinesh Nagda V Shanti Bai reported in 2011 (3)
JLJ 299, a coordinate bench of this court has held as under:-
''20. So far as the issue of desertion is concerned, Section 13(1)(ib) of
the Act requires desertion for a continuous period of not less than two years
immediately preceding the presentation of the divorce petition. In the present
case, the respondent Shantibai has admitted that she is living separately with
her parents since 1995-1996 (since 9-10 years prior to giving the affidavit
before the trial Court, on 26/7/2005). The statement of the appellant also
indicates that the respondent is living separately with her parents since 1995-
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96. The appellant has stated that he had no marital relation with the
respondent since last 10-11 years. He has stated that for that reason he is
having "dry life" for last several years. The aforesaid position is also
reflected from the statements of the other witnesses. The respondent's plea
that she is living separately on account of the second marriage of the
appellant cannot be accepted because the respondent has failed to produce
any reliable evidence establishing the second marriage of appellant with
Radhabai. The reliance on the affidavit (Ex.D.15) given by Radhabai does
not establish second marriage since she has only stated that she is living in
the appellant's protection for certain reasons, but she has not stated that she is
living as wife of the appellant. Though the respondent has stated that she is
ready to live with the appellant, but the father of the respondent has
categorically stated that it is not possible for the respondent to live with the
appellant. The respondent has failed to establish any reasonable cause for
living separately for last about 15 years.Thus, it is clear that the respondent
has deserted the appellant and ground for divorce under Section 13(1) (ib) of
the Act is made out.''
14. The appellant/wife and respondent/husband are living separately
since long and have not cohabited. There is absolutely no scope of
reconciliation between the parties. An irretrievable marriage is a marriage
where husband and wife have been living separately since a long period of
time and there is absolutely no chance of their living together again. Even
otherwise multiple Court battles between them and the repeated efforts to
settle the disputes amicably by way of mediation have also failed which
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clearly indicate towards the situation that no bond now survive between
them, it is a marriage which has been broken down irretrievably. Moreso, it
is not possible in every case to pin point an act of 'cruelty' or blameworthy
conduct of the spouse. The nature of relationship, the general behaviour of
the parties towards each other or long separation between the two are
relevant factors which a Court must take into account.
15. Though, the marriage between the appellant and respondent was
solemnized in 1976, however, after multiple litigation, the matrimonial bond
is completely broken and is beyond repair. If such a relationship which is
merely on papers continues, the same may cause cruelty to both the sides.
16. In the instant case, where marital relationship has broken down
irretrievably, where there is long separation and absence of cohabitation with
multiple Court cases between the parties, then continuation of such a
marriage would only lead to infliction of cruelty by either of the parties to
each other as it is apparent from the record that there has been a long period
of continuous separation due to which it can fairly be concluded that the
matrimonial bond in the present case is beyond repair, otherwise mental
cruelty would stand continued.
17. In the given facts and circumstances of the case as well as in the
light above enunciation of law especially the judgement passed in case of
Prem Narayan Sahu (supra) coupled with the Mediation's report, accordingly
to which parties are willing to live separately and respondent/husband is
ready to pay the maintenance amount to the appellant/wife for her life time,
we set-aside the impugned judgment and decree dated 19/10/2022 passed by
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the learned Family Court and grant a decree of dissolution of marriage
between the appellant and respondent. Their marriage shall stand dissolved.
The appeal is allowed.
18. Let a decree be drawn accordingly and record of the Family
Court be sent back alongwith the copy of this judgment for information and
necessary compliance.
(SUSHRUT ARVIND DHARMADHIKARI) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
skt
