Madhya Pradesh High Court
Vijay Chouthmal vs Smt.Chhaya Bhagat on 9 September, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:43984
1 FA-186-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 9 th OF SEPTEMBER, 2025
FIRST APPEAL No. 186 of 2008
VIJAY CHOUTHMAL
Versus
SMT.CHHAYA BHAGAT
Appearance:
Shri Ishteyaq Husain - Advocate for the appellant.
None for the respondent.
ORDER
Per: Justice Vishal Dhagat Appellant has filed this appeal under Section 28 of the Hindu Marriage Act, 1955 challenging judgment and decree dated 01.02.2008 passed by Ist Additional District Judge, Khandwa (MP) in Civil Suit No.8-A/2007. By said judgment and decree, suit filed by appellant for divorce under Section 13 of the Hindu Marriage Act was dismissed by the trial Court.
2. Brief facts of the case are that :-
Appellant and respondent were married to each other on 28.02.2001 in accordance with Buddhists rites, rituals and customs in Hoshangabad. Respondent went to her paternal house in Hoshangabad on 08.09.2002 for delivery, thereafter, she did not return. Appellant had made allegation that respondent is having extramarital affairs with one Manish Tomar.Signature Not Verified Signed by: SHABANA ANSARI Signing time: 12-09-2025 12:06:09
NEUTRAL CITATION NO. 2025:MPHC-JBP:43984 2 FA-186-2008 Respondent had deserted the appellant. On the contrary, respondent submitted that notice was sent to appellant to come and take her to matrimonial house. Thereafter, respondent had filed a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act which was decreed. Despite decree, appellant did not comply with it. Execution was also filed and arrest warrant is issued against appellant. It is submitted that it is appellant who is treating respondent cruelly and had deserted her. Trial Court considering the facts and circumstances of the case and taking into consideration the evidence adduced by the parties held that respondent had not deserted the appellant. Respondent is not living life of adultery and suit was dismissed.
3. Learned counsel appearing for the appellant submitted that appellant and respondent are living separately since 08.09.2002 and there is not cohabitation between them. There is such a long period of separation that now no possibility of resumption of marital ties between them. There is irretrievable breakdown of marriage. In these circumstances, decree of divorce may be granted to the appellant.
4. None appeared for the respondent despite service of notice.
5. Heard the counsel for the parties.
6. On going through the facts of the case, it is found that appellant and respondent are living separately since 08.09.2002. Respondent filed a suit for restitution of conjugal rights which was decreed. Appellant is not complying with the decree and arrest warrant has also been issued against him.
Considering aforesaid facts, it is clear that there is no possibility of Signature Not Verified Signed by: SHABANA ANSARI Signing time: 12-09-2025 12:06:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:43984 3 FA-186-2008 resumption of married life between the appellant and respondent and they are living separately for last 23 years. Though, irretrievable breakdown of marriage is not a ground available under Hindu Marriage Act, 1955 for grant of divorce but in cases where there is no possibility of resumption of marital ties then parties may not be permitted to suffer rest of their life by not allowing them decree of divorce and dissolution of marriage. Respondent is not interested to contest the case and despite service, none is appearing for the respondent before this Court.
7. Division Bench of this Court in FA No.958/2014 vide order dated 18.08.2025 laid down that High Court is not devoid of powers exercising its inherent power under Section 151 of the Code of Civil Procedure or under Section 482 of the Code of Criminal Procedure to pass such orders which are necessary to meet the ends of justice and to prevent the abuse the process of Court. Expression, end of justice refers to best interest of the public within the four corners of the law. Courts are not empowered to act contrary to procedure on a particular aspect of law. High Court can make necessary order for ends of justice exercising its inherent power. In case of Naveen Kohli Vs. Neelu Kohli reported in (2006) 4 SCC 558, divorce was granted on ground of unworkable marriage. Damage to marriage was irreparable and separation was held to be inevitable. It was held that public interest lies in recognition of real facts and not merely relying upon fault theory where fault is to be proved to be successful in suit for divorce.
8. Parties in this case living separately for 23 years and there is no chance of resumption of marriage. There is breakdown of marriage between Signature Not Verified Signed by: SHABANA ANSARI Signing time: 12-09-2025 12:06:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:43984 4 FA-186-2008 appellant and respondent and Court cannot close its eyes to aforesaid facts. Not granting divorce to the parties will only be adding to their woes and not allowing them to live in peace and settle their lives.
9. Considering the aforesaid facts and circumstances of the case and law, this first appeal is allowed. Marriage solemnized between appellant and respondent dated 28.02.2001 is dissolved.
10. Decree be drawn accordingly.
(VISHAL DHAGAT) (ANURADHA SHUKLA)
JUDGE JUDGE
$A
Signature Not Verified
Signed by: SHABANA
ANSARI
Signing time: 12-09-2025
12:06:09