Madhya Pradesh High Court

Sangita vs Kamalnath on 29 January, 2025

Author: Vivek Rusia

Bench: Vivek Rusia

          NEUTRAL CITATION NO. 2025:MPHC-IND:2849




                                                                    1                                          FA-134-2005
                              IN        THE     HIGH COURT OF MADHYA PRADESH
                                                       AT INDORE
                                                          BEFORE
                                             HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                             &
                                           HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                                     FIRST APPEAL No. 134 of 2005
                                                                 SANGITA
                                                                  Versus
                                                                KAMALNATH
                           Appearance:
                                   Shri Nilesh Manore and Ms.Sanju Baghel, learned counsel for the
                           appellant.
                                   Shri Anirudh Saxena, learned counsel for the respondent.

                                                            Reserved on 29.01.2025
                                                          Delivered on 06.02.20205
                                          ------------------------------------------------------------------
                                                                JUDGMENT

Per: Gajendra Singh, J:

This first appeal under section 19 of the Family Courts Act, 1984 is preferred by the wife being aggrieved by the judgment and decree dated

31.01.2005 in case no.45A/2003 by Family Court, Ujjain whereby the marriage solemnized on 08.051995 between the appellant and respondent in accordance with the customary rites and ceremonies of both the parties have been dissolved on the ground mentioned under section 13(1) (ia) & (ib) of the Hindu Marriage Act, 1955.

2. Facts in brief are that marriage was solemnized on 08.05.1995 as

NEUTRAL CITATION NO. 2025:MPHC-IND:2849

2 FA-134-2005 per the customary rites and ceremonies applicable to both the parties. No issue is from the union of the parties. On 14.02.2003 a petition for dissolution of marriage was preferred by the husband/respondent before the Family Court, Ujjain raising the ground that appellant/wife lived in the company of husband only for a period of one month and her behaviour towards husband and his family members was not good. She used to quarrel on trifling matters. Whenever husband/respondent tried to be physical with the wife/appellant then she make hue and cry and causes mental pain to the husband and due to such behaviour of the wife, husband was compelled to sleep separately. Wife lodged a case against the husband leveling false allegations including sexual abnormality of the husband and allegations of physical assault for which a criminal case no.10/1999 was registered at

JMFC, Ujjain. No concrete evidence could be proved by the wife before the court regarding false allegations levelled in the criminal case. Wife was not interested to fulfill marital obligations voluntarily and always remained involved in conspiracy against her husband and she wrote letters to obtain some medicine so that physical and mental health of husband could be jeopardized. She levelled the false allegations of demanding dowry and abused husband and assaulted him with slipper on 27.08.2012 and a report to police station Madhav Nagar was submited. She left the company of the husband. Husband tried to see that wife could return marital home but wife denied on 10.08.1996 to return in the marital home and deserted the husband.

3. The petition was replied in which allegations were denied and stated that she never denied to fulfill the marital obligations but the conduct

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3 FA-134-2005 of the husband towards wife was not cordial. She never conspired against the husband/respondent. She never tried to obtain any medicine so that physical and mental health of husband may be jeopardized but husband and his family members always harassed the wife for obtaining dowry. On 10.08.1996 when she came to know that her mother-in-law is not in good health then she immediately rushed to Ujjain but husband never fulfilled his marital obligations. The husband is in relation with mistress "P". She objected to the mistress then in the month of April, 1998 her father-in-law dropped her at Nagda and she was compelled to live at Nagda since April, 1998. She further submitted she was forced to live separately because she is in danger of life from husband.

4. The Family Court, Ujjain framed total five issues and recorded the evidence of respondent/husband as PW/1, mother-in-law of appellant as PW/2 and admitted documents Ex.A/1 to Ex.A/3. Appellant/wife examined herself as NAW/1 and adduced documents Ex.NA/1 and NA/2. Appreciating evidence the Family Court, Ujjain found proved that appellant/wife caused mental cruelty towards husband/respondent and also found proved that appellant/wife has deserted husband/respondent for a period of 7-8 years and thereafter recorded the finding that there is no possibility of reconciliation between the parties and further recorded the finding that granting of decree of dissolution of marriage is justified and thereafter dissolved the marriage between the parties on the ground mentioned in section 13(1) (ia) & (ib) of the Hindu Marriage Act, 1955.

5. This first appeal has been preferred on the ground that there is no

NEUTRAL CITATION NO. 2025:MPHC-IND:2849

4 FA-134-2005 cogent and reliable evidence to prove that the appellant ever ill-treated the respondent/husband which gave rise to a cause for filing petition for divorce and Family Court failed in not considering the fact that the petitioner/husband levelled general allegations which could not have formed basis for grant of decree for divorce. The Family Court also failed in not considering that the alleged letters Ex.A/1 and A/2 which according to the respondent formed the basis of cruelty, have not been proved by the respondent. The Family Court also committed error in brushing aside the averment of the appellant/wife about extra-marital relationship of the husband when there was cogent and reliable evidence. The Family Court was wrong in coming to a conclusion that the appellant deserted the husband willfully and failed in performing her marital duties. The Family Court also lost sight of the criminal case filed by the appellant against the respondent for keeping extra-marital relationship and for getting rid of legal alliance and the respondent filed the petition on false and fictitious grounds.

6. For the disposal of this appeal, following questions arise for consideration.

(i) Whether Family Court, Ujjain committed error in proving the ground of cruelty as mentioned in section 13(1) (ia) of the Hindu Marriage Act, 1955?

(ii) Whether Family Court, Ujjain committed error in proving that appellant/wife has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition i.e. 14.02.2003?

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5 FA-134-2005 Question No.1:

7. Family Court, Ujjain has recorded a finding in para-13 to 16 that it is not proved that husband/respondent has extra marital affairs with a woman to whom she refers as "P". Appellant/wife has challenged this finding on the ground that in criminal case no.78/2003 judgment dated 17.09.2009 the respondent/husband was convicted under section 494 of the IPC and sentenced for two years RI and fine of Rs.3000/- was imposed by the JMFC, Nagda, Ujjain. This was countered by the respondent/husband on the ground that the said conviction and sentence have been set aside by the Additional Sessions Judge, Khachrod, district Ujjain vide judgment dated 17.09.2021 in criminal appeal no.389/2009 and counsel for the appellant/wife fairly submits that no appeal is pending challenging the judgment dated 17.09.2021 in criminal appeal no.389/2009 by Addl.

Sessions Judge, Khachrod, district Ujjain. Accordingly the findings of the Family Court, Ujjain are based on proper appreciation of evidence that the allegation of extra marital relationship is false and documents Ex.NA/1 and Ex.NA/2 do not prove the allegations of extra marital affairs. The Family Court, Ujjain has recorded the finding that the allegations of cruelty for non fulfillment of demand of dowry are also false and this act constitutes the mental cruelty towards husband/respondent. The discussion of the evidence in para-8 of the judgment is proper in the light of evidence adduced by both parties especially the fact that appellant/wife approached the Court of JMFC, Ujjain in which no allegations regarding demand of dowry were levelled. The letters Ex.A/1 and A/2 were referred in the petition and deposition of

NEUTRAL CITATION NO. 2025:MPHC-IND:2849

6 FA-134-2005 husband but appellant/wife as NAW/1 has not specifically denied those letters. She cursorily denied the factum of conspiracy in para-5 but this is not a specific denial of contents of Ex.A/1 and A/2 and trial court did not commit error in taking into consideration those letters regarding the finding of mental cruelty by the wife against the husband/respondent. Accordingly, answer to question no.1 is answered against the appellant/wife.

Question No.2:

8. As per the reply to the petition also the wife/appellant is residing from April, 1998 at Nagda continuously. This petition has been filed on 14.02.2003. The Family Court, Ujjain has recorded the finding in para-12 that she never tried to return to matrimonial home and she herself was not willing to live with her husband. The allegations of extra marital affair of the husband are not proved so that she could have justified her separate living. Accordingly, the findings of the trial court that appellant/wife has deserted the petitioner for a continuously period of not less than 2 years immediately preceding the presentation of the petition also are based on proper appreciation of evidence and does not call for interference. Accordingly, answer to question no.2 is answered against the appellant/wife.