1 F.A. No.593/2003

HIGH COURT OF MADHYA PRADESH AT JABALPUR

First Appeal No.593/2003

Gyarsi

VERSUS

Savitri Bai

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

Whether approved for reporting (Yes/No)

JUDGMENT

(11/01/2018)

Per : Smt. Anjuli Palo, J.:-

This appeal has been filed by the appellant-husband under

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

and decree dated 21.10.2003 passed by First Additional District

Judge, District Betul in Civil Suit No.19-A/2003.

2. There is no dispute that the marriage between appellant and

respondent was solemnized in the year 1981. They were residing

separately since last 15 years. There is no marital relationship

between them. They have five children. All were residing with the

respondent.

3. The appellant’s case is that he was working as daily wage

labourer. The appellant alleged that the behaviour of the respondent

was cruel from the very beginning of their marriage. She
2 F.A. No.593/2003

pressurized him to live with her maternal house otherwise she will

commit suicide. She quarreled with him and his parents. The

appellant was mentally tortured by her. There was no marital

relationship between them. He deprived from love and affection of

his own children. Therefore, he filed a divorce petition under

Section 13(1)(ia) of Hindu Marriage Act, 1955 against the

respondent.

4. In reply, the respondent denied the allegations and submits

that she was resided upto 11 years with the appellant but he was

habitual to beat her after consuming liquor and she was along with

their children neglected by the appellant. The appellant failed to pay

maintenance allowance of Rs.600/- per month which was awarded

in favour of the respondent under Section 125 of Cr.P.C. and thrown

her with five children from their house. Hence, the respondent

claims that there is a possibility for restitution of conjugal rights

between them. The appeal filed by the appellant deserves to be

dismissed.

5. Learned trial Court found that the marriage between the

parties was solemnized 22 years’ ago. They have 5 children. The

respondent deposed that she was always beaten by her husband

and under compulsion she was residing separately with her

children. The trial Court has refused to grant divorce decree in

favour of the appellant.

6. Learned trial Court considered that there is a possibility of

settlement between the parties and they will reside together and
3 F.A. No.593/2003

fulfill their marital obligations. Even though, about 13 to 14 years,

they were residing separately, but this alone is not a ground to

grant a decree of divorce in favour of the appellant. On such

ground, a suit under Section 13(1)(ia) of the Hindu Marriage Act,

1955 was dismissed by learned trial Court.

7. The above finding has been challenged by the appellant

before us on the ground that learned trial Court wrongly held that

living separately for a long period of 13 to 14 years is no ground to

grant decree of divorce. The respondent was never interested to

reside with the appellant. Therefore, the appellant has prayed to set

aside the impugned judgment and decree passed by learned trial

Court and to grant a decree of divorce under Section 13(1)(ia) of

the Hindu Marriage Act, 1955 in his favour.

8. We have heard learned counsel for the parties at length and

perused the record.

9. It is not in dispute that the appellant and respondent were

married since long. They have five children out of their wedlock and

residing separately for more than 15 years. The statement of the

respondent has not been rebutted with regard to the fact that the

appellant used to beat her after consuming liquor. Therefore, the

respondent left his house and residing separately with her children.

10. The appellant, in his statement, admitted that the monthly

maintenance allowance awarded against him under Section 125 of

Cr.P.C. is Rs.600/- per month. Even then, only Rs.1000/- was once
4 F.A. No.593/2003

paid by him to the respondent. He continuously neglected his wife.

After awarding the maintenance allowance in favour of the

respondent, he filed a suit for divorce.

11. Learned counsel for the appellant placed reliance on the case

of Satish Sitole Vs. Ganga AIR 2008 SC 3093 and Durga

Prasanna Tripathy Vs. Arundhati Tripathy AIR 2005 SC

3297, in which it was held that :-

“If husband unable to make out ground grounds

– facts however showing that parties lived
separately for 14 years making acrimonious
allegations against each other – Attempts at
reconciliation proved futile – Continuance of
such marriage would itself amount to cruelty –
Decree of divorce granted with adequate
provision of alimony in exercise of powers.”

12. In order to prove cruelty, the complainant party has to

establish that the conduct of spouse has been of such nature. The

conduct of the appellant-husband is evident from the record that he

used to beat and harass the respondent-wife. He persuaded her to

live separately. The appellant himself appears guilty of constructive

desertion and not the respondent-wife. Hence, the appellant cannot

take advantage of his own wrong.

13. On such flimsy ground, the lower Court has rightly declined

the decree of divorce in favour of the appellant. Appellant and

respondent have five children, therefore, decree of divorce could

not be granted putting the future of the children in dark. By such

decree their future would be maligned and that would also be a

stigma for their entire future. That would shatter their mind also.
5 F.A. No.593/2003

14. But we find that the appellant has not stated any allegation

which proved that the respondent’s behaviour is cruel towards him

or his family member or she harassed him in any count. We also

found that the appellant never tried to take the respondent back to

her matrimonial house. He never took care of his wife/respondent

or his children. In such circumstances, there is no evidence against

the respondent for her cruel behaviour.

15. The appellant is not entitled to get decree under Section

13(1)(ia) of the Hindu Marriage Act, 1955 against the respondent.

Accordingly, the first appeal is dismissed.

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

RJ
Digitally signed by RAJESH
KUMAR JYOTISHI
Date: 2018.01.11 16:18:32
+05’30’