1 FA. No.1657/1658/2019
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON’BLE MR. JUSTICE S.C. SHARMA
HON’BLE MR. JUSTICE SHAILENDRA SHUKLA
FIRST APPEAL NO.1657 OF 2019
FIRST APPEAL NO.1658 OF 2019
Mr. R.K. Samdani, learned counsel for the appellant.
Mr. Ankur Sirotiya, Respondent-in-person.
(Passed on 18th day of March 2020)
Per Shailendra Shukla, J.
1. This order shall dispose of two appeals filed under
Section 19(1) of Family Courts Act, 1984 by appellant-
Smt. Ruchi which have been preferred respectively
against judgment and decree pronounced on 20.08.2019
in Civil Suit No.66-A/2017 allowing the suit for divorce filed
by the respondent-Ankar Sirotiya against her as also in
Civil Suit No.67-A/2017 rejecting the civil suit filed by
appellant seeking restitution of conjugal rights under
Section 9 of Hindu Marriage Act, 1955.
2. The admitted facts are that rival parties had got married
on 06.05.2013 as per Hindu rites and customs at Ujjain.
3. The case of the respondent-Shri Ankur Sirotiya in
divorce suit was that his marriage with appellant-Smt. Ruchi
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was performed without disclosing the fact that she was an
illegitimate child of her father born out of second wife even
though the first wife was alive and there was no divorce
between the two. Had this fact been disclosed, respondent
would not have married to appellant and the aforesaid fact
first came to light on 12.05.2016. It was further stated that
behaviour of Ruchi towards Ankur was extremely rude, that
she is a independent minded woman and would always go to
her parental house on the pretext of going to her place of
work, that she did not contribute towards household chores,
that she was disrespectful towards his ailing parents and
would treat the guests with no respect, that she had deserted
her matrimonial home four times during February to March
2014 and she was brought back on each occasion by
respondent-Ankur and she finally left the house on
06.04.2014 and took all the documents of Ankur while
leaving the home. It has been further stated that appellant
has deprived the respondent from matrimonial pleasures and
that there is a fear of life of Ankur if Ruchi were to stay with
4. In her reply, Ruchi has stated that ever since the
inception of marriage with Ankur, he used to get angry on
trivial issues and would taunt her and pass inappropriate
comments against her and her family, that when respondent
got injured in a motor vehicle accident, her ornaments were
mortgaged by him in the ICICI Bank without her permission
and she was compelled to go to her parental house. The suit
for divorce was sought to be dismissed. In her application
filed under Section 9 of Hindu Marriage Act, the appellant
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has stated that behaviour of respondent-Ankur changed for
worse sometimes after her marriage with him and he would
become impatient and abuse her on trivial issues, that
respondent and his family members were greedy and used
to demand dowry from her and also used to taunt her for not
bringing dowry. Due to such constant harassment, she
started residing with her father on 06.04.2014 and also filed
an application before SHO Mahila Thana on 03.07.2014
requesting that respondent be counselled so that he may
keep her with due respect. However, in the counselling
proceedings the respondents refused to oblige her regarding
keeping her with him. It is submitted that respondent-Ankur
Sirotiya is a Marketing Engineer in Forbes Marshall Private
Limited and used to earn Rs.38,000/- per month in the year
2014 and presently earns not less than Rs.75,000/- per
month, that appellant wants to resume living with respondent
and therefore a decree of restitution of conjugal rights be
passed in her favour.
5. The respondent in his reply has made same allegations
against Ruchi which he has made in his divorce suit and
states that she herself had told him that she does not want to
stay with him and Ruchi had threatened that if her father
does not fetch her, then she would commit suicide. It has
further been stated by him that the kinds of taunts made by
her and due to her inappropriate behaviour with him, it would
not be possible for him to stay with her anymore and the
aforesaid application was sought to be rejected.
6. The Family Court, Ujjain vide common judgment dated
20.08.2019 has came to the conclusion that appellant-
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Ruchi’s behaviour towards respondent-Ankur Sirotiya was
contemptuous and cruel, therefore, divorce decree in his
favour has been pronounced and the application filed under
Section 9 of Hindu Marriage Act, 1955 has been rejected.
7. The appellant-Smt. Ruchi has filed separate appeals
against the aforesaid judgment and has stated that
Presiding Officer did not pay due heed to the evidence
and the aforesaid documents placed on record, that
Family Court has not discussed the cross-examination of
respondent-Ankur and his witness, that Presiding Officer
has found the cruelty proved against the appellant-Ruchi,
whereas no such conclusion could have been arrived at
from the available evidence and the documents, that there
are no circumstances which are of such serious nature
and that both cannot stay with each other anymore. It has
been further stated that opinion of Family Court that
appellant was cruel towards her husband-Ankur because
she was away from him for a period of five years is also
wrong because the Family Court should have seen the
circumstances due to which appellant had to stay in her
parental house. It has been further stated that
independent witnesses namely; Gulabchandji and Anmol
Kharpade who have been examined by respondent were
considered to be reliable witnesses and such conclusion
was drawn by only perusing their examination-in-chief
without considering the cross-examination. That whereas
the appellant constantly endeavored to resolve the
dispute, the respondent has made no such effort on his
part. It has been further stated that Family Court’s
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inference regarding cruelty on the part of appellant on the
ground that she did not take care of his ailing father-in-law
as the appellant-Smt. Ruchi was not informed by
respondent-Ankur about the ailing health of his father and
also of his subsequent death. On these grounds,
application under Section 9 of Hindu Marriage Act, has
been sought to be set-aside.
8. In her separate appeal filed against the judgment
and decree of divorce, the appellant-Smt. Ruchi has taken
the same grounds as contained in her appeal in respect of
Section 9 of Hindu Marriage Act. It has been further stated
by her that Family Court has not found proved the issue
which was framed in para-22 which is as follows:
“Whether the appellant/wife had deserted the
respondent/husband for a continuous period of
not less than two years immediately preceding
the presentation of petition ?”
9. Despite the fact that aforesaid issue has not been
proved, the Family Court has passed the decree of divorce
which is absolutely wrong in the given circumstances. It is
also stated that there was no ground to form an opinion that
there has been an irretrievable break down of marriage
between the parties of the suit. On these grounds, judgment
and decree of divorce has been sought to be set-aside.
10. The question before this Court was whether in view of
the grounds contained in the consecutive appeals filed by
appellant-Smt. Ruchi, the judgment pronounced by the
Family Court, Ujjain granting divorce and refusing the prayer
of restitution of conjugal rights deserves to be set-aside ?
6 FA. No.1657/1658/2019
11. During the pendency of these appeals, mediation
proceedings had ensued and the mediator in his report has
stated that while appellant is inclined to stay with the
respondent, the respondent is not ready to keep her. The
appellant has stated that if respondent is not able to keep her
then he should pay Rs.35.00 lac as permanent alimony.
Respondent-Ankur has stated that appellant-Ruchi has
foisted a false case against him under-Section 406 IPC and it
is not possible for him to keep her under such
circumstances. The appellant has proposed that if the
respondent is prepared to stay with her then she would take
back the case which was filed by her against him under
Section 406 IPC. However, the respondent has stated that
behaviour of appellant-Ruchi has raised a doubt against
safety and security of respondent-Ankur and it is not possible
for him to keep her. He has further stated that appellant is
employed in Government and is able to look after herself.
Thus, reconciliation between the parties could not fructify
because of refusal on the part of respondent-Ankur to
resume conjugal relations with appellant-Ruchi.
12. The question before this Court is whether the finding of
Presiding Officer that though Ruchi committed cruelty
against respondent-Ankur and that there was an irretrievable
breakdown of marriage between the two is an appropriate
finding or not ?
13. The aforesaid findings shall be considered in the light
14. As far as respondent-Ankur Sirotiya in his examination-
in-chief, he has stated that parents of appellant-Ruchi had
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not informed him that she was an illegitimate child and had
this fact been disclosed earlier he would not have been
entered into marriage with appellant-Ruchi.
15. Regarding the above submissions, it must be
remembered that respondent-Ankur has filed a suit for
divorce under-Section 13(1)(1A) of Hindu Marriage Act, 1955
and has not filed the suit for annulment of marriage on
account of marriage being void or voidable.
16. In his suit for divorce filed under-Section 13(1)(1A) of
Hindu Marriage Act, 1955, the fact regarding non-disclosure
of certain material facts pertaining to wife is immaterial.
Therefore the aforesaid ground could not have been raised
by respondent for obtaining the divorce from appellant.
17. The respondent-Ankur in his affidavit has stated that
being a husband has never been in such relations with
appellant which exists between husband and wife ever since
his marriage with her and Ruchi has been refusing to
establish such relations with him. He has denied the
suggestion in para-27 of his cross-examination that she has
never refused to establish physical relations with him and it is
instead Ankur who has refused to maintain relations with her.
Ruchi in her own affidavit in para-3 has stated that it is the
husband who is to take initiative to establish physical
relations with wife which Ankur has not done and that she
has never refused to establish such relations with him. Thus,
there is acceptance on the part of Ruchi that there had been
no normal relations between two as in the nature of relations
between husband and wife and both are blaming each other
for the same.
8 FA. No.1657/1658/2019
18. Admittedly, appellant-Smt. Ruchi left for her parental
home in the month of February 2014 i.e. eleven months after
her marriage with respondent-Ankur.
19. Admittedly, there being no relations between appellant
and respondent during eleven months of their togetherness.
After the marriage, following pieces of evidence are also
noticeable, which are as under:-
(a) That appellant-Ruchi had filed a case under Section
125 of Criminal Procedure Code against respondent-Ankur
but it is admitted by Ruchi (NA/2) and her father Rajendra
Prasad (NA/1). That the aforesaid maintenance case was
dismissed. Ruchi (NA/2) states that she had filed a revision
against the aforesaid order but not withdrawn the revision
(b) That appellant-Ruchi (NA/2) has admitted that she did
not file any case against respondent-Ankur under Section
498-A IPC but she specifically states that she has not filed
any case against Ankur for inflicting mental and physical
cruelty against her.
(c) That it is not a case of appellant-Ruchi (NA/2) that
respondent-Ankur had demanded dowry from her.
(d) Respondent-Ankur has stated that appellant-Ruchi had
instituted a case under Domestic Violence Act against him
but the same was dismissed. These statements have not
been contradicted in cross-examination.
(e) That Rajendra Prasad (NA/1), the father of appellant-
Ruchi (NA/2) has admitted that he was compelled to take
Ruchi with him from her matrimonial house when Ruchi
called upon him on phone to take her back or else she would
9 FA. No.1657/1658/2019
(f) That appellant-Ruchi (NA/2) in her cross-examination
admitted that Ankur had arranged for her education, that
when she suffered from typhoid, it was her husband-Ankur
(NA/1) who got her treated in Pushpa Mission Hospital. She
also admits that her husband-Ankur had taken her to exotic
locations such as Shimla (photographs of exotic locations
are placed on record).
(g) That appellant-Ruchi (NA/2) in her application filed
under Section 125 of Criminal Procedure Code, in para 12
had stated that she wants to live independently.
(h) That appellant-Ruchi (NA/2) has lodged a complaint
under Section 406 IPC against respondent-Ankur (NA/1).
(i) That Ankur was threatened and abused by father and
brother of Ruchi regarding which a case under Sections 294,
506 IPC which was filed by Ankur.
(j) That Ankur had taken up a rental apartment so that he
can stay with Ruchi in the same but Ruchi had shown no
inclination to live with Ankur.
(k) That transcript of conversation between appellant-Ruchi
and respondent-Ankur and father of Ruchi namely; Rajendra
shows that Ruchi did not want to stay in her matrimonial
house and left for her parental house despite the fact that
puja was to be organized on the next day.
20. The aforesaid circumstances show that there was an
acrimony between appellant-Ruchi and respondent-Ankur
from the very beginning of their marriage, that there was no
relations between the two, that Ruchi knowing that father of
Ankur suffers from dreaded disease of Blood Cancer,
10 FA. No.1657/1658/2019
repeatedly kept going to her parental house and without
there being any major reason or rift, ultimately left for her
parental house, that Ruchi after leaving the house lost
maintenance case, lost domestic violence case and no case
could be filed by her alleging cruelty or demand of dowry.
21. On the other hand, the respondent-Ankur Sirotiya has
been able to show that appellant-Ruchi was fickle minded,
disrespectful and uncaring and had no affinity towards him
and his parents. Even the guests were treated with
disrespect, as is apparent from the statements of Gulabrai
(A/2). There is also an evidence to the effect that
respondent-Ankur had rented an apartment so that he could
stay with appellant-Ruchi but they never occupied the rental
house. Amol Kharpade (A/1) is the land-lord who has
testified regarding this situation. Respondent-Ankur has
stated that Ruchi was never interested in staying with him
and that is why she refused to move to rental apartment.
22. Respondent-Ankur Sirotiya (NA/1) has also exhibited
the documents showing that he had lodged a report against
brother and father of Ruchi seeking prohibitory orders
against them. (Ex. A/27 and Ex.A/28).
23. That all the above circumstances clearly show that
there was no act of cruelty on the part of respondent-Ankur
against appellant-Ruchi and that it is proved that Ruchi’s
attitude was indifferent and unconciliatory, that she was rude
exhibiting no intention to honour her relations with Ankur as
his wife and daughter-in-law of his parents. Such acts not
only showed cruelty on the part of Ruchi but clearly proves
that she had deserted Ankur without reasonable cause.
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Under these circumstances, the decree of divorce was rightly
given in favour of respondent-Ankur. The findings and
judgment of Family Court, Ujjain is, thus, affirmed. This
appeal against divorce and decree preferred by appellant-
Ruchi is rejected. The connected appeal challenging the
judgment in respect of rejecting the suit for restitution of
conjugal rights also stands rejected. Appellant-Ruchi is
already in government service and posted as ‘Patwari’.
Hence no case for maintenance or alimony is made out in
her favour. The aforesaid appeals stand disposed of, as
dismissed, in above terms.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
Digitally signed by