HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 1775 / 2017
Smt. Sapna W/o Shri Neeraj Khandelwal D/o Shri Ramprasad
Khandelwal B/c Mahajan, Aged About 31 Years, 1-F-6, Mahaveer
Nagar Vistar Yojana, Kota, Raj.
—-Appellant
Versus
Neeraj Khandelwal S/o Shri Laxminarayan Khandelwal, H.N. 1/29,
Jhalani Bhawan, Champanagar, Beawar, Distt. Ajmer (Raj.)
—-Respondent
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For Appellant(s) : Mr.Samarth Sharma, Advocate.
For Respondent(s) : Mr.Rajendra Prasad Sharma, Advocate.
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HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
Judgment reserved on : 5th December, 2017
Date of Judgment : 15th December, 2017
By the Court (Per Hon’ble Mr.Justice Ajay Rastogi):
REPORTABLE
1. The instant misc. appeal is directed against judgment
decree dt.06.03.2017 for granting decree of divorce instead of
judicial separation after the allegation of cruelty being committed
to her stands established as envisaged u/Sec.13(1)(ia) of the
Hindu Marriage Act, 1955.
2. The point that arises for determination in short is that –
Whether the wife who has filed the petition seeking dissolution of
marriage by a decree of divorce u/Sec.13(1)(ia) of the Act, 1955
treating the petitioner with cruelty once stands established on the
basis of the material on record before the ld.Family Court can still
be granted a decree of judicial separation instead of decree of
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divorce, as prayed for.
3. The relevant facts of the case necessary for determination of
the question relevant for the purpose are that marriage of the
appellant with respondent was solemnized on 30.01.2011 in
Beawar, District Ajmer according to the Hindu rites customs. It
was unfortunate that the spouse failed to maintain cordial
matrimonial relations and the appellant-wife has lot of grievances
and complaints against the respondent-husband and cumulatively
it was alleged that she has been treated with cruelty.
4. Petition was filed by the appellant-wife seeking dissolution of
marriage by decree of divorce u/Sec.13(1)(ia) of the Act, 1955 of
being treated with cruelty before the ld.Family Court, Kota and
referred to various instances regarding conduct and behaviour of
the respondent-husband to establish that she has been treated
with mental cruelty. It was alleged that there was heavy demand
of dowry from the family members of the respondent but because
of the non-fulfillment of demands, behaviour of the respondent
and her in-laws converted from bad to worse and all the time they
started to humiliate the appellant in front of the family members
including neighbours and she was being treated inhumanly even
worse then an animal and made her life miserable and it became
impossible for her to live in her matrimonial home and a stage
reached where the appellant was compelled to leave for her
parental home and the respondent used highly abusive language
and threatened her and her family members that she should not
be sent back to her matrimonial home without fulfilling the
demands. Number of efforts were made to resolve their
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matrimonial differences with the intervention of their family
members, members of community but nothing came forward and
ultimately because of the inhuman and pathetic behaviour of the
respondent and her family members, there was no option left with
her except to file divorce petition before the ld.Family Court, Kota
of she being treated with cruelty u/Sec.13(1)(ia) of the Act, 1955
on 14.12.2012. The appellant also instituted a case for offence
u/Sec.498A and 406 IPC against the respondent and that too is
pending and also instituted a case under the Protection of Women
from Domestic Violence Act, 2005.
5. Written statement came to be filed by the respondent and on
the basis of the pleadings of the parties, the ld.Family Court, in all
framed following three issues which read ad infra:-
“1. Whether the behaviour of the respondent towards
the petitioner, on the basis of the averments made in
the divorce petition, could be said to be cruel?
2. Whether the petitioner is entitled for the grant of
decree of divorce against the respondent?
3. Relief?”
6. In support of her defence, the appellant recorded her
statement as AW-1 Sapna and the respondent also got his
statement recorded as NAW-1 Neeraj Khandelwal.
7. The ld.Family Court on the basis of the material on record,
decided the issue No.1 in favour of the appellant holding that she
is being treated with cruelty but still when the matter was
considered for relief, as prayed for dissolution of their marriage,
the ld.Family Court instead of granting decree of divorce granted
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her the decree of judicial separate under the judgment impugned
dt.06.03.2017.
8. No cross objections have been filed by the respondent in
assailing the finding recorded by the ld.Family Court in reference
to issue No.1, which has been decided in favour of the appellant.
9. The main thrust of submission of counsel for appellant is that
once the appellant has been able to successfully establish that the
respondent used to treat the appellant with cruelty, still granting
decree of judicial separation instead of decree of divorce dissolving
their marriage is unreasonable and the decree of judicial
separation be set aside and this court may declare their marriage
is dissolved by granting decree of divorce.
10. Counsel further submits that the appellant has successfully
proven the fact that the respondent used to beat her for not
fulfilling the dowry demands and a chargesheet has been filed by
the police u/Sec.498A 406 IPC against the respondent and the
same has been discussed by the ld.Family Court in detail and
when the factum of the appellant being treated with cruelty by the
respondent has been accepted by the ld.Family Court, there
appears no reason in not granting her decree of divorce, as prayed
which is one of the ground for divorce enumerated at least after
the amendment being made u/Sec.13 which has been substituted
by the Act 68 of 1976 w.e.f. 27.05.1976.
11. Counsel further submits that as regards the application for
restitution of conjugal rights filed by the respondent u/Sec.9 of
the Act, 1955 was nothing but to create a paper evidence and the
fact is that despite of ex-parte order dt.21.07.2015, no efforts
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were made for its execution and in the given facts
circumstances, a case has been made out by the appellant to
dissolve their marriage by granting decree of divorce instead of
judicial separation, as awarded by the ld.Family Court under the
impugned judgment decree dt.06.03.2017.
12. Counsel for the respondent, on the other hand, has opposed
the request and submits that discretion has been exercised by the
ld.Family Court while passing the decree of judicial separation
which could not be said to be illegal or arbitrary and merely
because the decree of divorce for dissolution of marriage was
prayed for by the appellant and even if the allegation of cruelty
stands proved, still it was open for the ld.Family Court to grant
decree of judicial separation instead of dissolution of marriage, as
prayed for and this being a judicial discretion exercised by the
ld.Family Court, which is duly supported by the material on record,
needs no interference by this court.
13. We have heard counsel for the parties and with their
assistance also perused the material available on record.
14. Before examining the question raised for consideration in the
instant appeal, it may be advisable to take at least a glance of the
Hindu Marriage Act, 1955 and the amendment which has been
later on made and in particular the amendment made in the Act,
1955 in 1976 where the Parliament in its wisdom has made major
amendments extending the scope of dissolution of marriage,
which read ad infra:-
“Pre-amendment Sec.10- Judicial Separation: (1)
Either party to a marriage, whether solemnized before
or after the commencement of this Act, may present a
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[CMA-1775/2017]petition to the district court praying for a decree for
judicial separation on the ground that the other party-
(a) has deserted the petitioner for a continuous
period of not less than two years immediately
preceding the presentation of the petition; or
(b) 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 other party; or
(c) has, for a period of not less than one year
immediately preceding the presentation of the
petitioner, been suffering from a virulent form of
leprosy; or
(d) has for a period of not less than three years
immediately preceding the presentation of the
petition been suffering from venereal disease in a
communicable form, the disease not having been
contracted from the petitioner; or
(e) has been continuously of unsound mind for a
period of not less than two years immediately
preceding the presentation of the petition; or
(f) has, after the solemnization of the marriage, had
sexual intercourse with any person other than his or
her spouse.
Explanation. – In this section, the expression
“desertion”, with its grammatical variations and cognate
expressions means the desertion of the petitioner by
the other party to the marriage without reasonable
cause and without the consent or against the wish of
such party, and includes the willful neglect of the
petitioner by the other party to the marriage.
(2) Where a decree for judicial separation has been
passed, it shall no longer be obligatory for the
petitioner to cohabit with the respondent, but the court
may on the application by petition of either party and
on being satisfied of the truth of the statements made
in such petition, rescind the decree if it considers it just
and reasonable to do so.”
“Post-amendment Sec.10- Judicial Separation: (1)
Either party to a marriage, whether solemnized before
or after the commencement of this Act, may present a
petition praying for a decree for judicial separation on
any of the grounds specified in sub-section (1) of
Section 13, and in the case of a wife also on any of the
grounds specified in sub-section (2) thereof, as grounds
on which a petition for divorce might have been
presented.
(2) Where a decree for judicial separation has been
passed, it shall no longer be obligatory for the
petitioner to cohabit with the respondent, but the court
may, on the application by petition of either party and
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on being satisfied of the truth of the statements made
in such petition, rescind the decree if it considers it just
and reasonable to do so.”
“Pre-amendment Sec.13- Divorce: (1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a petition
presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the
other party –
(i) is living in adultery; or
(ii) has ceased to be a Hindu by conversion to
another religion; or
(iii) has been incurably of unsound mind for a
continuous period of not less than three years
immediately preceding the presentation of the
petition; or
(iv) has, for a period of not less than three years
immediately preceding the presentation of the
petition, been suffering from a virulent and
incurable form of leprosy; or
(v) has, for a period of not less than three years
immediately preceding the presentation of the
petition, been suffering from venereal disease in a
communicable form; or
(vi) has renounced the world by entering any
religious order; or
(vii) has not been heard of as being alive for a
period of seven years or more by those persons who
would naturally have heard of it, had that party
been alive;
(1A) Either party to a marriage, whether solemnized
before or after the commencement of this Act, may
also present a petition for the dissolution of the
marriage by a decree of divorce on the ground –
(i) that there has been no resumption of
cohabitation as between the parties to the marriage
for a period of two years or upwards after the
passing of a decree for judicial separation in a
proceeding to which they were parties, or
(ii) that there has been no restitution of conjugal
rights as between the parties to the marriage for a
period of two years or upwards after the passing of
a decree for restitution of conjugal rights in a
proceeding to which they were parties.
(2) A wife may also present a petition for the
dissolution of her marriage by a decree of divorce on
the ground-
(i) in the case of any marriage solemnized before
the commencement of this Act, that the husband
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had married again before such commencement or
that any other wife of the husband married before
such commencement was alive at the time of the
solemnization of the marriage of the petitioner:
Provided that in either case the other wife is alive at
the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of
the marriage, been guilty of rape, sodomy or
bestiality.”
“Post-amendment Sec.13- Divorce: (1) Any
marriage solemnized, whether before or after the
commencement of this Act, may, on a petition
presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the
other party –
(i) has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other
than his or her spouse; or
(i-a) has, after the solemnization of the
marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous
period of not less than two years immediately
preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to
another religion; or
(iii) has been incurably of unsound mind, or has
been suffering continuously or intermittently from
mental disorder of such a kind and to such an
extent that the petitioner cannot reasonably be
expected to live with the respondent.
Explanation.- In this clause,-
(a) the expression “mental disorder” means
mental illness, arrested or incomplete
development of mind, psychopathic disorder or
any other disorder or disability of mind and
include schizophrenia;
(b) the expression “psychopathic disorder”
means a persistent disorder or disability of mind
(whether or not including sub-normality of
intelligence) which results in abnormally
aggressive or seriously irresponsible conduct on
the part of the other party and whether or not it
requires or is susceptible to medical treatment;
or
(iv) has been suffering from a virulent and incurable
form of leprosy; or
(v) has been suffering from venereal disease in a
communicable form; or
(vi) has renounced the world by entering any
religious order; or
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(vii) has not been heard of as being alive for a
period of seven years or more by those persons who
would naturally have heard of it, had that party
been alive;
Explanation.- In this sub-section, the expression
“desertion” means the desertion of the petitioner by
the other party to the marriage without reasonable
cause and without the consent or against the wish
of such party, and includes the willful neglect of the
petitioner by the other party to the marriage, and
its grammatical variations and cognate expression
shall be construed accordingly.
(1-A) Either party to a marriage, whether
solemnized before or after the commencement of
this Act, may also present a petition for the
dissolution of the marriage by a decree of divorce
on the ground-
(i) that there has been no resumption of
cohabitation as between the parties to the
marriage for a period of one year or upwards
after the passing of a decree for judicial
separation in a proceeding to which they were
parties; or
(ii) that there has been no restitution of conjugal
rights as between the parties to the marriage for
a period of one year or upwards after the passing
of a decree of restitution of conjugal rights in a
proceeding to which they were parties.
(2) A wife may also present a petition for the
dissolution of her marriage by a decree of divorce
on the ground-
(i) in the case of any marriage solemnized before
the commencement of this Act, that the husband
had married again before such commencement
or that any other wife of the husband married
before such commencement was alive at the time
of the solemnization of the marriage of the
petitioner:
Provided that in either case the other wife is alive
at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or
bestiality; or
(iii) that in a suit under Section 18 of the Hindu
Adoptions and Maintenance Act, 1956 (78 of
1956), or in a proceeding under Section 125 of
the Code of Criminal Procedure, 1973 (Act 2 of
1974) or under the corresponding Section 488 of
the Code of Criminal Procedure, 1898 (5 of
1898), a decree or order, as the case may be,
has been passed against the husband awarding
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maintenance to the wife notwithstanding that she
was living apart and that since the passing of
such decree or order, cohabitation between the
parties has not been resumed for one year or
upwards;or
(iv) that her marriage (whether consummated or
not) was solemnized before she attained the age
of fifteen years and she has repudiated the
marriage after attaining that age but before
attaining the age of eighteen years.
Explanation.- This clause applies whether the
marriage was solemnized before or after the
commencement of the Marriage Law (Amendment)
Act, 1976.”
15. Before passing of the Marriage Laws (Amendment) Act, 1976
cruelty was a ground only for judicial separation and the petitioner
was required to prove that the respondent had treated him/her
with such cruelty as to cause a reasonable apprehension in his/her
mind that it would be harmful or injurious for the petitioner to live
with the other party.
16. Under the Old Hindu Law, there was no provision of judicial
separation except in certain exceptional cases because Hindu
Marriage, at the initial stage when the Parliament enacted the
Hindu Marriage Act, 1955, was considered to be an indissoluble
union but in the change in structure of the society, the divorce was
recognized under the Hindu Marriage Act, 1955. The ground of
judicial separation and divorce before passing of the Marriage
Laws (Amendment) Act, 1976 were different and the Act of 1976
made those grounds identical.
17. The Act of 1976 liberalized the law of divorce and also
altered the sacramental nature of Hindu marriage. The Act of 1955
was amended earlier in the year 1964 which allowed even the
wrong doer to apply for divorce and the Marriage Laws
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(Amendment) Act, 1976 further liberalized the time limits
prescribed by the Act of 1964. The Marriage Laws (Amendment)
Act, 1976 reduced the time limits for dissolution of marriage
u/Sec.13(1A) of the Act, 1955. It further made the common
grounds for both judicial separation and divorce and omitted the
time limits specified for dissolution of marriage u/Sec.13(1) of the
Act, 1955 and at the same time also inserted a new ground of
divorce by mutual consent u/Sec.13B of the Act, 1955. The Act of
1976 further added two more grounds of divorce enumerated
u/Sec.13(2)(iii) and (iv) of the Act, 1955 and at the same time, it
further reduced the time limit from three years to one year to
apply for divorce. The Marriage Laws (Amendment) Act, 1976
which makes cruelty also a ground for divorce, has changed the
wording of the clause – “respondent has treated the petitioner
with cruelty”. The change in definition of ‘cruelty’ will signify that
an act or omission or conduct which constitutes cruelty is a ground
for judicial separation or divorce, even if it causes no
apprehension of any sort in the mind of the petitioner.
18. The Apex Court in the case of G.V.N.Kameswara Rao Vs.
G.Jabilli reported in (2002) 2 SCC 296 while interpreting
‘cruelty’ within the meaning of Sec.13(1)(ia) of the Act, 1955 has
held that cruelty can be said to be an act committed with the
intention to cause sufferings to the opposite party, observed in
para Nos.9 10 of the judgment ad infra:-
“9. Under Section 13(1) (ia) of the Hindu Marriage Act,
on a petition presented either by the husband or wife,
the marriage could be dissolved by a decree of divorce
on the ground that the other party has, after the
solemnization of the marriage, treated the petitioner
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[CMA-1775/2017]with cruelty. ‘Cruelty’ is not defined in the Act. Some of
the provisions of the Hindu Marriage Act were amended
by Hindu Marriage Laws (Amendment) Act, 1976. Prior
to the amendment, ‘cruelty’ was one of the grounds for
judicial separation under Section 10 of the Act. Under
that Section, “cruelty” was given an extended meaning
by using an adjectival phrase, viz. “as to cause
reasonable apprehension in the mind of the petitioner
that it will be harmful or injurious for the petitioner to
live with the other party”. By the Amendment Act of
1976, “cruelty” was made one of the grounds for
divorce under Section 13 and relevant provision reads
as follows:-
“13. Divorce (1) Any marriage solemnized, whether
before or after the commencement of the Act, may, on
a petition presented by either the husband or the wife,
be dissolved by a decree of divorce on the ground that
the other party –
(i) *** *** ***
(i-a) has, after the solemnization of the marriage,
treated the petitioner with cruelty, or
(i-b) *** *** ***
(ii)-(ix) *** *** ***”
10. The omission of the words, which described
‘cruelty’ in the unamended Section 10 of the Hindu
Marriage Act, has some significance in the sense that it
is not necessary to prove that the nature of the cruelty
is such as to cause reasonable apprehension in the
mind of the petitioner that it would be harmful for the
petitioner to live with the other party. English Courts in
some of the earlier decisions had attempted to define
“cruelty” as an act which involves conduct of such a
nature as to have caused damage to life, limb or health
or to give rise to reasonable apprehension of such
danger. But we do not think that such a degree of
cruelty is required to be proved by the petitioner for
obtaining a decree for divorce. Cruelty can be said to
be an act committed with the intention to cause
sufferings to the opposite party. Austerity of temper,
rudeness of language, occasional outburst of anger,
may not amount to cruelty, though it may amount to
misconduct.”
19. It cannot be denied that society is generally interested in
maintaining the marriage bond and preserving the matrimonial
state with a view to protecting the society, family home and the
proper growth and happiness of children of the marriage.
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Legislation for the purpose of dissolving the marriage constitutes a
departure from that primary principle and the Legislature is
extremely circumspect in setting forth the grounds on which a
marriage may be dissolved. The history of matrimonial legislation
will show that at the outset conservative attitudes influenced the
grounds on which separation or divorce can be granted. Over the
decades, a more liberal attitude was adopted, fostered by
recognition of the need for the individual happiness of the adult
parties directly involved, but although the grounds for divorce
have been liberalized, they nevertheless continue to form an
exception to the general principle favouring the continuation of the
marital tie. A marriage, in law, can be dissolved only by the
method recognized in law and not otherwise.
20. Under the scheme of the Act, dissolution of a marriage is
normally the last option which the Court should exercise but when
a situation comes up, where living together for two of them is no
longer possible or practical, directing the parties to live together
as husband and wife would be totally meaningless.
21. In the statement of object and reasons of the Amending Act
of 1976 the object was stated to be liberalize the provisions
relating to divorce and according to the amended provision the
courts have to interpret, analyse and define what would constitute
cruelty depending upon many factors such as social status of
parties, their education, physical mental conditions, customs
and traditions and may come to the conclusion that acts proved
would amount to cruelty in a given case and there cannot be any
precise definition or to give an exhaustive description of the
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circumstances which may constitute cruelty.
22. In our view the cruelty should be of such a nature as to
satisfy the conscience of the court that relationship between the
parties has deteriorated to such an extent that it would be
impossible for them to live together without mental agony, torture
or distress to entitle the party to secure divorce. Mental cruelty
may consist of verbal abuses and insults by using filthy and
abusive language leading to constant disturbance of mental peace
of the other party.
23. In the instant case, the appellant-wife has been able to
establish from the evidence and the material on record that she
has been treated with cruelty by the act of respondent-husband
who used verbal abuses and insults by using filthy and abusive
language which has constantly disturbed her mental peace and
she has to proceed to the extent of filing of a criminal case against
him wherein chargesheet has been filed u/Sec.498A 406 IPC. At
the same time, this court would like to record that so far as the
finding arrived at by the ld.Family Court on issue No.1 of the
appellant being treated with cruelty is concerned, no cross
objection has been filed by the respondent-husband questioning
the finding arrived at with regard to issue No.1.
24. Indisputably, the petition was also filed by the appellant-wife
seeking decree of divorce and once she has been able to establish
from record that she was being treated with cruelty which is one
of the ground for granting decree of divorce u/Sec.13(1)(ia) of the
Act, 1955 which has been enforced after the Amendment Act,
1976 vide Notification dt.27.05.1976, there appears no reason for
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the ld.Family Court to still grant her the decree of judicial
separation instead of decree of divorce, as prayed for by the
appellant-wife and that apart no justification has been recorded by
the ld.Family Court for granting her judicial separation which was
never prayed for by her.
25. The instant misc. appeal succeeds and is hereby allowed.
The appellant has been able to make out a case of dissolution of
their marriage and for grant of decree of divorce on the proven
facts on record. Accordingly, the judgment decree impugned
dt.06.03.2017 of the ld.Family Court granting her judicial
separation is converted to dissolution of marriage and their
marriage solemnized on 30.01.2011 stands dissolved and the
appellant is granted the decree of divorce, as prayed for.
26. With the modification in judgment decree dt.06.03.2017,
the instant misc. appeal stands disposed of. No costs.
(DEEPAK MAHESHWARI)J. (AJAY RASTOGI)J.
Solanki DS, PS