Madhya Pradesh High Court
Dinesh Singh vs Smt. Uma on 21 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 21st OF JANUARY, 2025
FIRST APPEAL No. 2368 of 2023
DINESH SINGH
Versus
SMT. UMA
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Appearance:
Shri Ranvir Singh Chauhan- learned counsel for appellant-husband.
Shri Rahul Bansal- learned counsel for respondent-wife.
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JUDGMENT
Per Shri Hirdesh, J:-
The instant first appeal has been preferred by appellant-husband under
Section 28 of the Hindu Marriage Act, 1955 [in short ''HM Act''] assailing the
judgment and decree dated 31/10/2023 passed by Additional Judge to the Court
of First Additional District Judge, Gohad, District Bhind (M.P.) in Case
No.20/2022 (HMA), whereby an application filed by appellant-husband under
Section 13 of the HM Act seeking a decree of divorce on the ground of ''cruelty
and desertion'' has been rejected.
(2) It is the case of appellant- husband that his marriage was solemnized with
respondent on 22/04/2015 as per Hindu rites and rituals. When his wife came to
his house, she did not allow her husband to have physical relations on the pretext
of illness and went back to her parental house. Thereafter, his wife again came at
the time of adieu (bidai) and she did not have any sexual relation with her
husband on false statement. She started quarreling by saying anything and
returned back to her parental house after 2-4 days. Thereafter, his wife habitually
stayed with her parents and did not come back after lapse of six months or more
than that. Therefore, husband felt too much tensed due to cruelty made by her
wife. Husband gifted gold jewellery to his wife i.e. chain, necklace, bangles, two
rings and Mangalsutra, anklet and Kardhani made of silver. His wife is living
with her parents with all these belongings. He also tried to take his wife back on
many occasions, but she did not return. Thereafter, a Panchayat was also
organized in which, she stated that she did not want to live with him and do not
want to have marital relations.
(3) It is further submitted that he did not even live with his wife continuously
for one month due to which, no issue has been born from their wedlock. He is the
only child of his parents. Husband has been deprived of offspring's pleasure
because wife is not living continuously with husband and could not enjoy their
married life. Due to such non-fulfillment of her martial duties, his wife has
committed cruelty. His wife made a false complaint to Mahila Police Station,
Bhind alleging continuous torture against him and his family members. On the
basis of which, Crime No.15/2022 for offence punishable under Sections 498-A,
294 and 506/34 of IPC was registered against him, his father Vimlesh Singh and
his mother Ramshyani. On completion of investigation, Final Report was filed
before the competent Court of JMFC, Bhind and trial of the case is pending
before the Court.
(4) It is further alleged that a maintenance application under Section 125 of
CrPC vide Case No.46/2022 has been filed by his wife and a domestic violence
case has also been registered which is pending before the Court of JMFC,
Mehgaon vide Case No.155/2022. Under these circumstances, he prayed for a
decree of divorce on the ground of ''cruelty and desertion''.
(5) Respondent- Wife filed her written statement and denied the allegations of
appellant-husband, pleading that her husband and his family members started
beating her and tortured mentally by various means. Even after giving assurance,
her husband and his family members did not change their behaviour towards her.
Hence, prayed for rejection of divorce application.
(6) After considering the pleadings of both the parties, the Family Court
framed issues. After appreciating evidence of both the parties as well as material
available therein, dismissed the divorce application filed by the husband on the
ground that appellant-husband failed to prove ''desertion and cruelty'' against his
wife- respondent.
(7) Being dissatisfied with the impugned judgment and decree, the appellant
has knocked the door of this Court by way of instant first appeal.
(8) It is submitted by counsel on behalf of appellant that learned Family Court
has committed an error in passing the impugned judgment and decree and
rejected the divorce application filed by him. The Family Court has not
considered the fact that wife and husband have been living separately for a long
time and not willing to cohabit with each other as husband and wife, therefore,
they cannot be forced to live together to establish martial relations. Learned
Family Court has also not considered this aspect that husband organized a
Panchayat to return back his wife, but it was failed and from which, it is crystal
clear that wife is not intending to live with him. Respondent has filed several
criminal cases against appellant and his family members with regard to
matrimonial disputes which amounts to cruelty. There is no issue out of their
wedlock because they hardly lived as husband and wife only for six months out
of eight years of married life. The unilateral decision of either husband or wife
not to born child from wedlock amounts to cruelty. The irretrievable break down
of marriage is a reasonable ground of dissolution of marriage and this law has
been laid down by Supreme Court in the case of R.Srinivas Kumar V. R.
Shametha, 2019 (4) SCC 409. Therefore, it is prayed that the impugned
judgment passed by Family Court deserves to be set aside.
(9) Per contra, learned counsel for the wife supported the impugned judgment
and prayed for its rejection.
(10) Heard learned counsel for both the parties and perused the impugned
judgment as well as record.
(11) It is in dispute that the marriage of parties was solemnized on 22.04.2015
and they lived as husband and wife hardly six months out of 8 years of their
married life. Appellant in support of his evidence examined himself as A.W.1,
Chimman Singh as A.W.2, Pratapbhan Singh as A.W.3 before Family Court.
Appellant in Para 7 of his cross- examination deposed that after marriage, her
wife- respondent stayed at her matrimonial home only for two days and thereafter,
in the second adieu (bidai) after one year, she came back to her matrimonial home
and because of short span of time spent by them with each other, they have no
issue from their wedlock even after 8 years of marriage.
(12) The legal principle with regard to "desertion" is concerned, the Hon'ble
Apex Court in the matter of Bipinchandra Jaisinghbhai Shah Vs. Prabhavati
AIR 1957 SC 176 has explained as under:-
'' 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
absence of consent, and (2) absence of conduct giving reasonable
cause to the spouse leaving the matrimonial home to form the
necessary intention aforesaid. The petitioner for divorce bears the
burden of proving those elements in the two spouses respectively.
Here a difference between the English law and the law as enacted
by the Bombay Legislature may be pointed out. Whereas under the
English law those essential conditions must continue throughout the
course of the three years immediately preceding the institution of
the suit for divorce; under the Act, the period is four years without
specifying that it should immediately precede the commencement of
proceedings for divorce. Whether the omission of the last clause has
any practical result need not detain us, as it does not call for
decision in the present case. 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 ''
(13) Regarding "irretrievable breakdown of marriage " the Hon'ble Supreme
Court in the cases of R. Srinivas Kumar V. R. Shametha, 2019 (4) SCC 409,
Munish Kakkar Vs Nidhi Kakkar, AIR 2020 SC 111 and Neha Tyagi Vs
Lieutenant Colonel Deepak Tyagi (2022) 3 SCC 86, has held that an irretrievable
breakdown of marriage is a marriage where husband and wife have been living
separately for a considerable period and there is absolutely no chance of their
living together again.
(14) Similarly, in the case of Samar Ghosh Vs Jaya Gosh, 2007 (4)SCC 511,
the Hon'ble Apex Court has held that cruelty can be physical as well as mental :
''46...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."
This Court though did ultimately give certain illustrations of
mental cruelty. Some of these are as follows:
(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.
(15) This Court vide order dated 13-11-2024, had directed husband and wife to
appear before the Mediator because mediation has immense potential to bring
well-being to the litigating parties. In fact, mediation is like "Mediation in
Litigation" so as to bring peace and finality to the litigation.". Both the parties
appeared before Mediator Shri OP Mathur, Advocate on 06-01-2025 and
expressed their willingness to live together as husband and wife but later on, no
fruitful purpose could be served. During the course of hearing, husband and wife
filed their affidavits stating that they are not ready and willing to live together as
husband and wife. Both parties are agreed on the pretext that husband shall give
an amount of permanent alimony to the tune of Rs.25,00,000/- (Rupees Twenty
Five Lac) to his wife and wife has given a consent to withdraw all the criminal
cases which are pending against her husband and his family members.
(16) On going through the record of the Family Court, it is apparent that the
marriage of both the parties was solemnized on 22-04-2015 and are living
separately for a long period. Matrimonial bond is completely broken and is
beyond repair. So also, conciliation proceedings have become unsuccessful even
after various efforts made by Court. However, looking to the concessional
statements made by the parties as well as in view of the contents of affidavits
sworn by them, this Court left with no other option, but thinks it appropriate that
since relationship of both the parties must end as its continuation is causing
cruelty either on the parties, therefore, the long separation, absence of
cohabitation, the complete breakdown of all meaningful bonds and existing
bitterness between the two, has to be read as ''cruelty''. Where the marital
relationship has broken down irretrievably, where there is a long separation and
absence of cohabitation (as in the present case, husband and wife lived together
for barely six months total in eight years of marriage), then continuation of such
marriage would only mean giving sanction to cruelty with each is inflicting on the
other.
(17) Considering the consent given on affidavits by both the parties as well as
the fact that appellant-husband is a Lecturer in Government College, Lahar,
District Bhind and economic condition of both the parties, this Court deems it fit
and proper that appellant-husband shall give Rupees Twenty Five Lac to the
respondent-wife as permanent alimony. This amount shall be deposited in the
name of respondent-wife by mode of Demand Draft within three months from
today. The decree of divorce shall be made effective only from the date of such
deposit with the Registry of this Court. On the event of such deposit, the Registry
after verifying credentials of respondent wife, shall disburse amount to
respondent/wife without further reference to this Court. It is further directed that
respondent-wife shall withdraw all the cases which were registered against
appellant- husband before the concerned Court(s).
(18) Subject to aforesaid terms and conditions, this instant first appeal is
allowed and marriage of husband and wife stands dissolved. A decree of divorce
be drawn accordingly. The impugned judgment and decree dated 31/10/2023
passed by Additional Judge to the Court of First Additional District Judge,
Gohad, District Bhind (M.P.) in Case No.20/2022 (HMA), stands set aside.
A copy of this judgment be communicated to concerning Court(s) for
necessary information.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
