Madhya Pradesh High Court
Rashi vs Vishal on 16 September, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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1 F.A. No. 1056 of 2014
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
FIRST APPEAL No. 1056 of 2014
RASHI W/O VISHAL AWASTHI
Versus
VISHAL S/O ASHOK AWASTHI
..........................................................................................................................
Appearance:
Appellant - wife is present in person along with Shri Sanjay P. Joshi -
Advocate.
Respondent - husband is present in person along with Shri Rishiraj
Trivedi - Advocate.
.............................................................................................................................
Reserved on : 03/09/2025
Pronounced on : 16/09/2025
.............................................................................................................................
ORDER
Per: Justice Binod Kumar Dwivedi
The subject matter of this first appeal under Section 19 of the
Family Courts Act, 1984 (herein after referred to as the Act of 1984) preferred
by the appellant - wife is judgment and decree dated 08.07.2014 passed in
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Hindu Marriage Case No.655 of 2010 by the learned Second Additional
Principal Judge, Family Court, Indore (MP), whereby petition filed under
Section 13 (1) (1-a) of the Hindu Marriage Act, 1955 (herein after referred to as
the Act of 1955) by the respondent - husband has been allowed; and the
marriage between the appellant - wife and respondent - husband has been
dissolved.
2. It is not in dispute that marriage between the parties was solemnized
on 14.12.2003 as per Hindu customs and rituals; and out of their wedlock, one
son Aditya and daughter Anushka were born.
3. Case of the respondent - husband as mentioned in the divorce petition
has been that his wife - appellant has been of irascible and quarrelsome
disposition, habitually engaging in disputes and exhibiting a short-tempered
nature, thereby disturbing the peace and harmony of the household. She has
been in persistent habit of deferring and neglecting her duties as wife and
thereby failed to perform her marital obligations. Despite advice from the
elders, she is late riser from bed and abstained from discharging domestic
obligations. She referred his parents derogatorily as Budha & Budhi (old man
and old woman) and referred him as impotent.
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3.1 Further case of the respondent - husband is that from the very
beginning of marital life, the appellant - wife was picking up quarrels with him
and his relatives. She was neither cooking food nor doing any household
chores. She was threatening to get lodged him and his relatives in the Jail in
false case of demand of dowry; and she was also threatening to commit suicide
by pouring kerosene oil on herself. Just to maintain harmony in the family, the
respondent - husband was separated from his family members. The appellant -
wife persistently pressurized him to live with her parents as Ghar Jamai
(domesticated son-in-law who stays at wife's parents in their home). Against his
conscience for some time he lived as Ghar Jamai but as it was not acceptable to
him therefore, he took rented premises and lived with the appellant - wife away
from members of his family. Even after that the appellant - wife, being of
petulant nature, was persistently picking up quarrels with the neighbours.
Despite advice from elders the appellant did not mend her ways and no positive
change came in her behaviour. Being continuously harassed, in the mid night of
29th and 30th of May, in utter frustration he consumed poison to end his life. He
was admitted for treatment in Bombay Hospital by his parents. It has become
impossible to live with her. He is still ready to keep children with him. On
these allegations, he filed petition for dissolution of marriage.
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4. The appellant - wife in written statement refuted all the allegations
levelled against her in the petition. She alleged that the respondent - husband
wants to accrue benefit of his own wrongs. He is having illicit relationship with
some other women. Just to get rid of her and her children, he has filed the
petition with frivolous allegations. It is the respondent - husband who
maltreated her on the ground of not meeting demand of dowry. She was
continuously subjected to mental and physical torture by the respondent. The
respondent - husband was divested (Bedakhal) by his parents from their
property due to his misdeeds. He has deserted her and her children. Attempt to
commit suicide by consuming poison is also cooked up story, as the respondent
- husband had inadvertently swallowed pesticide at the place of medicine. On
these submissions, the appellant - wife prayed for dismissal of the divorce
petition.
5. On the pleadings of the parties, learned Family Court raised as many
as six issues having bearing on the controversy involved and affording
opportunity to lead evidence and hearing the parties to the lis, passed the
impugned judgment, concluding that the appellant - wife has meted out 'cruelty'
to the respondent - husband, which has made it impossible for him to live with
her, therefore, with these findings, dissolved the marriage on the ground
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mentioned under Section 13 (1) (1-a) of the Act of 1955, which gives rise to this
appeal.
6. Learned counsel for the appellant - wife submits that the learned Court
below has misinterpreted the evidence and returned perverse findings. Mere
trivial instances of married life have been exaggerated in recording the findings,
that the appellant - wife has meted out 'cruelty' to the respondent - husband,
which has brought marriage to naught. Respondent himself has deserted her and
her children for no fault of their own and wants to wriggle out of the marital ties
building a case of divorce on false grounds. On these submissions, learned
counsel for the appellant - wife prays for allowing the appeal by setting aside
the impugned judgment and decree.
7. Per contra, learned counsel for the respondent - husband submits that
the learned Court below has appreciated the evidence in right perspective and
rightly held that the appellant - wife has continuously maltreated him, which
comes under 'cruelty', a ground for dissolution of marriage, as mentioned under
Section 13 of the Act of 1955. Learned counsel further submits that the
appellant - wife is living away from respondent - husband since last so many
years; and the marriage is irretrievably broken down, therefore, prays for
dismissing the appeal, as devoid of any substance.
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8. Heard and considered rival submissions raised at Bar and perused the
record.
9. It is not in dispute that appellant and respondent were married as per
Hindu rights and customs on 14.12.2003 and out of this wedlock, daughter
Anushka and son Aditya were born. It is also not in dispute that appellant - wife
along with the aforesaid children is living in official accommodation allotted to
the respondent - husband and he is living away from the company of appellant -
wife and children since 29-30.05.2010.
10. Respondent has been granted decree of divorce under Section
13(1)(1a) of HMA on the ground of cruelty meted out by the appellant - wife to
him. Specific acts of cruelty which have found place in the petition are that
appellant - wife is of irascible and quarrelsome disposition and after a month of
entering into marriage started picking up disputes with parents of respondent -
husband and humiliated them by using inappropriate words as Budha and
Budhi. She was also picking up disputes with neighbours which was disturbing
harmony in neighbourhood. She was not fulfilling domestic obligations. She
used to rise late and not following instructions of parents in law and when they
advised her, she became annoyed. She was also humiliating him by adducing as
an ‗impotent'. She was also persistently threatening to set her ablaze by pouring
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kerosene on her and falsely implicate him and her parents in a case of demand
of dowry. She was also alleging falsely leveling allegations that he has illicit
relations with other women. Being aggrieved and distressed by all these
circumstances and misconduct of appellant - wife, he made an attempt to
commit suicide by consuming poison in midnight of 29-30.05.2010. To support
these allegations, respondent-husband has examined himself as PW-1 and her
sister Neha Agrawal as PW-2. It is noteworthy that the allegations leveled
against appellant-wife are that she was mal-treating and humiliating parents of
respondent - husband, but they have not been examined before the Court to
substantiate the allegations. Neha Agrawal (PW-2), sister of the respondent has
made an unsuccessful attempt by way of her statement before the Court to
support his brother respondent/husband, but the fact remains that from the date
of celebration of marriage i.e. 14.12.2003 to May, 2010, near about 7 years
appellant - wife lived in the company of respondent - husband and also gave
birth to one daughter and one son mentioned herein-above which in itself
reveals that unreasonable behavior of wife, if any, as alleged by respondent -
husband was condoned by him as it being mere wear and tear of married life,
therefore, the allegations raised in the petition in this regard cannot be a ground
for granting divorce under Section 13(1)(1a) of HMA.
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11. The respondent - husband Vishal (PW-1) by his statement before the
Court has made an attempt to reiterate the allegations mentioned in the petition.
He and his sister Neha Agrawal (PW-2) has underscored the incidents of
making an attempt to commit suicide by respondent in the night of 29-
30.05.2010 as he was persistently meted out humiliation and mal-treatments at
the hands of the appellant - wife. Both of the witnesses have deposed before the
Court that the respondent - husband in utter frustration has consumed poison to
get rid of humiliation and in support thereof, medical papers Ex. P/4 & P/5
issued from Bombay Hospital have been tendered in evidence. From perusal of
the document (Ex.P/4), it is apparent, as mentioned in it that poisonous
substance organo- phosperous pesticide was consumed accidently which in
itself falsifies the statement of respondent - Vishal (PW-1) and Neha Agrawal
(PW-2) that respondent - Vishal has consumed the poisonous substance in an
attempt to end his life in utter frustration due cruel behavior of the appellant
rather this document supports the appellant - wife (DW-2), who has deposed
before the Court that due to inadvertence the respondent has consumed the
poisonous substance and to make a ground against her, he has misused his own
act of inadvertence in taking poisonous substance. If this allegation against
appellant - wife was actually true then nothing prevented respondent - husband
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to take criminal action against appellant - wife, but the same has not been done.
Thus, the allegation that being under continuous mal-treatment from appellant
side, respondent consumed poisonous substance is not inspiring confidence.
12. Respondent - husband has leveled allegations against appellant -
wife that she is leveling false allegations on her of having illicit relationship
with other women. In written statement appellant - wife has reiterated her
allegations and in statement before the Court has not only made allegations, but
has disclosed the names of two women with whom the respondent has allegedly
developed illicit intimacy. Respondent - husband has not dared to bring any of
these women before the Court to support his claim that he has no such
relationship with them. Thus, when despite having ample opportunity to rebut
the allegations, respondent-husband not done so by leading best evidence, it
cannot be presumed that appellant-wife has leveled false allegations against the
respondent - husband. It is undisputed fact that after 29-30.05.2010 respondent-
husband has left company of appellant-wife and has never made any attempt to
live with appellant-wife and his children, who have taken shelter in the official
accommodation allotted to the respondent.
13. From perusal of the impugned judgment, we are of the considered
view that learned Family Court Judge has failed to appreciate the evidence in
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right perspective and committed factual and legal error in arriving at conclusion
that respondent-husband has succeeded in establishing the fact that appellant-
wife has meted out cruelty to him of such a degree which entitles him for a
decree of divorce.
14. Word 'cruelty' has not been defined in the Act of 1955. 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. What is 'cruelty' in one case may not amount to 'cruelty' in
another case. It is a matter to be determined in each case having regard to the
facts and circumstances of that case.
15. Hon'ble the Apex Court in case of Ravi Kumar v. Julmidevi
reported in (2010) 4 SCC 476 has reiterated that 'cruelty' in matrimonial cases
may be of so many forms; relevant Paras 19 to 21 may be reproduced to
elucidate the concept of 'cruelty' in matrimonial cases: -
―19. It may be true that there is no definition of cruelty
under the said Act. Actually such a definition is not possible.
In matrimonial relationship, cruelty would obviously mean
absence of mutual respect and understanding between the
spouses which embitters the relationship and often leads to
various outbursts of behaviour which can be termed as
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cruelty. Sometime cruelty in a matrimonial relationship may
take the form of violence, sometime it may take a different
form. At times, it may be just an attitude or an approach.
Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies
any definition and its categories can never be closed. Whether
the husband is cruel to his wife or the wife is cruel to her
husband has to be ascertained and judged by taking into
account the entire facts and circumstances of the given case
and not by any predetermined rigid formula. Cruelty in
matrimonial cases can be of infinite variety--it may be subtle
or even brutal and may be by gestures and words. That
possibly explains why Lord Denning in Sheldon v. Sheldon
[(1966) 2 WLR 993 : (1966) 2 All ER 257 (CA)] held that
categories of cruelty in matrimonial cases are never closed.
21. This Court is reminded of what was said by Lord
Reid in Gollins v. Gollins [1964 AC 644 : (1963) 3 WLR
176 : (1963) 2 All ER 966 (HL)] about judging cruelty in
matrimonial cases. The pertinent observations are : (AC p.
660)
―... 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 prior
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.
The aforesaid passage was quoted with approval by this Court
in N.G. Dastane (Dr.) v. S. Dastane [(1975) 2 SCC 326] ‖.
16. Chandrachud, J. (as he then was) in N.G. Dastane v. S. Dastane
[(1975) 2 SCC 326, 338 : AIR 1975 SC 1534 : (1975) 3 SCR 967, 978] in para
32 observed as:
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―The court has to deal, not with an ideal husband and an 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.‖
17. In case of Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC
511, it has been held that "No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some instances of human
behaviour which may be relevant in dealing with the cases of ―mental cruelty‖
has been dealt with by the Apex Court. It has also been held that "The married
life should be reviewed as a whole and a few isolated instances over a period of
years will not amount to cruelty." It is to be seen whether the conduct of one of
the spouse has been persistent for a fairly lengthy period, where the relationship
has deteriorated to an extent that because of the acts and behaviour of a spouse,
the wronged party finds it extremely difficult to live with the other party any
longer, may amount to mental 'cruelty'. Mere trivial irritations, quarrels, normal
wear and tear of the married life which happens in day-to-day life would not be
adequate for grant of divorce on the ground of mental 'cruelty'. The ill conduct
must be persistent for a fairly lengthy period, where the relationship has
deteriorated to such an extent that because of the acts and behaviour of a spouse,
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the wronged party finds it extremely difficult to live with the other party any
longer, may amount to mental cruelty.
18. The Hon'ble Apex Court in catena of judgments held that no uniform
standard can ever be laid down for guidance as to which type of behaviour
constitutes mental cruelty. It depends upon the social status of the parties to the
marriage, their sensitivity and upbringing. It has further been held by the Apex
Court that the foundation of a sound marriage is tolerance, adjustment and
respecting one another. Tolerance to each other's fault to a certain bearable
extent has to be inherent in every marriage. Petty quibbles, trifling differences
should not be exaggerated and magnified to destroy what is said to have been
made in heaven. All quarrels must be weighed from that point of view in
determining what constitutes cruelty in each particular case. A too technical and
hyper-sensitive approach would be counter-productive to the institution of
marriage. The Courts do not have to deal with ideal husbands and ideal wives. It
has to deal with particular man and woman before it. The ideal couple or a mere
ideal one will probably have no occasion to go to Matrimonial Court. The fact
which may not be deemed cruelty by one set of persons may be taken as such by
the other set of persons. It is also well settled that mere trivial irritations,
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quarrels, normal wear and tear of the married life which happens in day-today
life would not be adequate for grant of divorce on the ground of mental cruelty.
19. In case of Ramchander v. Ananta [(2015) 11 SCC 539]
Ramchander v. Ananta, [(2015) 11 SCC 539] Supreme court in para 10 has
held that cruelty can be inferred from the fact and circumstances:
―10. The expression ―cruelty‖ has not been defined in
the Hindu Marriage Act. Cruelty for the purpose of Section
13(1)(i-a) is to be taken as a behaviour by one spouse towards
the other, which causes a reasonable apprehension in the mind
of the latter that it is not safe for him or her to continue the
matrimonial relationship with the other. Cruelty can be
physical or mental. In the present case there is no allegation of
physical cruelty alleged by the plaintiff. What is alleged is
mental cruelty and it is necessarily a matter of inference to be
drawn from the facts and circumstances of the case. It is
settled law that the instances of cruelty are not to be taken in
isolation but to take the cumulative effect of the facts and
circumstances emerging from the evidence on record and then
draw a fair inference whether the plaintiff has been subjected
to mental cruelty due to conduct of the other spouse. In the
decision in Samar Ghosh case [Samar Ghosh v.Jaya
Ghosh, (2007) 4 SCC 511] this Court set out illustrative cases
where inference of ―mental cruelty‖ can be drawn and they
are only illustrative and not exhaustive.‖
20. Since the allegations leveled against the appellant-wife with regard to
committing cruelty to the respondent - husband has not been substantiated by
cogent evidence. No FIR has been lodged against appellant - wife for abetting
respondent - husband to commit suicide by consuming poisonous substance. In
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view of the evidence as adduced on behalf of the appellant, it cannot be said that
she has leveled baseless allegations against the husband if evidence available on
record is taken as a whole; it makes apparent that it is the husband, who has
abandoned appellant and children merely on frivolous grounds. It is well settled
that a person cannot take advantage of his own wrongs and this finds place in
Latin Maxim ―Nullus commodum capere potest de injuria sua propria‖.
21. In view of the above, we are of the considered view that learned
Court below has committed legal error of law and fact in granting decree of
divorce in favour of the husband. The judgment passed by the Court below is
vulnerable and cannot find stamp approval from this Court.
22. Resultantly, this appeal has substance, succeeds and is hereby
allowed. The judgment and decree passed by the Court below is set aside. It is
made clear that the order dated 29.04.2025 with regard to maintenance to
appellant - wife and her children to the tune of Rs. 30,000/- per month will
continue till it is modified or set aside by some competent Court.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Soumya
