HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No.4772/2018
Smt. Pooja W/o Dharmendra Sankhla D/o Pooran Chand, Aged
About 34 Years, R/o 705/29, Behind Mayo College, Gehloton Ki
Doongri Ajmer.
—-Appellant
Versus
Dharmendra Sankhla S/o Late Shri Heeralal Sankhla, Aged About
35 Years, R/o 12/115, Laxminarayan Mandir Ki Gali, Hathi Bhata,
Ajmer.
—-Respondent
Connected With
D.B. Civil Miscellaneous Appeal No.4814/2018
Smt. Pooja W/o Dharmendra Sankhla D/o Pooran Chand, Aged
About 34 Years, R/o 705/29, Behind Mayo College, Gehloton Ki
Doongri, Ajmer.
—-Appellant
Versus
Dharmendra Sankhla S/o Late Shri Heeralal Sankhla, Aged About
35 Years, R/o 12/115, Laxminarayan Mandir Ki Gali, Hathi Bhata,
Ajmer.
—-Respondent
For Appellant(s) : Shri Reashm Bhargava
For Respondent(s) : Shri Sanjay Gangwar
HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
ORDER RESERVED ON 27/08/2019
ORDER PRONOUNCED ON 09/09/2019
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BY THE COURT : (PER HON’BLE DHADDHA, J.)
1. Since both the appeals are arisen out of a common
order, they are being decided by this common order.
2. Both these appeals have been preferred by the
appellant wife against the order of the learned Family Court,
Ajmer passed on 23.8.2018 whereby the learned Family Court
allowed Matrimonial Application No.76/2011, dissolving the
marriage, filed by the respondent husband u/s 13(1)(ia) of the
SectionHindu Marriage Act, 1955 (for short “the Act”) and dismissed the
Application No.260/2011 filed by the appellant wife against
respondent husband u/s 9 of the Act for restitution of conjugal
rights.
3. Brief facts giving rise to these appears are that the
marriage of the appellant was solemnized with respondent as per
Hindu rites and customs on 14.2.2009 at Ajmer. The spouses are
blessed with son; namely, Pratham on 1.1.2010. Respondent
husband filed divorce petition u/s 13 of the Act on 10.2.2011.
During pendency of the divorce petition, the appellant wife filed an
application u/s 9 of the Act for restitution of conjugal rights on
10.6.2011. Divorce petition had been filed by the respondent on
the ground of cruelty. In this petition, the respondent stated that
on very first night of their marriage the appellant told him that she
wanted a separate house in which she, respondent and their
children would live. She did not do the household work and
threatened them. If compelled to do the household work, she
would register false case of divorce against them. She also
threatened them that if her wishes were not fulfilled, she would
commit suicide. She also used to abuse his mother and grand-
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mother. She leave matrimonial home in June, 2009. After birth of
child, she had not joined him after several requests.
4. The appellant in her reply denied all the allegations
levelled against her. In her reply, she stated that due to adamant
behaviour of respondent and his mother, she was compelled to live
in her father’s house. She had fulfilled the duties liabilities as a
legally wedded wife. She had not abused her mother-in-law and
grand-mother-in-law. She had not demanded separate house. She
wanted to live with respondent, so she had not made any criminal
case against them. After delivery of male child, the respondent
had not taken her to matrimonial home. Respondent deserted her
without any cause, so she had filed petition for restitution of
conjugal rights under Section 9 of the Act.
5. On the pleadings of the parties, learned Family Court
framed five issues for adjudication :
“1- vk;k vizkfFkZ;k dk O;ogkj izkFkhZ ds lkFk ;kfpdk esa of.kZr
vk/kkjks ij dwzjrkiw.kZ jgk gS ?
2- vk;k izkFkhZ] vizkfFkZ;k ds fo#) mDr vk/kkjksa ij fookg
foPNsn dh fMdzh ikus dk vf/kdkjh gS ?
3- vk;k ;kfpdk la0 [email protected] vUrXkZr /kkjk 9 fgUnw fookg
vf/kfu;e] iwtk cuke /kesZUnz esa of.kZrkuqlkj vizkfFkZ;k us
izkfFkZ;k dk fcuk fdlh ;qfDr;qDr lsa oafpr dj j[kk gS ?
4- vk;k ;kfpdk la0 [email protected] esa of.kZr vk/kkjksa ij izkfFkZ;k
iwtk] vizkFkhZ /kesZUnz ds fo#) nkEiR; laca/kksa ds iquLFkkiuk dh
fMdzh ikus dh vf/kdkjh gS ?
5- vuqrks”k ?”
6. The appellant examined herself as NAW-1. Respondent
examined himself as AW-1 and two other persons – Indira
Sankhla AW-2 and Praveen Sankhla AW-3.
7. After hearing both the parties, the learned Family
Court decided all the Issues in favour of the husband.
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8. Counsel for the appellant submitted that the order of
the learned Family Court dated 23.8.2018 is illegal, arbitrary,
malafide and contrary to the facts and law. Learned counsel for
the appellant submitted that the learned Family Court had failed
to appreciate the issue of cruelty in its right perspective and also
failed to consider the fact that the wife had given a birth of a
male child on 1.1.2010 while she left the matrimonial home for
delivery in June, 2009. As such, the respondent husband deemed
to have condoned the alleged act constituting cruelty. Learned
counsel for the appellant submitted that the learned Family
Court had failed to consider the evidence of AW-1 to AW-3 in its
right perspective as they are relatives and interested witnesses.
Learned counsel for the appellant submitted that the learned
Family Court erred in overlooking the documentary evidence of
NA-1 to NA-4 which reflects that the appellant did not want to
leave the respondent. Learned counsel for the appellant submitted
that the appellant had not demanded their own separate house
in which she, respondent husband and their children would live as
such these are concocted stories to get divorce from the
appellant. Learned counsel for the appellant submitted that the
respondent had not pleaded any specific date and month for
cruel behaviour by the appellant. Learned counsel for the
appellant submitted that the appellant had not registered any
criminal case against the respondent and his family members
because the appellant wanted to reside with them.
9. Learned counsel for the appellant submitted that the
allegations levelled by the respondent against the appellant, are
mostly of mild manner, that could not constitute the cruelty.
Learned counsel for the appellant submitted that occasionally out
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burst of anger, rude language or austerity of temper, which may
amount to a misconduct, but that cannot be termed as cruelty.
Learned counsel for the appellant submitted that the learned
Family Court passed the impugned order in technical manner.
Normal wear and tear of life cannot be termed as cruelty. Learned
counsel for the appellant submitted that the appellant had not
misbehaved with the respondent and his mother and grand-
mother. He submitted that the learned Family Court without any
documentary evidence, held that the appellant had caused
injuries to the respondent’s grand-mother. Learned counsel for
the appellant submitted that on this fact, neither oral nor
documentary evidence was produced from the respondent side.
Learned counsel for the appellant submitted that the learned
Family Court while appreciating the evidence, picked up few
sentences and over-looked the entire tune of reply of the
appellant as well as the intention of the appellant. Learned
counsel for the appellant submitted that the appellant wife
wanted to live with respondent, so she never initiated any
criminal action against him and his family members. Learned
counsel for the appellant submitted that the learned Family Court
wrongly came to the conclusion that the appellant had not
specifically denied the averments of the respondent. Learned
counsel for the appellant submitted that once the trial court
framed issues and put the parties for trial, then the provisions of
O.8 R.5, CPC could not be invoked to decree a suit. The parties
are required to prove their allegations by cogent evidence.
10. Learned counsel for the appellant submitted that the
appellant had filed petition for restitution of conjugal rights. She in
her petition and oral evidence, clearly stated that she wanted to
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live with respondent, but respondent and his family members by
their adamant behaviour compelled her to live in her father’s
house. The respondent deserted her without any cause, so the
appeal be allowed and the divorce decree awarded against her be
set aside and decree for restitution of conjugal rights should be
passed.
11. Learned counsel for the appellant placed reliance in
Kiran Devi (Smt.) Versus Vinod Kumar Gupta; 2007(3) RLW
2093, Sumar Nahar Versus Abhay Kumar Nahar; II (1992)
DMC 573 (DB), Chaitali Dey Versus Shri Badal Kumar Dey;
AIR 2005 Jharkhand 83, Avadhesh Mani Mema Versus Saroj
Amita Mema; I (1990) DMC 327, Raj Kaur Versus Trilok
Singh; II (1987) DMC 46, Devidas Versus Gyanwati alias
Sheel Rani; AIR 1993 Madhya Pradesh 14, Bhanupratap
Singh Bordiya Versus Sangeeta Bordiya; 2002(1) WLC 405,
Sunil Kumar Versus Smt. Reshmi; 2006(2) HLR 744,
Tejinder Vohra (Mrs.) Versus Manmohan Singh Vohra;
2001(2) HLR 382, Bharti Devi Versus Sheonarayan; I
(1984) DMC 150, Smt. Vimlesh Versus Sri Prakash Chand
Sharma; AIR 1992 Allahabad 260, Rajani Versus Ramesh
and Another; II (1989) DMC 428, Kuldip Singh Versus Smt.
Shawinder Kaur; 2009(2) HLR 448, Kiachaparambil
Kanakavalli Versus Melekollankandy Krishnankutty; III
(2017) DMC 492 (DB) (Ker.), Mirchumal Versus Devi Bai;
1976 WLN 704, Ren Prakash Versus MST. Sneh Lata; 2001
(4) WLC 628, Nisha Rani Versus Sohan Singh Nehra; 2017
MLR 190, Sunil Sehgal Versus Chhaya Sehgal; II (2004)
DMC 755, Praveen Etta Versus Savithri Etta; 2017 MLR 588,
P. Malleswaramma Versus P. Prathap Reddy; 2006(1) HLR
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188, Smt. Gurbachan Kaur Versus Sardar Swaran Singh;
AIR 1978 Allahabad 255, Magghi Devi Versus Kedar Chand
Swamy; RLW 1996(3) Raj.95, Vinita Saxena Versus Pankaj
Pandit; AIR 2005 Delhi 243, Satish Kumari Versus Ranjit
Singh; AIR 1997 Himachal Pradesh 16, Amarjit Paul Singh
Versus Kiran Bala; AIR 1985 Punjab and Haryana 356,
Krishan Kumar Versus Smt. Nidhi Arora; 2010 (1) HLR 91,
A. Versus H.; AIR 1993 Bombay 70, Paras Ram Versus
Kamlesh; AIR 1982 Punjab and Haryana 60, Zora Singh
Versus Gurmel Kaur; 1994(2) CLJ (C, Cr Rev.) 307,
Homeshwar Singh Versus Smt. Mira Singh; AIR 2007
Chhattisgarh 27, Suman Singh Versus Sanjay Singh; (2017)
4 SCC 85.
12. Learned counsel for the respondent submitted that
there is no illegality or infirmity in the learned Family Court’s
order. He submitted that on very first night of the marriage, the
appellant demanded a separate house in which she, respondent
and their children would live. She did not do household work and
threatened the respondent and his family members that if they
compelled her, she would register a false case of dowry against
them. She also threatened that if her wishes were not fulfilled, she
would commit suicide.
13. Learned counsel for the respondent submitted that the
appellant used to abuse his mother and grand-mother and stated
that house of appellant was not home but looked like a “Widow
Aashram”. Due to her adamant behaviour, she had left the house
in June, 2009. After delivery of male child, she refused to join the
matrimonial home for six months. The appellant and her family
members abused the respondent and told him to live as house
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husband (Ghar Janwaee). After delivery, respondent husband
requested several times her to join matrimonial home but she
refused by saying that after separate house, she would join.
14. Learned counsel for the respondent submitted that the
appellant had not specifically denied the allegations levelled by the
respondent in his divorce petition, so the learned Family Court
rightly concluded that they were proved without evidence. So, the
appeal be dismissed.
15. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties,
perused the impugned order and the material available on record.
16. The appellant and respondent were married on
14.2.2009. The appellant had left the matrimonial home on
account of her pregnancy in June, 2009. The appellant in her
statement clearly stated that her mother-in-law and grand-
mother-in-law were not in a position to look after her, so she had
to proceed her father’s house for delivery. The appellant and
respondent lived together for hardly four months. The respondent
in his petition as also in his statement had not specifically
mentioned any date or month regarding cruelty done by the
appellant. The learned Family Court had not appreciated the issue
of cruelty in right perspective and also failed to consider the fact
that the appellant had given birth of a male child on 1.1.2010. As
such, the respondent husband deemed to have condoned the
alleged act constituting cruelty. The respondent in his petition
stated that the appellant had caused injury to the respondent’s
grand-mother, but in oral evidence the respondent and his
witnesses had not uttered single word about it. But the learned
Family Court wrongly interpreted the provisions of O. 8 R. 5, CPC
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in this behalf. After framing of the issues, parties had to prove
their allegations by cogent evidence not just by pleadings. In our
view, the learned Family Court had erred in overlooking the
documentary evidence of Ex. NA-1 to Ex. NA-4 which is clearly
reflected from the fact that the appellant would not want to leave
respondent’s house. For cruelty and misbehaviour of the appellant,
the respondent had not examined any neighbour of the vicinity.
The learned Family Court while appreciating the evidence picked
up a few sentences from the statement of the witnesses from here
and there and overlooked the entire tune of reply submitted by
the appellant as well as the intention of the appellant. It is crystal
clear that the appellant had not initiated any criminal action
against the respondent and his family members because she
wanted to live with them.
17. Learned Family Court has not appreciated the
evidence in right perspective. Respondent Dharmendra in his
statement stated that the appellant from very first night of their
marriage demanded a separate house in which she, respondent
and their children would live. The respondent in his statement
stated that the appellant did not want to do the household work
and threatened them. If they compelled her, she would lodge a
false criminal case against them. The respondent also stated that
the appellant used to abuse his mother and grand mother but he
had not specifically mentioned the date and month in which
cruelty done by the appellant. The respondent’s mother Smt.
Indira Sankhla AW-2, in her statement, stated that the appellant
did not want to do household work. She, solely concentrated on
her service. Parveen Sankhla AW-3, in his statement, stated that
Pooja did not want to do household work and she did not respect
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elders. But, in his cross-examination he stated that these facts
were known him by respondent’s mother and grand mother. The
appellant, in her statement, clearly stated that she did not
demand for separate house. Due to adamant behaviour of her
mother in-law, she had to live with her parents’ house. She had
filled examination form for Nurse Grade-II in which she mentioned
the address of respondent’s house as 12/115, Laxminarayan
Mandir Ki Gali, Hathi Bhata, Ajmer. It shows that she wanted to
live with respondent. For this reason, she had filed a petition
under Section 9 of the Act for restitution of conjugal rights.
18. The Supreme Court in the case of Shobha Rani v/s
Madhukar Reddi, AIR 1988 SC 121 observed as under:
“Section 13(1)(i-a) uses the words “treated the
petitioner with cruelty”. The word “cruelty” has
not been defined. Indeed it could not have been
denied. It has been used in relation to human
conduct or human behavior. It is the conduct in
relation to or in respect of matrimonial duties and
obligations. It is a course of conduct of one which
is adversely affecting the other. The cruelty may
be mental or physical, intentional or
unintentional. If it is physical the Court will have
no problem to determine it. It is a question of
fact and degree. If it is mental, the problem
presents difficulty. First the inquiry must begin as
to the nature of the cruel treatment. Second, the
impact of such treatment on the mind of the
spouse. Whether it caused reasonable
apprehension that it would be harmful or
injurious to live with the other. Ultimately, it is a
matter of inference to be drawn by taking into
account the nature of the conduct and its effect
on the complaining spouse. There may, however,
be cases whether the conduct complained of
itself is bad enough and per se unlawful or illegal.
Then the impact or the injurious effect on the
other spouse need not be enquired into or(Downloaded on 11/09/2019 at 09:09:44 PM)
(11 of 12) [CMA-4772/2018]considered. In such cases, the cruelty will be
established if the conduct itself is proved or
admitted.
It will be necessary to bear in mind that
there has been marked change in the life around
us. In matrimonial duties and responsibilities in
particular, we find a sea- change. They are of
varying degrees from house to house or person
to person. Therefore, when a spouse makes
complaint about the treatment of cruelty by the
partner in life or relations, the Court should not
search for standard in life. A set of facts
stigmatised as cruelty in one case may not be so
in another case. The cruelty alleged may largely
depend upon the type of life the parties are
accustomed to or their economic and social
conditions. It may also depend upon their
culture and human values to which they attach
importance. We, the Judges and lawyers,
therefore, should not import our own notions of
life. We may not go in parallel with us and the
parties. It would be better if we keep aside our
customs and manners. It would also better if we
less depend upon precedents.”
19. The Supreme Court in the case of SectionV. Bhagat v. Mrs.
Bhagat, AIR 1994 SC 710 has defined mental cruelty in the
following manner:
“Mental cruelty in Section 13(1)(ia) can broadly be
defined as that conduct which inflicts upon the
other party such mental pain and suffering as
would make it not possible for that party to live
with the other. In other words, mental cruelty
must be of such a nature that the parties cannot
reasonably be asked to put up with such conduct
and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such
as to cause injury to the health of the petitioner.
While arriving at such conclusion, regard must be
had to the social status, educational level of the
parties, the society they move in, the possibility or
otherwise of the parties ever living together in
case they are already living apart and all other
relevant facts and circumstances which it is neither(Downloaded on 11/09/2019 at 09:09:44 PM)
(12 of 12) [CMA-4772/2018]possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to
cruelty in another case. It is a matter to be
determined in each case having regard to the facts
and circumstances of that case. If it is a case of
accusations and allegations, regard must also be
had to the context in which they were made.”
20. Analysis of the facts in the light of law afore- discussed,
both the appeals succeed and are allowed. The impugned
judgment and decree dated 23.8.2018 is set aside. As a result,
the petition filed by the respondent-husband under Section 13(1)
of the Act seeking dissolution of marriage is dismissed. As a
consequence thereof, the marriage between the parties is held to
subsist whereas the petition filed by the appellant against the
respondent under Section 9 of the Act seeking restitution of
conjugal right is allowed. A decree for restitution of conjugal right
is, accordingly, passed against the respondent.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J
RAJ KUMAR CHAUHAN /17
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