Madhya Pradesh High Court
Smt. Shikha Sharma vs Somit Sharma on 7 February, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
Division Bench: Hon'ble Shri Justice S. K. Gangele &
Hon'ble Smt. Justice Anjuli Palo.
FIRST APPEAL NO.422/2015.
Smt. Shikha Sharma
Versus
Somit Sharma
For appellant : Smt. Indra Nair, with Shri Rajas Pohankar, Advocate.
For respondent: Surendra Verma,Advocate.
Whether approved for reporting: Yes/ No.
JUDGMENT
(Passed on 07.02.2018) As per S.K. Gangele, J:
1. Appellant has filed this appeal against the judgment dated 19.3.2015 passed in Civil Suit No.4-A/2015. By the aforesaid judgment trial Court dismissed the suit filed by the appellant-wife under Section 13(1) of Hindu Marriage Act 1955.
2. Appellant-wife filed a suit for divorce. She pleaded in the plaint that marriage of the appellant and respondent was solemnized on 5.5.2005 in accordance with Hindu Rites and Rituals at Pune. Respondent was working as Area Sales Executive in Indian Tobacco Company at Nagpur. At the time of marriage family members of the appellant had given sufficient amount.
After marriage the respondent refused to take appellant at Nagpur. She was forced to live with the family members' father and mother of the respondent at Pune. They practiced cruelty with the appellant. Mother of the respondent did not permit the appellant to live with the respondent.
3. In 2005 the appellant came to Jabalpur. Thereafter, she noticed that she was pregnant. She informed aforesaid fact to the respondent and his family members. However, the respondent did not pay any heed to the problems of the appellant her delivery had taken place at Jabalpur, expenses of her delivery were incurred by her father and mother. Since then appellant was living at Jabalpur. Respondent had not taken care of the appellant and she was not paid any money for her child and herself.
4. Respondent denied the pleadings of the appellant-plaintiff in plaint. He pleaded that at the time of marriage he was working at Nagpur. On the insistence of plaintiff-appellant he secured his transfer from Nagpur to Bombay. At Bombay he had taken one bed room flat on rent. He had tried his best to live with plaintiff-appellant, however, she did not come back. Respondent-defendant transferred in the year 2006 at Pune. Appellant had lived at Pune with the respondent for a brief period. Thereafter she came back to Jabalpur to pursue her study. He admitted the fact that a daughter was born from wedlock of appellant and respondent. The delivery was performed at Jabalpur. He denied pleadings of the appellant that he or his family members practiced any cruelty with the appellant. He further pleaded that he had given some amount to the appellant, whenever there was necessity.
5. The appellant in her evidence in the shape of affidavit filed before the trial Court deposed the same facts as pleaded in the plaint. She pleaded that in the year 2005 when she came to Jabalpur, she noticed her pregnancy. 3 Expenses of delivery were incurred by her father and mother. Her husband- respondent did not pay any amount of medical expenses to her. I tried my best to live with the respondent. However, he did not take any interest in the appellant and he has been living separately. In her cross-examination she admitted the fact that she has been living separately since 2005 and she lived with the respondent-defendant for a brief period. There was detailed correspondence between appellant and respondent. On behalf of the appellant her father tendered the evidence. He deposed that appellant has been living with him. She delivered a child and he had incurred all expenses, cruelty was practiced with the appellant by the family members of the respondent and respondent himself. Respondent did not take any step to take back the appellant, so she can live with him. Appellant filed an application for grant of maintenance under Section 125 of Cr. P. C. that application was dismissed by the trial court.
6. Respondent tendered his evidence in support of his case. He pleaded that after marriage he was transferred to Bombay, he had taken a flat on rent at Bombay and came back to Jabalpur on 29.8.2007 and requested the appellant to live with him. However, appellant refused to live with the respondent. She lived with the respondent for a brief period. He admitted the fact that in the month of November 2005 the appellant left the company and she had gone at the residence of her parents. Thereafter, she was living with her parents. Respondent tried to meet with his daughter but he was not permitted to meet the daughter and take her photographs. In his cross- examination he admitted that he was transferred in 2005 at Pune and since then he was living at Pune. He further admitted the fact that there was long correspondence between appellant and respondent and he had paid some amount of interim maintenance as awarded by the trial Court to the appellant. In paragraph 38 of his cross-examination he admitted the fact that since November 2005 there is no relationship between him and appellant as husband and wife.
7. The Apex Court in the matter of Samar Ghosh Vs. Jaya Ghosh report in (2007) 4 SCC 511 has held as under in regard to mental cruelty and ground for grant of divorce:
"101. 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'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.5
(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 spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(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.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to 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. In the present case, appellant who is the wife pleaded that she was forced to come to her parents in the year 2005. Thereafter, she noticed in November 2005 that she became pregnant. She delivered a daughter at Jabalpur her parents had incurred all expenses of delivery. This fact has been denied by the respondent. In his cross-examination he admitted the fact that delivery of appellant had taken place at Jabalpur and he had not paid any expenses of delivery incurred by the appellant towards Doctors fees and hospital charges. He also admitted the fact in para 38 of his evidence that since November 2005 there is no relationship between the 7 appellant and respondent as husband and wife. In our opinion, it was the duty of the respondent to take care of the wife when she was pregnant and incurred her medical expenses. The respondent was working as Area Sales Executive in a prestigious company ITC. He was entitled to reimburse medical expenses from his company in spite that he had not given medical expenses to appellant. Appellant and respondent have been living separately since 2005 for last 12 years. There is sufficient evidence on record which prevent the appellant to live with respondent and respondent is responsible for the act. Hence, respondent has committed cruelty with appellant. In such circumstances, in our opinion, appellant is entitled for decree of divorce. Trial Court committed an error in ignoring evidence on record and held that there is no reason for appellant to live separately with the respondent. Consequently, appeal filed by the appellant is allowed, impugned judgment passed by the trial Court is hereby set aside. A decree of divorce is granted in favour of the appellant. Marriage performed between appellant and respondent is hereby dissolved. Parties shall bear their own costs.
(S.K. Gangele) (Smt. Anjuli Palo)
Judge Judge
kkc
Digitally signed by KRISHAN KUMAR CHOUKSEY
Date: 2018.02.07 16:46:15 +05'30'
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