Madhya Pradesh High Court
Smt. Anjali Shivhare vs Nitin Shivhare on 20 January, 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 20TH OF JANUARY, 2025
FIRST APPEAL NO. 153 OF 2014
NITIN SHIVHARE
Versus
SMT. ANJALI SHIVHARE
FIRST APPEAL NO.178 OF 2014
SMT. ANJALI SHIVHARE
Versus
NITIN SHIVHARE
---------------------------------------------------------------------------------------------
Appearance:
Shri Siddharth Sharma- learned Counsel on behalf of Shri Prashant Sharma-
Counsel for Nitin Shivhare- husband in First Appeal No. 153 of 2014 and First
Appeal No.178 of 2014.
Shri Sanjay Kumar Mishra and Shri Devansh Mishra- learned Counsel for Smt.
Anjali Shivhare- wife in First Appeal No.153 of 2014 and First Appeal No. 178 of
2014.
-----------------------------------------------------------------------------------------------
JUDGMENT
Per Hirdesh, J:-
The present appeals are against judgment and decree dated 24-06-2014
passed by Additional Principal Judge, Family Court, Gwalior in Case No.51-A of
2013 (HMA) and Case No.50-A of 2013. First Appeal No.153 of 2014 filed by
husband is against dismissal of his application u/S 13 of Hindu Marriage Act [in
short ''HM Act ''] for grant of divorce on the ground of cruelty and desertion and
First Appeal No.178 of 2014 filed by wife is against dismissal of her application
under Section 9 of HM Act for restitution of conjugal rights. Since both
applications stood dismissed by Family Court by common judgment and decree
dated 24-06-2014 granting a decree of judicial separation under Section 10 of the
HM Act, the instant two appeals are being heard analogously as the germane of
issue is one and the same.
(2) Necessary facts for disposal of both appeals, in short, are that marriage of
both parties was solemnized on 11-02-2008. A female child, namely, Ku.
Aishwarya was born on 20-03-2009 from their wedlock. As per averments of
husband, after marriage only after staying for five days, they went to Shimla
where they stayed for three months because of his posting at Shimla. Thereafter,
on 16-06-2008 his wife came to her parental home with ''Streedhan'' and since
then, in spite of efforts, his wife is not ready to stay with him. Therefore, on 14-
06-2010, he filed an application under Section 9 of HM Act for restitution of
conjugal rights in which, she refused to stay with him. Later on, in compliance of
Court's order dated 13-10-2010, he went to Silver Estate, City Centre, Gwalior on
15-10-2010 to bring her back, but she did not come. She abandoned him without
any reason and is not ready to live with him despite Court's order. His wife did not
respect his parents at her in-laws house after marriage. She insisted that she will
not live with his parents. She taunted that her marriage was performed against her
will, so that she did not perform household works. She used to get infuriated on
trivial matters and used to taunt. Apart from this, her insistence of bringing costly
clothes and jewellery for her caused dispute.
(3) It is further submitted on behalf of husband that on 15-10-2010, when he
went with Neeraj, son of his maternal uncle on a vehicle in compliance of Court's
order to bring her back, she started fighting in public place i.e. the courtyard
outside Silver Estate. After abusing, she gave a threat to implicate his entire
family with false dowry death case by setting herself on fire with kerosene. In
compliance of order passed by Judicial Magistrate First Class, Gwalior in
connection with Case No.15692 of 2010, he arranged for his wife to live in a
separate room attached with kitchen and bathroom on 12-08-2011, but she kept on
fighting with him and his parents. On 28-08-2011, she left for her parental home.
On 16-03-2012, although she had come to his house in compliance of
compromise order passed by Family Court, but on 17-03-2012, she also started
quarrel with him and his parents. Therefore, he has been abandoned by his wife
since 16-06-2008 without any reasonable cause. He and his family members have
been treated cruelly by his wife. On these grounds, he sought a decree of divorce.
(4) In counter, the wife denied allegations of her husband and stated that she
has been living with her husband in Shimla till October, 2008 after marriage and
maintaining marital relations. Her behaviour towards her husband and his family
members has already been good and she has never treated her husband and in-
laws cruelly or in an abusive manner. During settlement proceedings pursuant to
the application filed under Section 9 of the HM Act for Restitution of Conjugal
Rights filed by her husband, she still wants to live with her husband, but her
husband himself did not take her with him. On 15-10-2010, her husband came
outside the Silver Estate and asked her to bring down all her belongings in a
minute. When she came down with her belongings in 15 minutes along-with her
daughter and started putting belongings in auto, her husband in abusive manner
asked her to take away her jewellery and sarees and told her not to come back.
She did not misbehave with her husband on the date of alleged incident. From 16-
03-2012 to 30-03-2012, she lived with her husband and during this period, as per
his wish, she had physical relations. She has already been ready and willing to
live with her husband, but her husband used to taunt her because of getting less
dowry and non-fulfilment of demand of bringing Honda City car in dowry.
(5) During pendency of divorce application, the wife filed an application
under Section 9 of HM Act filed for restitution of conjugal rights, inter alia,
alleging that after marriage, a daughter Ku. Aishwarya was born on 20-03-2009.
In March, 2009, in front of one Suvir Jaiswal, her in-laws abused her saying that
her relationship will not last long because her parents did not give full amount as
demanded. She made these statements sarcastically. At the time of birth of her
daughter on 20th of March, 2009, her husband and his family members left her in
hospital and medical expenses was paid by her father. Later, when she went to
reside with her husband, on issue of bringing Honda City Car in dowry and
because of birth of daughter, her husband, mother-in-law and father-in-law and
sister-in-law tortured her physically and mentally. Since 08-10-2009, she has been
abandoned by her husband without any cause. In pursuant to application filed by
her husband under Section 9 of Hindu Marriage Act in connection with Case
No.93-A of 2010, she was ready to go with her husband, but her husband is not
taking her with him. On 15-10-2010, her husband came outside Silver Estate and
called her down and started abusing her. He refused to take her with him even
though she was ready to go with him. On 03-11-2010, on the call of her husband,
she went to the house of her husband, but there she was beaten up demanding a
Honda City Car and was made to sign some documents. Since 08-10-2009, her
husband has abandoned her without any sufficient reason and she is deprived of
all her marital happiness. Therefore, she prayed for restitution of conjugal rights.
(6) In reply, husband denied the entire allegations of his wife made in her
application under Section 9 of the HM Act for restitution of conjugal rights and
prayed for its dismissal.
(7) On the basis of pleadings made by both the parties, the Family Court
framed issues. Husband, in support of his evidence, examined himself as AW-1,
BL Shivhare as AW-2, and Dheeraj Kumar Shivhare as AW-3 whereas, wife
examined herself as NAW-1 Kaushal Kishore Shivhare as NAW-2 and Praveen
Anand as NAW-3 and in support of defence, both the parties also produced
documentary evidence.
(8) After marashalling oral as well as documentary evidence on record, vide
common judgment and decree dated 24 th of June, 2014, the Family Court
dismissed the divorce application filed by husband under Section 13 of the HM
Act by holding that he is not entitled to get a decree of divorce on the ground of
''cruelty and desertion' and also dismissed the application of wife filed under
Section 9 of HM Act for restitution of conjugal rights and granted a decree of
judicial separation under Section 10 of the HM Act.
(9) Being dissatisfied with common impugned judgment and decree, both
husband and wife are before us by way of instant first appeals.
(10) Shri Siddharth Sharma, learned Counsel appearing for husband submits
that he had produced CD before Family Court to prove cruelty and behaviour of
wife, but Family Court did not take into consideration while rejecting divorce
application. After conciliation proceedings on three occasions before Family
Court consequent to withdrawal of application filed by husband under Section 9
of HM Act, although husband made sincere efforts to bring his wife back, but she
claimed that she had been deserted by her husband and did not turn home back.
(11) Within one month from the date filing of divorce application, the wife filed
a private complaint on 11-11-2010 before the Court of JMFC on the basis of
which, cognizance was taken against the husband and his family members for
offence under Sections 498-A, 323, 294, 386, 506 of IPC. On the one hand, wife
filed an application under Section 9 of HM Act for restitution of conjugal rights
on 15-11-2010 and on the other hand, on the same date, she filed an application
under Section 12 of Domestic Violence Act as well as interim maintenance
application under Section 125 of CrPC. She has falsely implicated the entire in-
laws family including husband in several vexatious litigation including criminal
prosecution wherein, they have been acquitted of charges under Sections 498-A,
323, 294, 386, 506 Part II of IPC by Court of JMFC vide order dated 20-03-2018
passed in Criminal Case No.72 of 2011 as well as of charges under Section 12 of
Domestic Violence Act by Court of JMFC vide order dated 24th of August, 2019
passed in Criminal Case No.300029 of 2016 wherein the husband and his family
members led cogent evidence to prove cruelty committed by wife.
(12) The said judgments of acquittal were not in existence before Family Court
and instead of granting a decree of divorce, learned Family Court passed an order
of judicial separation on 24-06-2014 in utter ignorance of evidence available on
record.
(13) It is further contended that making false as well as fabricated criminal
accusations, so also baseless criminal complaint and malicious prosecution against
a spouse constitutes mental cruelty and is a valid ground for divorce as well as
dissolution of marriage because false accusation of dowry of demand as well as
domestic violence was made by the wife with an intent to malign the reputation of
husband and his family members. If one spouse, in furtherance of ulterior
motives, files false case/complaint, it becomes impossible to constitute marital
relationship. Therefore, levelling false allegations and implicating in criminal case
would also amount to ''cruelty''.
(14) Both the parties have been living separately for last 16 years and judicial
separation decree is in existence for last more than 9 years, therefore, long-term
separation and absence of any emotional or physical relationship is a valid ground
for divorce based on mental cruelty.
(15) When marriage of parties has already broken down beyond repair and there
has been no possibility of living together as husband-wife, forcing the parties to
remain in the marriage serves no purpose and there is no benefit to continue
marital bond which again may spoil life of both the parties. Taking advantage of
continuation litigation proceedings and because of conduct of wife, peace of mind
of husband and his entire family has become shattered. It is further submitted that
when the parties reached of irretrievable breakdown, marked with cruelty and
desertion, then compelling the couple to live together will not search much
purpose by a diving a decree of judicial separation. Thus, a decree of divorce be
granted on the ground of cruelty and desertion by setting aside the impugned
judgment and decree.
(16) On the other hand, on relying on the judgments passed by Division Bench
of this Court vide judgment dated 13-11-2024 in the case of Smt. Mrinal
Budhkar vs. Saurabh Budhkar (FA No. 1142 of 2023), vide judgment dated 20-
12-2022 in the case of Kunal Kant Saxena vs. Smt. Sangeeta and Another (FA
No. 16 of 2010), vide judgment dated 16-10-2024 in the case of Yamini Dubey
vs.Suraj Bajaj (FA No.584 of 2022), Delhi High Court decision in the case of S.
C. Nuna vs. Anita Nuna (2024) 308 DLT 72 and decision of Hon'ble Apex Court
in the case of Dr. Nirmal Singh Panesar vs. Ms. Paramjit Kaur Panesar @
Ajinder Kaur Panesar (Civil Appeal No. 2045 of 2011, decided on 10-10-2023),
it is contended on behalf of wife that Family Court has committed an illegality in
rejecting the application of wife under Section 9 of HM Act for restitution of
conjugal rights while going through the oral and documentary evidence. On two
occasions, when wife reached house of her husband, he refused to keep her until
his demand is fulfilled. Instead of order passed by Court of JMFC on 12-08-2021
in a private complaint filed by wife, husband did not permit her to live peacefully
and started nuisance for illegal demand of dowry due to which, wife left house.
The Family Court has also committed an illegality in passing a decree of judicial
separation without going through the contents of the application for restitution of
conjugal rights although she has been ready and willing to live with her husband.
There is no iota of evidence to draw an inference that husband was subjected to
mental cruelty and desertion at the hands of wife. This aspect has been taken into
account by Family Court while rejecting divorce application filed by husband on
the ground of cruelty and desertion.
(17) It is further submitted that a criminal case is pending against husband vide
Crime No.592 of 2012 for offence punishable under Sections 420, 465, 467, 468,
471 of IPC on private complaint of wife whereby cognizance was taken against
husband and a petition filed by husband for quashment of proceedings has already
been dismissed by learned Single Judge of this Court vide order dated 07-11-2017
in MCRC No.9900 of 2012. It is contended that acquittal subsequent to passing of
impugned judgment and decree cannot be a ground to say in the peculiar facts of
the case that any kind of cruelty had been committed upon husband by wife.
Hence, prayed for allowing her application under Section 9 of HM Act for
restitution of conjugal rights.
(18) Heard learned Counsel for the parties at length and perused impugned
judgment and decree as well as documents available on record.
(19) The main question of determination of both appeals is whether husband is
entitled for a decree of divorce on the ground of mental cruelty or not ?
(20) Concept of ''mental cruelty'' has been elaborately discussed by Hon'ble
Supreme Court in the case of Dr. Narayan Ganesh Dastane Vs. Mrs. Sucheta
Narayan Dastane, AIR 1975 SC 1534 whereby, the relevant extract of the said
judgment is reproduced as under:-
''The question whether the misconduct complained of
constitutes cruelty and the like for divorce purposes is determined
primarily by its effect upon the particular person complaining of the
acts. The question is not whether the conduct would be cruel to a
reasonable person or a person of average or normal sensibilities, but
whether it would have that effect upon the aggrieved spouse. That
which may be cruel to one person may be laughed off by another, and
what may not be cruel to an individual under one set of circumstances
may be extreme cruelty under another set of circumstances."(1) The
Court has to deal, not with an ideal husband and ideal wife (assuming
any such exist) but with the particular man and woman before it. The
ideal couple or a near-ideal one will probably have no occasion to go
to a matrimonial court for, even if they may not be able to drown their
differences, their ideal attitudes may help them overlook or gloss over
mutual faults and failures. As said by Lord Reid in his speech in
Gollins v. Gollins (2) ALL ER 966
"In matrimonial cases we are not concerned with the reasonable
man, as we are in cases of negligence. We are dealing with this
man and this woman and the fewer a priori assumptions we make
about them the better. In cruelty cases one can hardly ever even
start with a presumption that the parties are reasonable people,
because it is hard to imagine any cruelty case ever arising if both
the spouses think and behave as reasonable people."
(21) The aforesaid judgment of Dr. Narayan Ganesh Dastane (supra) still
holds the field and is source of wisdom time and again in respect of ''mental
cruelty''. The aforesaid decision was referred to with approval in the cases of
Praveen Mehta Vs. Inderjit Mehta AIR 2002 SC 2582, Samar Ghosh Vs. Jaya
Ghosh (2007) 4 SCC 511, Manisha Tyagi Vs. Deepak Kumar (2020) 4 SCC 339,
Vishwanath Agrawal Vs.Sarla Viswanath Agrawal (2012) 7 SCC 288 and U.
Sree Vs. U.Srinivas (2013) 2 SCC 114.
(22) The term ''cruelty'' as used in Section 13(1)(i-a) of the Act, cannot be
defined in given parameters and there cannot be a comprehensive definition of
''cruelty'' within which all kinds of cases of cruelty can be covered and each case
has to be considered depending upon its own unique factual circumstances. In the
case of Gurbux Singh vs. Harminder Kaur (2010) 14 SCC 301, the Hon'ble
Apex Court observed that the matrimonial life should be assessed as a whole and
persistent ill-conduct over a fairly long of time would amount to cruelty and
further held that the ill-conduct must be precedent for a fairly lengthy period
where the relationship has deteriorated to an extent that because of the acts and
behaviour of a spouse, one party finds its extremely difficult to live with the other
party no longer may amount to mental cruelty.
(23) The Hon'ble Apex Court in the case of V. Bhagat vs. D. Bhagat (Mrs)
(1994) 1 SCC 33 held that mental cruelty in Section 13(1)(i-a) can broadly be
defined as that conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with the other. In
other words, mental cruelty must be of such a nature that the parties cannot
reasonably be expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put-up with such conduct and
continue to live with the other party. It is not necessary to prove that the mental
cruelty is such as to cause injury to the health of the petitioner. While arriving at
such conclusion, regard must be had to the social status, educational level of the
parties, the society they move in, the possibility or otherwise of the parties ever
living together in case they are already living apart and all other relevant facts and
circumstances which it is neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty in another case. It is a
matter to be determined in each case having regard to the facts and circumstances
of that case. If it is a case of accusations and allegations, regard must also be had
to the context in which they were made.
(24) Similarly, the Hon'ble Apex Court in the case of Samar Ghosh vs. Jaya
Ghosh (2007)4 SCC 511, has enumerated the illustrative instances of human
behaviour which may be relevant for dealing with cases 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) ** ** **
(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
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.
(25) Further, the Hon'ble Apex Court in the case of K. Srinivas vs. K. Sunita
(2014) 16 SCC 34, in Para 7 has held that filing of the false complaint against the
husband and his family members constitutes mental cruelty for the purpose of
Section 13(1)(i-a) of the HM Act, 1955.
(26) Similarly, in the case of Mangayakarasi vs. M. Yuvraj (2020) 3 SCC 786, it
has been held by the Hon'ble Apex Court that it cannot be doubted that in an
appropriate case, the unsubstantiated allegation of dowry demands or such other
allegations, made the husband and his family members exposed to criminal
litigation. 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
circumstance, if a petition for dissolution of marriage is filed on that ground and
evidence is tendered before the original Court to allege mental cruelty, it could
well be appreciated for the purpose of dissolving the marriage on that ground.
(27) Further, the Apex Court in the case of Ravi Kumar vs. Julmidevi (2010) 4
SCC 476 has categorically held that ''reckless, false and defamatory allegations
against the husband and family members would have an effect of lowering their
reputation in the eyes of the society and it amounts to cruelty. In these
circumstances, we find that the appeal is well founded and deserves to be allowed.
We unequivocally find that the respondent wife had filed a false criminal
complaint, and even one such complaint is sufficient to constitute matrimonial
cruelty.
(28) The Hon'ble Apex Court in the case of K. Srinivas Rao vs. D.A. Deepa
(2013) 5 SCC 226 has held that spouse can cause mental cruelty by filing
complaints or by initiating number of judicial proceedings.
(29) It is equally well-settled in law that lodging of false complaint amounts to
cruelty {See: (2014)7 SCC Malathi Vs. B.B. 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)}
(30) In case of Raj Talreja Vs. Kavita Talreja AIR 2017 SC2138 the legal
position as to when a false complaint would amount to cruelty was also examined,
as below :
"11. Cruelty can never be defined with exactitude. What is cruelty
will depend upon the facts and circumstances of each case. In the
present case, from the facts narrated above, it is apparent that the
wife made reckless, defamatory and false accusations against her
husband, his family members and colleagues, which would
definitely have the effect of lowering his reputation in the eyes of
his peers. Mere filing of complaints is not cruelty, if there are
justifiable reasons to file the complaints. Merely because no action
is taken on the complaint or after trial the accused is acquitted may
not be a ground to treat such accusations of the wife as cruelty
within the meaning of the Hindu Marriage act, 1955 (For short the
Act). However, if it is found that the allegations are patently false,
then there can be no manner of doubt that the said conduct of a
spouse levelling false accusations against the other spouse would
be an act of cruelty. In the present case, all the allegations were
found to be false. Later, she filed another complaint alleging that
her husband along with some other persons had trespassed into her
house and assaulted her. The police found, on investigation, that not
only was the complaint false but also the injuries were self-inflicted
by the wife. Thereafter, proceedings were launched against the wife
under section 182 IPC".
(31) Further, the Supreme Court in Rani Narasimha Sastry Vs. Rani Suneela
Rani (2020) 18 SCC 247 has observed that when a prosecution was launched
against the husband on a complaint made by the wife u/s 498-A of IPC making
serious allegations in which the husband and his family members were
constrained to undergo trial which ultimately resulted into acquittal, then in such
case, it cannot be accepted that no cruelty was meted out on the husband,
therefore, he can make a ground for grant of decree of dissolution of marriage u/s
13(1)(i-a) of the Act.
(32) On the one hand, wife alleged that her husband has treated her with cruelty
and her husband is not entitled to divorce and on the other hand, the husband
stated that the allegations made by her wife are patently false. Applying the above
legal propositions, on perusal of impugned judgment of acquittal, as far as
allegation of wife that for the first time in March 2009, in the presence of one
Suvir Jaiswal, demand of dowry made from the side of her in-laws family is
concerned, wife did not file any report/complaint in this regard nor produce any
witness in support of evidence. Neither any medical evidence was produced by
her regarding assault to her. Her statement recorded u/S 200 of CrPC and Court
statement, material contradictions and omissions were found by which, wife has
utterly failed to prove beyond reasonable doubt that about one year of alleged
incident i.e. 11-02-2008, her husband and the entire in-laws family tortured or
harassed her physically and mentally and demanded dowry to her by demanding a
Honda City Car and because of birth of a daughter. By forming a common
intention, by putting wife in fear of death of grievous hurt, the husband forcibly
made her sign on blank papers and committed offence of causing terror to her and
beaten her, was not found proved by the trial Court.
(33) The wife has also not shown grounds of living separately and has not
proved all the alleged incidents of domestic violence on the basis of evidence, has
not supported by the medical evidence. Despite several efforts of husband, the
wife has not been ready to live with him. Even after the Court order, she has not
been ready to live with her in-laws family. Wife has utterly failed to discharge
burden of proof, while in his defence, husband has already produced documents
Ex.P9 and Ex.13 to Ex.16 before trial Court in refutation. As such, when the
findings have been arrived at about the conduct of the wife, who levelled false
accusations against her husband and entire family, it would lead to show ''cruelty''
on her part. False accusations were made by the wife and having made the report
with false allegations, the husband and his entire family members including his
old parents were forced to pass through the criminal trial which would definitely
have the effect of lowering his reputation in the society. Certainly, it will have an
adverse affect in the social standing of a family as it results into isolation of a
person who faced criminal trials because of false accusations made by wife. It is a
valid ground for divorce as well as dissolution of marriage because false
accusations of dowry of demand as well as domestic violence was made by wife
with an intent to malign reputation of her husband and in-laws family and it is not
possible to establish marital relationship between the parties. Even after such long
years of a judicial separation order, there is no possibility of re-union despite
repeated attempts made by the Family Court as well as this Court, so that they
should crease out the differences between them to unite their long separated
couple life and lead a happy married life with their daughter.
(34) In view of above discussion, we are of the view that appeal filed by the
husband seeking a decree of divorce on the ground of cruelty deserves to be and
is hereby allowed. So far as the findings recorded by Family Court regarding
rejection of divorce application of husband under Section 13 of HM Act on the
ground of ''cruelty'' is hereby set aside. The appeal filed by wife seeking
restitution of conjugal rights deserves to be and is hereby dismissed.
(35) Resultantly, First Appeal No.153 of 2014 stands allowed and First Appeal
No.178 of 2014 stands dismissed.
(36) Office is directed to draw decree of divorce accordingly.
(37) A copy of this judgment be kept in connected First Appeal No.178/2014.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
