HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR

D.B. Civil Miscellaneous Appeal No.1438/2008

Jagdish Prasad Tanwar son of Shri Laxman Singh Tanwar, aged 51
years, residen tof Tanwar bhawan, Bhagwanganj, Ajhmer. ( Raj.)

—-Appellant-
Versus
Kasturi Devi Wife of Jagdish Prasad Tanwar, resident of House
No.744, Ward No.26 (Old), Near Railway Boundary in the lane
adjoining V.M.General Store, Bhagwanganj, Ajmer..

—-Respondent
__
For Appellant(s) : Mr.Sudhanshu Joshi, Advocate
For Respondent(s) : Mr.Sunil Awasthi, Advocate
__
HON’BLE MR. JUSTICE AJAY RASTOGI

HON’BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment

Judgment reserved on : 13.07.2017
Judgment pronounced on : 04.08.2017

By the Court : Per Hon’ble Mr. Justice Ashok Kumar Gaur] :

The present appeal is directed against the judgment and

decree dated 19.02.2008 passed by the Family Court, Ajmer

wherein divorce petition filed by the appellant-husband has been

dismissed.

Briefly stated facts of the case are that the appellant got

married to respondent-Kasturi Devi as per Hindu rites on
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10.12.1993. The appellant filed an application under Section 13 of

the Hindu Marriage Act seeking a decree of divorce against his

wife-respondent on 19.01.2004. The appellant pleaded in his

application that after his marriage on 10.12.1993, the respondent-

wife stayed with him for two years of their marriage and she was

working as Nurse in Jahawarlal Nehru Hospital, Ajmer and she

used to go to her parents house very frequently. It was alleged

that the respondent-wife had left the matrimonial home on

22.05.1998 and she was living separately from last 5 years on her

own. It was pleaded in the application that the respondent filed a

criminal case against the appellant and his three sisters for

offence under Section 498-A IPC registered at P.S. Mahila Thana,

Ajmer by lodging FIR No.120/1998.

The police had filed charge-sheet against the appellant and

his three sisters and the court of Judicial Magistrate No.2, Ajmer

tried the criminal case against all of them and one of the sister of

the appellant, Smt. Nathi, could not bear the shock of being

arrested and prosecuted fell sick and ultimately died on

11.05.2001 and her husband also died on 14.05.2001. In the

criminal case, all the three sisters of the appellant were acquitted

vide judgment dated 30.10.2002 but the appellant was convicted

and sentenced for 2 years’ simple imprisonment and fine of

Rs.1000/-. It was alleged that on conviction of the appellant, the

respondent-wife distributed sweets and celebrated like an

occasion. The appellant filed appeal against his conviction order

dated 30.10.2002 before the Sessions Judge, Ajmer and appeal

was accepted and he was acquitted of the criminal offence vide
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judgment dated 24.02.003. The appellant pleaded that had his

criminal appeal not been accepted, he would have been

terminated being an employee of Indian Railways. The appellant

pleaded that he suffered mental agony and pain on account of the

rude behaviour of the respondent and it was not possible to live

with the respondent-wife any more. The appellant also pleaded

that she has deserted him without cause and is entitled to seek a

decree of divorce.

The respondent-wife filed reply and denied the allegations

levelled in the divorce application. The respondent pleaded that it

was appellant who had kept her in her father’s house and used to

come to meet her and also used to cohabit with her. The

respondent pleaded that since she was not able to give birth to

any child, as such, the appellant-husband used to beat her. It was

pleaded in reply that sister of the appellant used to give beating to

her and as such, she had to lodged a report with police station. In

additional plea, the respondent pleaded that she had not deserted

her husband and the appellant from time to time was having

physical relation with her. The respondent pleaded that on

different dates, she went out with the appellant to different places

in the year 2000, 2001, 2003 and stayed with him and had sexual

intercourse with him. The respondent also pleaded that she had

participated in the social functions organized at the residence of

the appellant.

On the basis of the pleadings of the parties, the Family Court

framed following 5 issues:-

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1. “vk;k vizkFkhZ;k dk O;ogkj izkFkhZ ds lkFk ;kfpdk esa of.kZrkuqlkj
vk/kkjksa ij Øwjrkiw.kZ jgk gS

2- vk;k vizkFkhZ;k us fcuk fdlh ;qfDr ;qDr dkj.k ds nks o’kZ ls vf/kd
vof/k ls izkFkhZ dk ifjR;kx dj j[kk gS

3- vk;k tokcnkos esa vfrfjDr dFku esa vafdrkuqlkj izkFkhZ vkt Hkh le;

le; ij vizkFkhZ;k ds lkFk jgdj oSokfgd lEcU/k LFkkfir djrk jgk
gS ;fn ,slk gS rks mldk ;kfpdk ij izHkko

4- vk;k izkFkhZ vizkFkhZ;k ds fo:) fookg foPNsn dh fM+fØ ikus dk
vf/kdkjh gS

5- vuqrks’kA”

The appellant in support of his case produced 3 witnesses:

AW-1 Jagdish Tanwar (appellant), AW-2 Sohan Lal and AW-3

Bhanwar Lal. The respondent-wife in support of her case also

produced 4 witnesses: NAW-1 respondent-Kasturi Devi herself,

NAW-2 Yashoda, NAW-3 Heera Singh and NAW-4 Shanti Devi.

The Family Court after considering the entire evidence

decided issue no.1 in favour of the appellant and found that

lodging of false criminal case of demand of dowry, amounted to

cruelty. The issue no.2 with regard to desertion was found not

proved and was decided against the appellant-husband. The issues

No.3, 4 5 relating to condonation of acts of cruelty and

entitlement of decree of divorce and relief part were decided

against the appellant-husband.

The learned counsel for the appellant has urged that the

ground of cruelty once having been found proved, there was no

condonation of such acts of cruelty of respondent and as such, the

decree of divorce has wrongly been denied by the Family Court.

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The learned counsel for the appellant has further argued that

the ground of desertion- issue no.2 was also amply proved by

evidence before the Family Court and that has been misread and

the finding recorded is perverse and contrary to record, needs

interference of this Court.

Learned counsel for the appellant has further argued that the

issues no. 3, 4 5 have wrongly been decided by the Family Court

and on the basis of settled legal principles and facts available on

record, the finding of the Family Court needs to be set aside being

contrary to facts on record and law on the subject.

Per contra, the learned counsel for the respondent has

supported the judgment and decree passed by the Family Court

and has emphasized that the issue relating to condonation of

cruelty was well established. The fact of desertion by the

respondent was also not proved due to staying of wife together

with the husband. The learned counsel for the respondent has also

urged that the Family Court has rightly refused decree of divorce

while considering all the relevant facts and law on the subject.

We have heard learned counsel for the parties and carefully

scanned the record.

Firstly, we will deal with the issue of condoning the act of

cruelty by the husband as has been decided by the Family Court

against the appellant. In Hindu Marriage Act, 1955, decree of

divorce may be refused on the ground of cruelty, if the same has

been condoned by the person who alleges the cruelty being

committed against him/her. Section 23 of the Hindu Marriage Act

is produced hereunder:-

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“23.Decree in proceedings.- (1) In any proceeding
under this Act, whether defended or not, if the court is
satisfied that-

(a) xxx xxx xxx

(b) where the ground of the petition is the ground
specified in clause (f) of sub-section (1) of section 10, or
in clause (i) of sub-section (1) of section 13, the
petitioner has not in any manner been accessory to or
connived at or condoned the act or acts complained of,
or where the ground of the petition is cruelty the
petitioner has not in any manner condoned the cruelty,
and”

The Apex Court has dealt with Section 23(1)(b) relating to

condonation of act of cruelty in the case of Dr.N.G.Dastane Vs.

Mrs. S.Dastane, (1975) 2 Supreme Court Cases 326. The

relevant paras of the said judgment reads as under:-

“52. The next question for consideration is whether the
appellant had at any time condoned the respondent’s
cruelty. Under Section 23(1)(b) of the Act, in any
proceeding under the Act whether defended or not, the
relief prayed for can be decreed only and only if “where
the ground of the petition is cruelty the petitioner has
not in any manner condoned the cruelty”

55. Condonation means forgiveness of the matrimonial
offence and the restoration of offending spouse to the
same position as he or she occupied before the offence
was committed. To constitute condonation there must
be, therefore, two things : forgiveness and restoration.
The evidence of condonation in this case is, in our
opinion, as strong and satisfactory as the evidence of
cruelty. But that evidence does not consist in the mere
fact that the spouses continued to share a common
home during or for some time after the spell of cruelty.
Cruelty, generally, does not consist of a single, isolated
act but consists in most cases of a series of acts spread
over a period of time. Law does not require that at the
first appearance of accrual act, the other spouse must
leave the matrimonial home lest the continued co-
habitation be construed as condonation. Such a
construction will hinder reconciliation and there by
frustrate the benign purpose of marriage laws.

56. The evidence of condonation consists here in the
fact that the spouses led a normal sexual life despite
the respondent’s acts of cruelty. This is not a case
where the spouses, after separation, indulged in a stray
act of sexual intercourse, in which case the necessary
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intent to forgive and restore may be said to be lacking.
Such stray acts may bear more than one explanation.
But if during co-habitation the spouses, uninfluenced by
the conduct of the offending spouse, lead a life of
intimacy which characterises normal matrimonial
relationship, the intent to forgive and restore the
offending spouse to the original status may reasonably
be inferred. There is then no scope for imagining that
the conception of the child could be the result of a
single act of sexual intercourse and that such an act
could be a stark animal act unaccompanied by the
nobler graces of marital life. One might then as well
imagine that the sexual act was undertaken just in
order to kill boredom or even in a spirit of revenge.
Such speculation is impermissible. Sex plays an
important role in marital life and cannot be separated
from other factors which lend to matrimony a sense of
fruition and fulfilment. Therefore, evidence showing
that the spouses led a normal sexual life even after a
series of acts of cruelty by one spouse is proof that the
other spouse condoned that cruelty. Intercourse, of
course, is not a necessary ingredient of condonation
because there may be evidence otherwise to show that
the offending spouse has been forgiven and has been
received back into the position previously occupied in
the home. But intercourse in circumstances as obtain
here would raise a strong inference of condonation with
its dual requirement, forgiveness and restoration. That
inference stands uncontradicted, the appellant not
having explained the circumstances in which he came
to lead and live a normal sexual life with the
respondent, even after a series of acts of cruelty on her
part.

57. But condonation of a matrimonial offence is not to
be likened to a full Presidential Pardon under Article 72
of the Constitution which, once granted, wipes out the
guilt beyond the possibility of revival. Condonation is
always subject to the implied condition that the
offending spouse will not commit a fresh matrimonial
offence, either of the same variety as the one condoned
or of any other variety. “No matrimonial offence is
erased by condonation. It is obscured but not
obliterated”. Since the condition of forgiveness is that
no further matrimonial offence shall occur, it is not
necessary that the fresh offence should be ejusdem
generis with the original offence. Condoned cruelty can
therefore be revived, say, by desertion or adultery.

58. Section 23(1)(b) of the Act, it may be urged,
speaks of condonation but not of its revival and
therefore the English doctrine of revival should not be
imported into matters arising under the Act.
Apparently, this argument may seem to receive some
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support from the circumstances that under the English
law, until the passing of the Divorce Reform Act, 1969
which while abolishing the traditional bars to relief
introduces defences in the nature of bars, at least one
matrimonial offence, namely, adultery could not be
revived if once condoned. But a closer examination of
such an argument would reveal its weakness. The
doctrine of condonation was established by the old
ecclesiastical courts in Great Britain and was adopted
by the English Courts from the canon law.

‘Condonation’ is a technical word which means and
implies a conditional waiver of the right of the injured
spouse to take matrimonial proceedings. It is not
‘forgiveness’ as commonly understood. In England
condoned adultery could not be revived because of the
express provision contained in Section 3 of the
Matrimonial Causes Act, 1963 which was, later
incorporated into Section 42(3) of the Matrimonial
Causes Act, 1965. In the absence of any such provision
in the Act governing the charge of cruelty, the word
‘condonation’ must receive the meaning which it has
borne for centuries in the world of law. ‘Condonation
under Section 23(1)(b) therefore means conditional
forgiveness, the implied condition being that no further
matrimonial offence shall be committed.

60. These facts, if proved, shall have to be approached
and evaluated differently from the facts which were
alleged to constitute cruelty prior to its condonation.
The incidents on which the appellant relied to establish
the charge of cruelty had to be grave and weighty. And
we found them to be so. In regard to the respondent’s
conduct subsequent to condonation, it is necessary to
bear in mind that such conduct may not be enough by
itself to found a decree for judicial separation and yet it
may be enough to revive the condoned offence. For
example, gross familiarities short of adultery or
desertion for less than the statutory period may be
enough to revive a condoned offence.”

The Calcutta High Court in the case of Smt. Santana

Banerjee Vs. Sri. Sachindra Nath Banerjee, 1990(1) All

India Hindu Law Reporter 419 dealt with the issue of

condonation of cruelty and has held that cohabitation at times

and/or living together in an attempt to repair the fissures in the

relationship of husband and wife by themselves may not amount
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to condonation. The relavant para of the said judgment reads as

under:-

“The law is well settled that cohabitation at times and
or living together in an attempt to repair the fissures in
the relationship of husband and wife by themselves
may not amount to condonation. To constitute
condonation, the offended spouse must accept the
offending partner with a spirit of forgiveness and by
wiping off the unpleasant memories, start the conjugal
life as if on a clean slate. In the instant case, it does
not appear to us that the husband accepted the wife
with a spirit of forgiveness and started the conjugal life
as if on a clean state by wiping off all unpleasant
memories. With an offended soul he made attempts of
repair of the marital home but to no effect. That apart,
the wife even after the institution of the suit indulged in
making reckless, false and motivated allegations
against the husband and his close relations not only in
her written statement but also in her deposition as
indicated earlier. Such facts undoubtedly constitute
cruelty of a very grave nature. In our view, the court
not only can take into consideration of the subsequent
events after the institution of the suit but also should
lake note of such subsequent events if the same have a
bearing on the lis between the parties and
consideration of such facts may lead to proper justice
in the case and shorten the course of litigation.”

The finding of condonation of cruelty has been recorded by

the Family Court on the basis of respondent staying together for

some days on different occasions with the appellant. The Family

Court has further found that physical relations were established

between the appellant and respondent and as such, it has been

held that appellant had condoned the acts of cruelty against the

respondent.

The close scrutiny of evidence would show that the ground of

cruelty was well established and appellant his sisters were roped

in a false criminal case which ultimately resulted into exoneration

of all. The judgment by the criminal appellate court was passed on

24.02.2003. The levelling of false case comes within ambit of
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causing mental cruelty and as such, it cannot be wiped out from

the mind of a person if he has been falsely implicated in a criminal

case.

The Family Court has committed an illegality and the finding

recorded is per se perverse for the reason that few alleged

subsequent events of staying together for few days that too is not

supported by the tangible evidence will not condone the acts of

cruelty. The court below has also erred in holding that due to

physical relations being established between the parties, the acts

of cruelty were condoned. It is no gain saying that relation

between husband and wife are of intimate nature and by staying

under one roof, necessary presumption cannot be drawn of having

physical relations. The evidence which has come on record lacks

credibility of their intimate relation as husband and wife. The

finding of the Family Court on issue of condonation of cruelty is

perverse and not sustainable and liable to be set aside.

The Family Court has decided the issue of desertion against

the appellant. The court below has drawn inferences from some

incidents, which prove the fact that wife has not deserted the

appellant-husband.

In our opinion, the law on the point of desertion is well

settled by the Apex Court in catena of cases. The Apex Court in

the case of Malathi Ravi, M.D. Vs. B.V.Ravi, M.D., (2014)7

Supreme Court Cases 640 has laid down the law for proving the

desertion. Inferences may be drawn from certain facts of those

acts or by conduct, expression of intention, both anterior and
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subsequent to the actual acts of separation. The relevant para is

quoted here under:-

“18. To appreciate the rivalised submissions raised at
the Bar, we have carefully perused the petition and
the evidence adduced by the parties and the
judgment of the Family Court and that of the High
Court. The plea that was raised for grant of divorce
was under Section 13(1)(i-b) of the Act. It provides
for grant of divorce on the ground of desertion for a
continuous period of not less than two year
immediately preceding the presentation of the
petition. The aforesaid provision stipulates that a
husband or wife would be entitled to a dissolution of
marriage by decree of divorce if the other party has
deserted the party seeking the divorce for a
continuous period of not less than two years
immediately preceding the presentation of the
petition. Desertion, as a ground for divorce, was
inserted to Section 13 by Act 68 of 1976. Prior to the
amendment it was only a ground for judicial
separation.

19. Dealing with the concept of desertion, this Court
in Savitri Pandey v. Prem Chandra Pandey has ruled
thus:-

“Desertion”, for the purpose of seeking divorce
under the Act, means the intentional
permanent forsaking and abandonment of one
spouse by the other without that other’s
consent and without reasonable cause. In other
words it is a total repudiation of the obligations
of marriage. Desertion is not the withdrawal
from a place but from a state of things.
Desertion, therefore, means withdrawing from
the matrimonial obligations i.e. not permitting
or allowing and facilitating the cohabitation
between the parties. The proof of desertion has
to be considered by taking into consideration
the concept of marriage which in law legalises
the sexual relationship between man and
woman in the society for the perpetuation of
race, permitting lawful indulgence in passion to
prevent licentiousness and for procreation of
children. Desertion is not a single act complete
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in itself, it is a continuous course of conduct to
be determined under the facts and
circumstances of each case. After referring to a
host of authorities and the views of various
authors, this Court in Bipinchandra Jaisinghbai
Shah v. Prabhavati1 held that if a spouse
abandons the other in a state of temporary
passion, for example, anger [pic]or disgust
without intending permanently to cease
cohabitation, it will not amount to desertion.”

20. In the said Savitri Pandey case, reference
was also made to Lachman Utamchand
Kirpalani’s case wherein it has been held that
desertion in its essence means the intentional
permanent forsaking and abandonment of one
spouse by the other without that other’s
consent, and without reasonable cause. For the
offence of desertion so far as the deserting
spouse is concerned, two essential conditions
must be there (1) the factum of separation,
and (2) the intention to bring cohabitation
permanently to an end (animus deserendi).
Similarly two elements are essential so far as
the deserted spouse is concerned: (1) the
absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the
necessary intention aforesaid. For holding
desertion as proved the inference may be
drawn from certain facts which may not in
another case be capable of leading to the same
inference; that is to say the facts have to be
viewed as to the purpose which is revealed by
those acts or by conduct and expression of
intention, both anterior and subsequent to the
actual acts of separation.”

In the present case, the issue of desertion has been decided

by the Family Court against the appellant by holding that appellant

had maintained marital relations with the respondent and

appellant used to stay very frequently with the respondent and he
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had also taken her out from time to time and established physical

relations with her. The Family court has observed that the

respondent-wife was prepared to stay with the husband and as

per requirement of law, she had not deserted her husband for

more than two years.

In our opinion, the findings recorded by the learned Family

Court are not based on proper evaluation of evidence. The

evidence which has come on record in no way establish the fact

that husband and wife were staying together for a long duration or

permanently. The statement of respondent-wife reveals that even

after her alleged visits for certain days, she always came to her

parents house and she never stayed continuously with the

husband after August, 1998. The appellant in his statement has

deposed that he made all efforts to bring her wife back and even

sent legal notice asking respondent-wife to join the matrimonial

home. The excuse taken by the respondent in reply to notice of

not going back to matrimonial home, was to ask the appellant to

stay separately and not with his parents-family. The said attitude

of respondent clearly established that she was not interested in

staying with her husband at their matrimonial home and she was

in fact had no desire to stay with the husband at all.

Accordingly, the findings on issue No.2 with regard to

desertion and findings on issues no.3, 4 5 about condonation of

cruelty and relief for refusing the decree of divorce, are set aside.

Consequently, the appeal filed by the appellant is allowed

and the judgment decree dated 19.02.2008 passed by the

Family Court, Ajmer is set aside. Their marriage solemnized as on
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10.12.1993 stands dissolved and the appellant-husband is held

entitled for the decree of divorce. Registry to do the needful. No

costs.

(ASHOK KUMAR GAUR),J. (AJAY RASTOGI),J.

NK