Madhya Pradesh High Court
Rajan vs Smt. Mani on 7 March, 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 7th OF MARCH, 2025
FIRST APPEAL No. 178 of 2022
RAJAN
Versus
SMT. MANI
AND
FIRST APPEAL No.235 of 2022
RAJAN
Versus
SMT. MANI
Appearance:
Shri Prashant Sharma & Shri Siddharth Sharma - Advocates for husband- Rajan Arora .
Shri H.K.Shukla & Shri Niraj Shrivastava - Advocates for wife- Smt. Mani Arora.
JUDGMENT
Per Hirdesh, J:-
First Appeal No.178/2022 is filed by husband-appellant under Section 19
of Family Court Act, 1984 against the judgment and decree dated 21.12.2021
passed by Principal Judge, Family Court, Guna in RCSHM Case No.88/2017,
whereby the application filed by husband under Section 13(1)(i-a) of Hindu
Marriage Act (in short "HM Act") seeking decree of divorce on the ground of
"cruelty" has been dismissed.
(2) Similarly, First Appeal No.235/2022 is also filed by appellant-husband
under Section 19 of Family Court Act, 1984 against the judgment and decree
dated 21.12.2021 passed by Principal Judge, Family Court, Guna in RCSHM
Case No.125/2017, whereby the application filed by respondent-wife under
Section 9 of Hindu Marriage Act (in short "HM Act") seeking restitution of
conjugal rights has been allowed.
(3) Since factual matrix of both appeals is same, therefore, they are heard
analogously and disposed of by this common judgment.
(4) It is not in dispute that the marriage of appellant was solemnized with
respondent on 21.10.2012 in Guna according to Hindu customs and rites.
(5) In the divorce application filed by appellant-husband, it was pleaded by
him that his mother, Mrs. Santosh Arora, has been running Modern Children
Higher Secondary School in Guna since 1987 and his father had a bus
transportation business, which he took over after his father's demise on February
1, 2010. He is an IT engineer. Father of respondent Satish Sharma, used to work
as a Mechanic in the vehicle business of his late father and continued to do so in
the name and style of M/s Pappu Engineering and Standard Motors, Royal En-
field at A.B. Road, Guna. They also have a land business. Maternal home of
respondent is in Guna, and her family permanently resides there. After death of
father of respondent, her parents maintained a cordial relationship with them,
and her mother gained trust and proposed marriage of respondent with him.
After several requests, he and his mother agreed to marry respondent without
dowry, accepting her parents' proposal. Thus, their marriage was solemnized on
21st October, 2012 without any dowry.
(6) After the marriage, his mother treated respondent with great affection and
ensured her M.Tech. studies at J.P. College, Guna bearing all expenses. Even
after completion of M.Tech, she was not asked to do any household chores for
almost a year. His mother would wake up early in the morning, prepares food,
breakfast, and lunch boxes, and hand them to respondent at 7:00 AM when she
left for College, along-with milk and tea. After college hours, she would spend
time with friends or at her maternal home, returning home only around 6-7 PM.
His mother did all the household works and manage school. She did not perform
any duties related to household responsibilities. When she was asked to take on
household responsibilities after completing her M.Tech. she replied that her
father never made her mother do any work at their maternal home, as everything
was done by servants, so she would not cook. While his mother always kept her
happy with affection, she constantly humiliated his mother.
(7) The appellant-husband further in his divorce application averred that his
wife-respondent used to talk to her parents and friends on phone, watches TV, or
is busy with her laptop. When this fact was narrated to the mother of respondent,
she suggested hiring servants for household chores and interfered in his family.
(8) It is alleged that father of respondent had started handing over all the
income from his bus business to respondent daily after the marriage to keep her
happy. From 2012 to December, 2015, he continuously handed over lakhs of
rupees which was gained from bus business and expenses to respondent. When
he asked for an explanation of accounts and bills in December, 2015 due to
suspected discrepancies, respondent got angry and started fighting. She became
insistent and deleted all the accounting data from laptop. The respondent
misappropriated the money by transferring it to her personal account. Since
then, he stopped handing over the daily bus revenue to the respondent and
himself maintained the accounts. The respondent continued to neglect and
behave rudely towards her in-laws. As the respondent's father did not have
parking arrangements at his home, his mother had given permission for his car
and tanker to be parked in the garage occasionally. However, they started
parking regularly and opened a shop named 'Standard Motors' by setting up a
temporary stall. When asked to vacate the land, they kept delaying, but did not
vacate. When the foundation was dug for a boundary wall, his plot was vacated.
Upset by this, the respondent and her family started behaving cruelly towards
him and his mother. Then, on 16.02.2016, the respondent's father and brother
came to his house and argued with him and his mother.
(9) Again, on 19.12.2016 and 20.12.2016, they came to the school and
argued, intimidated, and threatened to implicate them in false cases. A written
application and report were submitted to the Superintendent of Police, Guna, on
23.12.2016. The respondent began threatening to send him and his family to jail.
Since August 2016, the respondent has been imposing conditions and making
insulting remarks regarding cohabitation. In August 2016, the respondent had a
severe fight with him, made insulting remarks, and hurled vulgar abuses at his
mother, forcing him to stay away.
(10) The appellant- husband also pleaded in his divorce application that the
respondent said she would agree to his terms and conditions, if he started giving
her all the daily income as before, sent his mother away, and handed over the
plot at the checkpoint to her father. When he said that he could not leave his
widowed mother alone at this age, the respondent became angry, grabbed his
collar, and started dragging him. A similar incident occurred on 08.10.2016. The
respondent constantly threatens to send his sister in jail and takes away his
gadgets to prevent him from working and harasses him, causing him to suffer
from depression.
(11) Once, respondent's father threatened to kill him. He and his mother were
terrified by this incident. After this, the respondent's parents came to their place
and for their behaviour started apologizing. On December 19, 2016, the
respondent's parents came again, and her father said we will never let him live
happily. Even if he dies, his son Rahul will never let you live happily. He also
said that their daughter would sit on the principal's seat and gave threats.
Following the threats made by the respondent's father on December 19, 2016,
her mother, fearing for her safety, did not go to school early on December 20,
2016, but left home to go to school around 12:00 PM. The respondent's father
had already reached the school by 11:30 AM, before her mother. Seeing the
respondent's father already seated, her mother sat quietly and went to the temple
in the old office. The respondent's father also entered the temple behind her.
Fearing for her safety, her mother went to the new office. When the accountant
asked them to leave the temple, saying that they were going to lock it, they
reluctantly came out and left the school. Her mother reported the incident to the
police.
(12) The appellant-husband further alleged in his divorce application that
respondent tells him to give her two crore rupees if he wants to get rid of her.
This clearly shows that respondent does not want to live a peaceful married life
with him, but wants to extort money from him. The respondent, her father, and
her family members have created a hellish atmosphere at home by committing
various acts of cruelty. He fears for his life from the respondent, her father, and
her brother.
(13) Once, he and his mother suffered some injuries in a car accident, during
this period, the respondent completely neglected her duties as wife. His mother
returned alone to Gwalior after some time due to school commitments. The
respondent treated his mother cruelly, and his mother, deeply saddened, finally
left her own residence in Khyalbagh. In November, 2017, the respondent set fire
to the pavers and gardens in the open area of the house in Khyalbagh and issued
a threatening signal to his mother. They were deeply shocked and frightened by
this incident. The respondent and her family members are illegally preventing
him from using his building in Khyalbagh and threatening him. The respondent
and her family members can go to any extent to seize their property, which they
feel a serious threat. On these grounds, he sought a decree of divorce.
(14) The respondent-wife in her reply, has denied the allegations of her
husband. It was pleaded that since marriage, she did the household chores
because her mother-in-law, being a School Administrator, used to leave for
school early in the morning and was busy with school work, for whom she used
to prepare tea, breakfast, and other meals. Even after completing her studies
after marriage, her husband and mother-in-law kept her at their home and did
not allow her to go outside, and her husband often stayed out. Even after four
and a half years of marriage, due to not having children, her husband, mother-in-
law and the sister-in-law used to taunt her for being sterile. When her uncle-in-
law Shyamsundar and aunt-in-law Annu Sachdeva used to come to Guna, her
husband and mother-in-law used to taunt her for not having children, saying that
she was sterile, that she had no children, so they would divorce her and the
appellant would marry someone else. They used to harass and abuse her over
this issue. She tolerated everything. Her husband, mother-in-law and sister-in-
law used to leave her alone at home and did not talk to her while staying at
home, and used to harass her physically and mentally and they even did not give
her food.
(15) The respondent-wife further in her reply to divorce application averred
that her husband-appellant used to manage the bus accounts. He used to deposit
and withdraw money from her account to save income tax. He used to get her to
sign only the income tax return. She respects her husband, mother-in-law and
the entire family. Since, she is unable to give birth to a child, appellant and his
family members want the appellant to marry someone else. He deliberately does
not come to sleep in her room, refuses to come when called by her, and goes to
sleep with his mother. The appellant and his mother lock her in the room for two
days at a time and lock it from outside.
(16) The appellant and his mother repeatedly try to send her to her parents'
house. Appellant and his mother asked her to get married again and bring more
dowry. When she was called sterile by appellant and his family members, she
got her medical checkup done and was found fit by concerned Doctor. When she
asked for medical checkup of appellant, the appellant, his mother and sister got
angry. Sister of appellant is unmarried, and a boy comes to meet her and stays at
their house. When she objected to this, the appellant's sister started fighting with
her frequently and tried to get her out of house by any means. About 3 months
ago, appellant, influenced by his mother and sister, left her alone in the house
located in Khyalbagh and moved to their other house in Soni Colony, Guna,
taking all her belongings, jewellery and personal belongings with them.
Appellant has not made any arrangements for her maintenance and is
threatening to cut off electricity and water. Her father is taking care of her
maintenance.
(17) The respondent-wife further in her reply pleaded that she is still living in
her matrimonial home and fulfiling her duties as a wife and maintaining
conjugal life and wants to live with her husband-appellant, but because she has
no children and because she objected to the person coming with sister of
appellant, appellant, his mother and sister want to drive her out of house. CCTV
cameras are installed in her matrimonial home and also to monitor the garden's
location.
(18) The appellant and his mother have given her limited space to live in the
house in Khyalbagh, in just one room with an attached bathroom and kitchen,
and the appellant and his mother have locked all the other rooms in the building.
The appellant has made false grounds merely to get a divorce. By keeping her in
one room and locking the rest of building, the appellant and his mother are
living in another building in Soni Colony, Guna. Neither she nor her father and
brother have caused any incident. The appellant and his mother, without any
valid reason, intentionally left her alone in the house and are living in their Soni
Colony School, which is much larger and more convenient than Khyalbagh
building. She is still living in her matrimonial home.
(19) Respondent in her reply to divorce application further pleaded that on the
night of August 3rd and 4th, 2017, appellant and his mother Mrs. Santosh Arora,
entered her room and assaulted her with kicks and fists, causing a head injury on
her forehead. She informed the police by calling Dial-100 from her Mobile No.-
9981711487. The police arrived at the scene that night. Upon hearing
commotion, Jitendra Khurana and Shailu Lumba their neighborhood came to
spot. Jitendra Khurana informed his father about the incident over the phone.
Subsequently, her father, brother, and Rajendra Saluja came to meet her upon
information. Then, appellant and his mother admitted their mistake in front of
everyone and reached a verbal compromise in everyone's presence. Therefore,
she did not take any further action regarding the incident. She does not want to
break her home and still wants to live with appellant. Therefore, she has filed an
application under Section 9 of HM Act for restitution of conjugal rights. Hence,
prayed for dismissal of divorce application filed by appellant.
(20) The averment of wife in her application under Section 9 of HM Act for
restitution of conjugal rights is that after marriage, she and appellant lived
together as husband and wife in house located at 11- Khyalbagh A.B. Road,
Guna, and fulfilled their marital rights and duties towards each other. It was
alleged that appellant influenced by his mother and sister Shweta Arora, started
physically and mentally harassing her, often abusing her and threatening to
throw her out of house and divorce her. Appellant's mother and sister would
keep her locked in a room all day, and sometimes wouldn't give her food for two
days.
(21) When she told her parents including her brother about the incident after
coming to her parental home, they tried to talk with her husband and his mother,
but they refused to listen. She continued to endure everything to save her
marriage. Appellant's sister, Shweta Arora, who is unmarried, has a male friend,
who stays at their house, which she objected to. This led to daily quarrels with
appellant's sister, and they both conspired to get her evicted from house. As she
has not conceived yet, appellant's mother and sister taunted her for being sterile.
On the request of appellant, she underwent a medical checkup, which declared
her medically fit. When she asked her husband appellant and his mother to get
him checked as well, they got angry and started fighting with her.
(22) On the influence of his mother and sister, appellant left her alone in
Khyalbagh house about two months ago and moved to other house in Soni
Colony, Guna, taking all her belongings, jewellery, and bridal gifts with him.
Appellant has not made any arrangement for her maintenance or food and has
taken all her belongings. He is also threatening to cut off the electricity and
water supply of the house.
(23) Respondent-wife further averrred in her application for restitution of
conjugal rights that she has been living alone in Khyalbagh house for the past
two months. On the influence of his mother and sister, appellant is not talking to
her and has not come to see her. She and her parents have tried to contact her
husband and no cruelty has ever been committed against his family. Neither she
nor his brother Rahul ever threatened appellant or his mother to withdraw
divorce case.
(24) Appellant has filed false and frivolous complaints against her with the
police to create grounds for divorce. She has never committed any incident with
appellant or his family, nor has she ever set fire to pavers and garden of house.
CCTV cameras are installed in her in-laws' house, and CCTV cameras are also
installed to monitor garden's location. Appellant has given her only one room in
Khyalbagh house, which has an attached bathroom and kitchen, to live in, and
appellant along with her mother have locked all the remaining rooms of
building. Appellant is deliberately not fulfiling marital obligations without any
valid reason, whereas she is still willing to live with him as his wife. Therefore,
she sought a decree for the restoration of conjugal rights.
(25) Appellant-husband in his reply has denied allegations made by his wife-
respondent and pleaded that after marriage with permission, he has been residing
with his mother, Mrs. Santosh Arora, in self-acquired property, i.e. House
No.11- Khyalbagh A.B. Road, Guna. Since the date of marriage, the respondent-
wife along with her parents including her brother, as instructed by them, has
been constantly planning new deceitful schemes and conspiracies to usurp his
and his mother's property, including the said building, school, and other
movable and immovable assets. The respondent, her parents, and other
supporters have subjected him and his mother to such extreme cruelty that their
lives have become hell. Therefore, it is not possible for him to live a conjugal
life with his wife-respondent in the same house. He has also filed a divorce
petition against his wife- respondent in the Court on 1 st April, 2017.
(26) Appellant-husband further in his reply pleaded that after application was
filed, during ongoing settlement talks before the Court, his wife entered their
room around 2-3 AM on 4th August, 2017, and indirectly attacked them, hitting
them with slaps and kicks, and then falsely called the police, claiming that he is
assaulting her. Then, she injured herself by scratching with her own nails and
after a while, went to her bedroom and banged her head. The father, brother of
respondent, former MLA and Guna Municipal Corporation President Rajendra
Saluja, along with police, stormed into his house and in front of police,
respondent, her father, brother and their supporters created a ruckus and hurled
abuses. She is harassing him and his mother by misusing her marital rights. It
has become difficult to live with respondent in their house. They are forced to
live with respondent in an atmosphere of mental distress, fear, and terror, yet he
is fulfiling his duty of providing for respondent's maintenance.
(27) Appellant-husband further in his reply pleaded that his wife-respondent
and her family want to seize his and his mother's property. Appellant's sister
Shweta Arora stayed in Ujjain from 2005 to 2012 and obtained her MBBS
degree, then went outside for preparation of Pre-PG and research from January
2013 to February-March 2014, and worked as an Octor at Anandpur Trust
Charitable Hospital from March 2014 to April 2016, and since May 1, 2016, has
been residing in the college campus hostel for her postgraduate studies in
General Surgery at Aurobindo Medical College, Indore. In such a situation, the
accusatory statements of his wife-respondent are false. She has an M.Tech.
Degree and is the only daughter of a wealthy family. She threatens him and his
mother with police every day and has been keeping all her personal belongings
at her parents' house from the very right beginning.
(28) Besides that, he gave all his earnings to his wife-respondent for years after
the marriage, out of which she has embezzled lakhs of rupees and kept them
somewhere else. Respondent and her family apologized several times for cruelty
inflicted on him and his family by her and her parents and promised not to
commit cruelty in future, but they continued to treat cruelty. After that, despite
counselling in the Family Counselling Center, respondent and her family did not
agree and continue their cruel behaviour. His brother-in-law also threatened him
and his mother to withdraw divorce case.
(29) Appellant-husband in his reply further denied all the allegations made by
his wife and also stated that he filed a divorce petition on April 1, 2017, before
the Family Court. After receiving summons, his wife-respondent with malicious
intent and ill-will to thwart divorce proceedings, filed this application for
restitution of conjugal rights against him as a retaliatory measure. In November
2017, his wife-respondent set fire to the pavers and gardens of his mother's
house in Khayalbagh, giving a symbolic threat, which frightened him and his
mother. She has prevented him from residing in the house of his mother and
forced him to live in a school building with his mother. He faces a serious threat
to life and property from respondent. In such a situation, granting a decree for
restitution of conjugal rights would not be legally-sound. On all the above
grounds, he prayed dismissal of application filed his wife under Section 9 of the
HM Act for restitution of conjugal rights.
(30) On the basis of pleadings of both the parties, the Family Court framed the
issues. The learned Family Court vide impugned judgment and decree dated 21-
12-2021 allowed the application filed by respondent-wife under Section 9 of the
HM Act for requisition of conjugal rights whereas vide same judgment and
decree dated 21-12-2021 rejected the divorce application filed by appellant-
husband under Section 13(1)(i-a) of HM Act on the ground of cruelty.
(31) Being dissatisfied, the appellant- husband is before this Court by filing
the instant first appeals.
(32) It is contended on behalf of appellant that the impugned judgment and
decree passed by Family Court is contrary to law and record. After allowing the
application of the respondent restitution of conjugal rights by the Family Court,
respondent is not fulfilling her conjugal rights and creating pressure upon the
appellant continuously to live separately from his mother. On 22.02.2016,
mother of the appellant also lodged a complaint about the harassment and
cruelty made by respondent for continuous four years. The life of the appellant is
in danger and not safe at the hand of respondent and her parents because on
many occasions, they gave threats with dire consequences.
(33). Learned counsel for appellant contended that the impugned judgment and
decree passed by the Family Court is contrary to law without going through oral
and documentary evidence available on record. The appellant in his Court
statement has specifically deposed that his wife-respondent and her family
members used to harass him and his family. The intention of respondent is not
only to live with appellant and his family peacefully and establish matrimonial
fold, but also her intention is to extract money from the appellant and grab the
property. The respondent never told the doctor that she is sterile, but claims
herself to be absolutely normal. Respondent has disposed the appellant from his
own house and is illegally residing separately at Khayalbagh House
continuously levelling false and frivolous allegations of cruelty and harassment
by him and his mother.
(34) The Family Court has given more weightage upon the evidence of the
respondent by allowing the application of restitution of conjugal rights. It is true
that the restitution of conjugal rights remedy tries in promoting reconciliation
between the parties and to protect the society from denigrating, but once the
respondent is not obeying the decree of restitution of conjugal rights and to
continue with the matrimonial fold and intentionally, is living separately for a
long four years without any reasonable cause and the conduct of the wife makes
it impossible for the appellant to accept her as a wife, therefore, the appellant
sought a decree of divorce by giving permanent alimony.
(35). On the other hand, learned counsel for the respondent-wife relying on the
judgment of Chiranjeevi vs. Smt. Lavanya alilas Sujatha reported AIR 2006
AP 269, opposed the contentions of appellant and submitted that appellant under
the influence of his mother and sister is not allowing respondent to enjoy
matrimonial life, therefore, the person cannot benefit for his own wrong as is
clear from documentary as well as oral evidence produced before Family Court
at the time of decision on the application under Section 9 of HM Act filed by
respondent. The respondent is an educated lady being M.Tech Degree and she
was forced to live separately because of the reason that she is unable to give
birth to a child. The allegation of giving threat by her father on 16.12.2016,
19.12.2016 and 20.12.2016 to the appellant and his father is false which is
admitted by the mother of appellant in her cross-examination.
(36) On 03.08.2017, appellant and his mother had beaten her which is duly
supported by the evidence of one Rajendra Singh Saluja. She is always ready
and willing to reside with her husband. The cruelty is in the hands of appellant
and his family and not in the hands of respondent. Learned Family Court after
evaluating the oral as well as documentary evidence available on record has
rightly allowed the application for restitution of conjugal rights and dismissed
the divorce application filed by the appellant on the ground of cruelty. The
appellant-husband failed to make ground for grant of divorce and the Family
Court considered the material brought on record in right perspective and refused
to dissolve the marriage. Hence prayed for dismissal of appeals.
(37) Heard learned Counsel for parties and perused the record as well as
documents available on record.
(38) Concept of ''mental cruelty'' has been elaborately discussed by Hon'ble
Supreme Court in the case of Dr. Narayan Ganesh Dastane Vs. Mrs. Sucheta
Narayan Dastane, AIR 1975 SC 1534 whereby, the relevant extract of the said
judgment is reproduced as under:-
''The question whether the misconduct complained of
constitutes cruelty and the like for divorce purposes is determined
primarily by its effect upon the particular person complaining of the
acts. The question is not whether the conduct would be cruel to a
reasonable person or a person of average or normal sensibilities, but
whether it would have that effect upon the aggrieved spouse. That
which may be cruel to one person may be laughed off by another, and
what may not be cruel to an individual under one set of
circumstances may be extreme cruelty under another set of
circumstances."(1) The Court has to deal, not with an ideal husband
and ideal wife (assuming any such exist) but with the particular man
and woman before it. The ideal couple or a near-ideal one will
probably have no occasion to go to a matrimonial court for, even if
they may not be able to drown their differences, their ideal attitudes
may help them overlook or gloss over mutual faults and failures. As
said by Lord Reid in his speech in Gollins v. Gollins (2) ALL ER
"In matrimonial cases we are not concerned with the
reasonable man, as we are in cases of negligence. We are
dealing with this man and this woman and the fewer a priori
assumptions we make about them the better. In cruelty cases
one can hardly ever even start with a presumption that the
parties are reasonable people, because it is hard to imagine any
cruelty case ever arising if both the spouses think and behave as
reasonable people."
(39) The aforesaid judgment of Dr. Narayan Ganesh Dastane (supra) still
holds the field and is source of wisdom time and again in respect of ''mental
cruelty''. The aforesaid decision was referred to with approval in the cases of
Praveen Mehta Vs. Inderjit Mehta AIR 2002 SC 2582, Samar Ghosh Vs. Jaya
Ghosh (2007) 4 SCC 511, Manisha Tyagi Vs. Deepak Kumar (2020) 4 SCC
339, Vishwanath Agrawal Vs. Sarla Viswanath Agrawal (2012) 7 SCC 288
and U. Sree Vs. U. Srinivas (2013) 2 SCC 114.
(40) The Hon'ble Supreme Court in the matter of Samar Ghosh vs. Jaya
Ghosh (2007) 4 SCC 511 has also considered the instances of cruelty as well as
the aspects of irretrievable breakdown and held that the same can be made a
ground for divorce. Further, in the case of Shri Rakesh Raman Vs. Smt.
Kavita 2023 Live Law (SC) 353, the Hon'ble Apex Court observed 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)(i-a) of the HM Act.
(41) On perusal of record, it transpires that marriage of both parties was
solemnized on 21-10-2012 and there is no child from their wedlock. Mrs.
Santosh Arora, mother of appellant has been running Modern Children Higher
Secondary School in Guna since 1987 and his father had a bus transportation
business, which he took over after his father's demise on February 1, 2010.
Appellant is an IT engineer. Father of respondent Satish Sharma, used to work
as a Mechanic in his Late father's bus and vehicle business and continued to do
so in the name and style of M/s Pappu Engineering and Standard Motors, Royal
En-field at A.B. Road, Guna. Respondent ensured her M.Tech. studies from J.P.
College, Guna. As per appellant, since 2012 till 2015, he handed over business
to the respondent and when he asked for an explanation of accounts and bills in
December 2015, due to suspected discrepancies, the respondent got angry and
started fighting. As per allegation of husband, on 16.02.2016, the respondent's
father and brother came to his house and argued with him and his mother.
(42) Again, on 19.12.2016 and 20.12.2016, they came to the school and
argued, intimidated, and threatened to implicate them in false cases. A written
application and report were submitted to the Superintendent of Police, Guna, on
23.12.2016. Appellant filed divorce application under Section 13 of HM Act on
the ground of cruelty before the Family Court, Guna on 1 st of April, 2017. As per
allegation of husband, in the month of November, 2017 respondent set fire in
the house of appellant situated at Khayalbagh and threatened his mother and
restraining them from using the same house and as per allegation of wife, her
husband-appellant under the influence of his mother and sister, left her alone in
the house located in Khyalbagh and she was forced to live separately because of
the reason that she is unable to give birth to a child.
(43) Respondent fled an application for restitution of conjugal rights on 17 th of
May, 2017 just after one month of filing of divorce application by her husband-
appellant. According to appellant, the respondent is not living a single stone
unturned to cause embarrassment or harassment. After allowing the application
of restitution of conjugal rights of wife and dismissing the divorce application
by the common judgment and decree passed by learned Family Court, during
pendency of instant appeals, despite various efforts were given to the parties to
settle the matter, no useful purpose could be served. Respondent does not
prepare to endorse full and final settlement, however, says that she wants to live
with the appellant.
(44) Therefore, in the backdrop of fact that the marriage between them did not
last for more than five years and both of them have been living separately for the
last over nine years, apparently marriage is irretrievable, as love is lost and
emotions are dried up, as evidence from demeanour of the parties out of their
wedlock, there is no child. There is no possibility of any reconciliation between
the parties. There is no hope about cohabitation between them. Matrimonial
bond has been completely ruptured beyond repair. It has become impossible to
reunite parties. Marriage is totally unworkable, emotionally dead and beyond
salvation.
(45) After a long period of more than 9 years, no useful or fruitful purpose
could be served to drag such relationship of respondent and appellant as
husband and wife any further. Both the parties have failed to establish their
marital relationship. Thus, the marriage irretrievably broken-down due to efflux
of time. Since the relationship of appellant and husband must end as its
continuation is causing cruelty either on the parties, therefore, long separation,
absence of cohabitation, complete breakdown of all meaningful bonds and
existing bitterness between appellant and respondent has to be read as ''cruelty''.
Where marital relationship between appellant and respondent has broken down
irretrievably, where there is a long separation and absence of cohabitation (as in
the present case, husband and wife are living separately for the last nine
years), then continuation of such marriage would only mean giving sanction to
cruelty with each is inflicting on the other.
(46) 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 to tune of Rs.75 lacs 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 six 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, a decree of divorce be
drawn accordingly.
(47) In view of foregoing discussion, the application filed by respondent-
wife under Section 9 of HM Act seeking restitution of conjugal rights deserves
to be and stands rejected and the application filed by appellant-husband under
Section 13(1)(i-a) of HM Act seeking decree of divorce on the ground of
"cruelty" deserves to be and stands allowed. First appeal No.178/2022 filed by
appellant-husband against the judgment and decree dated 21.12.2021 passed by
Principal Judge, Family Court, Guna in RCSHM Case No.88/2017 is allowed
by setting aside the same, whereas the First Appeal No.235/2022 filed by
appellant-husband against the judgment and decree dated 21.12.2021 passed by
Principal Judge, Family Court, Guna in RCSHM Case No.125/2017 is
dismissed by setting aside the same.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
