Madhya Pradesh High Court
Kamendra Singh Rajawat vs Smt Sonu Singh on 23 July, 2025
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE JUSTICE ANAND PATHAK &
HON'BLE JUSTICE HIRDESH, JJ
ON THE 23rdJULY, 2025
FIRST APPEAL NO. 268 OF 2023
KAMENDRA SINGH RAJAWAT
Versus
SMT. SONU SINGH
FIRST APPEAL NO. 270 OF 2023
KAMENDRA SINGH RAJAWAT
Versus
SMT. SONU SINGH
-----------------------------------------------------------------------------------------------
Appearance:
Shri Himanshu Chaturvedi- Advocate for appellant-husband in both appeals.
Shri H.K.Shukla on behalf of Shri Sooraj Bhan Lodhi- Advocate for
respondent-wife in both appeals.
-----------------------------------------------------------------------------------------------
JUDGMENT
Per Justice Hirdesh:
IA No.1382 of 2023 & IA No.1383 of 2023, applications under Section
5 of the Limitation Act for condonation of delay in filing the appeals are taken
up, considered and allowed for the reasons mentioned therein.
2. This judgment shall also govern disposal of connected First Appeal
No.270/2023 as the same is filed by appellant-husband arising out of common
judgment dated 16.12.2022 passed by Principal Judge, Family Court, District
Bhind in Case No.128/2020 (HMA) whereby the application filed by appellant
under Section 9 of Hindu Marriage Act (hereinafter it would be referred as 'the
HM Act) seeking restitution of conjugal rights has been allowed.
3. The instant First Appeal No.268/2023 under Section 19 of Family Courts
Act has been preferred by appellant challenging the common judgment and
decree dated 16.12.2022 passed by Principal Judge, Family Court, Bhind in
Case No.249/2019 (HMA), whereby the application under Section 13(1) of
HM Act filed by appellant seeking a decree of divorce on the ground of cruelty
and desertion has been rejected.
4. It is not in dispute that marriage of appellant with respondent was
solemnized on 26.04.2016 according to Hindu rites and rituals and they have
no child.
5. In a narrow compass, necessary facts for disposal of both the appeals, in
short, are that by filing divorce application before the Family Court, it was
averred by appellant that his wife-respondent used to quarrel over trivial
matters and does not perform household chores. His mother has already passed
away. Respondent used to give threat with dire consequences and to send his
family to jail and pressurized him to quit job. On 28.07.2019, respondent left
her in-laws' house without informing anybody with all belongings and cash of
Rs.10,000/- and went to her maternal home Mangalpur. She also used to give a
threat for committing suicide and pressurize him to live with her. Despite
various efforts, respondent is not ready and willing to return her in-laws' house.
It is further submitted that due to gynaecological problems of respondent, he
tried many times to take her treatment, but she deliberately denied to go to
doctor that is why he was very well known that respondent can never become a
mother of child and marriage has been performed with him by concealment.
6. Further, appellant in his divorce application pleaded that respondent
intentionally refused to establish physical relations with him when he came on
leave and due to her inability to fulfil her marital obligations, he filed an
application under Section 9 of HM Act before Family Court for restitution of
conjugal rights in 2018, wherein the Family Court issued a direction to
respondent to stay with him and fulfil her marital obligations. After proper
treatment, respondent stayed with him only for a period of two months and
thereafter returned to her parental home. Despite repeated requests, she did not
turn up. On these grounds, he prayed that the marriage between them be
dissolved.
7. Respondent filed a reply to divorce application and denied the
allegations of appellant. It is pleaded that after spending Rs.11 lac with other
household articles in her marriage, appellant used to demand Rs.2,00,000/-
for purchasing a house in Gwalior and used to treat her inhumanely. She has
always tried to fulfil her marital duties by living in her in-laws' house, but she
was expelled due to non-fulfilment of demand of dowry. By taking advantage,
an application under Section 9 of HM Act has been filed by appellant for
restitution of conjugal rights before the Family Court where she had given her
consent to live with appellant. However, after some time, appellant again
started demanding dowry and on 29.07.2019, again expelled her after beating.
It appears that appellant has neglected his responsibilities and not discharging
his obligations as husband. While giving her statement on 29.07.2019, she has
narrated that appellant has snatched her gold and silver jewellery and ousted
her from her in-laws' house. Even otherwise, she is ready and willing to live
with appellant. Hence, prayed for dismissal of divorce application.
8. Respondent had also filed an application under Section 9 of HM Act
seeking restitution of conjugal rights with pleadings that her father had given
sufficient dowry including cash of Rs.11,00,000/- and other household articles.
Her in-laws' family used to harass and abuse her and her father and they did
not keep her well, unless the demand of dowry of Rs.2 lac is fulfilled. An
amicable settlement was held on 26.11.2018, but after six months, her husband
and his family again started harassing and abusing her. On 29.07.2019, they
ousted her from her in-laws' house and since then, she has been living at her
parental home. She has also filed a maintenance application under Section 125
of HM Act. It is further pleaded that she tried various times to settle the score,
but appellant refused to keep her with him. Therefore, she has also filed a case
under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act.
Appellant had an illicit relationship with someone in Delhi and because of this,
her husband is unable to maintain marital relationship with her and, and by
taking advantage, appellant has filed divorce application on false grounds.
9. Appellant filed his reply to the application for restitution of conjugal
rights filed by respondent in addition to his pleadings in divorce application,
submitted that no dowry was given by father of respondent in his marriage. He
tried many times to convince respondent by saying that there is no other person
to take care of his father. Appellant also stated in his reply that respondent does
not want to have intimate physical relationship with him and does not want to
maintain marital relations. In pursuance of direction given by the Family Court
on his application under Section of HM Act in 2018, respondent did not
change her cruel behaviour and establish the marital relationship. He has left
with no other option, but he was compelled to file divorce application. As a
counter-blast, respondent filed a false criminal case against him and his father
on 13.07.2020 in order to pressurize him. On these grounds, it is not possible
for him to live with respondent and a decree of divorce be granted in his favour
on the ground of cruelty and desertion.
10. 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, the Family Court dismissed the divorce application
filed by appellant on the ground that he failed to prove ''desertion and cruelty''
against respondent and allowed the application under Section 9 of HM Act
filed on behalf of respondent.
11. Being dissatisfied with impugned common judgment and decree, the
appellant has knocked the door of this Court by way of both the appeals.
12. It is contended on behalf of appellant that the impugned judgment and
decree passed by the Family Court without going through the evidence
produced by the parties which is contrary to law. Respondent is living
separately from appellant for a period of almost six years without any valid
reason. Appellant is serving in Army and as and when he came back to his
home on leave, his wife did not cooperate with him and gave him ill-treatment,
which amounts to cruelty. Respondent lodged a false case against him and his
father and used to threaten to commit suicide, which also amount to cruelty.
Respondent has deserted him and deprived him of happiness of marital life. He
had also filed an application under Section 9 of HM Act before family Court in
which, respondent was directed to go with him and live happily in matrimonial
fold, but she lived with him only two months and then, she again went to her
parental house. Under such premises, he is entitled for a decree of divorce on
the ground of cruelty and desertion.
13. On the other hand, learned counsel for respondent by supporting the
impugned judgment and decree opposed the contentions of appellant and
submitted that she is still wants to live with appellant in her matrimonial home
and fulfil her duties as a wife by maintaining conjugal life. Hence, prayed for
dismissal of both the appeals.
14. Heard learned counsel for the parties and perused the record.
15. The concept of ''mental cruelty'' has been discussed in catena of
decisions by Hon'ble Supreme Court in AIR 2002 SC 2582 (Praveen Mehta
Vs. Inderjit Mehta), (2007) 4 SCC 511 {Samar Ghosh Vs. Jaya Ghosh}, (2010)
4 SCC 339 {Manisha Tyagi Vs. Deepak Kumar}, (2012) 7 SCC 288
{Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal}, (2013) 2 SCC 114 {U.
Sree Vs. U. Srinivas} and AIR 1975 SC 1534 {Dr. N. G. Dastane vs. Mrs. S.
Dastane}. 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.
16. 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''
[See:- AIR 1964 SC 40 (Lachman Utamchand Kirpalani Vs. Meena
alias Mota), (2002) 1 SCC 308 {Adhyatma Bhattar Alwar Vs. Adhyatma
Bhattar Sri Devi} to (2006) 4 SCC 558 {Naveen Kohli Vs. Neelu Kohli}]
17. On perusal of evidence of both the parties and on going through the
impugned judgment and decree passed by Family Court, it was found that the
respondent although in her evidence deposed that her uterus was not damaged
and her menstrual cycle is regular, but appellant in his evidence deposed that
when he tried to take her for treatment, she deliberately denied to go to doctor
and the fact regarding conception is very well known to respondent and her
parents and concealing this fact his marriage was solemnized with respondent.
Respondent had produced medical document by proving that she is capable of
becoming a mother. Therefore, statement of appellant that respondent is unable
to give birth to a child and due to this reason, her lineage has stopped, is false.
18. So far as the allegation of respondent regarding demand of dowry is
concerned, no report or complaint was made to anybody or at any police
station by her which clearly shows that there are minor domestic disputes
between both the parties and not otherwise. From the record, it appears that
appellant has utterly failed to prove his case that he was harassed, deserted and
deprived of marital bliss.
19. Taking all these narration of facts into consideration, prima facie, there
appears that the Family Court, while rejecting the divorce application filed by
appellant cannot be said to have approached wrongly in recording a finding
which is well-merited.
20. 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.
21. On examining the case at the touchstone of principles of law laid down
by Hon'ble Apex Court in the above-cited cases, suffice to say that evidence
led by appellant clearly demonstrates that after marriage between couple in the
year 2016, respondent lived with appellant till 29.07.2019. Appellant present in
person before this Court and submitted that anyhow he intends and ready to
accept respondent in matrimonial fold, but due to behavioural issues of
respondent, he is reluctant to live with her and ready to give permanent
alimony, so that both of them can part their way peacefully. The marriage of
both the parties was solemnized on 26.04.2016 and they are living separately
since 2019 i.e. more than six years. Due to rapture of marital cord, no child was
born. Matrimonial bond is completely broken and is beyond repair. 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, then
continuation of such marriage would only mean giving sanction to cruelty with
each is inflicting on the other.
22. So far as the question of grant of one-time settlement as full and final
settlement is concerned, in matrimonial cases, the Court has to ascertain the
financial capacity/status of parties depending on source of income and
expenditure for determining amount of maintenance/permanent alimony/full
and final settlement/one-time settlement, this Court left with no other option
but think it just and proper to allow one-time settlement in the shape of full and
final settlement with the consent of both the parties to the tune of Rs.20 lac
in favour of respondent as offer made by appellant, which is payable to the
respondent by appellant by way of Demand Draft or any other mode within a
period of four months from the date of receipt of copy of this judgment.
Subject to aforesaid full and final settlement of one-time settlement granted in
favour of respondent.
23. In view of foregoing reasons and discussions, the marriage between the
parties is dissolved. A decree be drawn accordingly.
24. Pending application(s), if any, shall stand closed.
A copy of this judgment be kept in connected First Appeal No. 270 of
2023.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
Avi*
