Rajasthan High Court - Jodhpur
Mahendra Prasad vs Smt.Parmeshwari Devi on 17 April, 2025
[2025:RJ-JD:18424-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1468/2012
Mahendra Prasad, son of Shri Kanhaya Lal, resident of Sujangarh
at present town Shri Dungargarh, District Bikaner (Rajasthan).
----Appellant
Versus
Smt. Parmeshwari Devi, wife of Mahendra Prasad, resident of
Ward No.9, Town Sujangarh, District Churu (Rajasthan).
----Respondent
For Appellant(s) : Mr. Mahendra Prasad,
appellant, present-in-person
For Respondent(s) : Mr. Mahaveer Pareek, Advocate
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
Judgment
Reserved on : 03/03/2025
Pronounced on : 17/04/2025
Per, Shree Chandrashekhar, J :
This Civil Miscellaneous Appeal has been filed by Mahendra
Prasad to challenge the judgment and decree dated 19 th May 2012
passed in Civil Misc. (Divorce) Case No.67/2008 (23/2003) titled
"Mahendra Prasad v. Smt. Parmeshwari Devi". By this judgment,
the suit for divorce filed by the appellant under section 13(1)(ia)
and (ib) of the Hindu Marriage Act, 1955 seeking dissolution of the
marriage on the ground of cruelty and desertion has been
dismissed by the Additional District Judge, Sujangarh (Churu).
2. In Civil Misc. (Divorce) Case No.67 of 2008, the appellant
pleaded that his marriage with the respondent was solemnized
about 35 years before instituting the suit for divorce. His marriage
was solemnized following the rituals observed by the Hindus and,
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in particular, by observing Saptapadi. From the wedlock, one
daughter Kiran and two sons, namely, Ram Ratan and Laxmi
Narayan were born. The appellant further pleaded that he
constructed a house at Sujangarh and lived there with his mother,
brother and wife. About 3-4 years after the marriage, he got
employment in the Army and he lived in the joint family whenever
he came home on vacation. According to the appellant, his wife
was quarrelsome from the beginning and she used to fight with his
family members. Therefore, he purchased a piece of land and
constructed a house for his wife to live there with the children. But
there was no change in her behaviour and she used to quarrel
with him, abused him and treated him with cruelty. The appellant
further pleaded that his wife developed illicit relationship with his
cousin Om Prakash who had deserted his wife and started living
with the respondent as husband and wife. This fact was brought to
his notice by his neighbours whenever he visited home on
vacation. He tried to reason with the respondent but she, in turn,
gave a false application on 16th August 1999 to the District
Collector at Churu for restraining him from visiting Sujangarh. Not
only that, the respondent instituted a false case vide Criminal
Case No.218/2000 and made allegation against him for
committing the offence under section 498-A, 494 and 109 of the
Indian Penal Code and in that case he was sent to judicial custody.
However, the criminal case was closed and Final Form was
submitted by the police. The appellant made a specific reference
of illicit relationship of the respondent with Om Prakash when he
visited home in the midnight around 12:30 A.M. on 08 th
September 1998 and found his wife indulged in sexual intercourse
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with Om Prakash. According to the appellant, his wife and Om
Prakash started marpeet with him and threw him out of home.
The appellant made allegation against the respondent that she
grabbed his properties and Rs.4,00,000/- which was invested in
Kisan Vikas Patra and Rs.64,800/- deposited in the post office. He
made fruther allegations against Om Prakash and the respondent
that they threatened him on 18th January 2003 when he was
returning from the Court appearance and the respondent told him
that she was no longer in relationship with him and Om Prakash
was everything for her.
3. In her written statement, the respondent denied the plaint
allegations levelled against her by her husband and raised a
preliminary objection to maintainability of the divorce suit on the
ground of suppression of material facts. The respondent raised
such objection in view of Order VII Rule 5 of the Rajasthan Hindu
Marriage and Divorce Rules, 1984 which requires the applicant to
furnish the details of previously instituted or pending
petitions/applications. The respondent pleaded that she had filed
Petition No.08/2001 titled "Smt. Parmeshwari v. Mahendra Prasad"
under sections 9 and 11 of the Hindu Marriage Act which was
pending consideration before the Court. She had filed an
application under section 24 of the Hindu Marriage Act and that
application was also pending in the Court. Taking the matter
further on the point of maintainability of the divorce suit, the
respondent raised another objection on the ground that
Om Prakash was not made a party-defendant in the divorce
proceeding as mandated under Rule 7 of the Marriage and Divorce
Rules and the divorce suit was liable to be dismissed on that
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ground. As regards the allegation of cruelty against her, the
respondent made a counter attack alleging that her husband
committed marpeet with her and inflicted cruelty upon her but she
suffered all such assaults by her husband and surrendered herself
to the service of her husband. Denying the allegation of sexual
relationship with Om Prakash, the respondent pleaded that Om
Prakash is a married person and he is like her son. According to
the respondent, the appellant made such allegation against her
because he left her company and developed illicit relation with
Chotudi and two daughters were born from such illicit relation with
Chotudi. She further alleged that one son of Chotudi born from the
wedlock with her previous husband was also staying with her.
Offering a justification for lodging of the criminal case, the
respondent pleaded that her husband came to Dungargarh and
committed marpeet with her and the children and threatened to
throw them out of the matrimonial house. The respondent
specifically pleaded that she has no source of income and her
husband did not provide any maintenance to her and the children.
4. On the basis of the aforementioned pleadings of the parties,
the trial Judge framed the following issues : (1) whether the
respondent subjected the petitioner to cruelty, (2) whether the
respondent is guilty of committing adultery, (3) whether the
petitioner suppressed the proceeding in Case No.8/2001 and what
would be the effect thereof, (4) whether the petition for divorce is
not maintainable on the ground of non-joinder of Om Prakash, (5)
whether the petitioner filed the case after inordinate delay and
what would be the effect of such delay on his petition.
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5. In the trial, the appellant tendered oral evidence by
examining himself as AW-1 and laid in evidence a copy of the
application under section 125 of the Code of Criminal Procedure
vide exhibit-1, a copy of the F.I.R. vide exhibit-2, a copy of the
Final Form vide exhibit-3, a copy of the order accepting F.R. vide
exhibit-4, and the statement of Parmeshwari Devi as PW-1 in Case
No.192/2005 vide exhibit-5. On the other hand, the respondent
tendered evidence as NAW-1 in support of the stand set up by her
in the written statement.
6. In the judgment rendered on 19th May 2012, the trial Judge
decided all the issues in favour of the respondent.
7. Before us, the appellant-in-person submitted that even if the
relief for dissolution of marriage on the ground of adultery is not
granted, the divorce suit must be decreed on the ground that the
respondent inflicted physical cruelty and caused mental cruelty on
account of her various acts of misbehaviour and by filing a false
criminal case against him. On the other hand, the learned counsel
appearing for the respondent submitted that Final Form filed in
the criminal case is by itself not a ground to infer mental cruelty
inflicted upon the appellant. On the contrary, the appellant who
left his wife and children at the mercy of others and started living
with another woman and fathered two daughters has rightly been
held to have committed cruelty upon the respondent.
8. Under section 13(1) of the Hindu Marriage Act, a marriage
solemnized between the parties can be dissolved by a decree of
divorce on a petition presented either by the husband or by wife
on the grounds specified therein. A decree of divorce may be
granted under clause (i-a) to sub-section 1 of section 13 when the
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petitioner establishes that the other party treated him with cruelty
after solemnization of marriage. Though the expression "cruelty"
is not defined under the Hindu Marriage Act, there has been a
series of judgments by the Hon'ble Supreme Court which provides
sufficient guidelines to the Courts to deal with the allegation of
cruelty as envisaged under section 13 of the Hindu Marriage Act. A
cruelty may be mental or physical and any allegation of cruelty
has to be seen in the light of the impact of such treatment in the
mind of the other party. It is the conduct in relation to or in
respect of the matrimonial duty and obligation that shall constitute
cruelty if it adversely affects the other party. In "A Jayachandra v.
Aneel Kaur"1, the Hon'ble Supreme Court observed that it shall
constitute cruelty if the conduct complained is grave and
substantial so as to draw a conclusion that the aggrieved party
cannot be reasonably expected to live in the company of other
spouse. However, the normal wear and tear of the middle-class
married life cannot be construed as a broken marital relationship
(refer, "Joydeep Majumdar v. Bharti Jaiswal Majumdar"2).
9. The case set up by the appellant is that he suffered mental
cruelty on account of various acts and indiscretions of the
respondent. But this does not seem to be the reason for instituting
a suit for divorce about 35 years after the marriage. His evidence
that he was unhappy with the cruel behaviour of the respondent
and was undergoing severe mental agony and pain was seriously
challenged by the respondent who deposed in the Court that she
was happily married with the appellant but trouble started when
the appellant established illicit relationship with Chotudi and
1 (2005) 2 SCC 22
2 AIR 2021 SC 1165
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started living with her at Dungargarh since 1998. Notably, the
appellant admitted in the cross-examination that his wife had
made allegation of his illicit relationship with Chotudi in restitution
of conjugal rights petition filed by her. The respondent gave details
of the said woman such as her parentage and her parental place
of living. She stated in her evidence that Chotudi herself informed
her that she is the daughter of Rameshwar and her mother's name
is Bhuri. She also told her that her brother's name is Gumandas
and her paternal village is Dhadheru. The appellant did not
produce any evidence except his own mere ipse dixit to prove the
allegation of heaping filthy abuses upon him. Even the other
family members did not step into the witness box to support him
and no explanation was offered by the appellant why he did not
examine his brother or mother who according to him also suffered
at the hands of the respondent. The appellant who himself stated
in the Court that he could visit home only once every 3-4 months
would not have continued in marriage for about three decades had
there been any truth in his version. He fathered three children and
started living separately at Dungargarh after his retirement from
the Army. Since 1998, he had accepted the assignment of Patwari
and did not provide sustenance to his wife and children. In the
present proceeding, the appellant made a statement that he was
paying Rs.15,000/- to his wife as maintenance but his stand was
seriously controverted by the learned counsel for the respondent
who informed the Court that the appellant had stopped paying the
said amount to the respondent after some time and now there are
huge arrears of maintenance amount to be paid by the appellant.
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10. In "Samar Ghosh v. Jaya Ghosh"3, the Hon'ble Supreme
Court observed that it is difficult to lay down any uniform standard
or guidance to ascertain the human behaviour whether or not that
falls within the sweep of expression "cruelty". Sounding a note of
caution that the examples enumerated in paragraph No.101 are
only illustrative and not exhaustive, the Hon'ble Supreme Court
referred to the following instances which would fall within the
broad parameters of the expression "cruelty" :-
"........................................................................................................................
........................................................................................................................
(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.
3 (2007) 4 SCC 511
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(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 sterilisation
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."
11. The appellant admitted in the cross-examination that after
the incident of 08th September 1998 he did not visit even his
children and, in the divorce suit contested by his daughter, he
tendered evidence against his daughter. In our opinion, the
learned counsel for the respondent rightly contended that mere
filing of Final Form may not be construed as a conclusive proof
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that a false First Information Report was lodged by the respondent
and, that has caused immense mental agony and pain to the
appellant. The conduct of the appellant had been such that the
defence set up by the respondent cannot be brushed aside. As
regards his illicit relationship with another woman, the appellant
offered a vague defence of mere denial of his relationship with
Chotudi. Even more importantly, he instituted the suit for divorce
about 8 years after he was allegedly thrown out of his home. The
allegation of adultery levelled against the respondent is also a kind
of wild allegation set up by him. Clearly, the appellant failed to
demonstrate that the respondent inflicted physical or mental
cruelty upon him.
12. This is the stand of the appellant that Om Prakash is a
married man with whom the respondent developed illicit relation
and they were living together. The appellant, however, did not
examine any neighbour or the wife of Om Prakash to support this
stand. The respondent who has been living in her matrimonial
home cannot be said to have deserted the appellant. The alleged
incident that happened in the night of 8th September 1998 is not
established by the appellant and no other witness has been
produced by him to support the happening of such an incident or,
at least, to prove that the respondent and Om Prakash had
committed marpeet with him on that night. In course of the
hearing, the appellant-in-person submitted that he could not have
produced any witness to prove adultery on the part of the
respondent and his evidence stand alone is sufficient and a proof
thereof. In "Dunn v. Dunn"4, Dunning L.J. observed that the legal
4 (1948) 2 All. E.R. 822(2)
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burden shall be on husband to prove that his wife deserted him
without cause. This view in "Dunn" was affirmed by the Hon'ble
Supreme Court in "Lachman Utamchand Kirpalani v. Meena"5.
Even before that, the Hon'ble Supreme Court elucidated the law
on the subject in "Bipinchandra Jaisinghbai Shah v. Prabhavati"6,
thus; "if a spouse abandons the other spouse in a state of
temporary passion, for example, anger or disgust without
intending permanently to cease cohabitation, it would not amount
to desertion". From the materials on record, it does not appear
that the appellant took any sincere effort to bring his wife back
home; he did not file a petition for restitution of conjugal rights
and; on the contrary, the respondent filed such a petition which
was opposed by him. No doubt the appellant is guilty of
matrimonial misconduct and he was hell bent to get rid of his wife.
Simply put, the appellant failed to establish that the respondent
without a just cause refused to live with him. The respondent has
no animus deserendi and it is the appellant who on his own and
for a different purpose is not staying in the company of his wife.
The respondent has a valid reason not to join the company of the
appellant at Dungargarh. In the circumstances of the case, it can
be reasonably inferred that the respondent has been living at
Sujangarh not by her own choice and she was forced to live
separately there. In fact, it was the appellant who took a pledge
that he would sever his relationship with the respondent and
would not visit her and live separately. There is another reason
for drawing such an inference that the appellant intentionally left
the company of his wife inasmuch as he opposed the petition filed
5 AIR 1964 SC 40
6 AIR 1957 SC 176
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by the respondent seeking restitution of her conjugal rights. This
is also a matter of record that the appellant had suppressed the
filing of a petition by the respondent seeking restitution of
conjugal rights and another petition for maintenance. As per the
plaint averments, the cause of action for filing the divorce suit
arose on 08th September 1998 but it was filed in the year 2003.
The import of section 23(1)(d) of the Hindu Marriage Act is that
the Court shall not decree any relief if the Court is satisfied in any
proceeding under this Act whether defended or not that there has
been any unnecessary delay or improper delay in instituting the
proceeding.
13. Following the aforesaid discussions, D.B. Civil Misc. Appeal
No. 1468 of 2012 is dismissed.
(CHANDRA SHEKHAR SHARMA),J (SHREE CHANDRASHEKHAR),J
118-Arjun/-
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