[Cites 23, Cited by 0]
Madhya Pradesh High Court
Jitesh Kumar Tolani vs Smt.Varsha Tolani on 23 February, 2026
1 F.A. No.448/2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK KUMAR SINGH
&
HON'BLE SHRI JUSTICE HIMANSHU JOSHI
ON THE 23rd OF FEBRURARY, 2026
FIRST APPEAL NO.448 of 2025
JITESH KUMAR TOLANI
Versus
SMT. VARSHA TOLANI
Appearance:
Shri Siddharth Sharma - Advocate through Video Conferencing
with Shri Mayank Upadhyay - Advocate for the appellant.
Shri Sanjay Agrawal- Senior Advocate with Ms. Ankita Singh
Parihar - Advocate for the respondent.
Reserved on : 09.02.2026
Pronounced on : 23.02.2026
JUDGMENT
Per : Justice Vivek Kumar Singh
This first appeal under Section 19 of the Family Courts Act, 1984
has been filed by the appellant/husband being aggrieved by the judgment
and decree dated 14.02.2025 passed by First Additional Principal Judge,
Family Court, Bhopal (M.P.) in Regular Civil Suit No.HM-1557/2021,
whereby the application under Section 13(1)(ia)(ib) of Hindu Marriage
Act, 1955 (for brevity 'HM Act, 1955') filed by the appellant/husband
seeking dissolution of marriage on the ground of 'cruelty' has been
dismissed.
2. Factual matrix of the case, in short, are that the marriage between
the appellant and the respondent was solemnized on 28.11.2011 as per
Hindu rites and customs without any dowry. Out of the wedlock, they
have two daughters aged about 11 years and 9 years respectively. As
alleged by the appellant, the respondent is suffering from mental ailment
due to which she always gets annoyed, frustrated and angry without any
reason. It is also alleged that the parents of the respondent were fully
aware of her mental illness before marriage. However, concealing the said
fact, they got the respondent married with the appellant. After 15 days of
the marriage, the respondent started creating disputes with the parents of
the appellant. The acts of the respondent were regularly informed to her
parents. Many times, the respondent tried to commit suicide and when the
appellant resisted, she started showing aggression resorted to all kinds of
abusive tantrums and used filthy language towards the appellant and his
family. To reconcile the relationship between the appellant and the
respondent, their families raised the dispute for mediation before Nagar
Sindhi Kalyan Panchayat, where the respondent had clearly admitted the
fact that she is suffering from mental ailment and she is under medical
treatment for the same. Thereafter, on 05.01.2017, the respondent
alongwith her younger daughter left her matrimonial house taking away
all her belongings including Stridhan and thereby deserted the appellant.
On 17.02.2017, the appellant sent a notice to the respondent for restitution
of conjugal rights. Pursuant to that, the respondent returned back to her
matrimonial home after few days. She again left her matrimonial home
in the month of December, 2018 and again came back in the month of
April, 2019. Finally, on 27.10.2021, the respondent left the matrimonial
home and never came back. Since then, the elder daughter resides with
the appellant/husband and the younger daughter with the respondent/wife.
Being aggrieved by the repeated abandonment, the appellant preferred a
suit under Section 13(1)(ia)(ib) of HM Act, 1955 seeking decree of
divorce, which was dismissed by the learned Family Court on erroneous
grounds and without proper appreciation of material evidence available
on record.
3. Being aggrieved by the impugned judgment and decree passed by
the learned Family Court, the appellant has preferred the instant first
appeal on the grounds that Family Court has erred in rejecting the
application under Section 13(1)(ia)(ib) of HM Act, 1955 seeking
dissolution of marriage on the ground of cruelty and desertion.
4. Learned counsel for the appellant submits that the learned Family
Court has committed a grave error in ignoring the consistent pleadings
and evidence on record demonstrating a continuous pattern of cruel
conduct on the part of the respondent. It is further submitted that the
respondent repeatedly left her matrimonial home without there being any
reasonable cause and finally abandoned the appellant on 27.10.2021
inflicting immeasurable mental agony, torture and uncertainty to the
appellant. Such repeated abandonment squarely fulfills the ingredients of
desertion as contemplated under Section 13(1)(ib) of HM Act, 1955. It is
also submitted that the learned Family Court has failed to appreciate that
desertion is not a single act but a continuous cruel conduct of the
respondent and that conduct of the respondent clearly established animus
deserendi especially when the final separation continues since October,
2021 till date without any genuine attempt of restitution.
5. Learned counsel for the appellant succinctly submits that the
respondent is habitual of threatening to commit suicide, which caused
extreme mental trauma to the appellant and his family members and
therefore, the learned Family Court adopted an unduly narrow approach
by requiring physical violence to establish mental cruelty, whereas settled
law recognized that mental cruelty alone is sufficient to grant divorce
when it renders co-habitation insupportable.
6. In support of his relentless submissions, learned counsel for the
appellant has relied upon a judgment of the Hon'ble Supreme Court
rendered in the case of A. Jayachandra Vs. Aneel Kaur reported in
(2005) 2 SCC 22, wherein it has been held that cruelty must be assessed
in the background of parties' social status, mental condition and overall
circumstances and that persistent mental agony is sufficient to dissolve
the marriage.
7. Further, learned counsel for the appellant seamlessly submits that
the learned Family Court has failed to appreciate the fact that the parties
are living separately for a considerable period and the marriage has
irretrievably broken down with no emotional, physical or social bonding
surviving between them and completely overlooked the cumulative effect
of continuous cruel conduct. It is further submitted by learned counsel for
the appellant that if the impugned judgment is allowed to stand, it would
compel the appellant to continue in a dead and emotionally destructive
marriage, which is not the object and spirit of Hindu Marriage Act.
8. On the other hand, learned counsel for the respondent has
categorically denied all the allegations of cruelty and has consistently
pleaded that respondent was always willing to reside with the appellant.
She has falsely been accused and defamed in the society. It is further
submitted that the appellant was in constant touch with his female friends
even after their marriage and when the respondent raised this issue, she
was threatened and blackmailed of desertion by the appellant. He
forcefully submits that at the time of marriage, the parents of the
respondent had given gold jewelry of 500 gm (50 tola) and a cheque of
Rs.3,00,000/- (Rupees Three lakhs) and spent Rs.10,00,000/- (Rupees
Ten lakhs) in their marriage. Learned counsel further submits that the
appellant is the owner of a jewelry shop at Bairagarh, District Bhopal
from which he earns Rs.05 lakh per month. It is further submitted that on
21.01.2016, father of the respondent got a Fixed Deposit of Rs.2,50,000/-
in the name of Kyara Tolani (elder daughter of the appellant) in the
Corporation Bank and handed over to the appellant's father.
9. The learned counsel for the respondent vehemently argued on the
question of maintainability of the suit, which was filed before the Family
Court and submitted that present appeal against the said suit is also not
maintainable and deserves to be dismissed. It is submitted that earlier also
an application under Section 13(1) of HM Act, 1955 was filed by the
appellant on 20.10.2018 for dissolution of marriage on the grounds of
cruelty and desertion, which was withdrawn vide order dated 15.04.2019
on account of compromise arrived at between the parties. It is pertinent
to mention here that at time of withdrawal of the said suit, no liberty was
sought by the appellant to prefer a fresh suit on the same ground and for
the same cause if the situation arises. As a result of compromise arrived
at between the parties, the respondent also withdrew the maintenance
application filed under Section 125 of Cr.P.C. Subsequently, in the year
2021, again a fresh suit under Section 13(1) of HM Act, 1955 was filed
by the appellant, which was dismissed by the Family Court vide order
dated 14.02.2025, against which the present appeal has been filed. In
support of his submission, learned counsel for the respondent has drawn
attention of this Court towards the provisions contained in Order 23 Rule
1(4)(b) of CPC which reads as under :-
"Where the plaintiff withdraws any suit or part
of the claim without the permission referred to in sub-
rule (3), he shall be liable for such costs as the Court
may award and shall be precluded from instituting
any fresh suit in respect of such subject-matter or
part of the claim"
10. To bolster his submission, learned counsel for the respondent
further relied upon a Division Bench decision of Gwalior Bench of this
Court in the case of Abhishek Sharma Vs. Smt. Aparna Tomar (F.A.
No.2152/2024), wherein it has been held as under :-
"(16) In the considered opinion of this Court, it was
found that the pleadings of respondent in both the
suits are on the same set of facts. According to the
provisions of Order XXIII Rule 1(3) and (4) of CPC,
respondent had sought withdrawal of her earlier suit
without any relief and filed a fresh suit on the same
set of facts, therefore, she is precluded from
instituting any fresh/subsequent suit in respect of the
same subject matter or such part of the claim."
11. Furthermore, to buttress his submission, learned counsel for the
respondent has also relied upon the certain pronouncements of the
Hon'ble Supreme Court rendered in the cases of Gurbux Singh Vs.
Harminder Kaur reported in AIR 2011 SC 114; Satish Sitole Vs.
Ganga reported in AIR 2008 SC 3093; Neelam Kumar Vs. Dayarani
reported in AIR 2011 SC 193; Ashok Kumar Jain vs. Sumati Jain
report in 2013(1) A.N.U. 361 SC and Darshan Gupta Vs. Radhika
Gupta report in 2014(1) MPLJ 8 SC. Reliance has also been placed on
certain judgments of this High Court in the cases of Parag Pandit Vs.
Sadhana Pandit report in AIR 2022 MP 113, Prakash Rao Vs. Smt.
Jyoti report in 2012(2) MPHT 253 and Dinesh Tripathi Vs. Vandana
Tripathi report in 2018(2) MPWN 30.
12. Heard learned counsel for the parties and perused the record.
13. In view of the aforesaid facts and the arguments advanced by
learned counsel for the parties, the first question, which arises for
consideration, is as to whether this First Appeal is maintainable or not?
14. The aforesaid question of maintainability of this first appeal
entirely depends upon the maintainability of suit (Regular Civil Suit
No.HM-1557/2021) filed by appellant/husband before the learned Family
Court. In this regard, it is profitable to refer to the provision contained in
Order XXIII Rule 1(4) of CPC, which necessitates that if a plaintiff
abandons a suit or withdraws from a claim without court permission, they
are precluded from filing a fresh suit regarding the same subject matter or
part of the claim. However, the Supreme Court in the case of Vimlesh
Kumari Kulshrestha Vs. Sambhaji Rao reported in (2008) 5 SCC 58
has held that "High Court was wrong in dismissing second suit on the
ground that it was hit by Order 23 Rule 1(3)(b) merely because specific
permission to file second suit was not obtained, therefore, Order 23 Rule
1(3)(b) did not apply to the facts and circumstances of the case." Thus,
we are of the considered view that in the matrimonial cases, cruelty or
desertion is often considered to be a continuing or recurring cause of
action. If the second suit is filed on a fresh cause of action (new acts of
cruelty or a fresh period of desertion) then the subsequent suit is
maintainable. Therefore, the bar under Order XXIII Rule 1(4) of CPC is
not applicable in such cases.
15. From the facts of this case, it is clear that after the oral compromise
arrived at between the parties on the deliberations of senior social workers
of Sindhi community, both the parties were residing together but after
some time the respondent again deserted the appellant and subjected him
to mental agony. Thus, the subsequent suit for granting decree of divorce
filed by the appellant shall be considered to be maintainable as the action
of cruelty is often considered to be a continuing cause of action. In the
present set of facts and circumstances of the case, such cause of action
shall also be considered to be a fresh cause of action. Hence, on the basis
of maintainability of subsequent suit, this appeal preferred against the said
suit is also maintainable.
16. The second question for consideration is whether such action of
repeated desertion by the respondent falls within the ambit of "cruelty"
or not and whether the appellant was subjected to such cruelty or
desertion?
17. To answer the aforesaid question, it is apposite to refer to the law
laid down by the Supreme Court in the case of Samar Ghosh vs. Jaya
Ghosh, (2007) 4 SCC 511, in which the Apex Court has illustrated the
instances of human behaviour, relevant for dealing with the cases of
''mental cruelty'' and has also considered the aspect of ''irretrievable
breakdown'' and observed that the same can be made a ground for divorce,
which are as under:-
''(i) On consideration of complete matrimonial
life of the parties, acute mental pain, agony and
suffering as would not make possible for the
parties to live with each other could come within
the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put
up with such conduct and continue to live with
other party.
(iii) Mere coldness or lack of affection cannot
amount to cruelty, frequent rudeness of
language, petulance of manner, indifference and
neglect may reach such a degree that it makes
the married life for the other spouse absolutely
intolerable.
(iv) Mental cruelty is a state of mind. The
feeling of deep anguish, disappointment,
frustration in one spouse caused by the conduct
of other for a long time may lead to mental
cruelty.
(v) A sustained course of abusive and
humiliating treatment calculated to torture,
discommode or render miserable life of the
spouse.
(vi) Sustained unjustifiable conduct and
behaviour of one spouse actually affecting
physical and mental health of the other spouse.
The treatment complained of and the resultant
danger or apprehension must be very grave,
substantial and weighty.
(vii) Sustained reprehensible conduct, studied
neglect, indifference or total departure from the
normal standard of conjugal kindness causing
injury to mental health or deriving sadistic
pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than
jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and
emotional upset may not be a ground for grant
of divorce on the ground of mental cruelty.
(ix) 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.
(x) The married life should be reviewed as a
whole and a few isolated instances over a period
of years will not amount to cruelty. The ill
conduct must be 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.
(xi) If a husband submits himself for an
operation of sterilization without medical
reasons and without the consent or knowledge
of his wife and similarly if the wife undergoes
vasectomy or abortion without medical reason
or without the consent or knowledge of her
husband, such an act of the spouse may lead to
mental cruelty.
(xii) Unilateral decision of refusal to have
intercourse for considerable period without
there being any physical incapacity or valid
reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or
wife after marriage not to have child from the
marriage may amount to cruelty.
(xiv) Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is beyond
repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that
tie, the law in such cases, does not serve the
sanctity of marriage; on the contrary, it shows
scant regard for the feelings and emotions of the
parties. In such like situations, it may lead to
mental cruelty.
18. Additionally, Hon'ble Supreme Court in the case of A.
Jayachandra Vs. Aneel Kaur reported in (2005) 2 SCC 22 has dealt
with essential ingredients to constitute "mental cruelty" and observed as
under :-
"12. To constitute cruelty, the conduct complained
of should be "grave and weighty" so as to come to
the conclusion that the petitioner spouse cannot be
reasonably expected to live with the other spouse. It
must be something more serious than "ordinary wear
and tear of married life". The conduct, taking into
consideration the circumstances and background has
to be examined to reach the conclusion whether the
conduct complained of amounts to cruelty in the
matrimonial law. Conduct has to be considered, as
noted above, in the background of several factors
such as social status of parties, their education,
physical and mental conditions, customs and
traditions. It is difficult to lay down a precise
definition or to give exhaustive description of the
circumstances, which would constitute cruelty. It
must be of the type as to satisfy the conscience of the
court that the relationship between the parties had
deteriorated to such an extent due to the conduct of
the other spouse that it would be impossible for them
to live together without mental agony, torture or
distress, to entitle the complaining spouse to secure
divorce. Physical violence is not absolutely essential
to constitute cruelty and a consistent course of
conduct inflicting immeasurable mental agony and
torture may well constitute cruelty within the
meaning of Section 10 of the Act. Mental cruelty may
consist of verbal abuses and insults by using filthy
and abusive language leading to constant disturbance
of mental peace of the other party."
19. Further, in the case of Shri Rakesh Raman Vs. Smt. Kavita 2023
Live Law (SC) 353, the Hon'ble Apex Court has manifestly observed that
long separation, in absence of cohabitation and complete breakdown of
all meaningful bonds and existing bitterness between husband and wife,
has to be read as ''cruelty'' under Section 13(1)(i-a) of the HM Act.
20. Furthermore, the Hon'ble Apex Court in the case of Shilpa Sailesh
Vs. Varun Sreenivasan (2023) AIR (SC) Civil 2212 has clearly observed
that grant of divorce on the ground of irretrievable breakdown of marriage
by the Court is not a matter of right, but a discretion which is to be
exercised with great care and caution, keeping in mind several factors
ensuring that 'complete justice' is done to both the parties. It is obvious
that this Court should be fully convinced and satisfied that the marriage
is totally unworkable, emotionally dead and beyond salvation and,
therefore, dissolution of marriage is the right solution and the only way
to look forward. That the marriage has irretrievably broken-down is to be
factually determined and firmly established. For this, several factors are
to be considered such as the period of time the parties had cohabited after
marriage; when the parties had last cohabited; the nature of allegations
made by the parties against each other and their family members; the
orders passed in the legal proceedings from time to time, cumulative
impact on the personal relationship; whether, and how many attempts
were made to settle the disputes by intervention of the Court or through
mediation, and when the last attempt was made, etc. The period of
separation should be sufficiently long, and anything above six years or
more will be a relevant factor.
21. After considering the submissions made by learned counsel for the
parties, it is apparent that the appellant and respondent had lived together
only for few years and thereafter, they are living separately till date. On
05.01.2017, the respondent alongwith her younger daughter left the house
taking all her belongings, Stridhan and other things and thereby deserted
the appellant, which falls within the ambit of cruelty. Even after the oral
compromise arrived at between the parties on the deliberations of senior
social workers of Sindhi community, the respondent again deserted the
appellant for a period of about two years and denied access to her younger
daughter, thereby subjecting the appellant to mental agony. Thereafter,
again in the year 2021, the respondent finally left the matrimonial house
and also took her younger daughter alongwith her, which also implies
mental cruelty. Learned Family Court has overlooked the fact that the
respondent was non-committal towards the marriage and refused to
cohabit with the appellant continuously which resulted into mental agony.
Learned Family Court also failed to appreciate one important fact that due
to such mental agony caused by the respondent towards appellant, he was
unable to carry out his day-to-day activities unhindered. The respondent
also sowed the seed of fear in the mind of appellant that at any time she
may file a false complaint against him and his family members which
would defame them in the society and would cause indelible and
irreparable mental harassment. The respondent has continuously deserted
the appellant on several occasions, due to which the marriage between
them has suffered to the extent of irretrievable breakdown.
22. Thus, in the conspectus of facts and circumstances of the case, it is
noticeable that the relationship between the parties has evidently grown
sour beyond the point of return and such a long period of separation has
turned these differences irreconcilable. It is unfortunate that the parties
have already spent a considerable long period of their adult lives fighting
marital battles in the courtrooms. The parties still have a considerable
natural life ahead of them to look forward to. Therefore, we are inclined
to allow the appeal preferred by the appellant/husband and grant divorce
on the ground of irretrievable breakdown of marriage, which also falls
within the ambit of mental cruelty in the terms of Section 13(1)(ia) of HM
Act, 1955. In these circumstances, this Court deems it fit and proper to
dissolve the marriage solemnized between the appellant and the
respondent on 28.11.2011.
23. Resultantly, the first appeal is allowed. The impugned judgment
and decree dated 14.02.2025 passed by First Additional Principal Judge,
Family Court, Bhopal (M.P.) in Regular Civil Suit No.HM-1557/2021 is
hereby set aside.
24. So far as the question of grant of permanent alimony is concerned,
in the present case, no application has been moved by the respondent-wife
seeking maintenance/permanent alimony under Section 24 or 25 of the
H.M. Act, 1955. However, when the parties are suffering on account of
non-filing of applications, the Court should suo motu exercise powers
under Section 25 of the H.M. Act, 1955. In matrimonial cases, the Court
has to ascertain the financial capacity/status of the parties depending on
source of income and expenditure to determine the amount of
maintenance/permanent alimony as per the decision of the Apex Court in
the case of Rajnesh Vs. Neha & Anr. reported in (2020) 12 SCC 702.
The learned Family Court while determining the amount of interim
maintenance to the respondent-wife analysed the assets, liabilities and
income of the appellant and upon considering the overall source of his
income, the amount of Rs.20,000/- (Rupees Twenty Thousand) per month
was fixed as interim maintenance. To avoid multiplicity of proceedings
and overlapping maintenance orders under different statutes, it would be
appropriate to convert the monthly maintenance into permanent alimony
or one time settlement of financial claims between the parties, with an
intention to secure a long term financial stability in one consolidated
determination.
25. Looking to the totality of facts and circumstances of the case, in the
interest of justice, we consider it to be just and proper to allow permanent
alimony to the tune of Rs.25,00,000/- (Rupees Twenty Five Lakhs) in
favour of respondent-wife, which shall be payable to respondent by the
appellant-husband either by way of Demand Draft or any other mode
within a period of six months from the date of this judgment. Marriage
between the parties is hereby dissolved by way of granting aforesaid
permanent alimony.
26. Registry is directed to draw a decree accordingly.
27. Parties to bear their own costs.
Appeal allowed.
(VIVEK KUMAR SINGH) (HIMANSHU JOSHI)
JUDGE JUDGE
Shanu
