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Shambhu Prasad Rajak vs Smt Tulsa Bai on 6 July, 2018

D. B. : Hon’ble Shri Justice. S.K.Gangele
Hon’ble Shri Justice Rajendra Kumar Srivastava
First Appeal No. 760/2005

Shambhu Prasad Rajak
Smt. Tulsa Bai
Smt. K.N. Fakhruddin for the appellant.
None for the respondent.


Per Rajendra Kumar Srivastava, J.

This appeal has been filed being aggrieved by

the judgment and decree dated 11/07/2015, passed by 4 th

Additional Distt. Judge, Jabalpur, in Civil Suit No. 283-

A/2002, whereby a decree of dissolution of marriage

under section 13(1)(ia) (ib) has been passed and has

ordered to pay permanent maintenance of Rs. 300/- per

month and return utensil or Rs. 5000/-.

2. Facts of the case in brief are that the

respondent/wife had filed an application under section

13(1)(ia) (ib) of the Hindu Marriage Act, 1955, seeking

F.A. No. 760/2005

divorce against the appellant on the ground of cruelty

and desertion. It is not in dispute that parties had

entered into wedlock in the year 1997 according to

Hindu rites. It is alleged by the respondent/wife that

her husband i.e. present appellant had willfully

deserted her and since then, she is living with her

widow mother at Jabalpur. She has contended in her

application that soon after their marriage, her husband

had started torturing her physically blaming that she is

having an illicit relationship with some another person.

She has further contended that when she went to her

matrimonial house, she was beaten up by her husband

raising a demand of Rs.20,000/-. In spite of best

efforts by the respondent/wife and her family

members, the appellant has refused to live with her,

therefore, it is impossible for her to live with the

appellant/husband. So she made a prayer to pass a

decree of divorce. She filed an application for

F.A. No. 760/2005

permanent alimony and to return the utensil, which

were given at the time of marriage.

3. In reply, the appellant/husband has denied

all the allegations leveled against him submitting that

the respondent/wife had lived with him for about a

period of eight months after their marriage. He had

never tortured her, whereas she used to quarrel with

him under the influence of her mother. Twice he had

tried to take her back to his home but every time she

has refused to come with him. He has also contended

in his reply that he was informed about her pregnancy

when she had left his house and had aborted later on.

Further, he is ready to take her back to his home and

wants to live together, therefore, he has prayed before

the trial Court for dismissal of the application.

4. Considering the above mentioned

pleadings, the trial Court had framed the issues and

recorded evidence. Appellant- Shambhu Prasad,

Ghasiram father of appellant and Ramkripal Rajak

F.A. No. 760/2005

have been examined as defendant’s witnesses being

DW-1, DW-2 and DW-3 respectively and respondent-

Tulsa Bai (PW-1), Gulab Bai (PW-2) and Santosh

Kumar Rajak (PW-3) have also been examined. After

analyzing the oral and documentary evidence available

on record, a finding has been recorded that the

respondent/wife had been able to establish and prove

cruelty and desertion by the appellant/husband and on

that account, the application seeking divorce was

allowed and permanent alimony so also the order to

return utensil or Rs. 5,000/- has been passed.

5. The above finding has been challenged in

this First Appeal by the husband and the only question

which arises for adjudication before this Court is

whether the finding in respect of cruelty and desertion

by the husband, as recorded by the trial Court, is

legally sustainable or not.

6. Learned counsel for the appellant submits

that the Court below erred in passing the impugned

F.A. No. 760/2005

judgment and decree of divorce. The trial Court

wrongly held that the appellant committed cruelty with

the respondent/wife whereas Tulsa Bai (PW-1) has

clearly stated that the wife has never lodged any

complaint regarding cruelty committed by her husband

i.e. present appellant. He has further submitted that

learned Court below has given a wrong finding that

the appellant/husband has deserted his wife, whereas

the appellant was ready to keep her with him and had

made many efforts in this regard, but the

respondent /wife did not agree to live with him and she

is living at her parental home on her own will. Gulab

Bai (PW-2) has stated in her cross-examination that

even if the appellant is ready to take the

respondent/wife back to his home, she does not wish

to send her back. Learned Court below has also

disbelieved the oral and documentary evidence led by

the defence witnesses i.e. Ghasiram (DW-2) and

Ramkripal Rajak (DW-3) and passed the decree of

F.A. No. 760/2005

divorce, hence, the same is not in accordance with law

and liable to be set-aside.

7. None appears for the respondent.

8. Heard the argument of appellant’s counsel

and perused the record.

9. To constitute cruelty, the conduct

complained of should be “grave and weighty” so as to

come to the condition that the petitioner spouse can

not be reasonably expected to live with the other

spouse. The law has been explained in the case of

Dinesh Vs. Shantibai, [2011(4) MPLJ 710], in which

Division Bench of this Court has held that-

“The cruelty has not been defined under the
Hindu Marriage Act, but by way of several judicial
pronouncements the concept and scope of physical
and mental cruelty has been elaborated, it is the
settled position in law that the word cruelty has
been used in section 13(1)(i) of the act in the
context of human conduct or behavior in relation
to or in respect of matrimonial differences of
obligations. It is a course of conduct of one which
is adversely affecting the other. If the cruelty is
physical, it is a question of fact and if it is mental,
the enquiry should begin as to the nature of the
cruel treatment and then as to the impact of such
treatment on the mind of the spouse.”


F.A. No. 760/2005

10. Regarding cruelty, the Court below elaborately

dwelt upon the evidence led by the respondent/wife and

found it to be proved. The respondent/wife has alleged

that the appellant/husband has beaten her by Axe. He used

to beat her and also raised demand for Rs.20,000/-. She

has also stated in her deposition that the

appellant/husband was in illicit relationship with some

other lady. Her Mother-Gulab Bai (PW-2) and Santosh

Kumar Rajak (PW-3) corroborated her evidence. Though

in the cross-examination, the respondent/wife so also her

mother have accepted that they have never lodged any

complaint for the above mentioned act of the

appellant/husband, but their evidence seems to be true and

reliable. The word ‘cruelty has to be understood in

ordinary sense of the term in matrimonial affairs. If the

intention to harm, harass or hurt could be inferred by the

nature of the conduct, ‘cruelty’ could be easily established.

Respondent-Tulsa Bai (PW-1) deposed before the Court in

her evidence that appellant husband was habitual to beat

F.A. No. 760/2005

her so this act of appellant comes in under the purview of


11. Looking to serious nature of allegations made

by the wife so also the statements of witnesses which

support her version, these findings when tested on the

evidence available on record, do not suffer from any


12. So far as the issue of desertion is concerned,

Section 13(1)(ib) of the Act, requires desertion for a

continuous period of not less than two years immediately

preceding the presentation of the divorce petition. Bare

reading of Section 13(1)(ib) of the Hindu Marriage Act,

two conditions must be there-

i. Factum of separation and

ii. Intention to bring cohabitation permanently

to an end.

13. In the present case, it is an admitted fact that

the appellant and respondent are living separately since

1998. In her deposition, the respondent/wife has stated

that the appellant/husband had never turn-up to take her to

F.A. No. 760/2005

his home, whereas on the contrary, when she went to his

house, he fired her out of the house and also beaten her. In

paragraph-5 of her deposition, the respondent/wife has

stated that due to ruthless behavior of her husband, she

does not wish to live with him and want to take divorce.

Gulab Bai (PW-2) who is the mother of respondent/wife,

in her para- 4, has deposed that she is not ready to send

her daughter with the husband/appellant. The fact remains

that for last 20 years, there is no contact between the

appellant and the respondent. From reading the para-9 of

the impugned judgment, it is apparent that the Court has

made efforts under section 23(2) of the Hindu Marriage

Act for reconciliation between the parties, but it was

unsuccessful. It is also apparent that during the pendency

of this appeal, no effort has been made by the

appellant/husband for reconciliation, which indicates that

it is case of irretrievable break-down of marriage.

Appellant husband Shambhu Prasad in his evidence stated

that he did not get information about her wife that why

she is living separate from him since 1998. So this

F.A. No. 760/2005

statement shows his intention to bring cohabitation

permanently to an end. The Hon’ble Supreme Court in the

matter of Naveen Kohli vs Neelu Kohli, reported in

[(2006) 4 SCC 558] has held that-

“Once the parties have separated and the
separation has continued for a sufficient length of
time and one of them has presented a petition for
divorce, it can well be presumed that the marriage
has broken down. The court, no doubt, should
seriously make an endeavour to reconcile the
parties; yet, if it is found that the breakdown is
irreparable, then divorce should not be withheld.
The consequences of preservation in law of the
unworkable marriage which has long ceased to be
effective are bound to be a source of greater
misery for the parties.

A law of divorce based mainly on fault is
inadequate to deal with a broken marriage. Under
the fault theory, guilt has to be proved; divorce
courts are presented concrete instances of human
behaviour as bring the institution of marriage into

We have been principally impressed by the
consideration that once the marriage has broken
down beyond repair, it would be unrealistic for the
law not to take notice of that fact, and it would be
harmful to society and injurious to the interests of
the parties. Where there has been a long period of
continuous separation, it may fairly be surmised
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 do not serve the sanctity of marriage; on
the contrary, it shows scant regard for the feelings
and emotions of the parties.

Public interest demands not only that the
married status should, as far as possible, as long as
possible, and whenever possible, be maintained, but
where a marriage has been wrecked beyond the

F.A. No. 760/2005

hope of salvage, public interest lies in the
recognition of that fact.

Since there is no acceptable way in which a
spouse can be compelled to resume life with the
consort, nothing is gained by trying to keep the
parties tied for ever to a marriage that in fact has
ceased to exist.”

14. The same view has been reiterated in the
subsequent judgment in the matter of Samar Ghosh vs
Jaya Ghosh [2007(4) SCC 411], Vinita Saxena vs
Pankaj Pandit [2006(6) SCC 778]. Thus, from the above
analysis, it is established that the instant case is a clear
case of irretrievable break down of marriage. So ground
of desertion is proved.

15. Appellant did not challenge the findings of
learned trial Court for permanent alimony or return
utensils or Rs. 5000/-. This finding is based on proper
appreciation of evidence.

16. Considering the nature of allegations made by
the wife/respondent against her husband i.e. present
appellant, statements of witnesses so also looking to the
fact that they are living separately for about last 20 years
and the appellant had not come forward for reconciliation
and voluntarily deserted the respondent, there is no
possibility of their reunion, therefore, we are of the
considered opinion that the marriage has break down


F.A. No. 760/2005

17. Hence, the present appeal filed by the
appellant is hereby dismissed. Parties shall bear their
own costs.

(S. K. Gangele) (Rajendra Kumar Srivastava)
Judge Judge

Digitally signed by LALIT SINGH RANA
Date: 2018.07.07 00:32:06 -07’00’

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