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Rakesh Kumar vs Sarswati Thakur on 13 December, 2017

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
10

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
12

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
13

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
14

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
15

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

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