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Madhya Pradesh High Court
Shri Karandeep Singh Chawla vs Smt. Gurshish Karandeep Chawla on 1 March, 2024
Author: Sheel Nagu
Bench: Sheel Nagu
F.A. No.712 of 2020
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON’BLE SHRI JUSTICE SHEEL NAGU
HON’BLE SHRI JUSTICE VINAY SARAF
FIRST APPEAL No. 712 of 2020
BETWEEN:-
SHRI KARANDEEP SINGH CHAWLA S/O SATPAL
SINGH CHAWLA, AGED ABOUT 26 YEARS,
OCCUPATION: SELF EMPLOYED R/O SUKHMANI
NIWAS B-43/258 OPP. HOLY CHILD SCHOOL
GANDHI ROAD, THANE (MAHARASHTRA)
…..APPELLANT
(BY SHRI SANKALP KOCHAR – ADVOCATE ALONG WITH APPELLANT
PRESENT IN PERSON)
AND
SMT. GURSHISH KARANDEEP CHAWLA W/O SHRI
KARANDEEP SINGH CHAWLA, AGED ABOUT 26
YEARS, OCCUPATION: SELF EMPLOYED R/O 1342
GUPTESHWAR ROAD, NEAR DASHMESH DWAR,
MANDA MAHAL, JABALPUR (MADHYA PRADESH)
…..RESPONDENT
(BY SHRI RAJESH MAINDIRETTA – ADVOCATE ALONG WITH
RESPONDENT PRESENT IN PERSON)
—————————————————————————————-
Reserved on : 17.02.2024
Pronounced on : 01.03.2024
————————————————————————————-
This appeal having been heard and reserved, coming on for
pronouncement this day, Justice Vinay Saraf passed the following:
Signature Not Verified
Signed by: MOHD IRFAN
SIDDIQUI
Signing time: 3/2/2024
12:07:45 PM
F.A. No.712 of 2020
2
JUDGMENT
Appellant / husband seeking decree of divorce on the ground of
mental cruelty and desertion had preferred petition under Section 13(i-a),
13(i-b) of Hindu Marriage Act, 1955 (in short ‘H M Act’) on 29.08.2018
before VIth Joint Civil Judge, Senior Division, Kalyan, District Thane
(Maharashtra), which was transferred by Supreme Court vide order dated
13.09.2019 passed in T.C. (civil) no. 813/2019 to the court of Principal
Judge, Family Court, Jabalpur and registered as case no. 1127/2019. After
trial, Family Court dismissed petition by impugned judgment and decree
dated 13.10.2020, which are assailed by appellant/husband in present
appeal under section 19 of the Family Courts Act, 1985 r/w section 28 of
the Hindu Marriage Act, 1955.
2. Marriage between parties was solemnized on 09.02.2014 according
to Sikh Rights and Rituals at Ulhasnagar, District Thane (Maharashtra).
They were blessed with a baby girl on 04.12.2014. It is admitted in
present matter that they are living separately since 08.07.2014 and lived
together for 5 months only.
3. For the sake of convenience, appellant hereinafter is referred to as
“husband” and respondent as “wife”.
Husband’s pleading in divorce petition :
4. On 29.08.2018 husband filed petition for divorce on ground of
cruelty and desertion and pleaded infra :
4.1 Husband stated in petition that during the tenure of wife’s stay at
her matrimonial home after marriage, her behaviour was not good and
polite towards husband and his family and she was disobedient, adamant
and used to demand huge amount for her personal expenditure, without
disclosing the need. Wife was very much attached with her parents andSignature Not Verified
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F.A. No.712 of 2020
3used to talk to her mother daily on mobile and her parents visited her
twice or thrice at her matrimonial home.
4.2 Husband further pleaded that since day one, nature of wife was
arrogant and she never paid any heed towards him and did not bother
about feelings of her husband. He further pleaded that when wife was
pregnant, everyone was happy in the family of husband and Gynecologist
advised wife to take rest and avoid travelling despite that she travelled by
car many times unnecessarily.
4.3 According to husband parents of wife came to Ulhasnagar and on
08.07.2014 with the permission of parents of husband took wife to her
parental home with an assurance that she will return on 23.07.2014,
however, she never returned and on phone calls started demanding cash,
document, certificate, gold ornaments, clothes etc. Thereafter, wife’s
father asked husband to prepare consent affidavit for breakup. Husband
and his family members were not able to understand the reason of such a
harsh decision, they pleaded with wife’s father but to no avail.
4.4 Husband further pleaded that he tried his level best to save
marriage, but wife never supported and she was not ready to live with
him and filed false case under the provisions of Domestic Violence Act
against husband and his family members in Jabalpur followed by false
maintenance case. Husband was forced to file M.P. No.193/2015 for
divorce against wife before Kalyan Court, which was transferred by
Supreme Court to Family Court, Jabalpur. In the meantime, wife lodged
false report against husband and his family members u/s 498-A of IPC,
which was registered at Police Station Gorakhpur, Jabalpur.
4.5 It is stated by husband that wife also lodged false F.I.R. u/s 420 of
IPC at Police Station Gorakhpur, Jabalpur against relatives of husbandSignature Not Verified
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F.A. No.712 of 2020
4and in all these cases, wife leveled false allegations against husband and
his family members and caused mental cruelty to him.
4.6 When husband visited Jabalpur for attending hearing dates of M.P.
No. 193/2015, which was transferred by Supreme Court to Family Court
Jabalpur, he was threatened and harassed by goons in Jabalpur and under
the threats of registration of fresh criminal case on each date of attending
hearing at Jabalpur, he was constrained to withdraw said petition.
Husband further stated in petition that wife had left matrimonial home on
08.07.2014 and since then she had willfully deserted husband and kept
him deprived of his conjugal rights and filed various false and frivolous
cases causing mental cruelty to husband.
4.7 When husband tried to meet his daughter Saanjh, wife prevented
him from meeting the child and threatened to trap him in some more false
cases. On the basis of above allegations, husband prayed for grant of
decree of dissolution of marriage on the ground of cruelty and desertion.
Wife’s pleading in divorce petition :
5. Wife in her written statement filed before Family Court, Jabalpur
stated that at the time of marriage, she was just 20 years old and there was
no opportunity for her to misbehave with her husband and in-laws
because she was too young and alone in the family of her husband and
was far away from her parents. She denied all allegations of misbehaviour
and cruelty in toto. She further stated that husband and his family
members misbehaved with her and committed atrocities due to which
they are facing criminal consequence in Jabalpur and complaints lodged
by wife are not false and frivolous.
5.1 She further stated that her husband and his family are big business
tycoon of Mumbai and are renowned builders. It is stated that after
marriage, house hold duties of entire family were shifted on shoulders of
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F.A. No.712 of 2020
5
young wife. She further stated that she was not permitted to take
medicines prescribed by Doctor. Her gold ornaments are in possession of
her mother-in-law. Her father suggested her husband and in-laws to
refrain themselves from causing cruelty and to treat her like their own
daughter, but Domestic Violence was continuously caused and she was
harassed for demand of dowry.
5.2 She further stated that Bank Account was opened in her name,
blank signed cheques were obtained and some of the cheques were
misused for filing false cheque bounce complaint against her in Mumbai.
She never prevented husband from meeting minor child but he never
made any sincere efforts in this regard. It is further stated that there was
all possibilities to save the marriage bond, but parents of her husband are
dowry monger and they wanted remarriage of their son again, therefore
no affords were made. She prayed for dismissal of divorce petition.
6. Husband examined himself as PW-1, Rahul Suresh Bhatia as PW-
2 and wife examined herself as DW-1. Learned Family Court after
considering oral and documentary evidence by judgment dated
13.10.2020 dismissed divorce petition filed by husband holding that
allegation of cruelty as well desertion could not be proved by him.
Judgment dated 13.10.2020 is under challenge in the present appeal.
7. Mr. Sankalp Kochar, learned counsel appeared on behalf of
husband and Mr. Rajesh Maindiretta, learned counsel appeared on behalf
of wife. With the consent of parties, appeal is heard finally.
Maintainability of present appeal
8. Mr. Rajesh Maindiretta, learned counsel appearing on behalf of
respondent/wife raised question of maintainability of present appeal on
the ground that earlier one divorce petition was filed by appellant/
husband in the Court of Civil Judge, Senior Division, Kalyan, which was
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SIDDIQUI
Signing time: 3/2/2024
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F.A. No.712 of 2020
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registered as M.P. No.193/2015 and transferred to Family Court, Jabalpur
by orders of Supreme Court passed in T.P. No.2109/2016 on 06.03.2018.
Husband without seeking any liberty withdrew petition on 24.07.2018
and thereafter once again filed present petition for dissolution of marriage
before Civil Judge, Senior Division, Kalyan registered as M.P. No.
1185/2018, which is not maintainable in view of the provisions of Order
XXIII Rule 1(4) of C.P.C. however, this petition was also transferred to
Family Court, Jabalpur by orders of Apex Court passed on 13.09.2019 in
T.P. (Civil) No. 813/2019.
8.1 After appearance wife moved an application before Family Court,
Jabalpur and submitted that since earlier petition for dissolution of
marriage filed on the ground of cruelty was withdrawn without any
liberty, husband is precluded from instituting any fresh petition on the
same cause of action. Wife’s objection was overruled by Family Court
vide order dated 23.11.2019 by holding that both petitions are not
identical and were filed in respect of different causes of action.
8.2 Learned counsel appearing for wife submits that interlocutory
order passed by Family Court on 23.11.2019 was not challenged by
preferring any appeal or revision or petition before this court and
therefore, objection of maintainability of original divorce petition can be
raised in present appeal. To bolster his submissions, Mr. Rajesh
Maindiretta, learned counsel for respondent/wife relied on judgment of
Apex Court delivered in the matter of Hulas Rai Baij Nath vs. Firm
K.B. Bass and Company, 1967 SCC Online SC 61, wherein Apex Court
has held that if a suit is withdrawn without seeking any liberty to file a
fresh on the same cause of action, subsequent suit is barred in view of
provisions of Order XXIII Rule 1(4) of CPC. He further relied on the
judgment of Single Bench of Andhra Pradesh High Court reported in
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2003 SCC Online A.P. 631 (Jonnala Sura Reddy and another vs.
Tityyagura Srinivasa Reddy and others), wherein similar view was
expressed by Andhra Pradesh High Court.
8.3 Mr. Sankalp Kochar, learned counsel appearing on behalf of
appellant/husband submits that earlier petition was filed on different
cause of action and present petition is filed on different cause of action,
therefore, present petition was maintainable and Family Court rightly
overruled objection raised by wife vide order dated 23.11.2019. In earlier
petition divorce was not sought on the ground of desertion, whereas in
fresh petition ground of desertion was also raised. He submits that
provisions of Order XXIII Rule 1(4) of CPC are not applicable to present
case.
8.4 It is not in dispute that first petition was filed for dissolution of
marriage and second petition was filed for annulment of marriage on the
ground of cruelty and these petitions were dismissed by learned Civil
Judge, Senior Division, Kalyan on the ground of maintainability and
these two petitions are not having any bearing on present case, however,
third petition was filed for dissolution of marriage on the ground of
cruelty on 20.02.2015, which was transferred to Family Court, Jabalpur
and had withdrawn by husband on 24.07.2018 without seeking any liberty
to file afresh on same cause of action. From bare perusal of fresh petition
filed by husband, it appears that fresh petition was filed on different cause
of action and dissolution of marriage was sought on the ground of
desertion also.
8.5 Section 23 (1) (b) of H M Act prohibits grant of decree of divorce
on the ground of cruelty, only if petitioner in any manner condoned the
cruelty. Withdrawal of earlier petition without liberty does not amount to
condonation of cruelty and effect of withdrawal of earlier petition without
Signature Not Verified
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F.A. No.712 of 2020
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any liberty would be to the extent of non-consideration of allegations of
cruelty leveled by husband, committed during stay of wife in matrimonial
home as alleged in earlier petition and in present petition/appeal only
subsequent event of cruelty and desertion are considerable.
8.6 Resultantly, learned Family Court has not committed any error,
irregularity or illegality in overruling the objection of maintainability
raised by wife by order dated 23.11.2019.
Non-compliance of maintenance order :
9. Mr. Rajesh Maindiretta raised issue of noncompliance of
maintenance order by husband and submits that no relief can be granted
to husband and appeal is liable to be dismissed as he failed to comply
order dated 04.03.2016, passed by Judicial Magistrate, First Class,
Jabalpur directing husband to pay maintenance @ Rs. 15,000/- per month
to wife and Rs. 5,000/- to daughter in complaint filed under Domestic
Violence Act. Mr. Maindiretta further submits that Family Court also
passed order to pay maintenance of Rs. 40,000/- per month on 04.11.2016
to wife and daughter in proceedings initiated by wife under Section 125
of Cr.P.C., however husband deliberately and willfully not complied
orders and Rs. 14,40,000/- are arrears of maintenance till date.
9.1 Mr. Maindiretta relied on judgment of Apex Court delivered in the
matter of Rajnesh Vs. Neha Another (2021) 2 SCC 324, order passed
on 06.09.2022 by learned single bench of this court in M. P. no. 3017 of
2022 (Smt. Sangeeta Grover Vs. Ranjan Grover) and judgment passed
by learned single bench of this court on 07.02.2023 in S. A. no. 466 of
2007 (Dwarika Prasad Patel Vs. Smt. Marri), wherein it is held that
when husband is defendant in a case of dissolution of marriage and fails
to comply order of interim maintenance, right to defend of such husband
may be closed. He submits that applying same analogy, appeal for
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SIDDIQUI
Signing time: 3/2/2024
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F.A. No.712 of 2020
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dissolution of marriage by husband can be dismissed for noncompliance
of orders of alimony. On the strength of above pronouncements, counsel
for wife prays for dismissal of appeal.
9.2 Per contra, Mr. Sankalp Kochar submits that on 13.10.2023 this
court issued directions for payment of arrears of maintenance and in
compliance of order passed by this court, husband has already paid
maintenance up-to-date till month of February, 2024 and no reason
survives to dismiss present appeal due to nonpayment of maintenance.
9.3 Firstly, order of interim alimony has not been passed in present
appeal, therefore this appeal cannot be dismissed on account of
noncompliance of order passed in some other proceedings and Secondly,
according to husband, he has already paid arrears of maintenance up-to-
date till February, 2024, hence prayer for dismissal of appeal on this
ground is rejected.
Submissions on behalf of husband :
10. Mr. Sankalp Kochar, learned counsel appearing on behalf of
husband argued at length and submits infra :
10.1 After marriage, behavior of wife with husband and his family
members was not cordial and she used to disobey wishes of family
members. Wife was habitual to demand excessive amount for her
personal expenses and contrary to advice of Doctor during pregnancy
period, travelled for attending religious program. On 08.07.2014 in a pre-
planned manner, she and her parents along with all jewelry, clothes and
documents left her matrimonial home and went to Jabalpur from where
she demanded money for her personal expenses and threatened that if
husband will not provide money she will undergo for termination of
pregnancy and will involve husband in false cases. Acting upon her
threats later on, wife lodged various false reports against husband and his
Signature Not Verified
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SIDDIQUI
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F.A. No.712 of 2020
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family members causing great mental cruelty and in this way, wife treated
husband in a cruel manner, therefore, husband is entitle for decree of
divorce on the ground of cruelty.
10.2 Respondent-wife filed false complaint under provisions of
Protection of Women from Domestic Violence Act, 2005 (in short ” D.V.
Act”) against husband, father-in-law, mother-in-law, brothers-in-law and
Uncles-in-law on 27.09.2014 in the Court of JMFC, Jabalpur, wherein,
learned Magistrate by order dated 11.09.2015 dropped proceedings
against brothers-in-law Harsimar Singh Chawla and Bhavjot Singh
Chawla on the ground that they were minor and against Uncles-in-law
namely Gulshan Singh Chawla and Charanjeet Singh Chawla on the
ground that they do not reside jointly and no specific allegation of
committing Domestic Violence was leveled against them, however,
proceedings are pending against husband, father-in-law and mother-in-
law. Mr. Kochar submits that filing of complaint against brothers-in-law
and uncles-in-law also caused mental cruelty to husband.
10.3 Filing of false FIR amounts to cruelty and respondent-wife lodged
false F.I.R. at Police Station Gorakhpur, Jabalpur on 21.4.2015 registered
as Crime No.234/2015 u/s 498-A/34 of IPC against husband, father-in-
law, mother-in-law and brother-in-law named Harsimar Singh Chawla,
upon allegation that after marriage they subjected her with cruelty,
harassed and tortured in connection with demand of dowry, despite her
father gifted them Rs. 21.00 lacs in cash in marriage and had given
ornaments valued Rs.25.00 lac. It is also alleged in the FIR that they
demanded Rs.10.00 lacs in cash and harassed complainant. After
investigation police has filed charge-sheet and case is pending in the
Court of JMFC Jabalpur.
Signature Not Verified
Signed by: MOHD IRFAN
SIDDIQUI
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F.A. No.712 of 2020
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10.4 Wife lodged another F.I.R. at Police Station Gorakhpur, Jabalpur
on 18.12.2017 registered as Crime No. 857/2017 u/s 294, 506 of IPC
against husband upon allegations that he threatened her near Gorakhpur
Gurudwara and abused in filthy language. Police filed charge-sheet after
investigation and case is pending before JMFC Jabalpur.
10.5 Respondent-wife lodged one more F.I.R. at Police Station
Gorakhpur, Jabalpur on 09.02.2018 registered as Crime No.114/2018 u/s
420/34 of IPC against father-in-law, mother-in-law, Uncles-in-law and
Aunty-in-law upon allegation that they are Directors of Supreme Fabric
Pvt. Ltd., which is a registered Company having its registered Office at
Ludhiyana (Punjab). All of them offered respondent-wife to join the
company as Director and demanded Rs.12.00 lacs for allotment of shares,
which were paid by her, however, neither shares were allotted nor she
was inducted as Director in Company. When she demanded money back,
they stated that company has already been closed and in this way they
cheated complaint-wife. Parents of husband and other relatives preferred
M.Cr.C. No. 19763/2018 before this Court seeking quashment of FIR and
after hearing parties, learned Single Bench of this Court by order dated
26.06.2018, partly allowed petition and quashed proceedings against
Charanjeet Singh Chawla, Kawaljeet Singh Chawla (Uncles of husband)
and Balvinder Kaur Chawla (Aunty of husband), however, declined to
quash proceeding against parents of husband. Police has filed charge-
sheet in the matter before JMFC Jabalpur on 14.12.2019. Mr. Kochar
submits that by mere perusal of bank account statement of wife (EX. P/18
and P/19), it is apparent that amounts were firstly transferred from
accounts of her husband and father-in-law to her account and thereafter
said amount was transferred from her account to the account of Supreme
Fabric Pvt. Ltd. therefore allegation of cheating is per se false and action
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F.A. No.712 of 2020
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of wife amounts to cruelty. More so wife herself has admitted this fact in
para 29 of her cross examination.
10.6 Respondent-wife once again lodged one F.I.R. on 27.08.2018 at
Police Station Gorakhpur, Jabalpur registered as Crime No.569/2018 u/s
294, 452, 506/34 of IPC against her brothers-in-law, Harsimar Singh
Chawla and Bhavjot Singh Chawla, those were discharged from the
compliant of Domestic Violence and in FIR falsely alleged that on
03.08.2018 they forcefully entered into house of respondent-wife and
abused her in filthy language and threatened to kill her. Police filed
charge-sheet against both of them after investigation and matter is
pending before JMFC Jabalpur. It is submitted on behalf of husband that
FIR was lodged with intention to rope in the entire family members in
criminal cases, which amounts to cruelty.
10.7 Filing of multiple FIRs and cases amounts to cruelty and wife has
also filed application under section 125 of Cr.P.C. registered as MJC no.
343/2015, Complaint under section 31 of D.V. Act registered as RCT
10585/2021, MJC no. 454/2017, MJC no. 306/2020 before various courts
in Jabalpur.
10.8 Husband filed Civil Suit No.17/2016 before Family Court, Jabalpur
for custody of minor child, wherein Court issued direction on 18.05.2017
to permit husband to meet minor daughter, but wife did not comply with
the order. In the present matter also, Family Court vide order dated
11.11.2019 permitted husband to meet his minor daughter, however, wife
without complying the order preferred an application on 20.11.2019 for
modification of order on the ground that same may affect mental status of
minor child adversely.
10.9 Family Court by order dated 23.11.2019 recalled its earlier order
dated 11.11.2019, whereby Court had ordered respondent to permit
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F.A. No.712 of 2020
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appellant-husband to meet his minor daughter in the Court. Husband
moved an application on 28.11.2019 with a prayer to permit husband to
meet minor daughter, which was opposed by respondent on the ground
that husband has already met his daughter on 28.11.2019 and there is no
need to call minor daughter on each and every date of hearing. It is
further stated by respondent that appellant forcibly tried to take custody
of minor daughter near Madan Mahal Guruduwara, Jabalpur.
10.10 Family Court has observed that wife is not interested to
comply with order passed by Family Court on 18.05.2017 in Case No.
17/2016 whereby she was ordered to keep the minor daughter present in
the Court for purpose of meeting with husband once in a month. Despite
assurance given by wife in Court that minor daughter will appear before
Court on 08.01.2020, she did not brought minor daughter in Family Court
and Court observed that wife is not interested to comply with order dated
11.12.2019 and she is not serious towards Court proceedings. Thereafter,
on 16.1.2020, minor daughter appeared in Court, but became
uncomfortable after seeing appellant/father and, therefore, was permitted
to go back home. On 29.2.2020, minor daughter appeared before Court
and met her father.
10.11 Learned Counsel for husband submits that wife poisoned
mind of minor daughter against him and tutored her to speak against
husband in Court. Wife through social media and website by uploading
several videos tried to damage prestige and reputation of family of
husband and defamed them and, therefore, he is entitled for decree of
divorce.
10.12 He further submits that both of them have leveled serious
allegations against each other, they are living separately since more than
9 years, several criminal cases are lodged by wife and now it is not
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possible to settle the dispute and instant case is a case of irretrievable
break down of marriage and there is no need to prolong the agony in the
absence of any hope of cohabitation. He thus prayed for decree of
divorce. Apex Court in the matter of V.E.Maya Vs. K.S. Vetrivel SLP
(civil) no. 11761-11762/2022 decided on 11.09.2023 has held that High
Court has committed error of law by relying on the principle of
irretrievable breakdown of marriage to dissolve the marriage between
parties in a contested divorce proceedings without recording the finding
of cruelty on the part of wife. In view of above this court cannot grant
decree of solely on the ground of irretrievable breakdown of marriage.
10.13 Husband submits that wife spread 6 defamatory videos
wherein face of wife was blurred in 5 of them, but in one of the video
wife’s face and voice were clear and her face and voice matched with rest
of videos, which established on record that wife tries to tarnish image of
husband and his family through social media platform “WhatsApp”. This
conduct of wife caused mental agony and amounts to cruelty. It is
submitted that PW-2 Rahul Suresh Bhatia duly proved this conduct of
wife by deposing in court. As husband did not amend his petition and
incorporated pleading regarding spreading of videos y wife, statement of
PW-2 Rahul is not helpful to husband. Evidence without pleading cannot
be looked into.
11. To bolster the submissions, Mr. Kochar relied on following
pronouncements of Apex Court and High Courts infra :
11.1 Ravi Kumar v. Julmidevi, (2010) 4 SCC 476 the relied paras are
extracted herein below :
“19. It may be true that there is no definition of cruelty under
the said Act. Actually such a definition is not possible. In
matrimonial relationship, cruelty would obviously mean
absence of mutual respect and understanding between the
spouses which embitters the relationship and often leads toSignature Not Verified
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F.A. No.712 of 2020
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various outbursts of behaviour which can be termed as
cruelty. Sometime cruelty in a matrimonial relationship may
take the form of violence, sometime it may take a different
form. At times, it may be just an attitude or an approach.
Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any
definition and its categories can never be closed. Whether the
husband is cruel to his wife or the wife is cruel to her husband
has to be ascertained and judged by taking into account the
entire facts and circumstances of the given case and not by
any predetermined rigid formula. Cruelty in matrimonial
cases can be of infinite variety–it may be subtle or even
brutal and may be by gestures and words.”
11.2 Rajesh Bhoyale v. Mahadevi, 2022 SCC OnLine MP 553, the
relied paras are extracted herein below :
“13.From perusal of these documents and allegations as
contained in appeal, divorce application and affidavit, it
appears that for a considerable period of time appellant and
respondent shared domestic incompatibility and conduct of
the respondent wherein she constantly for more than fifteen
years or since 2004, caused irritation, threat, intimidation
and avoiding cohabitation on the pretext or the other
collectively entitled the appellant to get the decree of
divorce.
14.When appellant specifically pleaded about the behaviour
of respondent for last more than 15 years and different stages
of dispute, reconciliation and complaints from time to time
were referred which indicate that both shared domestic
incompatibility.”
11.3 In the case of Samar Ghosh v. Jaya Ghosh, (2010) 4 SCC 339,
Supreme Court has enumerated the illustrative instances of human
behaviour which may be relevant for dealing with the cases of mental
cruelty:
“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 notSignature Not Verified
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F.A. No.712 of 2020
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make possible for the parties to live with each other could
come within the broad parameters of mental cruelty.
(ii)********
(iii)******
(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) ** ** **
(viii) ** ** **
(ix) ********
(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) ** ** **
(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) ** ** **
(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.”
11.4 Vinay Vs. Durga (2017) SCC online Bom 10009, the relied para is
extracted herein below :
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“10. — The husband has clearly pleaded and proved that the
filing of the false complaint by the wife against him in respect
of the offence punishable under section 498A of the Penal
Code has caused mental and financial harassment to the
husband and his family members. It appears that the husband
and his family members were required to secure orders for bail
after the wife lodged the false report against the husband and
his family members. It is held by this Court time and again
that filing of false complaints by the wife against the husband
for the offence punishable under section 498A of the Penal
Code, would tantamount to cruelty. Though the husband has
stated in his cross-examination that in the mediation
proceedings he was ready to take back the wife to the
matrimonial home, he has stated in his examination in chief as
also in his cross-examination that he was not ready to cohabit
with the wife. The father of the husband has stated in his
cross-examination that since the wife has caused great mental
traurria to them in view of the filing of the false proceedings
under section 498A of the Penal Code, the wife should not
return to the matrimonial home. The father of the husband has
expressed a fear that if the wife is permitted to return to the
matrimonial-home, they would constantly be under fear that
she would again lodge a false complaint against the husband
the family members thereby putting them in serious difficulty.
The Family Court did not consider the aspect in respect of
filing of the false complaint by the wife in the right
perspective while dismissing the petition filed by the husband.
The husband is successful in proving that the wife had treated
him with cruelty.”
“6. We have perused the judgement and order of the Judicial
Magistrate, First Class, Pimpri at Pune-18 in C.C. No. 1175 of
2003. We are satisfied after reading the said judgement and
order that the said complaint which was filed by the
Respondent is a false complaint and that is the only inference
which can be drawn from the judgement and order of the trial
Court.
7. In our view, filing of a false criminal complaint itself
amounts to cruelty within the meaning of section 13(i)(a) of
the Hindu Marriage Act. A similar view was taken by the
Division Bench of this Court in Family Court Appeal No. 158
of 2008. The Division Bench had taken into consideration the
judgement and order passed by the trial Court of acquitting the
Appellant therein for the offence punishable under section
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deposition of the Appellant in the trial Court. Taking our
overall view, the impugned judgement and order passed by the
Family Court will have to be quashed and set aside and the
appeal filed by the Appellant will have to be allowed.
8. The Family Court Appeal is, accordingly, allowed and the
judgement and order passed by the District Court, Pune in
Marriage Petition No. 12 of 2004 dated 7-9-2006 is quashed
and set aside and a decree and divorce is granted to the
Appellant as prayed by him in the Petition for Divorce filed by
him in the Family Court. Family Court Appeal is disposed of.”
11.6 Raj Talreja v. Kavita Talreja, (2017) 14 SCC 194, the relied para
is extracted herein below :
“11. Cruelty can never be defined with exactitude. What is
cruelty will depend upon the facts and circumstances of each
case. In the present case, from the facts narrated above, it is
apparent that the wife made reckless, defamatory and false
accusations against her husband, his family members and
colleagues, which would definitely have the effect of
lowering his reputation in the eyes of his peers. 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 (for short “the
Act”). However, if it is found that the allegations are patently
false, then there can be no manner of doubt that the said
conduct of a spouse levelling false accusations against the
other spouse would be an act of cruelty. In the present case,
all the allegations were found to be false. Later, she filed
another complaint alleging that her husband along with some
other persons had trespassed into her house and assaulted her.
The police found, on investigation, that not only was the
complaint false but also the injuries were self-inflicted by the
wife. Thereafter, proceedings were launched against the wife
under Section 182 IPC.”
11.7 K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, relied para is
extracted herein below :
“29. In our opinion, the High Court wrongly held that because
the appellant husband and the respondent wife did not stay
together there is no question of the parties causing cruelty to
each other. Staying together under the same roof is not a
precondition for mental cruelty. 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
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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.
This is what has happened in this case.”
11.8 G.V.N. Kameswara Rao v. G. Jabilli, (2002) 2 SCC 296, the relied
para is extracted herein below :
11.9 Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, the relied paras
are extracted herein below :
“35. The petition for divorce was filed primarily on the
ground of cruelty. It may be pertinent to note that, prior to the
1976 Amendment in the Hindu Marriage Act, 1955 cruelty
was not a ground for claiming divorce under the Hindu
Marriage Act. It was only a ground for claiming judicial
separation under Section 10 of the Act. By the 1976
Amendment, cruelty was made a ground for divorce and the
words which have been omitted from Section 10 are “as to
cause a reasonable apprehension in the mind of the petitioner
that it will be harmful or injurious for the petitioner to live
with the other party”. Therefore, it is not necessary for a party
claiming divorce to prove that the cruel treatment is of such a
nature as to cause an apprehension–a reasonable
apprehension–that it will be harmful or injurious for him or
her to live with the other party.
51. The word “cruelty” has to be understood in the 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 or brutal act complained of, cruelty could be easily
established. But the absence of intention should not make any
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unintentional but inexcusable conduct of any party. The cruel
treatment may also result from the cultural conflict between
the parties. Mental cruelty can be caused by a party when the
other spouse levels an allegation that the petitioner is a
mental patient, or that he requires expert psychological
treatment to restore his mental health, that he is suffering
from paranoid disorder and mental hallucinations, and to
crown it all, to allege that he and all the members of his
family are a bunch of lunatics. The allegation that members
of the petitioner’s family are lunatics and that a streak of
insanity runs through his entire family is also an act of mental
cruelty.”
“35. Learned Principal Judge from all the circumstances as
detailed above concluded that it makes it evident that the
child had been totally and intentionally alienated from her
father by the mother. The discord and the disputes were
between the husband and wife and no matter how bitter the
relationship between them had become, it was not appropriate
to involve the child or embitter her against the father or to use
her as a tool against him.
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37. In the present case as well, the child has not only been
totally alienated, but has also been used as a weapon against
the father. Nothing can be more painful for a parent to see the
child drifting away and being totally against the father. This
assumes some significance in the light that the father never
failed to provide for the child either for her education or
otherwise or to provide army facilities as were available. So
much so, 10% of his salary was being paid to the child for her
maintenance which was subsequently increased to 20%.
38. The learned Principal Judge, Family Courts has, therefore,
rightly concluded that such child alienation is an extreme act
of mental cruelty towards a father who has never shown any
neglect for the child.”
11.11 Prabin Gopal v. Meghna, 2021 SCC OnLine Ker 2193,
the relied paras are extracted herein below :
“16. Yet another facet of mental cruelty on the part of the
respondent canvassed by the learned counsel for the appellant
is regarding the parental alienation. The learned counsel for
the appellant submitted that the respondent intentionally
alienated the child from the appellant depriving his parental
right to be loved by the child. It amounts to nothing but
mental cruelty, argued the counsel. We find some force in the
said argument.
17. Parental alienation describes a process through which a
child becomes estranged from a parent as the result of the
psychological manipulation of another parent. It occurs when
one parent undermines or prejudices the contact and
relationship between the child and the other parent without
well-founded reasons. It is a strategy whereby one parent
intentionally displays to the child unjustified negativity aimed
at the other parent. The purpose of this strategy is to damage
the child’s relationship with the other parent and to turn the
child’s emotions against the other parent. A child has right to
the love and affection of both parents. Similarly, the parents
have the right to receive the love and affection of the child.
Any act on the part of the one parent calculated to deny the
love and affection of the child to the other parent by
alienating the child from him/her amounts to mental cruelty.
18. Coming to the merits, the appellant has given evidence
that he and his parents were completely isolated from the
child and the respondent even refused to send a photo of the
child. Hence, his parents were forced to file a complaint
before the District Legal Services Authority, Thrissur and it
was only with intervention of the authority, they could see the
child. He further gave evidence that the respondent did not
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to know of the birth of the child through his family friends on
the date of delivery. Even though he rushed to the hospital, he
was not permitted to see the child and forcefully obstructed
from entering the hospital by the respondents’ relatives and
strangers on the instruction of the respondent and her parents,
the appellant added. The appellant further deposed that the
respondent did not inform him about the name laying
ceremony of the child and never disclosed anything about the
child including its health condition. The appellant also
deposed that just two weeks after the said compromise, when
he attempted to visit the respondent and the child in
Bangalore to celebrate the birthday of the child, she refused
to even open the door and kept him waiting, without giving
him a chance to see the child. Finally, he had to leave the
birthday gifts and cake in front of the flat and returned. He
specifically stated that after the compromise, the respondent
completely alienated the child from him. There is nothing on
record to disbelieve this evidence. The respondent as a
mother breached every duty she owed as the custodial parent
to the non-custodial parent of instilling love, respect and
feeling in the child for its father. Nothing can be more painful
than experiencing one’s children-one’s own flesh and blood-
rejecting him/her. The above acts of the respondent willfully
alienating the child from the appellant, no doubt, constitute
mental cruelty.”
“16. We have very little to say on facts, especially upon
hearing the learned counsels at the Bar. They do speak for
themselves. The marriage was solemnized in the year 2002. It
fell into rough weather after the birth of their child. Disputes
started between the parties from 2006 onwards. The
appellant-Wife registered a complaint under Section 498-A of
Penal Code, 1860 and Section3 and 4 of the Dowry
Prohibition Act, 1961. The respondent-Husband had
questioned the character of the appellant-Wife. A plea was
also taken in the counter affidavit filed in the petition for
divorce. Incidentally, it was contended that it was she who
had fled the matrimonial home. The respondent-Husband also
demanded a medical examination of the appellant-Wife,
alleging she was living in adultery and had given birth to a
child during the period of non-cohabitation. The said request
was nullified by the Order of the High Court”.
12. Counsel for husband further submits that wife was not interested to
live with family members of husband and she offered husband to live at
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Jabalpur, which was denied by husband, therefore for the purposes of
creating pressure upon husband she lodged multiple criminal cases and
FIRs against husband and his family. He submits that intention of wife
can be gathered from A to A relief sought in first complaint lodged by her
on 27.09.2014 (EX. P/9) under the provisions of D. V. Act, wherein she
sought issuance of directions to husband for living with her at Jabalpur.
These facts were admitted by wife in para 23 of her cross examination.
12.1 Husband has drawn attention of this court towards certain facts
firstly marriage was solemnized on 09.02.2014, wife stayed with husband
till 08.07.2014, there were no serious issues between them till
08.07.2014, when wife did not return in last week of July 2014, husband
sent a notice on 28.08.2014 under section 9 as admitted in EX. P/9 by
wife though copy of notice was not brought on record by any party, wife
filed complaint under D.V. Act on 27.09.2014 with a relief to direct
husband to live at Jabalpur with wife and thereafter FIR under 498-A/34
and other cases one by one. It proves that wife has deserted husband for
continuous period of more than two years without any reason and she was
not interested to live with husband at Ullasnagar. He submits under these
circumstances, husband is entitled for decree of divorce on the ground of
desertion also.
13. It is argued on behalf of husband that three sets of cruelty
committed by wife were duly proved in the present matter i.e. (1) causing
mental cruelty by lodging false cases (2) treating husband with mental
cruelty by not allowing him to meet his minor daughter and (3) forced
husband to reside separately from his parents. Husband prays for grant of
decree of divorce on the ground of cruelty and desertion.
Submissions on behalf of wife :
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14. Mr. Rajesh Maindiretta, learned counsel for respondent-wife
supported judgment and decree passed by learned Family Court and
submits that wife was treated with cruelty by her husband and in-laws
when she was residing at Ullhas Nagar in furtherance of demand of
dowry etc. Husband himself was not interested to continue the relation
and therefore he filed a petition for divorce on 20.02.2015, which was
dismissed for being premature. Thereafter second petition for divorce was
filed by husband and one petition for annulment of marriage was also
filed. This conduct of husband proves his intention from beginning to
somehow get rid of his wife.
14.1 He further submits that learned family court has rightly disbelieved
the allegations leveled by the husband against the wife in regard to her
illbehaviour in the matrimonial home. He submits that the allegations of
cruelty against wife in the matrimonial home are extremely vague and
general. No specific instances are pleaded by husband in the petition to
show that in what manner, the wife treated the husband and his family
members with cruelty. Husband issued first notice to wife on 28.08.2014
for restitution, which proves that allegation of cruelty by wife are
incorrect, otherwise husband would not have issue notice for restitution.
14.2 Wife relied on the judgment of co-ordinate bench delivered in the
matter of Hridesh Tiwari Vs. Smt. Sarita Tiwari First Appeal No.
93/2017 decided on 30.11.2019, relied paras are extracted as under :
“7. The trial Court has observed in impugned judgment that the
appellant has failed to prove that cruelty was inflicted by his
wife. There is no sufficient evidence on record whereby such
conclusion can be drawn that cruelty was performed by his wife
as the statements given in examination-in-chief were rebutted
in cross examination. It appears from the evidence that there
were some disputes between the appellant and the respondent
but the same cannot be said to be disputes amounting to cruelty.
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14.3 Wife further replied on judgments of Apex Court delivered in
(2004) 7 SCC 747 (Shyam Sundar Kohli vs. Sushma Kohli @ Satya
Devi), relied para is extracted as under :
“12. On the ground of irretrievable breakdown of marriage, the
court must not lightly dissolve a marriage. It is only in extreme
circumstances that the court may use this ground for dissolving
a marriage. In this case, the respondent, at all stages and even
before us, has been ready to go back to the appellant. It is the
appellant who has refused to take the respondent back. The
appellant has made baseless allegations against the respondent.
He even went to the extent of filing a complaint of bigamy,
under Section 494 IPC against the respondent. That complaint
came to be dismissed. As stated above, the evidence shows that
the respondent was forced to leave the matrimonial home. It is
the appellant who has been at fault. It can hardly lie in the
mouth of a party who has been at fault and who has not allowed
the marriage to work to claim that the marriage should be
dissolved on the ground of irretrievable breakdown. We, thus,
see no substance in this contention”.
14.4 In (2001) 4 SCC 250 (Chetan Dass vs. Kamla Devi), relied para
is extracted as under :
“14. Matrimonial matters are matters of delicate human and
emotional relationship. It demands mutual trust, regard, respect,
love and affection with sufficient play for reasonable
adjustments with the spouse. The relationship has to conform to
the social norms as well. The matrimonial conduct has now
come to be governed by statute framed, keeping in view such
norms and changed social order. It is sought to be controlled in
the interest of the individuals as well as in broader perspective,
for regulating matrimonial norms for making of a well-knit,
healthy and not a disturbed and porous society. The institution
of marriage occupies an important place and role to play in the
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apply any submission of “irretrievably broken marriage” as a
straitjacket formula for grant of relief of divorce. This aspect
has to be considered in the background of the other facts and
circumstances of the case”.
14.5 In AIR 2018 Bombay 178 (Vishnu vs. Nalini), relied paras 17 and
18 are extracted as under:
“17. Though the Appellant has produced on record copies of
the complaints filed by him in the police station making
allegations against the Respondent, on perusal of the contents
of the said complaints, it appears that such complaints were
filed by the Appellant only to create record against the
Respondent.
18. From the perusal of entire evidence placed on record, we
are of the considered view that the allegations made by the
Appellant against Respondent regarding cruelty are too vague
and general. A decree of divorce on the ground of cruelty
cannot be granted on the basis of general allegations levelled by
the husband against the wife, without clearly mentioning the
manner in which the wife has ill-treated the husband. General
allegations that the wife used to avoid the husband and his
family members and that she used to often visit her parental
house and was not preparing food for the husband, was not
opening the door of the house after his return to home, cannot
constitute cruelty”.
14.6 In AIR 2019 P H 100 (Jitendra Soni vs. Manisha Verma)
relied paras 15 and 16 are extracted as under:
“15. As far as the other allegations of cruelty are concerned, the
appellant has made vague and general allegations that the
respondent-wife was not performing her matrimonial duties and
was rude and used to misbehave with him and his family
members. No specific instance has been given by the appellant
and the assertions made by him were not corroborated by oral,
documentary or medical evidence. There is no evidence on
record that the appellant-husband has ever made any complaint
or called the relatives to show that he was passing through the
abnormal behaviour of his wife. In the present case, the wife
has shown her readiness and willingness to go to her
matrimonial home. There is no suicidal action or other violent
behaviour which could be found from the record of this case.
The multiple litigation between the parties cannot be raised as a
ground of cruelty, rather it is the legal right of any of the parties
to seek redressal from the competent authority. Resorting to
litigation by itself is no reason to infer cruelty unless it can be
shown that it was malafide or false. It is not the case in the
present proceedings.
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16. To constitute cruelty, the conduct complained of should be
“grave and weighty” so as to come to the conclusion that one
spouse cannot be reasonably expected to live with the other
spouse. It must be something more serious than “ordinary wear
and tear” of married life. Cruelty is also a course or conduct of
one, which can adversely effect the other spouse. But
expression ‘cruelty’ has not been defined in the Act. None of
the ingredients has been pointed out by the appellant/husband
in the present case against respondent/wife. But before the
conduct can be called cruelty, it must touch a certain pitch of
severity which we do not find it in the case in hand”.
14.7 It is pointed out by wife that husband himself accepted in para 28
of his statement that he had no objection for intimacy between respondent
and her parents as well as for talking on telephone frequently. According
to husband, parents of wife visited Ulhasnagar twice or thrice and he
himself welcomed them and went to see them off and during their stay
accompanied them. They even stayed with the family of husband
comfortably. In para 34, he accepted that wife offered to live with him but
clarified that wife asked to live separately from his parents. In para 43, he
accepted that he has not been acquitted in criminal cases lodged by wife,
however, clarified that he has been released on bail in all the cases.
14.8 Further pointed out by wife that she stated in para 45 of her cross-
examination that she is ready to live with appellant if appellant stops
committing cruelty and all the cases are disposed of through mediation.
Upon asking, she stated that after resolution of all the cases, she is ready
to go to Ulhasnagar with her daughter to live with appellant. It is
submitted on behalf of wife that learned Family Court rightly observed
that if behaviour of wife was cruel with husband and his family members,
he would have not suggested her in cross-examination to live with him at
Ulhasnagar. It is also rightly observed by Family court that wife has not
denied to go with husband but simply stated that she is ready to go to
Ulhasnagar to live with him forever in case of resolution of all the
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disputes through mediation and husband stops treating her with cruelty. It
is also pointed out by Shri Maindiretta that husband in para 27 of his
statement stated that during period of five months, when wife was living
with him in her matrimonial house, there were minor incidents of dispute
and Family Court rightly observed that disputes between husband and
wife were not severe and there was no such circumstance that they could
not live together in future.
14.9 He further submits that Family Court rightly observed that cases
registered upon the reports of respondent are still pending and appellant
himself has accepted in para 43 of statement that he has not been
acquitted in any case. Though he obtained bail but as the cases are still
pending it cannot be accepted that wife has lodged false report against
husband and his family members.
14.10 It is argued on behalf of wife that Family Court further
observed that husband filed petition for annulment of marriage, which
provides that intention of husband was not to seek restitution of conjugal
rights but to obtained decree of divorce on any ground. Family Court also
observed that in the petition filed for annulment, no allegations of cruelty
was leveled against wife, however, the same was filed after wife left
matrimonial home. Family Court observed that husband has not produced
any evidence to prove the allegations regarding threat of wife to
terminate her pregnancy but to the contrary in para 11 of petition M.P.
No.71/2015 filed before Kalyan Court, it was pleaded by husband that
when he asked wife regarding pregnancy, she said that she has already
aborted the fetus and, therefore, there are material contradiction in the
allegations.
14.11. Mr. Maindiretta submits that husband did not examine any
family member to prove the allegations of cruelty and or treating the
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family with cruelty by wife during the period when she was residing at
her matrimonial home. Family Court has not found any substance in the
allegations of cruelty. On the contrary, Family court has observed that
wife was ready to live with husband and husband was also interested to
cohabit with her. Family Court has observed that husband has not pleaded
that when wife went to Jabalpur on 8.7.2024, what efforts were made by
husband to bring her back and no petition for Restoration of Conjugal
Rights was filed by husband. On the contrary, petition for annulment was
filed which proves that husband was not interested to truly live with wife
and continue their relations. Family Court observed that wife has lodged
various reports against husband and his family members due to cruelty
committed by them. Family Court observed that husband failed to prove
the allegations of desertion by wife, without any reason continuously
since two years before filing the petition.
14.12 Wife submits that learned Family court vide judgment dated
13.10.2020 has rightly held that husband failed to prove the allegations of
treating him with cruelty by wife and decided issue No.1 against husband.
Similarly rightly decided issue No.2 in favour of wife by holding that
wife has not committed any cruelty with husband by lodging various
reports. Family Court also rightly decided issue no.3 in favour of wife
whereby it was decided that husband failed to prove ground of desertion
that wife deserted him since more than 2 years before filing present
petition, without any reason. Learned Family Court rightly dismissed the
petition. Wife prays for dismissal of present petition.
Consideration :
15. The allegations levelled by husband against wife in regard to her
illbehaviour in matrimonial home that she did not perform her duties, are
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30husband in petition to show that in what manner, wife was treating
husband and his family members with cruelty. If wife committed cruelty,
what was the reason for husband to issue notice for restitution on
28.08.2014, which was first written communication between parties.
Learned Family Court has not committed any error in reaching to a
conclusion that husband failed to prove act of cruelty committed by wife
during the period of stay at his residence. The evidence produced by
husband to prove instances cruelty when parties were living together, are
not sufficient, cogent and convincing for reaching to any conclusion of
commission of cruelty by wife and, therefore, allegation of husband that
wife committed cruelty with husband and his family members during her
stay at Ulhasnagar is rejected. More so, as husband had withdrawn
earlier petition of divorce without seeking any liberty, allegation of
cruelty committed by wife during period of living together with husband
cannot be looked into and husband is precluded from raising those
allegations.
16. So far as lodging of FIRs and filing of various criminal cases are
concerned, all cases are still pending and any comment on merits of
pending cases may prejudice interest of parties and create obstacle in just
disposal of cases by competent courts, therefore this court refrains from
giving any finding touching the merits of pending criminal cases.
However, this Court may examine factum of exoneration of brothers and
Uncles of husband by JMFC Jabalpur in complaint lodged by wife under
provisions of D.V. Act and quashment of F.I.R. against Uncles and Aunty
of husband by High Court. Wife tried to rope all family members and
close relatives of husband and lodged FIRs against them and filed
complaint under D.V. Act, wherein younger brothers, uncles and aunty of
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husband were discharged by courts. Roping of family members definitely
caused mental cruelty to husband.
17. Learned Family Court lost sight of crucial fact that F.I.R. registered
against Uncles and Aunty of husband was quashed by High Court on the
ground that they were impleaded in matter only being Directors of
company. Meaning thereby, they were involved without any substance.
Family court fail to consider that complaint under D.V. Act was filed not
only against husband and his parents but against his minor brothers and
uncles and later on JMFC Jabalpur dropped proceeding against minor
brothers and uncles, which prove that they were implicated wrongly.
Learned Family Court held that all criminal cases are pending and
husband has not been acquitted in any case, therefore, allegation of
husband that wife lodged false report and complaints cannot be
considered. Learned Family Court has not considered the situation of
exoneration of family members of husband from complaint of D.V. Act
and quashment of F.I.R. against uncle and aunty of husband. If any family
member is roped in criminal litigation, without any basis and later on
exonerated by competent court or case is quashed against him, it amounts
to malicious prosecution and can become cause for mental cruelty to
husband and his family members.
18. Cruelty can never be defined with exactitude. What is cruelty will
depend upon facts and circumstances of each case. In present case, from
facts, it is apparent that wife made certain reckless, defamatory
accusations against her husband and his family members, which would
definitely have effect of lowering his reputation in society. In present
case, some of the allegations were found to be apparently defamatory viz.
(1) in first hand written complaint of domestic violence (EX. P/9) wife
levelled allegation of pouring kerosene oil on her by husband and his
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family members on 03.07.2014 tried to put her on fire, whereas this
allegation is missing from 11 pages written complaint (EX. P/7) filed
subsequently before JMFC under Section 12 of D. V. Act and from FIR
(EX. P/12) lodged under Section 498-A of I.P.C. as well as from written
statement filed in present matter.
18.1 Wife leveled allegation against her husband in her affidavit of chief
examination in para 8, that “the plaintiff is not only depraved, but leading
a life of a playboy and he is in close proximity with loose character girls
and used to frequent brothels at Mumbai.” This allegation is serious in
nature and without any pleading and evidence wife leveled this allegation
recklessly in affidavit of chief examination.
18.2 Wife leveled allegations of character against her minor brother-in-
law in petition of D.V. Act and proceedings were dropped against him.
Allegations against minor brother-in-law regarding his character
assassination must have caused mental agony not only to minor brother-
in-law but to all family members including husband.
18.3 These are some examples, in fact wife has leveled all types of
allegations against husband and his family members in cases. She has
improved upon these allegations in each subsequent pleading or
complaint. As cases are pending, it is not just and proper to point out per
se defamatory and reckless allegations because this court does not want
to prejudice competent courts to decide cases on merits. However, there
is no hesitation in observing that wife crossed all barriers in levelling
allegations against husband and his family members and in this manner
has committed mental cruelty to husband. Learned Family Court has not
considered this aspect of case and, therefore, findings of learned Family
Court in respect of issue No.1 and 2 are incorrect and hereby set aside.
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18.4 In present matter, when wife left matrimonial home, she was
pregnant and later on gave birth to a baby girl on 4.12.2014. Minor
daughter is residing with wife. Husband tried to met his minor daughter,
however, it was alleged that he tried to take custody of daughter forcibly
from wife near Madan Mahal Gurudwara, Jabalpur. Husband filed a civil
suit No.17/2016 before Family Court Jabalpur for custody of minor child
wherein Family Court issued direction on 18.5.2017 and permitted
husband to meet minor daughter but same was not complied with. In
divorce petition, Family Court time and again, passed orders to present
minor daughter in Court for the purpose of meeting her father but
directions were not complied with and Family Court itself observed in
proceeding dated 8.1.2020 that wife is not interested to comply with
orders to keep present minor daughter in Court for the purpose of meeting
with husband. In this way, wife has tried to keep the minor daughter away
from her father i.e. appellant.
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to mental cruelty. Since child was in the custody of mother, it was held
that mother had breached her duty which she owed as a custodian parent
to instil love, affection and feelings in child for father. Nothing can be
more painful than experiencing one’s own flesh and blood i.e., the child,
rejecting him or her. Such willful alienation of child amounts to mental
cruelty. Kerala High Court has also observed same view in the matter of
Prabin Gopal vs. Meghna, 2021 SCC Online 2193.
18.6 In view of above, pronouncement of Delhi and Kerala High Courts
and in the facts and circumstances of present case, it can be safely
observed that in present case also wife has tried to keep away husband
from minor daughter and tutored her to speak against her own father. This
is serious matter and definitely caused mental cruelty to husband.
18.7. In the present matter, wife is living separately since 8.7.2014,
when wife left matrimonial home with an expectation of husband and his
family members that she will return back till end of the month but she
never returned and since then there was no cohabitation. All the
possibilities of mediation among them failed. At the time of enumerating
illustrative instances of human behaviour, which may be relevant for
deciding cases of mental cruelty, Supreme Court in the case of Samar
Ghosh vs. Jaya Ghosh, (2010) 4 Vol SCC 309 enumerated one example
that, where there has been a long period of continues separation, it may
fairly be concluded that matrimonial bond is beyond repair and marriage
becomes affliction though supported by a legal tie. By refusing to save
that tie, law in such cases does not serve sanctity of marriage. On the
contrary, it shows scant regard for feelings and emotions of parties. In
such like situations, it may linked to mental cruelty. The present case is
squarely covered under the aforesaid illustrative of mental cruelty. As for
more than 9 years, parties are living separately.
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18.8 In view of above analysis, this court holds that respondent wife
has caused by her conduct mental cruelty to appellant husband and
marriage has irretrievably broken down due to multiple FIRs and
complaints lodged by wife. Dissolution of marriage will relieve both
sides of pain and anguish. Before Family Court respondent wife
expressed that she wants to go back to appellant husband, if all the cases
are settled, but, that is not possible now. Appellant husband is not willing
to take her back. Even if this court refuses decree of divorce to appellant
husband, there are hardly any chances of respondent wife leading a happy
life with appellant husband because a lot of bitterness created by conduct
of respondent wife, which amounts to cruelty. This Court is aware that
High Court cannot grant decree for dissolution of marriage on the ground
of irretrievable break down of marriage but as stated above, Apex Court
in matter of Samar Ghosh (supra) has incorporated situation of long
period of continuous separation as an example of mental cruelty. Thus,
this may be considered as a cause for reaching to the conclusion of
mental cruelty.
18.9 From above discussion, it appears that husband has proved
allegation of commission of mental cruelty by wife and he is entitled for
decree of dissolution of marriage on the ground of mental cruelty. His
petition is liable to be allowed under Section 13(1)(i-a) of Hindu
Marriage Act.
19. Wife has deserted husband after just 5 months of marriage only for
living in Jabalpur and lodged the complaint under D.V. Act, whereas
husband issued notice for restitution. Wife did not react on notice and
filed cases one after another. It is observed by family court itself that
there was no serious dispute between husband and wife when she left
matrimonial home, but despite going back wife started litigation with a
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prayer for issuance of direction to husband to live in Jabalpur with her.
Husband has filed first petition before Kalyan court after receipt of notice
of D. V. Act complaint and application filed under section 125 of Cr.P.C.
by wife. Meaning thereby wife left matrimonial home without there being
any reasonable cause.
19.1 The Apex Court in the matter of Dr. Nirmal Singh Panesar vs.
Paramjit Kaur Panesar, 2023 SCC Online SC 1297, considering the
essential conditions of ground of desertion has held as under:-
11. Similarly, the law is also well settled as to what could be said to
be “Desertion” in the divorce proceedings filed under Section 13 of
the said Act. The expression “Desertion” had come up under the
judicial scrutiny of this Court in Bipin Chandra Jai Singh Bai Shah
v. Prabhavati, which was again considered in case of Lachman
Utamchand Kirpalani v. Meena alias Mota. This Court collating the
observations made in the earlier decisions, stated its view as under:
—
“Collating the aforesaid observations, the view of this Court
may be stated thus : Heavy burden lies upon a petitioner who seeks
divorce on the ground of desertion to prove four essential
conditions, namely, (1) the factum of separation; (2) animus
deserendi; (3) absence of his or her consent; and (4) absence of his
or her conduct giving reasonable cause to the deserting spouse to
leave the matrimonial home.”
12. Recently, in Debananda Tamuli v. Kakumoni Kataky, the Court
referring the decision in case of Lachman UtamChand Kirpalani
(supra) observed as under:–
“7. We have given careful consideration to her submissions.
Firstly, we deal with the issue of desertion. The learned counsel
appearing for the appellant relied upon the decision of this Court in
Lachman Utamchand Kirpalani [Lachman Utamchand Kirpalani v.
Meena, (1964) 4 SCR 331 : AIR 1964 SC 40] which has been
consistently followed in several decisions of this Court. The law
consistently laid down by this Court is that desertion means the
intentional abandonment of one spouse by the other without the
consent of the other and without a reasonable cause. The deserted
spouse must prove that there is a factum of separation and there is
an intention on the part of deserting spouse to bring the
cohabitation to a permanent end. In other words, there should be
animus deserendi on the part of the deserting spouse. There must
be an absence of consent on the part of the deserted spouse and the
conduct of the deserted spouse should not give a reasonable cause
to the deserting spouse to leave the matrimonial home. The view
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to subsection (1) of Section 13 by Act 68 of 1976. The said
Explanation reads thus:
“13. Divorce. — (1) * * *
Explanation. –In this sub-section, the expression
“desertion” means the desertion of the petitioner by the other party
to the marriage without reasonable cause and without the consent
or against the wish of such party, and includes the wilful neglect of
the petitioner by the other party to the marriage, and its
grammatical variations and cognate expressions shall be construed
accordingly.””
“8. The reasons for a dispute between husband and wife are
always very complex. Every matrimonial dispute is different from
another. Whether a case of desertion is established or not will
depend on the peculiar facts of each case. It is a matter of drawing
an inference based on the facts brought on record by way of
evidence.”
19.2 The Apex Court in the matter of Adhyatma Bhattar Alwar vs.
Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308 has held as under:
7. “Desertion” in the context of matrimonial law represents
a legal conception. It is difficult to give a comprehensive definition
of the term. The essential ingredients of this offence in order that it
may furnish a ground for relief are:
1. the factum of separation;
2. the intention to bring cohabitation permanently to an end
— animus deserendi;
3. the element of permanence which is a prime condition
requires that both these essential ingredients should continue
during the entire statutory period;
The clause lays down the rule that desertion to amount to a
matrimonial offence must be for a continuous period of not less
than two years immediately preceding the presentation of the
petition. This clause has to be read with the Explanation. The
Explanation has widened the definition of desertion to include
“wilful neglect” of the petitioning spouse by the respondent. It
states that to amount to a matrimonial offence desertion must be
without reasonable cause and without the consent or against the
wish of the petitioner. From the Explanation it is abundantly clear
that the legislature intended to give to the expression a wide import
which includes wilful neglect of the petitioner by the other party to
the marriage. Therefore, for the offence of desertion, so far as the
deserting spouse is concerned, two essential conditions must be
there, namely, (1) the factum of separation, and (2) the intention to
bring cohabitation permanently to an end (animus deserendi).
Similarly, two elements are essential so far as the deserted spouse
is concerned: (1) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid. The
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petition for divorce bears the burden of proving those elements in
the two spouses respectively and their continuance throughout the
statutory period.
19.3 In the present matter, factum of separation is undisputed. The
parties are residing separately since 8.7.2014. Animus Deserendi is
apparent from fact that wife despite returning back to matrimonial home
lodged a complaint (Ex.P/9) under D.V. Act wherein she prayed for
issuance of a direction to husband to live with her separately in Jabalpur,
which proves that there was no intention of wife to go back to her
matrimonial home though husband issued notice for restitution. The act
of separation was without any consent of husband and according to
finding of learned Family Court itself, there was no such reasonable cause
for leaving home permanently. In this way, all the essential elements
required to prove desertion are available in the present matter. Wife has
left the matrimonial home without reasonable cause and without consent
of her husband or against will of her spouse and living separately since
last more than 9 years. Wife has not filed any application for Restitution
of Conjugal Rights and straight way filed complaint under D.V. Act with
relief to issue direction to husband for bringing him at Jabalpur, which
shows the intention of wife. Learned Family court has observed that
husband has not filed any petition for Restitution but at the same time,
learned Family Court omitted to consider that first written
communication between the parties was notice issued by husband on
28.4.2014 for restitution and in turn wife filed complaint under D.V. Act,
case under Section 125 of Cr.P.C. and started litigation, therefore, there
was no occasion for husband to file any petition for restitution and he
cannot be held liable for the same. The allegation is not against husband
that he has deserted his wife but the allegation is against wife that she has
deserted her husband. Therefore, the initial burden was on husband to
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prove that they are living separately since long period of more than two
years before filing the petition, and separation is without his consent and
wife has left home with a firm decision that she will not return to
matrimonial home. In the present matter, these conditions were proved by
husband and thereafter burden shifted to the wife to prove that act could
not be attributable to an animus deserendi and she is living separately due
to reasonable cause. However, wife failed to prove the same and
consequently husband is entitled for decree of divorce on the ground of
desertion also. The findings of Family Court in respect of issue No.3 is
hereby set aside. The husband is found entitle for decree of dissolution of
marriage under Section 13(1)(i-b) of Hindu Marriage Act.
20. In the above conspectus, the appeal stands allowed and following
reliefs granted to appellant husband :
20.1 Impugned judgment and decree passed by Principal Judge, Family
Court, Jabalpur in RCS case no. 1127/2019 dated 13.10.2020 are hereby
set aside.
20.2 Petition filed by appellant husband under section 13(1)(i-a) and
13(1)(i-b) is allowed and the marriage solemnized between Karanjeet
Singh Chawla and Gurshish Kaur on 09.02.2014 is hereby dissolved on
the ground of cruelty and desertion.
20.3 No orders as to costs.
20.4 Decree be drawn up accordingly. Record of Family Court be
returned along with copy of judgment and decree.
(SHEEL NAGU) (VINAY SARAF)
JUDGE JUDGE
Irfan.
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