Bharat Singh vs Smt Bharti on 7 December, 2017

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[CMA – 5062/2009]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 5062 / 2009
Bharat Singh S/o Late Shri Khuba Ram, by Caste Koli, Aged About
40 Years, R/o House No. 1119/12, Sidharat Nagar, Dhola Bhata
Road, Ajmer.
—-Appellant
Versus
Smt. Bharti D/o Late Shri Bhagat Ram, W/o Shri Bharat Singh, by
Caste Koli, R/o House No. 234, Madari Chall, Near Maskoba
Tempil, Ghorpadi, Village Ghorpadi, District Puna, (Maharasthra)-
411001
—-Respondent

__
For Appellant(s) : Mr.Peush Nag, Advocate.
For Respondent(s) : Dr.Ram Kishan Sharma Mr.Bhrigu Sharma,
Advcoates.

__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
Judgment reserved on : 1st December, 2017

Date of Judgment : 7th December, 2017

By the Court (Per Hon’ble Mr.Justice Ajay Rastogi):

Instant misc. appeal is directed against judgment decree

of the ld.Family Court, Ajmer dt.13.10.2009 dismissing the

application filed by the appellant-husband u/Sec.13 of the Hindu

Marriage Act, 1955 seeking divorce on the ground of cruelty and

desertion.

Brief facts which are necessary for disposal of the instant

appeal are recapitulated. The appellant Bharat Singh got married

to the respondent Smt.Bharti on 15.02.2000 as per Hindu rites

and customs and from this wedlock two children were born Manas
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[CMA – 5062/2009]

and Manya who are almost of 7½ 4½ years of age respectively

at the time when the divorce petition came to be filed by the

appellant in May, 2008 and both are residing with the respondent-

wife from their birth. The date of birth of Manas (son) is

2011.2000 and Manya (daughter) is not known to the counsel but

it is informed that she was born in 2004.

Prior to the filing of the present divorce petition, the

appellant earlier filed a divorce petition No.534/2006 on the

ground of cruelty and desertion but that came to be dismissed for

non-prosecution vide order dt.15.07.2007 and it was alleged by

the appellant in his application that behaviour of the respondent

towards the appellant always remain cruel and she always used to

ignore the feeling, existence and wishes of the appellant and she

is in the habit of picking up quarrel with the appellant over the

petty issues and that has disturbed the healthy environment of the

family. It has been further pleaded that the respondent has not

performed her marital obligations and refused to do household

work like preparing food, washing clothes, utensils, etc. and she

always used to give threats of committing suicide. Even at one

point of time, he was compelled to file a complaint u/Sec.107

116 Cr.P.C. against the respondent, her uncle cousins on

28.10.2006 and a stage has come where it has become impossible

for them to live together. At the same time, she has deserted her

matrimonial home without any justified reason for more than two

years.

Written statement was filed by the respondent and all the

allegations made have been factually disputed and denied. On the
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[CMA – 5062/2009]

contrary, the wife accused the appellant-husband of harassment

and cruelty.

The ld.Family Court permitted the parties to lead evidence in

support of their contentions. The appellant-husband stepped into

the witness box as AW-1 and examined Prabhat Singh, elder

brother of the appellant, as AW-2 and Babu Lal, neighbour of the

appellant, as AW-3.

On the other hand, the respondent-wife appeared in the

witness box as NAW-1 and examined Gopal Singh, her uncle, as

NAW-2, Babu Lal (brother-in-law of the appellant) as NAW-3 and

Bimla and Usha (real sisters of the appellant) as NAW-4 NAW-5

respectively, who supported the respondent-wife.

The ld.Family Court after considering the pleadings, framed

four issues which read ad infra:-

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

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

3 vk;k izkFkhZ vizkFkhZ;k ds fo:} mDr vk/kkjksa ij fookg
foPNsn dh fMØh ikus dk vf/kdkjh gS ?

4 vuqrks”kA”

All the issues were decided against the appellant and

accordingly dismissed the divorce petition under its judgment

decree dt.13.10.2009.

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[CMA – 5062/2009]

Feeling dissatisfied with the judgment decree passed by

the ld.Family Court, the instant appeal has been preferred by the

appellant-husband.

Counsel for the appellant submits that the ld.Family Court

has failed to take note of the unrebutted statements of his

witnesses and there was no reason to disbelieve their testimony

and the conduct of the respondent which has been highlighted in

his statement and supported by his independent witnesses

specifies the incident of mental cruelty which she has committed

on the appellant and as she has deserted her matrimonial home

for more than two years without reasonable justification, the

finding which has been arrived at on both the issues by the

ld.Family Court needs to be re-visited by this court and being

perverse, deserves to be quashed and set aside.

Counsel for the respondent, on the other hand, on the basis

of the material on record, submits that a cogent finding has been

recorded by the ld.Family Court which suffers from no infirmity or

illegality needs no interference of this court.

The question which emerges for consideration in the instant

appeal is whether the conduct of the respondent-wife desertion

from matrimonial home in the given circumstances amounts to

cruelty which entitles the appellant-husband to a decree of

divorce.

There cannot be any comprehensive definition of cruelty.

Cruelty could be physical or mental and both. While it is easy to

discern physical cruelty, mental cruelty has to be assessed from
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[CMA – 5062/2009]

the overall behaviour of the spouses as well as other incidental

factors. There is no doubt that in the matrimonial set-up, a couple

which decides to live together, has different attitudes and

opinions, likes and dislikes, and more often than not spouses

behave differently when faced with the same situations. While

disputes and arguments are normal in a marriage, to constitute

cruelty the conduct of the spouse should be something more

serious than the ordinary wear and tear of a marital life.

To consider as to whether a particular conduct constitutes

cruelty or not, it may be relevant to see the social status of the

parties, cultural background, physical and mental conditions,

customs and traditions etc. have to be considered. This all

depends upon the conduct, character and physical or mental

weakness of the spouses and probably no general statement is

equally applicable in all cases except the requirement that the

party seeking relief must show actual or probable injury to life.

In a delicate human relationship like matrimony, one always

has to see the probabilities of the case. The court dealing with the

petition for divorce on the ground of cruelty has always to consider

that problems before it are those of human beings and the

psychological changes in the conduct of a spouse have to be borne

in mind before divorce petitions are being considered. At the same

time, such insignificant and trifling conduct may cause pain in the

mind of another but before the conduct can be called cruelty, it

must touch a certain pitch of severity and it is always for the court

to weigh the gravity and it has to be kept in mind that whether the

conduct was such that no reasonable person would tolerate it and
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[CMA – 5062/2009]

it has to be considered whether the complainant should be called

upon to endure it as a part of normal human life.

Every matrimonial conduct which may cause annoyance to

the other, may not amount to cruelty. Mere trivial irritations,

quarrels between spouses, which happens in day-to-day married

life, may also not amount to cruelty and the basic foundation of a

sound marriage is tolerance, adjustment and respecting one

another. Petty quibbles, trifling differences should not be

exaggerated and magnified to destroy what is said to be made in

heaven. All quarrels must be weighed from that point of view in

determining what constitutes cruelty in each particular case

keeping in view the physical and mental conditions of the parties,

their character and social status. It is possible if we become too

technical and hypersensitive and sometimes it may be counter-

productive to the institution of marriage.

It is in this backdrop behavior of the parties, this court has

to discern that the conduct complained is cruelty, as pleaded by

the appellant.

The appellant in his divorce petition has made all allegations

of trivial irritations quarrels between spouses which always

happen in day-to-day married life and that always needs

tolerance, adjustment and respecting one another. From the kind

of trifling instances, which have been referred to by the appellant

in his application, her conduct may cause pain in the mind of

appellant but that cannot be called cruelty which touch a certain

pitch of severity.

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[CMA – 5062/2009]

Even the witnesses of the appellant named AW-2 Prabhat

Singh and AW-3 Babu Lal have only stated in their deposition

about their frequent quarrels taking place for petty reasons but no

specific instance, if any occurred between the spouses after such a

long period of marriage, has neither been quoted by them nor by

the appellant himself.

As regards, desertion is concerned, only statement has been

made that they are living separately for two years but this fact

appears to be factually incorrect for the reason that it has come

on record that from 2004-2006 the appellant was at Oman and

after returning back on 02.11.2006 he stayed along with the

respondent and their two children together and there is no factual

foundation in the divorce petition that they are living separately

for two years which is the pre-condition to establish for passing

decree of divorce on desertion, as prayed for.

To the contrary, the respondent-wife in her statement and

from the documentary evidence from Exhibit-A/1 to A/16 has tried

to establish that there was no reason forthcoming for the

appellant to leave the respondent and her children and apart from

the period 2004-2006 when he was in Oman, the letters written

by him were also placed on record as Exhibit-A/9 to A/15 and

after coming back in the year 2006 they all stayed together in

Pune but on one fine morning he sent a notice and left the family

at Pune and never returned back thereafter. Even the statement of

the respondent as NAW-1 was not only supported by her uncle

NAW-2 but also supported by the other witnesses NAW-3, NAW-4

NAW-5 who are brother-in-law and real sisters of the appellant
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[CMA – 5062/2009]

and all of them have deposed in their statements that for trifling

reasons hot altercations took place between them but nothing

ever was brought to their notice.

Lastly, it was urged by the counsel for the appellant that the

parties have been living separately for a sufficient long time and

the marriage has virtually lost its meaning for them as they have

reached a point of no return and for all practical purposes the

marriage has irretrievably broken down.

To sum up the submissions made, the Apex Court in Anil

Kumar Jain Vs. Maya Jain reported in 2009 (12) Scale 115

has clearly defined the jurisdiction of the High Courts while

considering the ground of irretrievable break down of marriage as

a ground for granting divorce. The Apex Court has stated therein

ad infra:-

“17. …….This doctrine of irretrievable break-down of
marriage is not available even to the High Courts which
do not have powers similar to those exercised by the
Supreme Court under Article 142 of the Constitution.”

Although in our considered view, it is not a case of

irretrievable breakdown of marriage, as being pleaded but that

apart this court lacks jurisdiction to dissolve the marriage on the

doctrine of irretrievable breakdown.

In totality of the matter and after going through the

judgment passed by the ld.Family Court, we are of the view that

the finding recorded by the ld.Family Court in the impugned

judgment is neither perfunctory nor perverse and does not

warrant any interference by this court.

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[CMA – 5062/2009]

Consequently, the instant appeal has no merit and is hereby

dismissed.

(DEEPAK MAHESHWARI)J. (AJAY RASTOGI)J.

Solanki DS

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