Madhya Pradesh High Court
Prabal Kumar Dixit vs Smt. Rimpal Dixit on 16 January, 2025
Author: Hirdesh
Bench: Hirdesh
1 FA 253 of 2017
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE SHRI ANAND PATHAK &
HON'BLE SHRI HIRDESH, JJ
FIRST APPEAL NO. 253 OF 2017
PRABAL KUMAR DIXIT
Versus
SMT. RIMPAL DIXIT
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Appearance:
Shri Rajnish Sharma and Shri Vinod Pathak- Counsel for the appellant
Shri Vijay Sundaram- Counsel for respondent
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Reserved on : 14.11.2024
Pronounced on : 16 .01.2025
JUDGMENT
Per Hirdesh, J:-
Challenge in this appeal under Section 19 of the Family Courts Act, 1984 is to the judgment and decree dated 10-08-2017 passed by Principal Judge, Family Court, Gwalior in Case No.339-A of 2012 (HMA), whereby application filed by appellant-husband under Section 13 of Hindu Marriage Act for grant of decree of divorce, was dismissed.
(2) IA No.5329 of 2022 is an application under Order 41 Rule 27 read with Section 107 of CPC filed by appellant-husband for taking additional evidence on record.
Relying on the judgments of North Eastern Railway Administration Vs. Bhagwan Das (2008) 8 SCC 511 and Sanjay Kumar Singh vs. State of Jharkhand (2022) 7 SCC 247, it is contended on behalf of appellant that the order of acquittal for offence under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act passed by the Trial Court on 18 th of August, 2017 in 2 FA 253 of 2017 Criminal Case No.10953 of 2012 was after impugned judgment and decree of the Family Court and appellant has to prove the authenticity and genuineness of additional evidence including contents thereof, which are necessary for just decision of present appeal. On the contrary, learned Counsel for respondent- wife objected to the application and prayed for its rejection.
In view of law laid down in the above-said cited cases, prayer of appellant-husband appears to be reasonable and accordingly, IA is allowed. Documents are taken on record.
(3) Facts of the case, in brief, are that in the divorce application, it was averred on behalf of appellant- husband that his marriage was solemnized with respondent on 27.06.2007 as per Hindu rites and rituals. After marriage, respondent came to her maternal home where her health suddenly deteriorated as a result of which, she became mentally disturbed. Her Father, mother and brother brought her to Gwalior on 02.07.2007 in a car to Psychiatrist Dr.Malhotra. After fifteen days, she came to his house and went to her maternal home on the occasion of Raksh Bandhan. Since marriage, her behaviour towards him and his parents became extremely inhuman. She did not perform any household work, therefore, his father kept a maid. She did not cook and serve food timely. He tried to explain his wife several times, but she used to abuse in filthy languages. She is a woman of stubborn nature and used to pretend to cry on every small things and break valuable articles in his home. She used to fight with him and his parents almost everyday. It was also alleged that she suffered from unsoundness of mind, therefore, she was taken to Dr. S.N. Iyengar on 07-03-2008 and since then, she has been undergoing continuous treatment.
It was further alleged on behalf of appellant- husband that on 21-11- 2009, his wife had gone to Orai on the marriage of his aunt's son where she had displayed unsoundness of mind. Thereafter, family members of appellant took her to Dr. Iyengar on 27-11-2009. In January 2010, father of respondent left 3 FA 253 of 2017 her in her matrimonial home, Gwalior. Even then, she did not live a happy marital life with him. She had gone to Bhind in July 2010 on the occasion of Raksha Bandhan and Diwali and after that, came back to Gwalior. After a few days, she mentally deranged and started having unsoundness of mind. When her cousin Amit Pathak was called, he told about her state of mind before her marriage.
The husband in his divorce application further alleged that his wife has been behaving like a lunatic since before marriage and is undergoing for same. Her parents did not disclose about insanity to him and his parents and even did not tell her correct age, who is much older than him. Respondent on her volition went to Bhind with her brother Sachin Sharma on 14 th of May, 2011 along-with gold and silver jewellery. She has not maintained marital relations with him since one month after marriage. She used to threat him that if he tried to have physical relations with her, she would commit suicide and send him and his family to jail. On 19 th of May, 2012, she also gave a threat over telephone for living separately from his parent's home or else, she would implicate him in a false dowry case and send him to jail.
It was further alleged by appellant- husband that his wife has been staying at her maternal home in Bhind since 14 th of May, 2011 without any valid reason and she denied to stay with him and his family. Because of such cruel behaviour, he suffered a lot of mental, physical and financial loss. On the basis of complaint made by his wife on 03-06-2012, an offence was registered against him and his family at PS Maharajpura, District Gwalior under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act which is pending in the Court of JMFC. She is mentally deranged and has been suffering from insanity since before marriage and has not taken care of herself due to which, she cannot live a happy married life with him. She has abandoned him and behaved cruelly due to which, it is not possible for him to live with her. He had left no other option but to get her divorced.
4 FA 253 of 2017 In reply, respondent- wife denied the allegations of her husband. It was averred that her parents had given sufficient dowry as per demand of appellant and his family which is in the illegal custody of her in-laws. She is mentally fit. Her husband has made false allegation of insanity against her in order to get him married again. Her husband and his family are greedy for dowry. After marriage, as soon as she went to her in-laws house, her husband and his family started taunting her by saying that her father has not given sufficient dowry as per their demand and has given two lac rupees less and used to tell her for bringing the same from her parents. When she refused to bring money, she was physically and mentally tortured and appellant told her that he would divorce her and marry someone else from where he would get more money.
In counter, it was further stated by respondent-wife that since her marriage, she has already upheld her dignity and performed all the duties of a good daughter-in-law. She has never mentally harassed anyone. She used to perform all the household work in her in-laws house, in fact, because of non- fulfilment of demand of dowry, her husband and his family members used to abuse her almost every day, did not give her food and harassed her by beating her almost everyday. When she fell sick, they did not get her treated. Even after this, her husband and his family behaved rudely with her and tried to prove her mentally ill in some way or the other, in order to divorce her and marry again with somebody.
It was further averred that she has never refused to maintain marital relations and never been mentally deranged nor does she suffer from bouts of insanity. It was further alleged that when she is not insane, then the question of her parents hiding this fact does not arise. Due to non-fulfillment of demand of rupees two lac, appellant and his family used to beat up. They ousted her from her in-laws house. Since then, she has been living in her parental home. She is ready to live with her husband but her husband never made any attempt to bring her back, rather he abandoned her. Her parents tried to convince her 5 FA 253 of 2017 husband several times, but he clearly refused to keep her with him and said that he would keep her only if she gave him two lac rupees otherwise, he would divorce her and marry someone else. Out of such helplessness, she filed a case against his husband and his family under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act, which is pending in the Court.
It was further averred that from the beginning of her marriage, her husband and his family members pressurized her to bring rupees two lac as dowry and when demand was not fulfilled, she was harassed in various ways and a divorce petition was filed by appellant on false grounds to abandon her and get rid of her. She is a simple and straightforward woman from a respectable family and has always followed her duties as a wife but appellant and his family are greedy for dowry and abandoned her due to demand of dowry whereas she is ready to live with her husband even today. On these grounds, the divorce application filed by appellant deserves to be rejected. (4) Appellant- husband in support of his evidence, examined himself as AW-1, his father Brajesh Chandra Dixit as AW-2 and other witnesses, namely, Shailendra Tomar, Shanti Mishra and Ashish Pandey as AW3 and AW4 and AW5 while respondent, in support of her evidence, examined herself as NAW- 01, her father Ram Prakash Sharma as NAW-2 and other witness Ramkishore as NAW-3 respectively.
(5) On the basis of pleadings made by both the parties, the Family Court framed issues and vide judgment and decree dated 10-08-2017 dismissed the divorce application filed by appellant under Section 13 of Hindu Marriage Act. Hence, the husband is in appeal before this Court.
(6) Learned Counsel for appellant- husband submits that the Family Court has committed an error in dismissing divorce application filed by appellant and passed the impugned judgment and decree only on the basis of assumption and presumption. During pendency of this appeal, appellant and his family members have been acquitted of charges levelled against them at the instance 6 FA 253 of 2017 of respondent under Section 498-A and under Section 3 /4 of Dowry Prohibition Act vide judgment dated 18th of August, 2017 passed by the Court of JMFC, Gwalior in Case No.10953 of 2012 and the said judgment of acquittal was not in existence before the Family Court and was passed after passing the impugned judgment and decree by the Family Court. Relying on the judgments of Hon'ble Apex Court in the cases of Vishwanath Agrawal vs. Sarla Vishwanath Agrawal (2012)7 SCC 288, Raj Talreja vs. Kavita Talreja (2017) 14 SCC 194, K. Srinivas Ro vs. D. A. Deepa (2013) 5 SCC 226, Narendra vs. K. Meena (2016) 9 SCC 455 and Rani Narasimha Sastry vs. Rani Suneela Rani (2010) 18 SCC 247, learned Counsel for appellant submits that making false as well as fabricated criminal accusations, so also baseless criminal complaint and malicious prosecution against a spouse constitutes mental cruelty and is a valid ground for divorce as well as dissolution of marriage because false accusation of dowry of demand was made by respondent with an intent to malign the reputation of appellant and his family. If one spouse like present respondent, in furtherance of ulterior motives, files false case/complaint, it becomes impossible to constitute the marital relationship.
(7) It is further contended that respondent had left her in-laws house on 14 th May, 2011 without any valid reason whereas the divorce application was filed by appellant on 25th of May, 2012. As a counter- blast, respondent had filed a false case under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act against appellant and his family members at Police Station Maharajpura, Gwalior on 03-06-2012. The order of acquittal for aforesaid offence has been filed which was after the impugned judgment and decree of the Family Court, would show that unwarranted allegations were levelled by the wife over the husband and his family members. Levelling false allegations and implicating in criminal case would also amount to cruelty. Relying on the judgment of Apex Court in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 7 FA 253 of 2017 and R. Srinivas Kumar vs. R. Shametha (2019) 9 SCC 409, it is contended on behalf of appellant that long-term separation and absence of any emotional or physical relationship as valid ground for divorce based on mental cruelty. When the marriage of the parties has broken down beyond repair and there is no possibility of living together as husband-wife, forcing the parties to remain in the marriage serves no purpose and there is no benefit to continue the marriage which again spoil the life of both the parties. Therefore, under the circumstances, the impugned judgment and decree deserves to be set aside and a decree of divorce be drawn up.
(8) On the other hand, learned Counsel for respondent- wife submits that the respondent has not caused any mental or physical cruelty either to her husband or his family and appellant has utterly failed to prove alleged incidences of cruelty by any sufficient oral and documentary evidence before the Family Court . Before Counsellor in the Family Court, she had made several attempts to live together but her husband does not take her which shows that it was desertion at the instance of appellant and not at the instance of respondent. Respondent has been living in her parental home since 14 th of May, 2011. On 25-05-2012 her husband filed an application for divorce, therefore, period of desertion should be two years prior to filing of divorce petition and appellant is not entitled to get a decree of divorce. There is no iota of evidence to draw an inference that the husband was subjected to mental cruelty by the wife and only on the false allegations, the report is made. It is further submitted that other allegations are of normal wear and tear and the same would not amount to cruelty. This aspect has been taken into account by learned Family Court while passing the impugned judgment and decree. Thus, the impugned judgment and decree passed by the Family Court is well-merited and needs no interference of this Court. Hence, prayed for dismissal of this appeal.
(9) Heard learned Counsel for the parties at length and perused impugned 8 FA 253 of 2017 judgment and decree as well as evidence available on record. (10) Concept of ''mental cruelty'' has been elaborately discussed by Hon'ble Supreme Court in the case of Dr. Narayan Ganesh Dastane Vs. Mrs. Sucheta Narayan Dastane, AIR 1975 SC 1534 whereby, the relevant extract of the said judgment is reproduced as under:-
''The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances."(1) The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins (2) ALL ER 966 "In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."
(11) The aforesaid judgment of Dr. Narayan Ganesh Dastane (supra) still holds the field and is source of wisdom time and again in respect of ''mental cruelty''. The aforesaid decision was referred to with approval in the cases of Praveen Mehta Vs. Inderjit Mehta AIR 2002 SC 2582, Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511, Manisha Tyagi Vs. Deepak Kumar (2020) 4 SCC 339, Vishwanath Agrawal Vs.Sarla Viswanath Agrawal (2012) 7 SCC 288 and U. Sree Vs. U. Srinivas (2013) 2 SCC 114.
9 FA 253 of 2017 (12) The Hon'ble Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh (2007)4 SCC 511, has enumerated the illustrative instances of human behaviour which may be relevant for dealing with the cases of ''mental cruelty'':-
"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) ** ** **
(iii) ** ** **
(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) ** ** **
(viii) ** ** **
(ix) ** ** **
(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) ** ** **
(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) ** ** **
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond
10 FA 253 of 2017 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. (13) So far as the legal principles with regard to ''desertion'' is concerned, the Hon'ble Apex Court in the case of Bipinchandra Jaisinghbhai Shah Vs. Prabhavati AIR 1957 SC 176 has explained as under:-
'' For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi ). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under
the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce; under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi '' (14) The Hon'ble Apex Court in the case of K. Srinivas vs. K. Sunita (2014) 16 SCC 34, in Para 7 has held that in these circumstances, we find that the appeal is well founded and deserves to be allowed. We unequivocally find that
11 FA 253 of 2017 the respondent wife had filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty. Further, the Hon'ble Apex Court in the case of K. Srinivas Rao vs. D.A. Deepa (2013) 5 SCC 226 has held that spouse can cause mental cruelty by filing complaints or by initiating number of judicial proceedings.
It is equally well-settled in law that lodging of false complaint amounts to cruelty {See: (2014) 7 SCC Malathi Vs. B.B. Ravi, (2013) 5 SCC 226 K. Shrinivas Rao Vs. D.A. Deepa, (2014) 16 SCC 34 K. Shrinivas Vs. Ku. Sunita and AIR 2003 MP 271 Johnson M. Joseph alias Shajoo Vs. Smt. Aneeta Jhonson)} (15) The Hon'ble Supreme Court in the case of Samar Ghosh (supra) has considered the aspect of irretrievable breakdown and held that the same can be made a ground for divorce. Further, in the case of Shri Rakesh Raman Vs. Smt. Kavita 2023Live Law (SC) 353, the Hon'ble Apex Court observed that long separation, in absence of cohabitation and complete breakdown of all meaningful bonds and existing bitterness between the husband and wife, has to be read as ''cruelty'' under Section 13(1)(i-a) of the HM Act. Further, the Hon'ble Apex Court in the case of Shilpa Sailesh Vs. Varun Sreenivasan (2023) AIR (SC) Civil 2212 has also clearly observed that grant of divorce on the ground of irretrievable breakdown of marriage by the Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that 'complete justice' is done to both the parties. It is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way to look forward. That the marriage has irretrievably broken-down is to be factually determined and firmly established. For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the 12 FA 253 of 2017 parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the Court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. (emphasis supplied) (16) On the enunciation of law as above let us see whether the husband has been able to a case which may constitute mental cruelty as well as desertion for the purpose of granting a decree for divorce against the wife- respondent. On perusal of impugned judgment and decree, it appears that both the husband and parties and their witnesses adduced oral as well as documentary evidence in support of their pleadings by which the Family Court proceeded to decide the case based on evidence available therein and has held that there is no evidence forthcoming from appellant-husband that the respondent- wife voluntarily left her in-laws house without any reasonable cause and refused to come back which may be termed as ''desertion''.
(17) So far as present case at hand is concerned, it is not in dispute that the marriage of parties was solemnized on 27 th of June, 2007 and from the record, it transpires that the respondent left her in-laws house on 14 th of May, 2011 along with her brother and has been living since then at her parental home. Divorce application was filed by appellant on 25 th of May, 2012. As a counter blast, respondent-wife filed a false case under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act on 03-06-2012 at PS Maharajpura against the appellant-husband and his family members. Both the parties are living separately for last more than 13 years. The matrimonial bond is completely broken and is beyond repair. Long separation of husband and wife and in absence of cohabitation and irretrievable breakdown of all meaningful bonds as well as marital relationship and the existing bitterness between husband and wife, in criminal case the husband and his family members have 13 FA 253 of 2017 been acquitted, then continuation of such married life would only mean giving sanction to ''cruelty and desertion''.
(18) With regard to acquittal in criminal case, the Hon'ble Supreme Court in the matter of Rani Narsimha Sastry (supra) has observed that when a prosecution was lunched against the husband on a complaint made by the wife under Section 498-A of IPC, making serious allegations in which the husband and his family members were constrained to undergo trial, which ultimately resulted into acquittal, then in such a case, it cannot be accepted that no cruelty was meted out to the husband, therefore, he can make a ground for grant of decree of dissolution of marriage under Section 13(1)(i-a) of the HM Act. (19) In the present case, so far as the allegation of demand of dowry made by respondent-wife against her husband-appellant and his family members is concerned, the order of acquittal for offence under Section 498-A of IPC and Section 3/4 of the Dowry Prohibition Act has been filed by husband-appellant, which was after impugned judgment and decree of the Family Court, which shows that unwarranted allegations were levelled by respondent- wife over the husband and his family members. On perusal of judgment of acquittal, it appears that false as well as fabricated criminal accusations so also baseless criminal complaint and malicious prosecution against present appellant was lunched against the appellant and his family members which comes within the category of ''mental cruelty'' and is a valid ground for divorce as well as dissolution of marriage because false accusation of dowry of demand was made by respondent with an intent to malign reputation of appellant and his family and it is not possible to establish marital relationship between the parties.
(20) It is trite law that long separation, mental and physical torture, unwillingness of party to live together as husband and wife, has left no scope to repair their marital bond, in such a situation, the marriage has become a fiction though supported by a legal tie. By refusing to server that tie, the law in 14 FA 253 of 2017 such case, does not serve the sanctity of marriage, on the contrary, it shows scant regard for the feelings and emotions of the parties which may lead to ''mental cruelty''. So, denial to grant of decree of divorce would be disastrous for the parties.
(21) During the course of arguments, both counsel for parties expressed their desire that alternatively, they are ready to settle the matter, provided permanent alimony is given. On the one hand, respondent expressed her willingness to live in matrimonial fold and on the other hand, appellant expressed his willingness that he seeks a decree of divorce and does not want to live with respondent and is ready to give permanent alimony of Rs.12.5 lac as one-time settlement. Both the parties in support of their stand filed affidavits and the same are taken on record.
(22) In view of concessional statement made by both the parties as well as the contents of the affidavits sworn by them, this Court thinks it just and proper to allow permanent alimony @ Rs.12. 5 lac in favour of respondent, which is payable by appellant husband either in lump sum by way of Demand Draft or in two equal instalment by way of Demand Draft, first of which shall be payable in the last week of January, 2025 and remaining amount shall be paid at the end of February, 2025. Marriage between the parties is dissolved by way of granting aforesaid permanent alimony.
(23) In view of foregoing discussions, the judgment and decree dated 10-08- 2017 passed by Principal Judge, Family Court, Gwalior in Case No.339-A of 2012 (HMA) deserves to be and is hereby set aside.
(24) Subject to above compliance of direction, decree be drawn accordingly.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
MAHEN
Digitally signed by MAHENDRA BARIK
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Date: 2025.01.16 16:45:03 +05'30'