1 F.A. No.593/2003
HIGH COURT OF MADHYA PRADESH AT JABALPUR
First Appeal No.593/2003
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)
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
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
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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
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
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
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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)
Digitally signed by RAJESH
Date: 2018.01.11 16:18:32