Madhya Pradesh High Court
Smt. Preeti vs Yogesh on 3 July, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla, Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:16807
1 FA-1126-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 3 rd OF JULY, 2025
FIRST APPEAL No. 1126 of 2023
YOGESH
Versus
SMT. PREETI SONI
Appearance:
Shri Abhishek Gupta, learned counsel for the appellant.
Shri Sudeel Yadav, learned counsel for the respondent.
WITH
FIRST APPEAL No. 1594 of 2023
SMT. PREETI
Versus
YOGESH
Appearance:
Shri Sudeel Yadav, learned counsel for the appellant.
Shri Abhishek Gupta, learned counsel for the respondent.
ORDER
Per: Justice Vijay Kumar Shukla
Both the appeals are filed under section 19 of the Family Court Act, being
aggrieved by the judgment and decree passed by the First Additional Principal
Judge, Family Court, Indore in HMA Case No.1666/2017 dated 04.03.2023
whereby, the petition for divorce filed by the wife Smt.Preeti was partly allowed,
and a decree for judicial separation was passed instead of a decree for divorce.
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2. The other connected appeal has been filed by the husband being
aggrieved by the said judgment and decree on the ground that on a single act of
cruelty, the Family Court could not have passed the decree for judicial separation
and the petition filed by wife for divorce under section 13 of Hindu Marriage Act
(hereinafter refered as "Act") ought to have been dismissed in toto.
3. Since both the appeals are arising out of the same judgment, therefore,
they are being decided by this common order.
4. The facts of the case are that the marriage between the parties was
solemnised on 04.12.2005 as per Hindu rites and customs. From the said
wedlock, a girl child was born on 07.11.2007 and another child was born on
30.04.2008. It was alleged in the divorce petition that right from the marriage, the
behaviour of the husband was inhuman, cruel, and they were also demanding
dowry and cash amount of Rs.10,00,000/-. His misbehaviour got aggravated with
the passage of time, and there was no improvement in his behaviour. He used to
beat the appellant and threaten her to death. His valuables, ornaments, and stree
dhan were sold by the husband. She was also physically tortured and this
behaviour was disclosed by the neighbours to her father. A police report was also
lodged by her father in police station Talia Bhopal. However, with the
intervention of the police, she went to Indore alongwith the children. After one
day, the husband came to Indore and persuaded her to go with him. On refusal,
she was subjected to physical torture. Since then, she is living separately in her
parents' house.
5. The aforesaid allegations were denied by the husband in WS that she
had gone to Indore herself and had taken all valuable ornaments, clothes etc. She
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threatened him to implicate in a false criminal case. She herself does not want to
live with him. She is taking tuition classes and is earning about Rs.10,000/- per
month and also earns from beauty parlour and other makeup work.
6. The court below, after considering the entire evidence and testimony of
wife PW No.1 and daughter PW No.2 held that though the cruelty of subjecting
her to physical torture on 22.07.2017 is proved but the nature of the cruelty is not
sufficient to grant a decree for divorce. The Family Court partly allowed the
petition for divorce by granting order of judicial separation instead of divorce.
7. Learned counsel for the wife argued that the Family Court has
erred while declining decree for divorce and granting decree for judicial
separation. Once the court has found that the cruelty is proved then the court
ought to have granted a decree for divorce. He further argued that the parties
are residing separately for last 8 years. The application for mutual divorce
was also filed under section 13-B of the Hindu Marriage Act, but the
husband did not participate in the proceedings; therefore, ultimately, petition
for divorce by mutual consent was dismissed. However, the submission of
joint petition for divorce under section 13-B of the Act is sufficient to prove
that both the appellant and the respondent are not willing to live together.
8. Learned counsel for the wife further argued that the wife does not
want any maintenance or alimony from the husband. They are living
separately for last about 8 years and the reconciliation between the parties
could not be materialised, and there is no possibility that the parties will
cohabit together, and continuation of the formerly legal relationship would
be unjustified. There is a complete breakdown of marriage. Hence, the decree
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may be granted on the ground of irretrievable breakdown of marriage.
9. Learned counsel for the husband opposed the prayer and submits
that the husband has also filed the connected first appeal challenging the
order of judicial separation passed by the Family Court. He argued that on
the basis of an isolated incident, the order of judicial separation could not
have been passed; therefore, the impugned decree for judicial separation is
also erroneous. He relied on the judgment passed in the case of K. Srinivas
Rao vs D.A. Deepa reported in (2013) 5 SCC 226.
10. We have heard learned counsel for the parties.
11. The Family Court has recorded a finding that the cruelty has
been found to be proved. It is apposite to consider the meaning of cruelty in a
matrimonial matter. Cruelty is just one of the splinters of a collapsing
structure where the substratum of the marriage has broken down in a way in
which the structure cannot be preserved or rebuilt. Cruelty was not a ground
for divorce prior to 1976. It was only a ground to seek judicial separation.
Cruelty was made a ground for seeking a divorce by the 1976 Amendment
Act under Section 13(1)(i-a). According to the Oxford Dictionary, the term
"cruelty" has been defined as the disposition to inflict suffering, it's been
used to describe human behaviour or conduct in general. In matters of
matrimony, It is how you behave with the spouse and includes a person's
conduct towards the matrimonial obligation. It is a term that is subjective and
can be interpreted as per the facts of each case. Cruelty can be mental or
physical, and it can be purposeful or inadvertent. Cruelty can take many
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forms, including physical and emotional abuse. Physically abusing or
injuring one's spouse qualifies as physical cruelty. It is difficult to decide as
to what constitutes mental cruelty. Cruelty is also an offence under Section
498A of the Indian Penal Code, 1860.
12. While deciding the case of Savitri Pandey vs Prem Chandra
Pandey (2002) 2 SCC 73, the Apex Court observed that cruelty has not been
defined under the Hindu Marriage Act, 1955, but it is considered in marital
problems as conduct that endangers the petitioner's life with the respondent.
Cruelty is defined as an act that endangers a person's life, limb, or health.
Cruelty, for the act, is that one spouse has handled the other and expressed
such emotions against her or him as to have inflicted bodily damage, or to
have created cheap anxiety of bodily injury, suffering, or to have wounded
health. Cruelty may be both physical and emotional. Another spouse's
behaviour that creates mental agony or anxiety about the opposite spouse's
marital situation is referred to as mental cruelty.
13. In the present case, the wife has clearly deposed that right from
the beginning, she was being subjected to physical and mental torture. The
husband used to quarrel with her and also to torture her physically and also
demanding dowry. She had no option but to leave the house. The police
report was also lodged by the father of the wife. PW No.2 Gauri, daughter of
the parties, have also supported the case of the wife, stating that she had seen
since childhood that her father used to come in a drunken condition and beat
her mother. Maternal grandfather (Nana) had taken them to Bhopal to their
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house. The cruelty has been found to be proved.
14. In view of the aforesaid, the act of the husband of physical and
mental torture cannot be held to be a single act. The cruelty by the husband
was alleged right from the marriage. The judgment in the case of K.Shrinivas
Rao (supra) would not apply in the present case, and in view of the facts of
the case. Thus, the Family Court has committed an error while dismissing the
petition for divorce on the ground of cruelty and granting order of judicial
separation. Thus, we find no force on behalf of the husband in the connected
appeal that in single act of incident the decree of divorce cannot be granted.
The evidence available on record clearly indicated that the wife was being
subjected to physical and mental torture since marriage. Sometimes, the
police reports were made. This shows that the act of husband was not a
single act. There is another aspect for granting a decree of divorce in the
present case that, admittedly, both wife and husband are living separately for
about 8 years. All efforts for reconciliation have failed. This Court
repeatedly asked both parties whether they can arrive at some settlement but
they were not agreeable. The period of 8 years living separately and
submission of a petition for divorce by mutual consent under section 13-B of
the Hindu Marriage Act also proved the fact that there is no possibility that
the parties will cohabit together. Thus, there is an irretrievable breakdown of
marriage.
15. The Constitution Bench in the case of Shilpa Sailesh Vs. Varun
Shreenivasan reported in 2023 livelaw (SC) 375, held that in the cases of
irretrievable breakdown of marriage, considering the period of separation,
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nature of allegations made by the parties, may grant a decree for dissolution
of marriage. The Apex Court in the case of Rajib Kumar Roy vs. Sushmita
Saha reported in 2023 SCC Online SC 1221 held that a decree for divorce
can be granted considering the continued bitterness, dead emotions and long
separation in the given facts and circumstances of the case tantamount to
irretrievable breakdown of marriage.
16. In light of the aforesaid judgments, we have carefully examined
the evidence led by both the parties and considering the period of long
separation and failure of reconciliation, we are of the considered view that
the wife is entitled for decree of divorce on the ground of cruelty as well as
irretrievable breakdown of marriage.
17. Accordingly, the appeal filed by the wife is allowed.
18. The impugned judgment and decree dated 04.03.2023 is set aside
and the petition for divorce filed by the wife Preeti is allowed. The marriage
between the appellant and respondent is dissolved.
19. Considering the submission made by learned counsel for the wife
that the wife does not want any maintenance or alimony from the husband,
no order of maintenance to the wife and children and alimony is awarded.
20. As a consequence, the FA No.1126/2023 filed by husband
Yogesh also stands dismissed.
No order as to cost.
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(VIJAY KUMAR SHUKLA) (PREM NARAYAN SINGH)
JUDGE JUDGE
Sourabh
