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Smt. Pooja W/O Dharmendra Sankhla … vs Dharmendra Sankhla S/O Late Shri … on 9 September, 2019

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 260@11 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 260@11 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

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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

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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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