1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 109 of 2010
(Arising out of judgment dated 19.7.2010 in Case No. 40-A/2008 of the
learned Judge, Family Court, Rajnandgaon)
Judgment Reserved On : 25/09/2017
Judgment Delivered On : 13/12/2017
Rakesh Kumar S/o Shyam Lal Thakur, aged about 42 years, R/o
Old Civil Line, Rajnandgaon, Tahsil District Rajnandgaon (CG)
—- Appellant
Versus
Smt. Sarswati Thakur, W/o Rakesh Thakur, R/o Quarter No.10F,
Street No.86, in front of Durga Platform, Sector -6, Bhilai, District
Durg (CG)
—- Respondent
For Appellant : Shri B.P. Gupta, Advocate.
For Respondent : Shri Saurabh Dangi, Advocate.
Hon’ble Shri Justice Prashant Kumar Mishra
Hon’ble Shri Justice Arvind Singh Chandel
C A V JUDGMENT
The following judgment of the Court was passed by Prashant Kumar
Mishra, J.
1. In this Appeal under Section 19(1) of the Family Courts Act, 1984
the appellant is aggrieved by the dismissal of his suit for grant of
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divorce under Section 13 of the Hindu Marriage Act, 1955 (for
short ‘the Act’).
2. The suit was preferred on the ground that the parties were married
at Rajnandgaon on 11.5.1994. After 5-6 months of the marriage,
the respondent/wife joined the service as Nurse in the Department
of Health without consent of the appellant. In June, 1996, she
lodged a false criminal complaint case before the JMFC, Durg
against the husband and his relatives for offence under Sections
498-A, 493, 494, 495 and 496 of the IPC. She also indulged in
making false and reckless allegations of performing second
marriage by the appellant. She has deserted the appellant for more
than 2 years and they have not cohabited since after February,
1995. By amending and inserting para-4A and 4B in the plaint, it
was stated that at about 5.30 pm on 9.9.2009 the respondent with
two of his nephews namely, Samir Rajput and Sanju Rajput
misbehaved, manhandled, abused and assaulted the appellant
causing injuries over his head and arm. The incident having
occurred at a public place, the appellant’s reputation suffered
severe jolt.
3. It was also pleaded that the respondent/wife made a false and
concocted complaint before the Human Rights Commission,
Raipur on 15.9.2009 alleging that it was the appellant who
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manhandled her on 9.9.2009 threatening that he would abduct and
prepare blue film of her daughter. She also alleged that her two
nephews were arrested and severely beaten in the jail under the
instructions from the appellant to the other jail inmates. According
to the appellant, the above allegations were indecent, vulgar, false
and defamatory. The appellant being a tax practitioner does not
know any criminal so as to pass on instructions and that he cannot
even dream of uttering words which are mentioned in the
complaint in respect of his own daughter. These allegations by the
respondent in the complaint before the Human Rights Commission
amounts to cruelty.
4. The respondent denied the plaint allegations on pleading inter alia
that it was the appellant who arranged job for the respondent and
criminal complaint was lodged because she was subjected to
mental and physical cruelty by the appellant and his parents. She
stated that the appellant has performed second marriage with one
Nisha Thakur of Chhuria, District Rajnandgaon on 24 th May, 1996
and has two children out of the said second marriage. She
reiterated the contents of the complaint made by her to the Human
Rights Commission. She denied that she has deserted the appellant
by stating that after her joining the service at Mungeli in February,
1995, the appellant used to meet her at Mungeli. She would also
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state in her additional pleading that on demand made by the
appellant’s father, scooter was purchased for the appellant. She
also stated that at the time of death of her father on 15.12.1995
neither the appellant nor his family members attended the funeral
and other rituals.
5. The trial Court proceeded to consider two issues as to whether the
respondent/wife has treated the husband with cruelty and has
deserted him and further as to whether the appellant has performed
second marriage. The trial Court has held that the respondent has
not committed cruelty or desertion but the appellant has performed
second marriage.
6. In course of recording of evidence, the appellant was examined as
AW-1 denying in cross-examination that he has performed second
marriage. He also denied that he or his family members were
subjecting the respondent to cruelty. His witness (AW-2) Ashwini
Singh speaks about the effort made by the appellant to bring back
his wife, however, she denied to come back to her marital home.
7. On the other hand, the respondent examined herself as NAW-1
reiterating that the appellant has performed second marriage. She
has produced the birth certificate of Rohit allegedly born out of the
wedlock between the appellant and his second wife. However, the
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said certificate was obtained by one Parwati Yadav with whom the
respondent/wife met for the first time in the office of Municipal
Corporation where the register of deaths and births is maintained.
She admitted that Parwati Yadav handed over certificate to her but
the application was made by her, however, the said fact is not
proved. The document (Ex.-D/3) records the name of Smt. Parwati
Yadav as the person who informed the Municipal Corporation
about the birth of Rohit out of the relation between Rakesh Yadav
and Nisha. The said Parwati is the daily wage employee of the
Municipal Corporation, Rajnandgaon. She claims to be the former
tenant of the appellant and has stated about the relations of Nisha
and appellant Rakesh. As per her statement in the examination-in-
chief, she obtained the certificate on request made by Nisha
Thakur. She admits that the entries concerning birth of Rohit was
made by her in the record of the Municipal Corporation. However,
he admits that the original certificate was handed over to the
respondent/wife instead of handing over the same to Nisha at
whose instance the certificate was obtained. She has not filed any
document or any other proof to substantiate that she was tenant of
the appellant. This lady was also residing separate from her
husband on account of differences between them.
8. The family Court has also considered the statement of NAW-3
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Sangita Thakur, who is the daughter of the appellant and the
respondent. She states that when she had gone to the appellant’s
house while she was studying in 3rd standard, Nisha Thakur was
introduced as her second mother and her grandparents were calling
Nisha as “cgwq”. When the police came to Khairagarh, she, Nisha
Thakur and daugther Sanskar were asked to hide under the bed.
However, in para-7, she would state that her father is not married to
Nisha Thakur. She also stated that her father had taken her,
Sanskar and Nisha to Bilaspur where her father, Nisha and Sanskar
used to sleep on the same bed. During this visit, the appellant used
to tutor this witness that if she is asked in the Court about Surbhi
and Nisha, she should feign ignorance about them. She denies that
she is making statement according to her mother’s desire but admits
that she follows what her mother directs and she has come to the
Court at the request of her mother. She would further explain that
since her father and Nisha used to sleep on the same bed, she
presumes that they were married.
9. One Anil Bajpayee has been produced as NAW-4. This witness is
the Principal of the Kasturbad School, Rajnandgaon, where at the
time of admission of Surbhi, the alleged daughter of appellant and
Nisha, her mother’s name is mentioned as Jaya and father’s name is
mentioned as R. Rajput.
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10. Criminal complaint case preferred by the respondent/wife against
the husband and his family members ended in their acquittal vide
order dated 30.8.2011 in complaint case No.489/10, decided by the
JMFC, Durg, inter alia, finding that the marriage between the
appellant and Nisha Thakur is not proved. The birth certificate of
Rohit procured through Parwati Yadav, a daily wage/muster roll
employee of the Municipal Corporation was not believed. Even if
the said judgment of the criminal Court is not binding on the civil
Court, it has its own persuasive value because it concerns the same
allegations between the parties which was the subject matter in
both the proceedings.
11. Challenging the order of acquittal, the respondent/wife preferred
Cr.A. No.257/12, which was dismissed by the first ASJ, Durg on
11.1.2013. In the appellate judgment also, there is categorical
finding in para-35 that the respondent/wife has miserably failed to
prove the appellant’s second marriage with Nisha or that there was
any demand of dowry or any other kind of cruelty upon her by her
husband and his family members. The appellate Court further
observed that there are material contradictions in the evidence of
complainant’s witnesses and that, had the allegations been true, the
wife would have made allegation of demand of dowry and
commission of cruelty from the very beginning when other
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proceedings were instituted. In the record of the present case also,
certified copy of the order passed by the first ADJ, Rajnandgaon in
MJC No.34/97 decided on 11th May, 2000 is available deciding a
proceeding under Section 6 of the Hindu Minority and
Guardianship Act preferred by the appellant seeking custody of his
daughter Sangita. Perusal of the judgment does not indicate that
the respondent/wife made any allegation of demand of dowry on
the appellant or his family members. In para-8 of the said
judgment also, there is finding that she has failed to prove that the
appellant has performed second marriage.
12. Admittedly, the parties started living separate after about 6 months
of the marriage, however, there is no evidence that the respondent/
wife lodged any FIR against the appellant and his family members
alleging demand of dowry, commission of cruelty and performance
of second marriage. Instead of choosing to file a police report in
relation to cognizable offence, she chose to prefer a private
criminal complaint (Ex.-P/1). The respondent/wife has also
preferred written argument under her own signatures reiterating the
allegations in relation to the incident dated 9.9.2009 where the
appellant allegedly threatened to prepare blue film of his own
daughter. He also admitted to have moved an application before
the State Human Rights Commission, however, despite this
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incident of such a serious act committed by the appellant, the
respondent/wife did not lodge any FIR pertaining to the incident
dated 9.9.2009 nor did she prefer any private criminal complaint or
an application under Section 156 (3) of the CrPC, if her report was
not taken down by the concerned police.
13. We shall now consider as to when lodging of a false criminal case
by the wife against the husband and his family members would
amount to cruelty.
14. In Samar Ghosh Vs. Jaya Ghosh1, the Supreme Court has
indicated illustrative cases where inference of mental cruelty can
be drawn. Such instances are reproduced as under:-
“101. 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”. The instances indicated in the
succeeding paragraphs are only illustrative and not
exhaustive:
(i) On consideration of complete matrimonial life
of the parties, acute mental pain, agony and
suffering as would not make possible for the parties
to live with each other could come within the broad
parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put
up with such conduct and continue to live with
1 (2007) 4 SCC 511
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other party.
(iii) Mere coldness or lack of affection cannot
amount to cruelty, frequent rudeness of language,
petulance of manner, indifference and neglect may
reach such a degree that it makes the married life
for the other spouse absolutely intolerable.
(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 spouse.
(vi) Sustained unjustifiable conduct and behaviour
of one spouse actually affecting physical and
mental health of the other spouse. The treatment
complained of and the resultant danger or
apprehension must be very grave, substantial and
weighty.
(vii) Sustained reprehensible conduct, studied
neglect, indifference or total departure from the
normal standard of conjugal kindness causing
injury to mental health or deriving sadistic pleasure
can also amount to mental cruelty.
(viii) The conduct must be much more than
jealousy, selfishness, possessiveness, which causes
unhappiness and dissatisfaction and emotional
upset may not be a ground for grant of divorce on
the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear
and tear of the married life which happens in day-
to-day life would not be adequate for grant of
divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole
and a few isolated instances over a period of years
will not amount to cruelty. The ill conduct must be
persistent for a fairly lengthy period, where the
relationship has deteriorated to an extent that
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because of the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to live
with the other party any longer, may amount to
mental cruelty.
(xi) If a husband submits himself for an operation
of sterilisation without medical reasons and without
the consent or knowledge of his wife and similarly,
if the wife undergoes vasectomy or abortion
without medical reason or without the consent or
knowledge of her husband, such an act of the
spouse may lead to mental cruelty.
(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.
(xiii) Unilateral decision of either husband or wife
after marriage not to have child from the marriage
may amount to 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.”
15. In K. Srinivas Rao Vs. D.A. Deepa2, the Supreme Court referred
to its earlier decisions in paras-32 to 34 and observed thus:
“32. In V. Bhagat3 this Court noted that divorce
petition was pending for eight years and a good
part of the lives of both the parties had been
consumed in litigation, yet the end was not in sight.
The facts were such that there was no question of
reunion, the marriage having irretrievably broken
down. While dissolving the marriage on the ground
2 (2013) 5 SCC 226
3 V. Bhagat Vs. D. Bhagat, (1994) 1 SCC 337
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of mental cruelty this Court observed that: (SCC p.
351, para 21)
“21. … Irretrievable breakdown of the marriage
is not a ground by itself. But, while scrutinising the
evidence on record to determine whether the
ground(s) alleged is/are made out and in
determining the relief to be granted, the said
circumstance can certainly be borne in mind.”
33. In Naveen Kohli4 where the husband and wife
had been living separately for more than 10 years
and a large number of criminal proceedings had
been initiated by the wife against the husband, this
Court observed that: (SCC p. 582, para 86)
“86. … The marriage has been wrecked beyond
the hope of salvage [and] public interest and
interest of all concerned lies in the recognition of
the fact and to declare defunct de jure what is
already defunct de facto.”
It is important to note that in Naveen Kohli case
this Court made a recommendation to the Union of
India that the Hindu Marriage Act, 1955 be
amended to incorporate irretrievable breakdown of
marriage as a ground for the grant of divorce.
34. In the ultimate analysis, we hold that the
respondent wife has caused by her conduct mental
cruelty to the appellant husband and the marriage
has irretrievably broken down. Dissolution of
marriage will relieve both sides of pain and
anguish. In this Court the respondent wife
expressed that she wants to go back to the appellant
husband, but, that is not possible now. The
appellant husband is not willing to take her back.
Even if we refuse decree of divorce to the appellant
husband, there are hardly any chances of the
respondent wife leading a happy life with the
appellant husband because a lot of bitterness is
created by the conduct of the respondent wife.”
16. In para-29 of the said judgment, the Supreme Court observed that
4 Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558
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spouse can cause mental cruelty by his or her conduct even while
he or she is not staying under the same roof. In a given case, while
staying away, a spouse can cause mental cruelty to the other spouse
by sending vulgar and defamatory letters or notices or filing
complaints containing indecent allegations or by initiating
number of judicial proceedings making the other spouse’s life
miserable. The Supreme Court thereafter referred to its earlier
judgments in the matters of V. Bhagat and Naveen Kohli
(Supra) to highlight the issue of irretrievable breakdown of
marriage and the impossibility of reunion of the parties and further
observed that even if we refuse decree of divorce to the appellant
husband, there are hardly any chances of the respondent wife
leading a happy life with the appellant husband because a lot of
bitterness is created by the conduct of the respondent wife.
17. Yet again in the matter of K. Srinivas Vs. K. Sunita5 the Supreme
Court observed that the respondent wife knowingly and
intentionally filed a false complaint, calculated to embarrass and
incarcerate the appellant and seven members of his family,
therefore, such conduct unquestionably constitutes cruelty as
postulated in Section 13 (1)(i-a) of the Hindu Marriage Act.
18. In an extremely recent judgment in the matter of Raj Talreja Vs.
5 (2014) 16 SCC 34
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Kavita Talreja {2017 SCC Online SC 462}, the Supreme Court
has observed that mere filing of complaints is not cruelty, if there
are justifiable reasons to file the complaints. Merely because no
action is taken on the complaint or after trial the accused is
acquitted may not be a ground to treat such accusations of the wife
as cruelty within the meaning of the Hindu Marriage Act, 1955.
19. Upon conjoint reading of the observations made by the Supreme
Court in the above 3 decisions, it appears, mere filing of complaint
may not by itself amount to cruelty, however, when there is finding
that the criminal case is afterthought and the wife has made
reckless, indecent, vulgar and unsubstantiated allegations against
the husband and his family members, it would definitely amount to
cruelty.
20. In the case at hand, the respondent wife did not lodge any FIR or
application under Section 156 (3) of the CrPC immediately after
her separation from the husband. Instead she chose to file a private
complaint making allegation of demand of dowry and performance
of second marriage, which has not been found proved by the trial
Magistrate as well as by the appellate Sessions Court.
21. We have also examined the evidence and are satisfied that the
finding recorded by the trial Court that the appellant has performed
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second marriage is utterly perverse, as there is absolutely no proof
of his marriage with Nisha. The birth certificate of his so called
son Rohit from second marriage was obtained through daily
wage/muster roll employee who is not authorized in law to obtain
such certificate. While Parwati says that the application for
obtaining certificate was moved by or on behalf of Nisha, the
respondent wife has stated that the certificate was obtained by her
through Parwati. Any responsible officer of the Municipal
Corporation has not been examined to prove that the certificate has
been issued in due course of official business and after due enquiry
pertaining to recording of birth and death in the Municipal
Corporation. If such certificate is believed, any person can obtain
a certificate in relation to third person giving parentage to any
XYZ to defame him in the society. This is apart from the fact that
in the criminal case as well as the proceeding under Section 6 of
the Hindu Minority and Guardianship Act, the ADJ has found that
the second marriage of the appellant with Nisha is not proved.
Thus the second marriage having not been proved and the criminal
complaint alleging commission of cruelty and demand of dowry
having also been dismissed and moreover, the respondent wife
having lodged a complaint in relation to the incident dated
9.9.2009 alleging vulgar and indecent act committed by the
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appellant in relation to his own daughter has also not been taken to
its logical end nor there is any effort to prove the same by
examining any independent witness in the present case, the
respondent wife has committed mental cruelty on the appellant.
22. It is also to be seen that the marriage had taken place on 11.5.1994
and the parties are residing separate since February, 1995 i.e. for
about 22 years and there appears no possibility of their reunion,
therefore, keeping in view the entirety of the circumstances, we are
of the considered opinion that the trial Court should have allowed
the appellant’s prayer for grant of decree of divorce on the grounds
enumerated under Section 13 (1)(i-a) of the Hindu Marriage Act,
1955.
23. Accordingly, we allow the Appeal and set aside the impugned
judgment and decree and instead grant a decree of divorce in
favour of the appellant dissolving his marriage with the respondent
solemnized on 11.5.1994.
24. Parties to bear their respective cost.
25. A decree be drawn accordingly.
Sd/- Sd/-
Judge Judge
(Prashant Kumar Mishra) (Arvind Singh Chandel)
Barve