Patna High Court
Kanhaiya Prasad vs Bibha Kumari on 17 March, 2025
Author: Sunil Dutta Mishra
Bench: P. B. Bajanthri, Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.335 of 2019
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Kanhaiya Prasad Son of Dinanath Rajak Resident of Mohalla - Bagh Bhalu
Khan, Mangal Talab, PS. Chowk Distt. Patna.
... ... Appellant/s
Versus
Bibha Kumari Wife of Kanhaiya Prasad, Daughter of Sri Vijay Kumar Rajak
Resident of Indu Sadan Satish Sarkar Lane near Dr. Veena Sinha Clinic,
Mohalla- Masakchak, P.S. Adampur, Distt. Bhagalpur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sudish Kumar, Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)
Date : 07.04.2025
1. The present appeal has been filed for setting aside
the Judgment/Order dated 26.11.2018 passed in Matrimonial
(Divorce) Case No. 908 of 2011 passed by the learned Additional
Principal Judge, Family Court, Patna whereby and whereunder
the Divorce Petition filed by the appellant under Section 13(1)
(ia) & (ib) of the Hindu Marriage Act, 1955 was rejected.
2. The factual background of the present case is that
marriage between appellant-husband and respondent-wife was
solemnized on 12.07.2008 according to Hindu rites and customs.
The respondent-wife lived in her matrimonial home with
husband and his family members for about 15 days and
thereafter, she went to her parental house with her father.
Patna High Court MA No.335 of 2019 dt. 07.04.2025
Subsequently, she used to stay at her matrimonial home for few
days and used to return to her parental home without informing
her husband or his family members, without any satisfactory and
reasonable cause. The appellant who was a Junior Telephone
Officer in B.S.N.L. and posted at Begusarai offered the
respondent-wife to live with him at Begusarai but she did not
agree. The respondent lastly resided with the petitioner and his
family members at her matrimonial home at Patna City when she
visited on the eve of Holi festival in the year 2009. After residing
10 days she went to her parental home at Bhagalpur without
permission or prior information to her husband or his family
members and never returned back to her matrimonial home. The
appellant filed a Matrimonial Case No. 409 of 2009 for
restitution of conjugal rights on 25.06.2009 but despite notice to
respondent she did not appear in that case and she filed a
Complaint Case No. 1609 of 2009 on 17.08.2009 under Sections
323, 341 and 498A of the Indian Penal Code against the appellant
and his family members, alleging assault, cruelty and demand of
dowry etc. which is pending in the concerned Court at Bhagalpur.
Despite all the efforts by appellant and his family members to
save marriage, the respondent- wife and her parents are unwilling
to reconcile. Both the parties agreed to dissolve the marriage by
way of mutual consent and on 25.04.2010 the deed of agreement
Patna High Court MA No.335 of 2019 dt. 07.04.2025
cum compromise was prepared in presence of the father and the
witnesses of both side and the respondent-wife received all her
belongings and they have agreed to withdraw the case in the
concerned Court filed earlier. Accordingly, on 26.04.2010 both
parties jointly filed a Matrimonial Case No. 107 of 2010 before
the Principal Judge, Bhagalpur for divorce u/s 13-B of the Hindu
Marriage Act, 1955. On 05.05.2010, the conciliation took place
between the parties before the said Court in which respondent-
wife asked divorce only and the case was fixed for 30.10.2010
for further order but till 27.09.2011 she did not appear before the
Court. The learned Court dismissed the said Matrimonial Case
No. 107 of 2010 on 27.09.2011. Accordingly, the appellant filed
the Matrimonial (Divorce) Case No. 908 of 2011 on 13.12.2011
for divorce under Section 13(1)(ia) & (ib) of the Hindu Marriage
Act, 1955.
3. Despite the Court notice through ordinary process
as well as substituted service by making publication of notice in
Hindi Daily Newspaper, the respondent-wife did not appear.
Accordingly, vide order dated 19.07.2013, the case was
proceeded ex-parte hearing. The respondent-wife had not filed
her written statement or adduced any evidence.
4. On behalf of appellant four witnesses have been
examined to prove his case. PW-1 is Kanhaiya Prasad
Patna High Court MA No.335 of 2019 dt. 07.04.2025
(Appellant), PW-2 is Dinanath Rajak (Father of the appellant),
PW-3 is Shiv Nath Rajak and PW-4 is Kishun Lal Rajak. The
appellant also adduced documentary evidence as Certified copy
of compromise cum agreement dated 25.04.2010 between the
appellant and respondent (Exhibit 1) and certified copy of
various orders passed by the learned Principal Judge, Family
Court, Bhagalpur in Matrimonial Case No. 107 of 2010 (Exhibit
2).
5. The learned Additional Principal Judge, Family
Court, Patna on analysis of evidence held that the appellant failed
to prove his case and dismissed the Matrimonial (Divorce) Case
No. 908 of 2011 vide judgment/order dated 26.11.2018.
6. It is observed in the impugned judgment/ order
that both the parties, as per compromise dated 25.04.2010 are
residing separately and the respondent-wife has taken all her
belongings, as such, there is no propriety to continue the
marriage between the parties but petitioner/ appellant has filed
the divorce case on the ground of cruelty and desertion which
have not been proved.
7. Despite service of notice to the respondent-wife
and sufficient opportunity provided to her in this proceeding,
there is no representation on behalf of the respondent-wife.
Patna High Court MA No.335 of 2019 dt. 07.04.2025
8. Heard learned counsel for the appellant-husband
and perused the record.
9. Learned counsel for the appellant submitted that
the respondent-wife after her marriage which was solemnized
between the parties on 12.07.2008 lived only 15 days in her
matrimonial home and thereafter went to her parental home and
without consent of the appellant-husband started living there and
refused to return to lead conjugal life with the
petitioner/appellant due to which the appellant filed the
Matrimonial Case No. 409 of 2009 for restitution of conjugal
rights but the respondent-wife, with malafide intention, filed
dowry torture case against the appellant and his family member.
He further submitted that in a troubled marriage there were
pending criminal matters and matrimonial proceedings.
Eventually, divorce by mutual consent and settlement of all
criminal and civil disputes was agreed to by both the spouses.
10. Marriage is union of two hearts. The success of
married life depends on an edifice built with the mutual trust,
understanding, love affection and self sacrifice. Once this edifice
is shaken, happy married life will be shattered into pieces. The
result is one of the misery and emotion, when it is impossible to
live like husband and wife any compulsion to unite them will
lead to social evils and disturbance of mental peace and disorder
Patna High Court MA No.335 of 2019 dt. 07.04.2025
in the family life.
11. Once it is known that there is no prospects of
the success of the marriage, to drag the legal tie amounts to
cruelty towards the spouse and give rise to crime and even abuse
of religion to obtain annulment of marriage.
12. The marriage in question exist only in form,
lacking any substance or reality. There is hardly any utility in
maintaining the marriage, when the emotional and other bounds
which are of the essence of marriage have disappeared. After the
marriage has ceased to exist in substance and in reality, there is
no reason for denying divorce.
13. The Division Bench of Delhi High Court in
judgment dated 20.12.2023 in MAT Appeal (F.C.) 107 of 2017
observed in para 50 to 54 are as under:-
"50. A Co-ordinate Bench of this Court in the
case of Rajiv Chikkara vs. Sandhya
Mathur 2016 SCC OnLine Del 6224
observed that where a divorce by mutual
consent was agreed to by both the parties,
the subsequent unilateral withdrawal of
consent by a spouse without any sufficient
or just cause, would add to the cruelty
meted out to the other spouse.
51. The Apex Court in the case of Rajib
Kumar Roy Vs. Sushmita Saha 2023
SCC OnLine SC 1221, observed as
under:-
"Continued bitterness,
dead emotions and long
separation in the given facts and
circumstances of a case, can be
Patna High Court MA No.335 of 2019 dt. 07.04.2025
construed as a case of
"irretrievable breakdown of
marriage", which is also a facet
of "cruelty". In Rakesh Raman
Vs. Kavita reported in 2023 SCC
OnLine SC 497, this is precisely
what was held that though in a
given case cruelty as a fault,
may not be attributable to one
party alone and hence despite
irretrievable breakdown of
marriage keeping the parties
together amounts to cruelty on
both sides."
52. The Kerala High Court in case of
Shreedharan Vs. Asha in MAT Appeal No.
578 of 2015 decided on 18.09.2023, was
confronted with the similar situation,
whereby the offer of settlement failed on
account of the wife refusing to accept the
offer made by the husband. It was
observed that the mutual consent for
divorce failed in this matter as bargaining
could not meet the level of expectation.
The idea of "No-fault-Divorce" is to make
the parties realize that there is a sensible
way of parting on the agreed terms.
Withholding mutual consent in a failed
marriage, is nothing but cruelty.
53. In case of Beena M.S. Vs. Shino G. Babu
(2022) 2 KHC 11, the Kerala High Court
held that withholding of consent for mutual
separation in itself would cause mental
agony and cruelty to the spouse who
demands separation.
54. Thus, such conduct of the appellant/ wife
in driving the respondent to believe that
their disputes were about to be put to an
end and then to withdraw from the
attempted settlement can cause disquiet,
cruelty and uncertainty in the mind of the
respondent. It is evident that the fight inter
se the parties was not on any justifiable
grounds, but was a war between the egos
prompted by the desire to wreak vengeance
Patna High Court MA No.335 of 2019 dt. 07.04.2025
against the spouse. Such unilateral
withdrawal from divorce by mutual
consent, thus, amounted to cruelty."
14. The wife by virtue of her conduct has put the
husband in a position of a huge disadvantage. Further, it is to be
noted that wife has not made any endeavour to join her husband
in filing petition under Section 9 of the Hindu Marriage Act,
1955 for restitution of conjugal rights. Therefore, her intention is
crystal clear to only harass her husband. Moreover, she has slept
over her right in the learned Family Court and the present Court
proceedings.
15. In view of the position of the law as noted
above, no spouse can unilaterally withdraw its consent for
divorce by mutual consent when the grounds such as fraud,
undue influence, force, misrepresentation and such consent is not
being forced having been pleaded and proved satisfactorily.
16. It is a fit case of where decree of divorce should
have been granted. Accordingly, the impugned Judgment/ Order
dated 26.11.2018 passed in Matrimonial Case no. 908 of 2011 by
the learned Additional Principal Judge, Patna is set aside and the
present appeal is allowed and marriage solemnized between the
parties Kanhaiya Prasad & Bibha Kumari on 12.07.2008 is
dissolved by decree of divorce.
17. The appeal stands allowed and disposed of
Patna High Court MA No.335 of 2019 dt. 07.04.2025
accordingly. Office to draw up decree accordingly.
( Sunil Dutta Mishra, J)
(P. B. Bajanthri, J)
(P. B. Bajanthri, J)
rakhi/-
AFR/NAFR NAFR
CAV DATE 15.02.2025
Uploading Date 07.04.2025
Transmission Date
