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Smt. Saroj vs Sarwan Singh on 15 December, 2017

HIGH COURT OF MADHYA PRADESH, JABALPUR

First Appeal No. 476 of 2014

Smt. Saroj Singh

Versus

Sarwan Singh

Present : Hon. Shri Justice S.K.Gangele
Hon. Shri Justice Anurag Shrivastava,J.J.

Shri Shyam Yadav, learned counsel for the applicant.
Shri P.P. Budhuliya, learned counsel for the respondent.

Whether approved for reporting: Yes/No.

JUDGMENT

( 15.12.2017)

1. The appellant has filed this appeal against the judgment

dated 24th April 2014 passed in RCS No. 507-A of 2012. The trial

court granted a decree of divorce in favour of the respondent

under Section 13 (1-a) (ii) of Hindu Marriage Act.

2. Respondent pleaded in his divorce petition that marriage of

the appellant and respondent was solemnized on 27.12.1989

according to Hindu rituals at Hoshangabad. The appellant

practiced cruelty with the respondent, hence, he filed a suit

for divorce on 13.2.2007. The trial court granted a decree of

judicial separation vide judgment and decree dated 26.9.2007.

Inspite decree of judicial separation, the appellant did not take

any step to live with the respondent. Her behaviour was cruel

and she was not willing to live with the respondent. The

respondent had taken so many steps with intention that the

appellant shall live with him. However, he failed in his
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F.A. No. 476 of 2014
Smt. Saroj s. Sarwan Singh

efforts, hence, he filed the suit for grant of decree of

divorce.

3. The appellant denied the pleadings of the respondent. She

pleaded that she wanted to live with the appellant and after

decree of judicial separation, the respondent had come so

many times at Bhopal where the appellant was living with her

children. She also pleaded that the respondent had illegal

relationship with one lady, namely Anita Tomer and he wanted

to marry with someone else. The appellant also pleaded that

she is willing to live with the respondent.

4. The trial court after appreciation of evidence has held that the

appellant has been living separately with the respondent

without any sufficient cause after passing the decree of

judicial separation. She has no intention to live with the

respondent and granted a decree of divorce.

5. Learned counsel for the appellant has submitted that the trial

court has committed error of law in appreciating the evidence.

There was and is no intention of the appellant to live with the

respondent. The respondent wanted to marry with other

person, hence, the decree passed by the trial court is against

the law.

6. Learned counsel for the respondent has submitted that the trial

court has appreciated the evidence properly. The behaviour of

the appellant was not proper with the respondent as she did

not want to live with the respondent inspite of efforts made by

the respondent. The trial court has rightly passed the decree of

divorce.

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F.A. No. 476 of 2014
Smt. Saroj s. Sarwan Singh

7. The respondent in his evidence deposed that Additional

Principal Judge of Family court granted a decree of judicial

separation, which is Ex. P-1. After passing of the aforesaid

decree no matrimonial relationship has been established

between me and appellant, hence, I filed a suit for decree of

divorce. The behaviour of the appellant was not proper. She

abused me due to her bad behaviour it was impossible to

live with the appellant. She used to beat me and lodged a

false report against me. In his cross examination, he denied

the fact that he made any proposal on Internet for his

marriage. He further denied the fact that he had relationship

with any other lady.

8. PW-2, witness no. 2, Jagdish Sen is the servant, who was

working in the house of respondent when he was posted at

Tikamgarh. He deposed that he had worked at the house of

respondent as his servant from 2004 to 2007. At that time,

the appellant was living at Bhopal. She came to Tikamgarh

three times in three years. When the appellant was at

Tikamgarh, her behaviour was unruly. She had burnt clothes

of the respondent. She used to abuse him. Neither she

cooked food at any time.

9. PW-3, (witness no. 3) Inder Singh Sisodiya was the President

of Watershed Committee in 2003. He deposed that at that

time the respondent was working as SDO of Rural Engineering

Services. The behaviour of the appellant was not proper. She

levelled allegations that the respondent had illegal relationships

with other ladies. She used to take quarrels. At different places,

she used to abuse the respondent.

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F.A. No. 476 of 2014
Smt. Saroj s. Sarwan Singh

10. The appellant examined herself and her one of the children,

Dhirendra Singh. The appellant in her evidence deposed that

the respondent had illegal relationships with one Anita. He

used to drink liquor and used to beat me. He used to

threaten me and he wanted to perform second marriage. In

para A-6 she admitted that at that time the respondent was

posted at Shahdol. He was taking care of children. He used

to come with me. In her cross examination, she deposed

that in 2003, she came to know that the respondent had

relationship with another lady, Anita. She denied the fact that

there was any maid servant. But she admitted that Jagdish,

(PW-2) was working in the house when the respondent was

posted at Tikamgarh. She admitted the fact that in 2009, she

came to know the fact that decree of judicial separation

was passed against her. She admitted the fact that she has not

taken any step to get the decree of judicial separation set

aside. She admitted the fact that the appellant was living at

Shahdol since 2011 and she did not go to that place. She

admitted the fact that since 2006, she has been living at

Bhopal.

11. The son of the appellant, Dhirendra admitted the fact that

respondent was posted at Shahdol. He was incurring

expenses of living and education of the children. He deposed

that respondent used to come to Bhopal. He used to stay at

Bhopal. In his cross examination, he admitted the fact that

appellant and respondent were living separately since 2006.

12. From the evidence of appellant and respondent this fact has

been established that the appellant and respondent both have
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F.A. No. 476 of 2014
Smt. Saroj s. Sarwan Singh

been living separately since 2006. The decree of judicial

separation awarded by the trial court is Ex. P-1. It is dated

26.9.2007. The court passed the following decree –

” vkosnu i fuEukuqlkj Lohdkj ककयय tkrk gSaA %

vkosnd dks i{kdkjksa ds e/य fnukad 27@12@1989 dks हहयय fookg dks नययकयक izfrdj.k

dk जय i iznku ककयय जयतय gSA ”

13. The appellant herself admitted in her evidence that she came

to know about the decree in 2009. Thereafter, she has not

taken no step to file any appeal against the decree. The

appellant has accepted the decree. The son of the appellant

himself admitted the fact in his evidence that the appellant

and respondent have been living separately since 2006.

14. She has stated in her WS that she wanted to live with

respondent. However, there is no evidence on record to show

that she has made any effort to live with the respondent. Only

an evidence has been given that the respondent used to come

to Bhopal. The respondent has specifically denied that he had

any relationship with the appellant after passing of decree for

judicial separation.

15. Section 13 (a) of Hindu Marriage Act 1955 gives rights to a

party to file a petition for dissolution of marriage by decree of

divorce on the following grounds –

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-

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F.A. No. 476 of 2014
Smt. Saroj s. Sarwan Singh

(i) has, after the solemnization of the marriage had
voluntary sexual intercourse with any person other
than his or her spouse; or
(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
(ib) 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
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 veneral 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;

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
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F.A. No. 476 of 2014
Smt. Saroj s. Sarwan Singh

(ii) that there has been no restitution of conjugal
rights as between the parties to the marriage for a
period of one year or upward 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 the 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;

(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, (78 of 1956), or in a
proceeding under Section 125 of the Code of
Criminal Procedure, 1973, (Act 2 of 1974) or under
corresponding Section 488 of the Code of Criminal
Procedure, (5 of 1898), a decree or order, as the
case may be, has been passed against the husband
awarding 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.

16. In the present case, in our opinion, the trial court has rightly

granted a decree of divorce on the above grounds because

from the evidence it has been established that the appellant

has been living separately from the respondent and there is

no resumption of cohabitation between the party for a period

of one year after passing the decree of judicial separation.
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F.A. No. 476 of 2014
Smt. Saroj s. Sarwan Singh

We do not find any merit in this appeal. It is hereby

dismissed.

17. No order as to cost.

(S.K. Gangele) (Anurag Shrivastava)
Judge Judge

bks

Digitally signed by BASANT
KUMAR SHRIVAS
Date: 2017.12.19 10:55:46 +05’30’

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