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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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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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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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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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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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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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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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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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Consequently, the instant appeal has no merit and is hereby
dismissed.
(DEEPAK MAHESHWARI)J. (AJAY RASTOGI)J.
Solanki DS