Smt Sapna vs Neeraj Khandelwal on 15 December, 2017

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

__
For Appellant(s) : Mr.Samarth Sharma, Advocate.
For Respondent(s) : Mr.Rajendra Prasad Sharma, Advocate.
__
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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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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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

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