SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Smt. Anjana Singh vs Shyam Singh on 16 February, 2018

1 F.A. No.30/2015

HIGH COURT OF MADHYA PRADESH AT JABALPUR

First Appeal No.30/2015

Smt. Anjana Singh

VERSUS

Shyam Singh

Present : Hon’ble Shri Justice S.K. Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
———————————————————————————–
Shri Abdul Vaheed Choudhary, learned counsel for the appellant.
None present for the respondent.

Whether approved for reporting (Yes/No)

JUDGMENT

(16/02/2018)

Per : Smt. Anjuli Palo, J.:-

This appeal has been filed by the appellant-wife under

Section 28 of the Hindu Marriage Act, 1955 against the judgment

and decree dated 27.10.2014 passed by First Additional District

Judge, District Burhanpur in HMA No.30/2011 whereby a decree of

dissolution of marriage between the parties under Section 13 of the

Hindu Marriage Act, 1955 has been passed.

2. It is not in dispute that the appellant and respondent are

husband and wife. Their marriage was solemnized on 25.11.2003

according to Hindu religion and rites. They have a daughter aged

about 7 years who is residing with the appellant.

3. The divorce petition has been filed by the respondent-

husband against the appellant-wife on the grounds that from
2 F.A. No.30/2015

beginning of marriage the appellant-wife insulting him and used to

quarrel without any reason. She used to go frequently to her

parent’s house and stayed there. When the respondent-husband

objected the appellant-wife, she used to pressurize him to leave his

family and to live at her maternal house. The respondent-husband

is the only son of his parents. He has been mentally harassed by

his wife. The wife deserted her husband and is residing separately

for more than last two years with her parents without any sufficient

reason. Hence, the respondent-husband has filed petition under

Section 13(1)(ia) of the Hindu Marriage Act, 1955 for divorce.

4. Appellant-wife filed a written objection and pleaded that the

respondent has never kept her happy and used to beat her. The

respondent went to Indore for doing service. He has not kept the

appellant with him and the appellant-wife used to live with his

parents at Nepanagar. The respondent-husband threatened to give

her divorce. On 18.03.2009 the respondent-husband has beaten

and ousted her from his house. Matter was reported by the

appellant-wife to Pariwar Paramarsh Kendra. The appellant has also

filed a complaint before J.M.F.C, Sanawad under Domestic Violence

Act on 21.01.2013. An order for maintenance was passed in favour

of the appellant. Thereafter, respondent has filed petition under

Section 9 of the Hindu Marriage Act before the First Additional

District Judge, Burhanpur which has been dismissed on 01.03.2011.

5. It was held by the trial Court that the respondent-husband

was ill-treated and deserted by the appellant. The trial Court
3 F.A. No.30/2015

allowed the application under Section 13 of the Hindu Marriage Act

and declared that the marriage solemnized between the parties on

25.01.2003 has been dissolved from 27.10.2014.

6. The appellant-wife challenged the aforesaid findings on the

grounds that the trial Court has lost the sight that after the

dismissal of petition under Section 9 of the Hindu Marriage Act

bearing no.35/2009, the subsequent petition has been filed under

Section 13(1)(ia) of the Hindu Marriage Act on the same facts and

grounds as in the former petition under Section 9 of the Hindu

Marriage Act, which involved directly and substantially same issues

between the same parties, hence, it is barred by res-judicata. The

trial Court has not considered the facts and circumstances involved

in the case. The trial Court wrongly passed the impugned judgment

and decree in favour of the respondent-husband which is liable to

be set aside.

7. We have heard learned counsel for the appellant and perused

the record.

8. It is not in dispute that the appellant-wife is residing

separately from her husband since 19th March, 2009.

9. Earlier, a petition for restitution of conjugal rights was filed by

the respondent against the appellant, which was dismissed by the

Ist Additional Judge, Burhanpur. It was held that the respondent

claimed for financial aid from the parents of the appellant for

separate residence at Indore. He failed to establish the allegation
4 F.A. No.30/2015

against the appellant that she harassed him with her cruel behavior.

It was also found in earlier petition that the respondent harassed

the appellant, hence, she was residing separately. After failure in

above proceedings, the respondent filed a divorce petition on the

same grounds. Therefore, in our considered view this petition is not

liable to be allowed.

10. The respondent himself admitted that he has been working at

Sukhaliya, Indore since 2003 and residing there alone. We find that

the respondent did not make any effort to live with appellant. In

case of Subodh Gupta Vs. Neetu Gupta reported in AIR

2017 Chh. 196, it has been held as under:-

“24. In Bipinchandra Jaisinghbai Shah Vs.
Prabhavati {AIR 1957 SC 176}, history and
development of a concept of “desertion” as a
cause of action for grant of decree of divorce
has been spelt out. Quoting English authors
and Halsbury’s Laws of England, the Supreme
Court observed thus in para-10:-
“(10) What is desertion? “Rayden on Divorce”
which is a standard work on the subject at
p.128 (6th Edn.) has summarised the case-
law on the subject in these terms:- “Desertion
is the separation of one spouse from the
other, with an intention on the part of the
deserting spouse of bringing cohabitation
permanently to an end without reasonable
cause and without the consent of the other
spouse; but the physical act of departure by
one spouse does not necessarily make that
spouse the deserting party”.

30. There is one more aspect of the case
on which the appellant has pressed for decree
of divorce on the ground of irretrievable
breakdown of marriage. However, suffice it
would be to refer to the Supreme Court’s
decision in the matter of Neelam Kumar
5 F.A. No.30/2015

(Supra) wherein it is held that if the party to
marriage, by his own conduct brings the
relationship to the point of irretrievable
breakdown, he/she cannot be allowed to seek
divorce on the ground of breakdown of
marriage. That would simply mean giving
someone the benefit of his/her own mistake.
The Supreme Court also referred to its earlier
decision in the matter of Vishnu Dutt
Sharma Vs. Manju Sharma {(2009) 6
SCC 379}wherein it is observed that
irretrievable breakdown of marriage is not a
ground for divorce as it is not contemplated
under Section 13 and granting divorce on this
ground alone would amount to adding a
clause therein by a judicial verdict, which
would amount to legislation by Court. Even
otherwise, in some cases, the Supreme Court
has allowed decree on the ground of
irretrievable breakdown of marriage by
exercising power under Article 142 of the
Constitution of India and not as a ground for
divorce under Section 13.”

11. Learned trial Court has lost sight of these facts. Even then the

learned trial Court granted a decree in favour of the respondent

under Section 13(1)(ia), after dismissal of the petition under Section

9 of the Hindu Marriage Act. Therefore, the impugned judgment is

liable to be set aside. Hence, appeal filed by the appellant is

allowed.

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

Digitally signed by RAJESH
KUMAR JYOTISHI
Date: 2018.02.19 16:12:52 +05’30’

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please CLICK HERE to read Group Rules, If You agree then JOIN HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DVACT), Divorce, Maintenance, Alimony, Child Custody, HMA24, 125 CrPc, 307, 313, 376, 377, 406, 420, 506, 509 etc

Web Design BangladeshWeb Design BangladeshMymensingh