Smt. Kiran Pasi vs Shri Subhashchandra Pasi on 11 January, 2018

1 FA No. 686/2014
FA No. 688/2014

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR

First Appeal No. 686/2014

Smt. Kiran Pasi
Vs.
Shri Subhashchandra Pasi

First Appeal No. 688/2014

Smt. Kiran Pasi
Vs.
Shri Subhashchandra Pasi

Present : Hon’ble Shri Justice S.K.Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge

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Shri R.L.Gupta, learned counsel for the appellant.
Shri Rajnish Jain, learned counsel for the respondent
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Whether approved for reporting : Yes / No
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Law laid down :- –

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Significant Paragraphs : – –
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JUDGMENT

( 11.01.2018)

Per : Smt. Anjuli Palo, J :-

1. These appeals have been preferred by the appellant-wife

under Section 19 of the Family Court Act, 1984 for setting
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FA No. 688/2014

aside the common judgment dated 05.08.2014 passed by the

Principal Judge, Family Court, Jabalpur in Civil Suit No.

150-A/2012 and 151-A/2012 whereby restitution of conjugal

rights has been granted in favour of the respondent-husband

and appellant’s application for divorce has been refused. As

both these cases arise out of a common order, therefore, we

propose to deal with the matters analogously and dispose of

both the appeals by this common judgment.

2. It is not disputed that the appellant is the wife of

respondent and their marriage was solemnized on 20.04.2008

as per Hindu rites and customs. Brief facts of the case is that,

sometime after the marriage, the respondent-husband deserted

the appellant-wife. The respondent and his family members

demanded Rs. 3 lakhs from the appellant-wife to purchase a

house. When the demand was not fulfilled, they harassed her.

The respondent did not support the appellant and was not

interested to take her to Delhi, where the respondent was

working. The family members of the respondent compelled

her to give away her salary to them and when the appellant

refused to do so, she was thrown out of the house. Hence, the

appellant filed a complaint under Section 498-A of the Indian

Penal Code against the respondent and his family members.
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The appellant-wife was not interested to reside with the

respondent. A petition under Section 9 of the Hindu Marriage

Act, 1955 was filed by her husband which deserves to be

dismissed. On the above grounds the appellant-wife prayed

for a decree of divorce in her favour under Section 13(1) of

the Hindu Marriage Act.

3. In his reply, the respondent-husband denied the

allegations and submitted that the appellant was working as a

Jr. Engineer in Railways at Jabalpur. Before their marriage,

they had met each other. After their marriage, the appellant-

wife resided with the respondent only for few days.

Thereafter, she was not inclined to reside with the respondent.

Appellant-wife blamed the respondent that he had illicit

relationship with another lady named Mrs. Sonal Satpati

which created dispute between them. On 10.02.2009, she left

her matrimonial house and went to reside with her parents.

She also took her ornaments, clothes and scooty. Her parents

were dependent on the income of the appellant. Therefore, the

respondent claimed that he is entitled to restitution of

conjugal rights against the appellant. The petition under

Section 13 of the Hindu Marriage Act deserves to be

dismissed.

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4. After considering, the entire record and evidence, the

learned trial Court found that, as the appellant is working as

Jr. Engineer in Railway Department, due to her ego, she did

not perform her matrimonial duties and obligation towards the

respondent. Parents of the appellant also supported her. The

learned Trial Court did not find that the respondent caused

any mental or physical cruelty on the appellant-wife.

5. Learned Trial Court found that the appellant-wife failed

to prove, the charges leveled against the respondent with

regard to physical and mental cruelty. The learned Trial Court

also found the appellant-wife is liable to continue her marital

relationship and perform her conjugal duties, towards the

respondent. Therefore, the learned Trial Court dismissed the

petition under Section 13 of the Hindu Marriage Act and

allowed the petition under Section 9 of the Hindu Marriage

Act for restitution of conjugal rights within one month from

the impugned order.

6. Both these appeals have been filed by the appellant-wife

under Section 19 of the Family Court Act, 1984, on the

grounds that the application under Section 9 of the Hindu

Marriage Act, 1955 was filed by respondent to show his

bonafide in order to make a defence and inspite of the fact
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that he knowing it very well that in any case it is not possible

for the appellant-wife and respondent-husband to live

together, filed the application. The appellant was harassed by

the respondent to such an extend that it was not possible on

the part of the appellant-wife to live with him. She was badly

abused, beaten and harassed by the respondent and his family

members demanding her salary. The learned Trial Court

wrongly held that the appellant due to her ego, has disturbed

all family relations. The learned trial Court believed one side

of the story of the respondent husband. Therefore, the

appellant-wife has prayed to set aside the impugned order and

pass a decree of divorce in favour of the appellant under

Section 13 of the Hindu Marriage Act.

7. We have heard learned counsel for both the parties.

Perused the record.

8. It is apparently clear from the record that the marriage

between appellant and the respondent was solemnized on

20.04.2008. At paragraph 16 of the cross-examination, the

appellant deposed that she resided at her matrimonial house

till April, 2009. Divorce petition was filed by her on

26.10.2009. At paragraph 20 of the cross-examination, she

admitted that a complaint was filed by her husband before the
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parivar paramarsh kendra in April, 2009 in which her husband

wanted the appellant to reside with him. After considering the

cross-examination of the appellant, it appears that the

appellant was working at Jabalpur and her husband was

working at Delhi. Her husband wanted the appellant to live

with his parents and serve them. It was not acceptable to the

appellant to reside with the parents of the respondent. We

also find that the appellant herself never tried to go and live

with her husband at Delhi.

9. The Apex Court in the case of Samar Ghosh Vs. Jaya

Ghosh (2007) 4 SCC 511 has discussed “mental cruelty”

which is a ground of divorce under Section 13(1)(i)(i-a) of the

Hindu Marriage Act. The relevant extracts are as under :

“No uniform standard can ever be laid
down for guidance, yet we deem it
appropriate to enumerate some instances
of human behaviour which may be
relevant in dealing with the cases of
‘mental
cruelty’…………………………………..

(iv) Mental cruelty is a state of mind. The
feeling of deep anguish, disappointment,
frustration in one spouse caused by the
conduct of other for a long time may lead to
mental cruelty.

(v) A sustained course of abusive and
humiliating treatment calculated to torture,
discommode or render miserable life of the
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spouse.

(xii) Unilateral decision of refusal to have
intercourse for considerable period without
there being any physical incapacity or valid
reason may amount to mental cruelty.

(xiv) Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is
beyond repair. The marriage becomes a
fiction though supported by a legal tie. By
refusing to sever that tie, the law in such
cases, does not serve the sanctity of marriage;
on the contrary, it shows scant regard for the
feelings and emotions of the parties. In such
like situations, it may lead to mental
cruelty……………………….”

10. After following the above principle, a coordinate bench

of this Court in case of Smt. Surabhi Trivedi Vs. Pushkar

Trivedi [First Appeal No. 465 of 2013, judgment dated

11.09.2017] has considered that after a long period of

continuous separation and no efforts by the party to take

unilateral decision or refusal to have intercourse for a

considerable time without there being any physical incapacity

or valid reason may amount to “mental cruelty”. The

marriage becomes a fiction by refusing to serve the law.

11. In case of Durga Prasanna Tripathy Vs. Arundhati

Tripathy [AIR 2005 SC 3297] and Satish Sitole Vs. Ganga

[AIR 2008 SC 3093], Hon’ble Supreme Court has held that if

the husband is unable to make out grounds, facts however
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shows that the parties live separately for a considerable period

of time making acrimonious allegations against each other and

attempts at reconciliation has been proved futile, in such

situation continuance of marriage would itself amount to

cruelty. Accordingly, decree of divorce granted with adequate

provision of alimony in exercise of powers under Article 142

of the Constitution of India. [see also Malathi Ravi, MD vs.

D.V.Ravi, MD, (2014) 7 SCC 640].

12. In the present case, it clearly appears that the parties are

residing separately since long i.e. from the year 2009. None

of them made personal efforts to continue their marital

relationship. After marriage they resided separately and never

tried to live together or to maintain their relation as husband

and wife.

13. Looking to the aforesaid facts and circumstances of the

case and considering the evidence that has come on record, in

our opinion, it would be just and proper to award a decree of

divorce in favour of the appellant. Consequently, the appeals

filed by the appellant is hereby allowed. The impugned

judgment passed by the trial Court is hereby set aside. A

decree of divorce under Section 13 (1) of the Hindu Marriage,

1955 is hereby granted in favour of the appellant. It is further
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declared that the marriage solemnized between the appellant

and respondent is dissolved.

14. Parties shall bear their own costs.

(S.K.GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
vidya

Digitally signed by
SREEVIDYA
Date: 2018.01.11
16:18:07 +05’30’

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