HMA 498a,Divorce and Maintenance

HIGH COURT OF JUDICATURE MADHYA PRADESH, JABALPUR

FIRST APPEAL NO.636/2003
Raman Kumar, S/o Mahadeo Prasad Tiwari,
aged about 29 years, Labour by occupation,
R/o Azad Ward, Piparia,
District Hoshangabad (M.P.)
………….APPELLANT
VERSUS
Smt. Bhawna, W/o Raman Tiwari,
aged about 24 years, R/o Nyutan Chikali,
Tahsil Parasia, District Chhindwara (M.P.)
………..RESPONDENT

For the appellant: Shri Sanjay Dwivedi, Advocate
For the respondent: None

Present: Hon’ble Mr. Justice Krishn Kumar Lahoti
Hon’ble Mr. Justice K.S.Chauhan

J U D G M E N T
(06/07/2009)
As Per: K.S.Chauhan, J:
This appeal under Section 28(1) of the Hindu Marriage Act,
1955 has been preferred by the appellant being aggrieved by the
judgment and decree dated 30.10.2003 passed by the Additional
Sessions Judge, Sohagpur, District Hoshangabad in Civil Suit
No.22A/2000, whereby the divorce petition filed by the appellant has
been dismissed.

2. The facts of the case in short are that on 03.06.1998 the
appellant and respondent entered into sacrament tie of wedlock
according to Hindu rites and thereafter the respondent-wife was
brought to matrimonial home. The time when consummation of
marriage or cohabitation came, the respondent-wife turned into
inaccessibility and refused to have sexual intercourse on the ground
that the marriage was, in fact, solemnized against her volition and
wishes by her parents. She was desirous to marry according to her
own choice after completing her study. Therefore, she would not
provide the appellant pleasure, love and affection of a married wife,
hence it would be better to protect her chastity. No cohabitation could
take place. On second turn, when again she came to the nuptial home
she reiterated the same and asked him to get marriage dissolved
according to law otherwise she would take recourse of negative
approach by making allegations of demand of dowry against him. On
the third turn also, the situation remained the same. Seeing her
hostile attitude, the appellant could not have sexual relations with his
wife. He maintained the honour of her chastity throughout the period
when she lived together with him in the matrimonial home. The
appellant made every endeavour to change her mentality but failed
and she remained firm and determined to her own thought. On
21.06.1998 she went back to her parental house with her brother
when the appellant had gone to Shivpuri and since then she never
returned back in spite of the efforts made by the appellant and his
family members. Thus two years have been elapsed since the time
when she left her matrimonial house. Thus, on the ground of cruelty
and desertion appellant filed petition under Section 13 of the Hindu
Marriage Act, 1955 to dissolve the marriage solemnized in between them.

3. The respondent filed the written statement denying the
allegations made in the petition mainly contending that she has never
refused or abstained from cohabitation with the appellant-husband.
After the very time of marriage she was subjected to cruelty on the
ground of insufficiency of dowry being fetched in marriage, therefore,
she drove out of the house by the appellant and his family members.
She lodged the report at police station Piparia where the offence
under Section 498-A of Indian Penal Code against the appellant has
been registered and the case is pending in the concerned court.
Hence no ground of divorce is made out and the petition deserves to
be dismissed.

4. On the basis of the pleadings of the parties, the issues were
framed. Plaintiff/appellant adduced the evidence but defendant/
respondent did not enter into witness box to adduce any evidence.
After appreciation of the evidence, trial Court found that no case for
divorce is made out and dismissed the petition. Being aggrieved by
the impugned judgment and decree, the instant appeal has been
preferred on the grounds mentioned in the memo of appeal.

5. Shri Sanjay Dwivedi, learned counsel for the appellant
submitted that the court below has not appreciated the evidence in
proper perspective. The evidence led by appellant remained intact
throughout and the respondent has not produced any evidence in
rebuttal. In such situation, the allegations made in reply by her ought
not to have been taken into consideration for the purpose of rebuttal
of cogent and clinching evidence led by the appellant/husband. It has
been proved that no cohabitation took place in between them on
account of non-cooperation and hostile attitude of the respondent and
this amounts to mental cruelty to him. Similarly, she has deserted
appellant and has never returned to the matrimonial house in spite of
efforts of appellant and his family members. She has deserted the
appellant for a continuous period of more than two years without any
cause. The appellant has proved the grounds of cruelty and desertion,
in spite of the court below has erroneously dismissed the petition.

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6. No one appeared on behalf of the respondent/defendant in spite
of the S.P.C. Issued.

7. The main point for consideration in this appeal is that whether
the court below has committed any illegality in dismissing the petition
filed by appellant/plaintiff under Section 13 of the Hindu Marriage
Act, 1955.

8. Appellant/plaintiff Raman Kumar (AW-1) has deposed that the
marriage was solemnized on 03.06.1998 according to Hindu rites.
Thereafter respondent came to her matrimonial house. At that time
she told him that this marriage has been performed against her
wishes and she refused to have sexual intercourse with the appellant,
therefore, he did not cohabit with her. Her behaviour was not good
which caused mental agony to him.

9. This witness has further deposed that respondent has gone to
her parental house on 26.06.1998 since then she never returned.
Thereafter when he went there to bring her back to her matrimonial
house she threatened her to implicate him in the dowry case. She
lodged F.I.R. (Ex.P-1) against the appellant under Section 498-A of
I.P.C. She has also filed an application (Ex.P-2) under Section 125 of
the Code of Criminal Procedure in the court at Chhindwara.

10. This witness has been subjected to piercing cross examination
wherein he has stated that the respondent/defendant remained with
him for a period of 13 days but no cohabitation took place during this
period of her stay at the matrimonial house. This witness has further
stated that he told this fact to his friends Rakesh and Naresh that the
respondent/defendant refused him to have sexual intercourse with
her. Naresh Singh Rajput (AW-2) has also supported this fact.

11. Thus, the evidence of Raman Kumar (AW-1) finds support from
the evidence of Naresh Singh Rajput (AW-2). Nothing has been
brought in the cross examination to discredit their testimony.

12. Respondent/defendant Bhavna has not appeared in witness box
to rebut the evidence on her behalf, therefore, the evidence led by
appellant is unrebutted and the allegations made by
respondent/defendant.

13. Cruelty is a ground of divorce under Section 13(1)(a) of the
Hindu Marriage Act. We will consider whether this ground has been
proved or not.

14. In Dastane Vs. Dastane, AIR 1975 SC 1534, the Supreme
Court has observed thus:
“that where an allegation of cruelty is made, the
inquiry in any case covered by that provision had to
be whether the conduct charged as cruelty is of such
a character as to cause in the mind of the petitioner
a reasonable apprehension that it will be harmful or
injurious for the petitioner to live with the
respondent. It was also pointed out that it was not
necessary, as under the English law, that the cruelty
must be of such a character as to cause danger to
life, limb or health, or as to give rise to a reasonable
apprehension of such a danger though, of course,
harm or injury to health, reputation, the working
character or the like would be an important
consideration in determining whether the conduct of
the respondent amounts to cruelty or not. What was
required was that the petitioner must prove that the
respondent has treated the petitioner with such
cruelty as to cause a reasonable apprehension in the
mind of the petitioner that it will be harmful or
injurious for the petitioner to live with the respondent.

15. In Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, the
Supreme Court examined the sub section 13(1)(i-a) of the Act and
stated the proper approach to cases of cruelty and reiterated the legal
position abiding after the Amending Act of 1976. In this case
(demand of dowry by parents of husband with the support of the
husband), it was held that the demand of dowry was prohibited by law
and that the totality of the facts and circumstances of the case
justified the inference of cruelty. It was also observed that there
could be cases where the conduct complained of itself may be ‘bad
enough and per se unlawful or illegal’. Then the impact or the
injurious effect on the other spouse need not be inquired into or
considered. In such cases, cruelty will be established, if the conduct
itself is proved or admitted.

16. In Rita Nijhawan v. Balkishan Nijhawan, AIR 1973 Delhi,
200 at 209, a Division Bench of Delhi High Court had examined the
similar issues and arrived at following conclusions :
“Thus the law is well settled that if either of the
parties to a marriage being a healthy physical
capacity refuses to have sexual intercourse the same
would amount to cruelty entitling the other party to
a decree. In our opinion it would not make any
difference in law whether denial of sexual
intercourse is the result of sexual weakness of the
respondent disabling him from having a sexual union
with the appellant, or it is because of any willful
refusal by the respondent, this is because in either
case the result is the same namely frustration and
misery to the appellant due to denial of normal
sexual life and hence cruelty.”
“Marriage without sex is an anathema. Sex is the
foundation of marriage and without a vigorous and
harmonious sexual activity it would be impossible
for any marriage to continue for long. It cannot be
denied that the sexual activity in marriage has an
extremely favourable influence on a woman’s mind
and body. The result being that if she does not get
proper sexual satisfaction it will lead to depression
and frustration. It has been said that the sexual
relations when happy and harmonious vivifies
woman’s brain, develops her character and trebles
her vitality. It must be recognised that nothing is
more fatal to marriage than disappointment in
sexual intercourse.”

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17. In Smt. Shakuntala Kumari v. Om Prakash Ghai, AIR 1981
Delhi 53, it has been held thus:
“A normal and healthy sexual relationship is one of
the basic ingredients of a happy and harmonious
marriage. If this is not possible due to ill-health on
the part of one of the spouses, it may or may not
amount to cruelty depending on the circumstances
of the case. But willful denial of sexual relationship
by a spouse when the other spouse is anxious for it
would amount to mental cruelty, especially when the
parties are young and newly married.”

18. In Smt. Maya v. Brij Nath, AIR 1982 Delhi 240, while
dealing with the concept of cruelty in the Hindu Marriage Act, the
Court observed as under:
“Cruelty has not been defined in the Act. But it is
now well settled that the conduct should be grave
and weighty so as to make cohabitation virtually
unendurable. It must be more serious than the
ordinary wear and tear of marriage. The cumulative
conduct taking into consideration the circumstances
and the background of the parties has to be
examined to reach a conclusion whether the act
amounts to cruelty. The petitioner in a divorce
petition has to prove that he was treated with
cruelty. The burden of proving the cruelty lies on him.”

19. The Hon’ble Supreme Court in the case of V. Bhagat v. Mrs.
D. Bhagat, AIR 1994 SC 710, has defined mental cruelty in the following manner :
“Mental cruelty in S.13(1)(ia) can broadly be defined
as that conduct which inflicts upon the other party
such mental pain and suffering as would make it not
possible for that party to live with the other. In other
words, mental cruelty must be of such a nature that
the parties cannot reasonably be asked to put up
with such conduct and continue to live with the
other party. It is not necessary to prove that the
mental cruelty is such as to cause injury to the
health of the petitioner. While arriving at such
conclusion, regard must be had to the social status,
educational level of the parties, the society they
move in, the possibility or otherwise of the parties
ever living together in case they are already living
apart and all other relevant facts and circumstances
which it is neither possible nor desirable to set out
exhaustively. 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. If it is a case of
accusations and allegations, regard must also be
had to the context in which they were made.”

20. If we revert to the fact of the present case, it is abundantly clear
that general conduct and behaviour of the respondent-wife has been
far from being normal. She has not permitted the respondent to have
normal sexual relationship.

21. In Mohini Chawla v. Subhash Chander Chawla, AIR 2009 P
& H 33, it has been held that:
“This goes a long way to prove that there was no
sexual activity between the appellant and the
respondent which would amount to mental as well as
physical cruelty to the respondent. It has further
come on record that the appellant after her return
from Delhi to village Anwal, had remained with the
respondent for one night only on each occasion in
August and October, 2001 and on those days also,
there was no sexual relationship between them.
Therefore, the cruelty on the part of the appellantwife
stands proved which alone is a good ground for
the grant of decree of divorce.”

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22. In the light of the aforesaid pronouncements and the evidence
adduced in the case, it is manifestly clear that respondent refused
from the very beginning to have sexual intercourse by the appellant
with her. This amounts to mental cruelty, therefore, the appellant has
proved the ground of cruelty. On the basis of which he is entitled for
decree of divorce.

23. The appellant has also led the evidence that respondent has
deserted her without any cause for a continuous period of more than
two years. Thus he also sought the decree of divorce on the ground of
desertion. Desertion has not been defined in any statute. However,
the essential ingredients of desertion are (i) the factum of separation;
and (ii) the intention to bring cohabitation permanently to an end
(animus deserendi).

24. In Bipin Chander v Prabhawati, AIR 1975 SC 176, the
Supreme Court, after posing the question ‘What is desertion?’,
observed that the legal position had been admirably summarized in
Halsbury’s Laws of England, 3rd edn, Vol 12, paras 453-54. The quote
is attributed to two paras in Halsbury’s but four paras are given here:
“In its essence desertion means the intentional
permanent forsaking and abandonment of one
spouse by the other without that other’s consent and
without reasonable cause. It is a total repudiation of
the obligations of marriage. In view of the large
variety of circumstances and of modes of life
involved, the Court has discouraged attempts at
defining desertion, there being no general principle
applicable to all cases.
Desertion is not the withdrawal from a place
but from the state of things, for what the law seeks
to enforce is the recognition and discharge of the
common obligations of the married state; the state
of things may usually be termed, for short, ‘the
home’. There can be desertion without previous
cohabitation by the parties, or without the marriage
having been consummated.
The person who actually withdraws from
cohabitation is not necessarily the deserting party.
The fact that a husband makes an allowance to a
wife whom he has abandoned is no answer to a charge of desertion.

25. In In Rohini Kumari v. Narendra Singh, AIR 1972 SC 459 it
has been held by the Court that :
“desertion means the intentional permanent
forsaking and abandonment of one spouse by the
other without that other’s consent and without
reasonable cause. It is total repudiation of the
obligation of the marriage.”

26. In Nirmala v. Vasdev Pardsam, 1978 RLR 97 it has been held that:
“If wife leaves matrimonial home for her parents’
house and does not return and join her husband for
more than two years, without any reasonable
excuse, then she is guilty of desertion. Earlier
desertion if condoned by resumption of cohabitation
gets only obscured and is not obliterated altogether
and may be considered towards wife’s previous conduct.”

27. Thus, in the light of the aforesaid pronouncements and the
evidence adduced in this case, it is manifestly clear that the
respondent had gone to her parental house on 26.06.1998 and never
returned to her matrimonial house. She has given the threatening to
involve him in the false case of dowry. She has also lodged the report
under Section 498-A of I.P.C. and also filed an application under
Section 125 of Cr.P.C. These things indicate that the marriage
between the parties has been irretrievably broken down completely
and practically there is no chance of revival, making them possible to
live together in future. Therefore, on the ground of desertion also the
appellant is entitled to get the decree of divorce.

28. On foregoing discussion, we find that the findings of the court
below are erroneous which deserve to be set aside.

29. Consequently, the appeal succeeds and is allowed. The
judgment and decree passed by the court below is hereby set aside.
The petition filed under Section 13(1)(a) and 13(1)(b) of the Hindu
Marriage Act, 1955 is hereby allowed. Accordingly, the marriage
solemnized in between the parties on 03.06.1998 is hereby dissolved
by the decree of divorce. Counsel’s fee is quantified as per schedule.
Decree be drawn up accordingly.
(Krishn Kumar Lahoti) (K.S.Chauhan)

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