Madhya Pradesh High Court
Richa vs Ankush Agrawal (Singhal) on 6 May, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:12038
1 FA-581-2024
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 6th OF MAY, 2025
FIRST APPEAL No. 581 of 2024
RICHA
Versus
ANKUSH AGRAWAL (SINGHAL)
Appearance:
Ms.Mini Ravindran, learned counsel for the appellant.
Reserved on 02.05.2025
Delivered on 06.05.2025.
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JUDGMENT
Per: Justice Gajendra Singh
This first appeal under section 19 of the Family Courts Act, 1984
read with section 28 of the Hindu Marriage Act, 1955 has been preferred
by the wife being aggrieved by the judgment and decree dated
21.02.2023 in HMA Case No.2451/2021 by 2nd Additional Principal
Judge, Family Court, Indore whereby the petition of wife/appellant for
decree of divorce on the ground mentioned in section 13(1)(ia) & (1b) of
the Hindu Marriage Act, 1955 has been dismissed.
2. Facts in brief are that appellant/wife was married to
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respondent/husband on 08.12.2009 as per Hindu customary rites and
ceremonies including Saptpadi. On 09.03.2012 a son was born to the
appellant and respondent/husband whose custody is with the
appellant/wife and he is studying. Petitioner/appellant is post graduate
in science stream but she was living a life of house wife in her
matrimonial home. During her stay in the matrimonial home,
respondent/husband obtained her signature without disclosing the full
particulars of the contents of the documents and also got signature in the
bank also and being a wife she does not question of the act of obtaining
her signature by the husband. Thereafter appellant/petitioner came to
know that respondent/husband has started a firm in the title of Olive
Apparels at 706, Metro Tower, Near Mangal City, A.B Road, Indore and
at 13, Navlakha, Kousalya Complex, Indore and misused the signature
of the petitioner/wife. Respondent/husband never intimated the
appellant/petitioner regarding Olive Apparels and made several
transactions and issued bogus/forged cheque and committed economic
irregularities and disappeared without any intimation on 30.07.2019.
His whereabouts are not known despite continuous efforts. The missing
report was also lodged by his father. Missing intimation has been
published in the newspaper but respondent/husband did not appear and
thus committed cruelty with the wife and also deserted her and this
petition was filed on 08.12.2021 before the Family Court, Indore.
3. Notice was issued and it was unserved with a report that his
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whereabouts are not known to any one since two years and summons
was also published in the Indore Samachar dated 12.04.2022. When
respondent/husband did not appear then matter was proceeded ex-parte
vide order dated 12.09.2022 and appellant/petitioner examined herself as
PW/1 and her brother as PW/2 and adduced documents Ex.P/1 to P/5.
4. Family Court, Indore discussed both the grounds of cruelty
and desertion simultaneously and did not find proved any of the grounds
assigning the reasoning that no documents have been adduced regarding
Olive Apparels firm. No documents have been adduced that could
establish that signature of wife/appellant has been forged by the
respondent/husband. Petitioner had not make any complaint regarding
cheating committed by the respondent/husband. The act of obtaining
signature of the wife on the cheques and delivery to businessmen and
thereafter disappearing does not constitute cruelty. The disappearance
of the respondent/husband is under the pressure of criminal cases filed
under section 138 of the Negotiable Instruments Act, 1881 by the
lenders. All these transactions are in relation to business and does not
constitute cruelty. His disappearance is not proved without reasonable
cause and also does not fall within the category of desertion.
5. Challenging the judgment and decree, this appeal has been
preferred on the ground that trial court has committed error in
appreciating evidence and drawing conclusions that cruelty and
desertion are not proved.
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6. Heard. Perused the record.
7. Following two questions arises for disposal of this appeal:
(i) Whether economic abuse by the husband
constitute the cruelty that affords a ground for divorce under
section 13(1)(ia) of the Hindu Marriage Act, 1955?
(ii) Whether abandonment of the wife due to
circumstances created by his conduct amounts a reasonable
cause to a plea of desertion?
8. Before proceeding further, we are referring to the essence of
marriage as explained in Poonam Wadhwa vs. Rajiv Wadhwa - 2023
SCC OnLine Del. 5535 as below:
"the essence of marriage is sharing of common life, a
sharing of all the happiness that life has to offer and all the
misery that has to be faced in life, an experience of the joy
that comes from enjoying, in common, things of the matter
and of the spirit and from showering love and affection on
one's offspring. Living together is a symbol of such sharing
in all its aspects."
Question no.(i).
9. In Shoba Rani vs. Madhukar Reddy - 1988 (1) HLR 169, it
has been held that it is not necessary to establish that the respondent had
the requisite intention to commit the act. The relevant part is being
reproduced as below:
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"The context and the set up in which the word
'cruelty' has been used in the section seems to us
that intention is not a necessary element in
cruelty.....If the intention to harm, harass or hurt
could be inferred by the nature of the conduct or
brutal act complained of, cruelty could be easily
established. But the absence of intention should
not make any difference in the case.......the relief to
the party cannot be denied on the ground that there
has been no deliberate or wilful ill-treatment."
10. In Shoba Rani's case (supra), the Apex Court has further
observed as under:
"The word 'cruelty' has not been defined. Indeed it
could not have been defined. It has been used in
relation to human conduct or human behaviour. It
is the conduct in relation to or in respect of
matrimonial duties and obligations. It is a course of
conduct of one which is adversely affecting the
other. The cruelty may be mental or physical,
intentional or unintentional. If it is physical the
court will have no problem to determine it. It is a
question of fact and degree. If it is mental the
problem presents difficulty. First, the enquiry must
begin as to the nature of the cruel treatment.
Second, the impact of such treatment in the mind
of the spouse. Whether it caused reasonable
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apprehension that it would be harmful or injurious
to live with the other. Ultimately, it is a matter of
inference to be drawn by taking into account the
nature of the conduct and its effect on the
complaining spouse. There may, however, be cases
where the conduct complained of itself is bad
enough and per se unlawful or illegal. Then the
impact or the injurious effect on the other spouse
need not be enquired into or considered. In such
cases, the cruelty will be established if the conduct
itself is proved or admitted.
"It will be necessary to bear in mind that there has
been marked change in the life around us. In
matrimonial duties and responsibilities in
particular, we find a sea change. They are of
varying degrees from house to house or person to
person. Therefore, when a spouse makes complaint
about the treatment of cruelty by the partner in life
or relations, the Court should not search for
standard in life. A set of facts stigmatised as
cruelty in one case may not be so in another case.
The cruelty alleged may largely depend upon the
type of life the parties are accustomed to or their
economic and social conditions. It may also
depend upon their culture and human values to
which they attach importance. The Judges and
lawyers, therefore, should not import their own
notions of life. They may not go in parallel with
them. There may be a generation gap between
them and the parties. It would be better if they keep
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aside their customs and manners. It would be also
better if they less depend upon precedents. Each
case may be different.
11. In the present case, wife is a post graduate in science stream
and was expecting a good marital life and for that she compromised her
pursuit of career and blindly deposed faith on the husband but husband
betrayed the wife and instead of providing her security he abused her
faith and put her in danger in not only financial instability but a support
by obtaining her signatures. He left the wife to counter the financial
demands by lenders and even facing the allegations of conspiracy in
financial embezzlement with husband. The husband opted the easy way
of desertion but the wife was facing the challenges of life and also
taking care of the child.
12. The act of the respondent/husband amounts to "economic
abuse". The terms economic abuse, financial abuse and economic
violence are being used to identify circumstances where one
spouse/husband economically control woman using tactics such as
exploitation, manipulation, denial, deprivation and control every
resources and necessities including disposal of assets in which an
aggrieved woman may have interest, besides prohibition and restriction
of continued access to resources and facilities that she is entitled to
enjoy in a domestic relationship. Protection of Woman from Domestic
Violence Act, 2005 has recognized economic abuse as a form of
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domestic violence. In Poonam Wadhwa (supra) Delhi High Court has
held that "financial instability" of a spouse is covered under the ambit of
"mental cruelty". Accordingly, the act of the respondent/husband
amounts to "economic abuse, financial abuse or economic violence" and
the expression cruelty as used in section 13(1)(ia) extends to cover the
economic abuse, financial abuse and economic violence as cruelty. The
findings of the trial Court without appreciating this abuse and recording
finding that cruelty is not proved cannot be sustained and it is held that
petitioner/wife is able to prove the ground of cruelty. Answer to
question no.1 is in favour of the petitioner/appellant/wife.
Question No.(ii):
13. Before proceeding to consider this question, we are
reproducing the explanation appended after section 13(1) of the Hindu
Marriage Act as below:
Explanation --In this sub-section, the expression
"desertion" means the desertion of the petitioner by the
other party to the marriage without reasonable cause and
without the consent or against the wish of such party,
and includes the wilful neglect of the petitioner by the
other party to the marriage, and its gramatical variations
and cognate expressions shall be construed accordingly.
14. In the present case, at the time of filing the petition, the
statutory period of desertion i.e. 2 years had completed as the husband
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had left the appellant/wife on 30.07.2019 and the petition was filed on
08.12.2021. Even before this Court, respondent/husband did not mark
appearance despite the summons was published in daily newspaper and
the parents of the respondent and brother appeared and intimated the
Court that they are unaware about the whereabouts of
respondent/husband as he had not contacted with them or any relatives.
This statement was made on 02.05.2024 and, thus a period of 5 years 9
months is sufficient to infer that respondent/husband possesses the
animus to desert the wife.
15. This court has recorded the finding that disappearance of the
respondent/husband on 30.07.2019 is not proved without reasonable
cause.
16. What kind of conduct affords a reasonable cause to stay
away from the company of other spouse?. The answer to this question
depends upon the impact of that conduct on the mind of the other party.
17. In the present case, there is no iota of evidence that conduct
of the petitioner/wife was responsible to stay away the
husband/respondent from the company of the wife but it is his conduct
that was responsible for his absconding from the company of the wife.
18. In a marital life, living alone by the wife is not the essence of
marriage and cannot be justified on the excuse of situations created by
the husband himself and trial Court ignored this aspect in appreciating
the evidence. Accordingly, the finding of the Family Court that it is not
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proved that husband/respondent has deserted the wife for a statutory
period of 2 years without reasonable cause and without the consent or
against the wish of appellant/wife is without appreciating the evidence
of appellant/wife and not taking into the fact that even "wilful neglect" is
also included in the expression "desertion." Accordingly, findings of the
trial court are not sustainable on this point and are reversed. Question
no.(ii) is answered in favour of the appellant/wife.
19. Accordingly, the findings of the trial court are not based on
proper appreciation of evidence and circumstances of the case and are
hereby set aside. The appeal is allowed and the marriage of the appellant
solemnized on 08.12.2009 as per Hindu rituals and ceremonies is
dissolved on the ground of cruelty and desertion as mentioned in section
13(1)(ia) & (ib) of the Hindu Marriage Act, 1955.
20. There is no prayer for permanent alimony. All pending IAs
are closed.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
hk/
