Madhya Pradesh High Court
Smt. Swati Patel vs Chandrabhan Patel on 11 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 11th MARCH, 2025
FIRST APPEAL No. 2033 of 2024
SMT. SWATI PATEL
Versus
CHANDRABHAN PATEL
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Appearance:
Shri Susant Tiwari - learned Counsel for appellant-wife.
Shri Arun Dudawat and Shri Rahul Jha - learned Counsel for
respondent-husband.
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JUDGMENT
Per Hirdesh, J:-
1. The instant appeal is filed by appellant-wife under Section 19 of
the Family Courts Act read with Section 96 of the CPC against
judgment and decree dated 05/10/2024 passed by Principal Judge,
Family Court District Datia in Case No. 173/2022 (HMA) whereby an
application filed by respondent-husband seeking a decree of divorce
under Section 13(1)(i-a) of HM Act on the ground of ''cruelty'' has been
allowed.
2. It is not in dispute that appellant and respondent are husband wife
and they entered into the wedlock on 09.02.2020 by performing all the
customs and ritual which are essential to perform a Hindu marriage.
3. In brief the facts giving rise to present appeal are that respondent-
husband filed a divorce petition in the Family Court Datia on the
ground of cruelty and pleaded that on the very next day of marriage the
appellant-wife told her husband that she has been forced to perform this
marriage against her will and she refused to cohabit with respondent-
husband and their marriage could not have been consumed. Further, it
has been alleged in the divorce petition that the appellant-wife
expressed her will to study further and in turn her in-laws said that
they will get the admission of her in Scindhia Kanya Vidyalay in B.A.
Ist year situated in Bhander, but the appellant-wife wants to study
further only in Gwalior, upon which in-laws of the appellant-wife
expressed their inability looking to their poor financial condition, then
appellant-wife got angry and threatened them to implicate in false
allegations and left her matrimonial home. It was further alleged in the
divorce petition that the appellant-wife returned after 15 days to her
matrimonial home and demanded Rs. Thirty Thousand for the purpose
of depositing fees of B.A. Ist year in Gwalior. When her in-laws
refused to give her money then appellant-wife took all her ornaments
along with her and left her matrimonial home and started living at her
parental house.
4. It was further alleged that appellant-wife used to remain absent
from her matrimonial home for a period of 10-15 days on regular basis.
Due to which, Panchayat was called by the relative in which the
appellant- wife demanded the divorce from the respondent/ husband.
Parents of the wife abused the parents of husband in the Panchayat
.Appellant-wife always ill treated her in-laws and threatened them to
implicate them in false cases. On these grounds, respondent-husband
filed divorce petition before the Family Court.
5. Appellant-wife submitted her written statement in the Family
Court and denied all the allegations made by the respondent-husband in
the divorce petition. It was pleaded by appellant-wife that marriage has
already been consumed between appellant and respondent several times
and she never refused to cohabit with respondent-husband. When
marriage was performed, she was studying in Class-12 th and she
expressed her will before her in-laws to study further but because seats
were not vacant in Bhander college so she took admission in Kamlaraja
Girls College Gwalior and by the said act of appellant her in-laws
opposed her. She further pleaded that her husband and in-laws were ill
treating her in order to fulfill their greed of dowry and they were
demanding Rupees Five Lacs from parents of the appellant. When
appellant-wife refused to fulfill the said demand by saying that her
parents already gave Rupees Fourteen Lacs as dowry at the time of
marriage then her in-laws used to beat her and ousted her from their
house. Her parents was not able to fulfill their demand of dowry,
therefore, they ousted her from their house on 10.07.2022 and further
in-laws of appellant-wife were not allowing her to study further. On
these grounds prayer for rejection of divorce petition was made.
6. Family Court framed the issues on the basis of pleadings of both
the parties and after taking evidence of both the parties vide impugned
judgment and decree, allowed the application filed by respondent-
husband seeking a decree of divorce under Section 13(1) of HM Act .
7. Being aggrieved by impugned judgment and decree passed by
Principal Judge, Family Court Datia, appellant-wife preferred this
appeal and submitted that Family Court committed an error of law by
granting a decree of divorce in favor of respondent-husband. The
Family Court failed to appreciate the fact that there was no statement or
evidence given by the respondent-husband in order to prove the cruelty
by wife. Besides that, trial Court has not considered the fact and legal
position that no relief can be granted in favor of a party on the ground
which was not taken in the pleadings and merely on the basis of a
statement given by the appellant/ wife in her cross-examination
regarding illicit relationship of her husband with her sister-in-law
(Bhabhi), the Court cannot grant decree of divorce to the respondent/
husband on the ground of "cruelty".
8. Learned counsel for appellant-wife further submitted that the
pivotal question involved in this appeal is that if one party makes
serious allegation like allegation of adultery during cross-examination
then whether this amounts to cruelty and on these grounds marriage can
be dissolved. He relied upon the judgment of the Apex Court in the case
of V. Bhagat Vs Mrs. D. Bhagat, AIR 1994 SC 710, in which it was
held that mere casual allegation or an allegation made in a fit of anger
and under emotional stress shall not be considered as sufficient enough
to establish cruelty. If the party making the counter allegation makes
specific averment in the pleadings and also leads evidence on the issue,
then only the allegation may amount to an act of cruelty. Mere casual
mention of certain allegation at the spur of moment or in a fit of
emotional stress may not amount to an act of cruelty.
9. He further relied upon judgment of Division Bench of this Court
in the case of Onkar Nath Vs Sushila, 2013 Volume (3) JLJ 328 in
para No. 17 of the judgment it has been held that looking to the settled
legal position mere casual statement or assertion made in a fit of anger
can not be construed to constitute cruelty. So, appellant-wife submitted
that Family Court has failed to consider the basic principle of law that
the plaintiff has to establish his own case by leading some cogent and
reliable evidence and he can not claim the benefit of weakness of
defence. On going through the divorce petition and reply of wife there
is no whisper of cruelty in connection with allegation of adultery in the
written statement. Therefore, Family Court has committed an error
granting decree of divorce in favour of respondent-husband. On these
ground, appellant prays for setting aside the decree of divorce. He
further submitted that Family Court committed an error in not granting
permanent alimony under Section 25 of the Hindu Marriage Act and
failed to consider basic requirement of law enumerated under Section
25 of the Hindu Marriage Act. Therefore, impugned judgment and
decree passed by the Family Court is liable to be set-aside.
10. On the other hand, learned counsel for respondent-husband
supported the impugned judgment and opposed contention of appellant-
wife and submitted that appellant-wife in her examination in chief
alleged that respondent-husband had physical relation with his sister-
in-law (Bhabhi) and she further stated that she had seen them having
intercourse but in para No. 13 of her cross examination, she also could
not prove said allegation. Therefore, it is clear that such type of serious
allegations amounts to cruelty and decree of divorce on the ground of
cruelty was justified.
11. Heard learned counsel for parties and perused the record as well
as documents available on record.
12. 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 966
"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."
13. 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.
14. In Abhishek Parashar Vs Smt. Neha Parashar, 2023 (1) JLJ
265 held that wife's behavior towards respondent and his parents was
painful. Making baseless allegation relating to illicit relation with
another woman certainly falls within the ambit "cruelty".
15. In the case of V. Bhagat Vs Mrs. D. Bhagat (Supra) Apex
Court held as under :
"Cruelty contemplated by the sub-clause is both
physical and mental. We are concerned herein with
the latter. It is not possible to define "mental cruelty"
exhaustively. As observed by Lord Reid in Gollins Vs.
Gollins [1964 AC 644: (1963) 2 ALL ER 966]
"No one has ever attempted to give a comprehensive
definition of cruelty and I do not intend to try to do so.
Much must depend on the knowledge and intention of
the respondent, on the nature of his (or her) conduct,
and on the character and physical or mental
weaknesses of the spouses, and probably no general
statement is equally applicable in all cases except the
requirement that the party seeking relief must show
actual or probable injury to life, limb or health."
16. On perusal of record, it transpires that marriage of both parties
was solemnized on 09/02/2020 and there is no child from their wedlock.
It is clear that appellant-wife had not made any pleading about adultery
in the divorce petition but during examination-in-chief, she referred the
fact that her husband and sister-in-law were having illicit relationship.
The same statement was reiterated by the appellant/ wife in her cross-
examination however, could not prove the same due to lack of evidence
in that regard. Therefore, such type of serious allegation of adultery
made by the appellant/wife on the character of her husband amounts to
cruelty. Therefore, the argument of appellant/ wife that evidence
without pleading cannot be considered has no substance. Respondent-
husband did not make any allegation regarding character of his wife.
Considering the documents filed by the appellant-wife before Family
Court Ex.D-6 i.e. petition under Section 9 of the Hindu Marriage Act
for restitution of Conjugal Rights in para 10 of which appellant-wife
made allegation against her husband that he had illicit relation with his
sister-in-law (Bhabhi) and she saw both of them in objectionable
condition, subsequently, appellant-wife is unable to prove this
allegation by way of substantial evidence. In the case of Abhishek Vs
Smt. Neha (Supra), Division Bench of this Court held that Making
baseless allegation relating to illicit relation with another woman
certainly falls within the ambit "cruelty".
17. In view of foregoing discussion, it appears that the Family Court
has not committed any error in granting decree of divorce vide
impugned judgment dated 05/10/2024 in favour of respondent-husband
on the ground of "Cruelty".
18. Learned counsel for appellant-wife submits that Family Court
has committed an error in not granting permanent alimony to appellant-
wife. It is further submitted that Family Court has completely failed to
consider basic requirement of law enumerated under Section 25 of the
Hindu Marriage Act, but after perusal of record of Family Court, it was
found that no application was filed by appellant-wife before Family
Court for grant of permanent alimony and there is no sufficient and
complete material available on record before the Family Court on the
basis of which any conclusion regarding grant of permanent alimony
can be drawn.
19. Learned counsel for appellant-wife further submitted that no
application is required to be filed under Section 25 of the Hindu
Marriage Act and this Court, without such application, can decide
question of permanent alimony. In the case of Disha Kushwah Vs
Rituraj Singh 2019 Volue (4) MPLJ 694 and Dharmendra Tiwari Vs
Rashmi Tiwari 2020 Volume (2) MPLJ 561, it was held that no need
to file separate application under Section 25 of the Hindu Marriage Act
before the Court but it is noteworthy that SLP filed against judgment of
Disha Kushwah Vs Rituraj Singh (Supra), was dismissed (SLP No.
27693/2019 on 03/02/2022). Relevant portion of the said order is
reproduced as under:-
43."The legal journey shows that way back in the case of
Jitbandhan (supra) Justice G.P. Singh considered the language
used in Section 25 of the Act and came to hold that said provision
does not permit the Court to decide the question of alimony in
absence of an express application. The ratio of this judgment was
followed by Division Bench in Chhaya Kshatriya (supra). In
Chhaya Kshatriya (supra), this Division Bench also considered the
previous judgments of Bhikalal and Meerabai (supra). This
principle was followed by Single Bench in Mahesh Prasad (supra).
Lastly, another Division Bench in Manoj (supra) (decided on
23.10.2012) poignantly held that without an application made to
the Court under Section 25 of the Hindu Marriage Act, the Family
Court cannot decide the aspect of alimony.
44. The aforesaid journey makes it clear that view taken by
Justice G.P. Singh way back in the year 1982 in the case of
Jitbandhan (supra) was consistently followed by various Division
Benches. The cleavage of opinion is because of subsequent
Division Bench judgments in Rituraj Singh and Dharmendra
Tiwari (supra) wherein the subsequent Division Benches opined
that in order to claim 24 F.A. No1124/2019 & F.A. No. 1125/2019
alimony, it is not necessary to prefer a written application. A
careful reading of judgment of Rituraj Singh (supra) shows that
the Division Bench has not reproduced and considered Section 25
of H.M. Act. Section 25(1) of H.M. Act reads as under:-
"25. Permanent alimony and maintenance (1) Any court
exercising jurisdiction under this Act may, at the time of
passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or the
husband, as the case may be, order that the respondent shall 55
[***] pay to the applicant for her or his maintenance and
support such gross sum or such monthly or periodical sum for
a term not exceeding the life of the applicant as, having regard
to the respondent's own income and other property, if any, the
income and other property of the applicant 56 [, the conduct of
the parties and other circumstances of the case], it may seem to
the court to be just, and any such payment may be secured, if
necessary, by a charge on the immovable property of the
respondent. (Emphasis Supplied)
45. In both the subsequent judgments i.e. Rituraj Singh
(supra) and Dharmendra Tiwari (supra), the Division Benches
have not considered the previous judgments of this Court passed
in Jitbandhan, Chhaya Kshatriya, Bhikalal, Meerabai, Mahesh
Prasad and Manoj Vs. Raksha (supra). Thus, ancillary question
is, out of the two views, which view/judgment will be binding on
us. In our view, the curtains on this aspect are drawn by a Special
Bench (five Judges) of 25 F.A. No1124/2019 & F.A. No. 1125/2019
this Court in the case of Jabalpur Bus Operators Association and
Ors. Vs. State of M.P. and Ors reported in (2003) 1 MPLJ 513
wherein it is held as under:- ".........
"Similarly, Division Bench is bound by the judgment of
earlier Division Bench. In case, it does not agree with the
view of the earlier Division Bench, it should refer the matter
to larger Bench. In case of conflict between judgments of
two Division Benches of equal strength, the decision of
earlier Division Bench shall be followed except when it is
explained by the latter Division Bench in which case the
decision of latter Division Bench shall be binding. The
decision of larger Bench is binding on smaller Benches."
(Emphasis Supplied)
46.We also find substance in the argument of counsel for
appellant-wife based on the judgment of Supreme Court in the
case of State of Bihar v. Kalika Kuer, 2003 5 SCC 448 wherein it
was held that if previous binding judgment is not considered by
the subsequent Bench, the judgment of subsequent Bench is per
incuriam. Thus, it can be safely held that in absence of
application preferred under Section 25 of H.M. Act, no directions
can be issued by this Court for grant of permanent alimony. Apart
from this, for deciding the aspect of permanent alimony various
factual aspects regarding income, expenditure etc. of the parties
are required to be taken into account by the Court. In Rajnesh Vs.
Neha & Another (2021) 2 SCC 324, the Apex Court held as
under :
"73. Parties may lead oral and documentary
evidence with respect to income, expenditure, 26 F.A.
No1124/2019 & F.A. No. 1125/2019 standard of living, etc.
before the court concerned, for fixing the permanent alimony
payable to the spouse." (Emphasis Supplied)
47. So far judgment of Apex Court in Ramesh Chand
Rampratapji (Supra) in concerned, it is noteworthy that Court
focused and interpreted the expression 'at the time of passing any
decree' mentioned in Section 25(1) of the H.M. Act. The
observation of Supreme Court in para-17 of said judgment about
'ancillary' and 'incidental' power of the Court, in our humble
view, is not the ratio or principle laid down. This is trite that
precedent is what is actually decided by the Apex Court and not
what is logically flowing from it. [See: State of Orissa v. Sudhansu
Sekhar Misra (1968) 2 SCR 154, Regional Manager v. Pawan
Kumar Dubey (1976) 3 SCC 334, Ambica Quarry Works v. State of
Gujarat (1987) 1 SCC 213, Commr. of Customs (Port) v. Toyota
Kirloskar Motor (P) Ltd. (2007) 5 SCC 371]. Hence, this
judgment is of no assistance to respondent-wife.
48. At present, sufficient/complete material is not available
before this Court on the basis of which any conclusion regarding
alimony can be drawn. Thus, prayer for grant of permanent
alimony for this reason is also declined. However, this order will
not come in the way of the wife to file appropriate application
under Section 25 of H.M. Act before the Court of competent
jurisdiction. The said court will be best suited to decide the said
prayer for permanent alimony. Thus order of Umarani (Supra)
cannot be pressed into service.
20. In view of the above settled position and the decision of the Apex
Court as discussed above, it is clear that the appellant-wife should have
filed an application seeking permanent alimony before the Family Court
under Section 25 of the Hindu Marriage Act. The Family Court is the
best suited Court for deciding the prayer of the appellant for grant of
permanent alimony. Hence, this ground of appellant/ wife also does not
gain any ground and deserves to be rejected.
21. In the considered opinion of this Court the appeal fails and the
same is hereby dismissed and the judgment and decree dated
05/10/2024 passed by the Principal Judge, Family Court District Datia
in Case No. 173/2022 (HMA) is hereby affirmed.
22. Decree be drawn accordingly.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
Prachi
PRACHI
MISHRA
2025.04.01
10:36:36
+05'30'
