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Smt. Shikha Sharma vs Somit Sharma on 7 February, 2018

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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
Division Bench: Hon’ble Shri Justice S. K. Gangele
Hon’ble Smt. Justice Anjuli Palo.

FIRST APPEAL NO.422/2015.

Smt. Shikha Sharma
Versus
Somit Sharma

For appellant : Smt. Indra Nair, with Shri Rajas Pohankar, Advocate.
For respondent: Surendra Verma,Advocate.

Whether approved for reporting: Yes/ No.

JUDGMENT

(Passed on 07.02.2018)
As per S.K. Gangele, J:

1. Appellant has filed this appeal against the judgment dated 19.3.2015

passed in Civil Suit No.4-A/2015. By the aforesaid judgment trial Court

dismissed the suit filed by the appellant-wife under Section 13(1) of Hindu

Marriage Act 1955.

2. Appellant-wife filed a suit for divorce. She pleaded in the plaint that

marriage of the appellant and respondent was solemnized on 5.5.2005 in

accordance with Hindu Rites and Rituals at Pune. Respondent was working

as Area Sales Executive in Indian Tobacco Company at Nagpur. At the time

of marriage family members of the appellant had given sufficient amount.

After marriage the respondent refused to take appellant at Nagpur. She was

forced to live with the family members’ father and mother of the respondent
at Pune. They practiced cruelty with the appellant. Mother of the

respondent did not permit the appellant to live with the respondent.

3. In 2005 the appellant came to Jabalpur. Thereafter, she noticed that

she was pregnant. She informed aforesaid fact to the respondent and his

family members. However, the respondent did not pay any heed to the

problems of the appellant her delivery had taken place at Jabalpur, expenses

of her delivery were incurred by her father and mother. Since then

appellant was living at Jabalpur. Respondent had not taken care of the

appellant and she was not paid any money for her child and herself.

4. Respondent denied the pleadings of the appellant-plaintiff in plaint.

He pleaded that at the time of marriage he was working at Nagpur. On the

insistence of plaintiff-appellant he secured his transfer from Nagpur to

Bombay. At Bombay he had taken one bed room flat on rent. He had tried

his best to live with plaintiff-appellant, however, she did not come back.

Respondent-defendant transferred in the year 2006 at Pune. Appellant had

lived at Pune with the respondent for a brief period. Thereafter she came

back to Jabalpur to pursue her study. He admitted the fact that a daughter

was born from wedlock of appellant and respondent. The delivery was

performed at Jabalpur. He denied pleadings of the appellant that he or his

family members practiced any cruelty with the appellant. He further

pleaded that he had given some amount to the appellant, whenever there

was necessity.

5. The appellant in her evidence in the shape of affidavit filed before the

trial Court deposed the same facts as pleaded in the plaint. She pleaded that

in the year 2005 when she came to Jabalpur, she noticed her pregnancy.
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Expenses of delivery were incurred by her father and mother. Her husband-

respondent did not pay any amount of medical expenses to her. I tried my

best to live with the respondent. However, he did not take any interest in

the appellant and he has been living separately. In her cross-examination

she admitted the fact that she has been living separately since 2005 and she

lived with the respondent-defendant for a brief period. There was detailed

correspondence between appellant and respondent. On behalf of the

appellant her father tendered the evidence. He deposed that appellant has

been living with him. She delivered a child and he had incurred all

expenses, cruelty was practiced with the appellant by the family members of

the respondent and respondent himself. Respondent did not take any step to

take back the appellant, so she can live with him. Appellant filed an

application for grant of maintenance under Section 125 of Cr. P. C. that

application was dismissed by the trial court.

6. Respondent tendered his evidence in support of his case. He pleaded

that after marriage he was transferred to Bombay, he had taken a flat on rent

at Bombay and came back to Jabalpur on 29.8.2007 and requested the

appellant to live with him. However, appellant refused to live with the

respondent. She lived with the respondent for a brief period. He admitted

the fact that in the month of November 2005 the appellant left the company

and she had gone at the residence of her parents. Thereafter, she was living

with her parents. Respondent tried to meet with his daughter but he was not

permitted to meet the daughter and take her photographs. In his cross-

examination he admitted that he was transferred in 2005 at Pune and since

then he was living at Pune. He further admitted the fact that there was long
correspondence between appellant and respondent and he had paid some

amount of interim maintenance as awarded by the trial Court to the

appellant. In paragraph 38 of his cross-examination he admitted the fact

that since November 2005 there is no relationship between him and

appellant as husband and wife.

7. The Apex Court in the matter of Samar Ghosh Vs. Jaya Ghosh report

in (2007) 4 SCC 511 has held as under in regard to mental cruelty and

ground for grant of divorce:

“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 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.

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(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
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
sterilization 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.

10. In the present case, appellant who is the wife pleaded that she was

forced to come to her parents in the year 2005. Thereafter, she noticed in

November 2005 that she became pregnant. She delivered a daughter at

Jabalpur her parents had incurred all expenses of delivery. This fact has

been denied by the respondent. In his cross-examination he admitted the

fact that delivery of appellant had taken place at Jabalpur and he had not

paid any expenses of delivery incurred by the appellant towards Doctors

fees and hospital charges. He also admitted the fact in para 38 of his

evidence that since November 2005 there is no relationship between the
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appellant and respondent as husband and wife. In our opinion, it was the

duty of the respondent to take care of the wife when she was pregnant and

incurred her medical expenses. The respondent was working as Area Sales

Executive in a prestigious company ITC. He was entitled to reimburse

medical expenses from his company in spite that he had not given medical

expenses to appellant. Appellant and respondent have been living separately

since 2005 for last 12 years. There is sufficient evidence on record which

prevent the appellant to live with respondent and respondent is responsible

for the act. Hence, respondent has committed cruelty with appellant. In

such circumstances, in our opinion, appellant is entitled for decree of

divorce. Trial Court committed an error in ignoring evidence on record and

held that there is no reason for appellant to live separately with the

respondent. Consequently, appeal filed by the appellant is allowed,

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

of divorce is granted in favour of the appellant. Marriage performed

between appellant and respondent is hereby dissolved. Parties shall bear

their own costs.

(S.K. Gangele) (Smt. Anjuli Palo)
Judge Judge
kkc

Digitally signed by KRISHAN KUMAR CHOUKSEY
Date: 2018.02.07 16:46:15 +05’30’
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