This judgment shall also govern disposal of connected First Appeal
No.187/2017 as the same is filed by husband under Section 28 of Hindu
Marriage Act arising out of the impugned judgment and decree dated
15.05.2017 passed by Additional District Judge, Ambah, Morena in Case
No.39/2015 (HM) whereby the application filed by wife under Section 9 of
Hindu Marriage Act (hereinafter it would be referred as 'the HM Act) seeking
restitution of conjugal rights has been allowed.
2. The instant First Appeal No.1498/2018 under Section 19 of Family
Courts Act has been preferred by wife challenging the judgment and decree
dated 12.07.2018 passed by Principal Judge, Family Court, Guna in Case
No.303/2014 (HM), whereby the application under Section 13(1)(i-a) of the
HM Act filed by husband for granting decree of divorce on the ground of
"cruelty" has been allowed.
3. It is not in dispute that marriage of husband and wife was solemnized on
27.11.2010 according to Hindu rites and rituals. Due to wedlock, a son was
born on 15.02.2014.
4. Necessary facts for disposal of appeals, in brief, are that in the divorce
application, it was averred on behalf of husband that he is serving as Veterinary
Officer at Kala Pipal, Jhabua and his wife is posted as a Government Doctor in
Veterinary Hospital, Guna and his father was a Gazetted Officer and mother
was Headmaster in School. After marriage, there are some dispute arose
between them and his wife submitted an application on 06.06.2012 at Family
Counselling Centre, Ambah, and on the same day, a case was lodged against
his parents under Section 151 of CrPC, in which his mother got bail and his
father was sent to jail. After counselling at Family Court, his wife filed a case
against him and his parents under Section 498-A of IPC. Thereafter, he filed
Criminal Revision No.965/2012 seeking quashment of FIR, in which, High
Court has quashed all consequential criminal proceedings against which, his
wife filed an SLP before Hon'ble Supreme Court and the same was dismissed.
In the light of such order, JMFC, Ambah, Morena discharged him and his
parents. He had filed divorce petition before IInd Additional District Judge,
Guna against which, his wife filed MCRC No.386/2012 seeking transfer of
such petition, but after settlement between the parties, the petition got
dismissed as withdrawn and thereafter, his wife came to her in-laws' house,
Guna. On 28.01.2011, she again returned to her maternal home where on
15.02.2014, she gave birth to a son. Thereafter, she submitted an application
under Section 9 of the HM Act for restitution of conjugal rights wherein it was
directed by the Family Court to restore the conjugal rights. His wife is living
separately since 15.02.2014. Vide order dated 22.11.2016 passed in CRR
No.203/2015, High Court, Gwalior Bench directed him to pay Rs.2,000/- per
month towards maintenance amount to his son.
5. It is further alleged that his wife got married with him by concealing the
fact that she is older than him and on the first night of marriage, he saw that
milk was oozing from her breast. On being asked, she started crying by saying
that before marriage, she had a physical relation with someone due to which,
she got pregnant. Therefore, it is very difficult for him to maintain marital
relations and he never made any physical relation with her since then. On
08.12.2010, he went to the parental home of his wife and told about the
pregnancy, then they assured to get his wife divorced from him with mutual
consent. On 21.12.2010, his wife suddenly came to her in-laws' house and
forcefully started living there and stayed till 29.02.2011 and during this time,
she used to talk with some other person on mobile. On the day, she left the
house with her parents to her parental home along with all belongings
including jewellery and clothes, which were given by his family at the time of
marriage. On these grounds, reputation of his family has become tarnished.
Hence, prayed for allowing his divorce application.
7. The wife by filing her reply to the divorce application denied the
allegations levelled by her husband and pleaded that her husband did not tell
his correct date of birth and by concealing this fact, her in-laws performed
marriage. The allegation of her husband is baseless or frivolous in order to get
advantage to get a divorce from her. It is further pleaded that when she stayed
at her in-laws' house, her husband had willingly sexual intercourse with her.
She went for examination at Jhabua and after completion she came back.
Thereafter, her husband and his family started torturing her physically and
mentally by saying that job of her husband is confirmed and if you want to stay
with him, bring Rs.4 lac and a four wheeler from your parents. They also used
obscene words against he and took her to burn at Shivpuri. On 28.01.2011, her
parents came to settle the score but, her husband and his family took off her all
jewellery and ousted her from the house. She never threatened her husband and
his family to implicate in a false dowry case. It is further pleaded that at Family
Counselling Centre, Ambah due to assault, police itself lodged a complaint
against her in-laws. Her husband compromised the matter with her just because
to settle the cases filed against him and his family. Even thereafter, her
husband and in-laws behaved indecently, therefore, she filed an application
before JMFC, Ambah for Domestic Violence, in which, her husband is ready
and willing to keep her with him. Earlier, her husband has also filed another
application seeking divorce, but it was withdrawn by him on the pretext that he
is ready and willing to keep her with him. Thereafter, her husband took her
and during this period, by cohabitation, she gave birth to a son on 15.02.2014
at her parental home, but neither her husband nor his family came to see her
and since then, she lived at her parental home. She still wants to live with her
husband. On these grounds, she filed an application under Section 9 of the HM
Act for restitution of conjugal rights.
8. During the pendency of divorce application filed by husband, the wife
in addition to the reply of divorce application, in her application for restitution
of conjugal rights further pleaded that her father had given 15 tola of gold, a
motorcycle, various household items and cash of Rs.5,50,000/- as dowry, but
her in-laws were not satisfied with it, therefore, they started harassing her
mentally and physically. After 7-8 days of marriage, her husband-appellant left
her at her parental home for studies in Jhabua. After end of semester of B.Ed
course, her husband herself came to Jhabua and demanded Rs.20,000/- and a
computer from her father. Despite fulfilment of their demand, her in-laws again
started harassing her and demanding Rs.4,00,000/-. On 28.01.2011, her
husband took her to the house of his sister in Shivpuri and there he and his
family tried to burn her. On 14.04.2011, her father-in-law came to her parental
house and abused and beaten her and also demanded Rs.4,00,000 and said that
they would not keep her, until the demand is not fulfilled. Her family tried to
settle the score by holding a Panchayat, but everything is ending in smoke.
9. The wife further averred that on 06.06.2012, a written complaint was
given by her family to Parivar Paramarsh Kendra, Ambah against her husband
and his family. On 24.06.2012, her in-laws were summoned. They appeared
there, but behaved indecently with her, therefore, a departmental action was
taken against them by SDO and on the same day, a case under Section 498-A of
IPC was also registered against them at Police Station Porsa. A Protection
Officer's report was sent to the Court of JMFC with regard to domestic
violence on 17.07.2012. She also filed an application under Section 125 of
CrPC for maintenance. On 24.08.2012, her husband, father along with other
persons stopped her on the way and abused her by forcing her resignation from
job and threaten to kill her. On 21.11.2012, her father-in-law came to her
teaching place in Gwalior and also started abusing her by which, a case has
also been registered at PS Morar. On 27.07.2013, her husband in drunkard
state, brutally assaulted her and treated her at Victoria Hospital. On
17.08.2013, her husband told her that due to registering of case, a warrant was
issued against him and he had to go to Gwalior to get bail in the case,
therefore, she was told to go to her home back. Her husband sent her with her
brother to her parental home and since then, he did not turn up. Respondent
gave birth to a son on 15.02.2014 at her parental home, but her husband did not
come. She made every effort to settle the score, but her husband refused to
keep her with him. On these grounds, she prayed for allowing the application
for restitution of conjugal rights.
10. The husband, in her reply, also denied the allegations levelled against
him. On the contrary, it is pleaded that their marriage was solemnized without
any dowry and the entire expenses of marriage were borne by him. His wife
had lodged various false cases against him and his family and also submitted
applications with regard to domestic violence and maintenance. They did not
have relationship as husband and wife as they did not live together. His wife
used to quarrel every day and never ready to live with him as he is posted in
the Veterinary Hospital, Jabalpur. Even otherwise, his wife sent his father to
jail by registering false case and because of this, social prestige of his family
was ruined. Therefore, it is impossible for him to live together and restore any
marital relation. Hence, prayed for dismissal of application.
11. On the basis of the averments made by the parties in both the
applications, issues were framed and after affording opportunity of hearing to
the parties, the Family Court allowed the divorce application in favour of
husband and dismissed the application for restitution of conjugal rights filed at
the instant of wife.
12. Hence, both the appeals.
13. It is contended on behalf of husband that the impugned judgment and
decree has been passed by the Family Court without going through the
evidence of both the parties which is contrary to law. His wife is living
separately from him for a period of almost twelve years without any valid
reason. Due to ill-health of his father, he could not get the information about
the date of appearance because his pending case in Ambah which was looked
after by his father, but the Family Court commenced one sided proceedings
against him and he could not even present to adduce his evidence in support of
his case. It is further pleaded that his wife had lodged a false case under
Section 498-A of IPC in which, they are acquitted as this Court quashed the
criminal proceedings against his family. Against which, his wife filed an SLP
and the same was dismissed on 06.02.2015. His wife and her family are
harassing and torturing him and his family unnecessarily from the very
beginning. It is further submitted that his wife did not file any application for
restitution of conjugal rights until dismissal of her false cases. His wife has
deserted and deprived him of happiness of marital life. Due to this, his emotion
towards his wife has been dried, love has been lost and chances of living
together have been completely vanished. Therefore, conduct as well as
behaviour of his wife amounts to cruelty and she is living separately for a long
time since more than 11 years till today on the ground of cruelty and the period
of separation the relevant factor, which amounts to an irretrievable breakdown
of marriage. Relying on the judgment of Hon'ble Apex Court in the matter of
Shri Rakesh Raman Vs. Smt. Kavita 2023 Live Law (SC) 353, learned
Counsel for the appellant submits that long separation, in absence of
cohabitation and complete breakdown of all meaningful bonds and existing
bitterness between the husband and wife, has to be read as ''cruelty'' under
Section 13(1)(1-a) of the HM Act. Also, relying on the judgment of Hon'ble
Apex Court in the matter of Rani Narasimha Sastry vs. Rani Suneela Rani
reported in (2020)18 SCC 247, learned Counsel for appellant further contends
that it is true that it is open for anyone to file complaint or lodge prosecution
for redressal of his/her grievance. An FIR for an offence ipso facto be read as
''cruelty'' but when a period undergoes a trial in which he is acquitted of
allegation levelled by the wife, then it cannot be accepted that no cruelty has
meted out on the husband.
14. On the other hand, learned counsel for wife opposed the impugned
judgment and decree as well as opposed the contentions of husband and
submitted that she still wants to live with her husband in her matrimonial home
and fulfil her duties as a wife by maintaining conjugal life. Hence, prayed for
dismissal of appeal.
15. Heard learned counsel for the parties and perused the record.
16. 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.
17. In Raj Talreja v. Kavita Talreja (2017) 14 SCC 194, considering the
various facets of cruelty, the Hon'ble Supreme Court held as follows:
"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 ultimate
analysis, we hold that a marriage which is dead for all purposes
cannot be revived by the court's verdict, if the parties are not
willing. This is because marriage involves human sentiments and
emotions and if they are dried-up there is hardly any chance of their
springing back to life on account of artificial reunion created by the
court's decree. Here the respondent-wife has caused by her conduct
mental cruelty to the appellant-husband and the marriage has
irretrievably broken down. Dissolution of marriage will relieve both
sides of pain and anguish. Even if we refuse decree of divorce to the
appellant-husband, there are hardly any chances of the respondent-
wife leading a happy life with the appellant-husband because a lot of
bitterness is created by the conduct of the respondent wife."
18. The Hon'ble Supreme Court in Rani Narsimha Sastry (supra) has
observed that when a persecution launched against the husband on a complaint
made by the wife under Section 498-A of IPC making serious allegations
wherein husband is constrained undergo trial which eventually resulted into
acquittal, then in such case, it cannot be accepted that no cruelty was meted out
on the husband, and he can make a ground for grant of decree of dissolution of
marriage under Section 13(1)(1-a) of the HM Act.
19. 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)}
20. So far as allegations of wife that she was subjected to harassment for
demand of dowry and assault was made for which, she had prosecuted offence
under Section 498-A of IPC and because of behaviour and attitude of her
husband and her in-laws, she is unable to discharge her matrimonial obligation
is concerned, on perusal of record as well as pleadings of both the parties, it
transpires that husband and his family members were subjected to torture
physically and mentally at the behest of wife, not that of husband and his
family members. Subsequently, criminal cases were prosecuted at the instance
of wife against her husband and her in-laws, which resulted into acquittal, as
the wife has utterly failed to prove the ingredients of Section 498-A of IPC.
Therefore, it appears that husband has made a ground for grant of decree of
dissolution of marriage on the ground as mentioned in Section 13(1)(i-a) of
HM Act, 1955. Even otherwise, during pendency of this appeal, no useful
purpose could be served through conciliation proceedings. The husband was
able to prove the fact that he was subjected to cruelty and the wife further
deserted him without any lawful cause. Thus, cruelty by way of false litigation
is duly established. From the admission of husband in his evidence clearly
shows that no physical relationship was established between them.
21. It is not in dispute that both husband and wife are in Government
Service and are working as Veterinary Doctor and Government Doctor
respectively. One son has been blessed from their nuptial bliss. Therefore, the
wife has no right to receive any permanent alimony as contemplated under
Section 25 of the HM Act. They are living separately for the last more than 11
years. The matrimonial bond is completely broken and is beyond repair. Long
separation of husband and wife and in absence of cohabitation and irretrievable
breakdown of all meaningful bonds as well as marital relationship and the
existing bitterness between husband and wife, with multiple litigation between
the parties in which, the husband and his family members have been acquitted,
then continuation of such marriage would only mean giving sanction to cruelty.
22. From the discussion as aforesaid, we are of the considered view that
learned Family Court has not failed to appreciate the evidence adduced by the
parties in right perspective, and therefore, the findings given by the learned
Family Court in granting decree of divorce in favour of husband appears to be
just and proper. Having thus considered, the learned Family Court has not
committed an error in allowing the divorce application preferred by husband
for which, we hold the husband entitled for a decree of divorce.
23. Considering the overall facts and circumstances of the case and the law
laid down by the Hon'ble Apex Court in afore-cited cases, the impugned
judgment and decree dated 15.05.2017 passed by Additional District Judge,
Ambah, Morena in Case No.39/2015 (HM) against which, First Appeal
No.187/2017 filed by husband succeeds and is hereby allowed and the divorce
application filed by husband under Section 13(1)(i-a) of the HM Act stands
allowed. As a consequence thereof, the impugned judgment and decree dated
12.07.2018 passed by Principal Judge, Family Court Guna in Case
No.303/2014 (HM) against which, First Appeal No.1498/2018 filed by wife
having found no substance and is hereby dismissed. The application filed by
wife under Section 9 of the HM Act stands dismissed.
24. In view of foregoing reasons and discussions, the marriage between the
parties stands dissolved. A decree be drawn accordingly.
25. Pending application(s), if any, shall stand closed.
A copy of this judgment be kept in connected First Appeal No.187 of
2017.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
Avi*
