1 FA No. 686/2014
FA No. 688/2014
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
First Appeal No. 686/2014
Smt. Kiran Pasi
Vs.
Shri Subhashchandra Pasi
First Appeal No. 688/2014
Smt. Kiran Pasi
Vs.
Shri Subhashchandra Pasi
Present : Hon’ble Shri Justice S.K.Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
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Shri R.L.Gupta, learned counsel for the appellant.
Shri Rajnish Jain, learned counsel for the respondent
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Whether approved for reporting : Yes / No
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Law laid down :- –
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Significant Paragraphs : – –
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JUDGMENT
( 11.01.2018)
Per : Smt. Anjuli Palo, J :-
1. These appeals have been preferred by the appellant-wife
under Section 19 of the Family Court Act, 1984 for setting
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aside the common judgment dated 05.08.2014 passed by the
Principal Judge, Family Court, Jabalpur in Civil Suit No.
150-A/2012 and 151-A/2012 whereby restitution of conjugal
rights has been granted in favour of the respondent-husband
and appellant’s application for divorce has been refused. As
both these cases arise out of a common order, therefore, we
propose to deal with the matters analogously and dispose of
both the appeals by this common judgment.
2. It is not disputed that the appellant is the wife of
respondent and their marriage was solemnized on 20.04.2008
as per Hindu rites and customs. Brief facts of the case is that,
sometime after the marriage, the respondent-husband deserted
the appellant-wife. The respondent and his family members
demanded Rs. 3 lakhs from the appellant-wife to purchase a
house. When the demand was not fulfilled, they harassed her.
The respondent did not support the appellant and was not
interested to take her to Delhi, where the respondent was
working. The family members of the respondent compelled
her to give away her salary to them and when the appellant
refused to do so, she was thrown out of the house. Hence, the
appellant filed a complaint under Section 498-A of the Indian
Penal Code against the respondent and his family members.
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The appellant-wife was not interested to reside with the
respondent. A petition under Section 9 of the Hindu Marriage
Act, 1955 was filed by her husband which deserves to be
dismissed. On the above grounds the appellant-wife prayed
for a decree of divorce in her favour under Section 13(1) of
the Hindu Marriage Act.
3. In his reply, the respondent-husband denied the
allegations and submitted that the appellant was working as a
Jr. Engineer in Railways at Jabalpur. Before their marriage,
they had met each other. After their marriage, the appellant-
wife resided with the respondent only for few days.
Thereafter, she was not inclined to reside with the respondent.
Appellant-wife blamed the respondent that he had illicit
relationship with another lady named Mrs. Sonal Satpati
which created dispute between them. On 10.02.2009, she left
her matrimonial house and went to reside with her parents.
She also took her ornaments, clothes and scooty. Her parents
were dependent on the income of the appellant. Therefore, the
respondent claimed that he is entitled to restitution of
conjugal rights against the appellant. The petition under
Section 13 of the Hindu Marriage Act deserves to be
dismissed.
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4. After considering, the entire record and evidence, the
learned trial Court found that, as the appellant is working as
Jr. Engineer in Railway Department, due to her ego, she did
not perform her matrimonial duties and obligation towards the
respondent. Parents of the appellant also supported her. The
learned Trial Court did not find that the respondent caused
any mental or physical cruelty on the appellant-wife.
5. Learned Trial Court found that the appellant-wife failed
to prove, the charges leveled against the respondent with
regard to physical and mental cruelty. The learned Trial Court
also found the appellant-wife is liable to continue her marital
relationship and perform her conjugal duties, towards the
respondent. Therefore, the learned Trial Court dismissed the
petition under Section 13 of the Hindu Marriage Act and
allowed the petition under Section 9 of the Hindu Marriage
Act for restitution of conjugal rights within one month from
the impugned order.
6. Both these appeals have been filed by the appellant-wife
under Section 19 of the Family Court Act, 1984, on the
grounds that the application under Section 9 of the Hindu
Marriage Act, 1955 was filed by respondent to show his
bonafide in order to make a defence and inspite of the fact
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that he knowing it very well that in any case it is not possible
for the appellant-wife and respondent-husband to live
together, filed the application. The appellant was harassed by
the respondent to such an extend that it was not possible on
the part of the appellant-wife to live with him. She was badly
abused, beaten and harassed by the respondent and his family
members demanding her salary. The learned Trial Court
wrongly held that the appellant due to her ego, has disturbed
all family relations. The learned trial Court believed one side
of the story of the respondent husband. Therefore, the
appellant-wife has prayed to set aside the impugned order and
pass a decree of divorce in favour of the appellant under
Section 13 of the Hindu Marriage Act.
7. We have heard learned counsel for both the parties.
Perused the record.
8. It is apparently clear from the record that the marriage
between appellant and the respondent was solemnized on
20.04.2008. At paragraph 16 of the cross-examination, the
appellant deposed that she resided at her matrimonial house
till April, 2009. Divorce petition was filed by her on
26.10.2009. At paragraph 20 of the cross-examination, she
admitted that a complaint was filed by her husband before the
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parivar paramarsh kendra in April, 2009 in which her husband
wanted the appellant to reside with him. After considering the
cross-examination of the appellant, it appears that the
appellant was working at Jabalpur and her husband was
working at Delhi. Her husband wanted the appellant to live
with his parents and serve them. It was not acceptable to the
appellant to reside with the parents of the respondent. We
also find that the appellant herself never tried to go and live
with her husband at Delhi.
9. The Apex Court in the case of Samar Ghosh Vs. Jaya
Ghosh (2007) 4 SCC 511 has discussed “mental cruelty”
which is a ground of divorce under Section 13(1)(i)(i-a) of the
Hindu Marriage Act. The relevant extracts are as under :
“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’…………………………………..
(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
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(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.
(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……………………….”
10. After following the above principle, a coordinate bench
of this Court in case of Smt. Surabhi Trivedi Vs. Pushkar
Trivedi [First Appeal No. 465 of 2013, judgment dated
11.09.2017] has considered that after a long period of
continuous separation and no efforts by the party to take
unilateral decision or refusal to have intercourse for a
considerable time without there being any physical incapacity
or valid reason may amount to “mental cruelty”. The
marriage becomes a fiction by refusing to serve the law.
11. In case of Durga Prasanna Tripathy Vs. Arundhati
Tripathy [AIR 2005 SC 3297] and Satish Sitole Vs. Ganga
[AIR 2008 SC 3093], Hon’ble Supreme Court has held that if
the husband is unable to make out grounds, facts however
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shows that the parties live separately for a considerable period
of time making acrimonious allegations against each other and
attempts at reconciliation has been proved futile, in such
situation continuance of marriage would itself amount to
cruelty. Accordingly, decree of divorce granted with adequate
provision of alimony in exercise of powers under Article 142
of the Constitution of India. [see also Malathi Ravi, MD vs.
D.V.Ravi, MD, (2014) 7 SCC 640].
12. In the present case, it clearly appears that the parties are
residing separately since long i.e. from the year 2009. None
of them made personal efforts to continue their marital
relationship. After marriage they resided separately and never
tried to live together or to maintain their relation as husband
and wife.
13. Looking to the aforesaid facts and circumstances of the
case and considering the evidence that has come on record, in
our opinion, it would be just and proper to award a decree of
divorce in favour of the appellant. Consequently, the appeals
filed by the appellant is hereby allowed. The impugned
judgment passed by the trial Court is hereby set aside. A
decree of divorce under Section 13 (1) of the Hindu Marriage,
1955 is hereby granted in favour of the appellant. It is further
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declared that the marriage solemnized between the appellant
and respondent is dissolved.
14. Parties shall bear their own costs.
(S.K.GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
vidya
Digitally signed by
SREEVIDYA
Date: 2018.01.11
16:18:07 +05’30’