Madhya Pradesh High Court
Smt. Meena Rai vs Sunil Rai on 16 May, 2024
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 16 th OF MAY, 2024
FIRST APPEAL No. 169 of 2020
BETWEEN:-
SMT. MEENA RAI W/O SUNIL RAI, AGED ABOUT 33
YEAR S, OCCUPATION: GOVT. SERVICE R/O DR. L.P.
RAIS HOUSE BEHIND GRAM AAMCHOPRA JABALPUR
NAKA, TEHSIL AND DISTRICT DAMOH (M.P.) O/O SMT.
MEENA RAI W/O SUNIL RAI POSTEL ASSISTANT, HATA
POST OFFICE HATA DISTRICT DAMOH (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI SANDEEP MISHRA - ADVOCATE)
AND
SUNIL RAI S/O N.L. RAI, AGED ABOUT 38 YEARS,
OCCUPATION: GOVT. SERVANT R/O 345 NEAR
MAHARASHTRA BANK VIJAY NAGAR, DISTRICT
JABALPUR (M.P.)
.....RESPONDENT
(PARTY-IN-PERSON)
T h is appeal coming on for orders this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
JUDGMENT
This is an appeal filed by the appellant-wife under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, challenging the judgment and decree dated 16.01.2020 passed in Civil Suit No.140 of 2017 by the First Additional Principal Judge, Family Court, District Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 5:38:30 PM 2 Jabalpur, whereby an application preferred by the respondent-husband under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act for granting a decree of divorce on the ground of cruelty and desertion, was allowed.
2. The facts of the case, in substance, are that the appellant is the legally wedded wife of the respondent. Their marriage was solemnized on 11.03.2015 at Damoh according to the Hindu rites and rituals. On 23.06.2017, an application was filed by the respondent-husband before the Family Court at Jabalpur for grant of decree of divorce on the grounds of cruelty and desertion. It is stated that the appellant used to quarrel with the respondent and she refused to perform her matrimonial obligations.
3. In reply, the appellant-wife denied all the adverse averments and contended that no cruelty was meted out to the respondent by her as alleged. The allegation of desertion was controverted.
4. On the basis of the averment made by the parties, the issues were framed and after affording opportunity of hearing to the parties, the learned Family Court decided the issues in favour of the respondent-husband and held that he has established the grounds of cruelty and desertion and hence allowed the application under Section 13 of the Hindu Marriage Act preferred by him for a decree of divorce. The learned Family Court has relied upon the judgments of the Hon'ble Supreme Court in the case of Naveen Kohli vs Neelu Kohli reported in (2006) 4 SCC 558 and that of Punjab and Haryana High Court in the case of Rama Kanta vs Mohinder Laxmidas Bhandula AIR 1996 P&H 98.
5. Being aggrieved and dissatisfied with the impugned judgment and decree dated 16.01.2020, the appellant-wife is before this Court. The averments made in the application reveal that the solemnization of marriage is undisputed fact on record. It is argued that the respondent-husband has never tried to get the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 5:38:30 PM 3 appellant-wife back to her matrimonial home. The appellant-wife has not committed any act of desertion.
6. The respondent-party-in-person would submit that the learned Family Court has properly appreciated the facts and pleadings of the case, as also the oral and documentary evidence adduced by the parties and has rightly allowed the application filed by the husband seeking for a decree of divorce.
7. The learned Family Court framed the issues based on the rival contentions of the parties. The husband examined himself and the witnesses as PW1 to PW7 and exhibited the documents as Ex.P/1 to Ex.P/31 while the wife examined herself as DW1.
8. The husband as PW1 pleaded that the marriage was solemnized at Damoh with the consent of their family members and according to the Hindu rites and rituals. He worked at High Court of Madhya Pradesh Bench at Indore on the post of Assistant Grade III whereas she is working in Postal Department. After the marriage, she came to her matrimonial home and stayed only for three days. Thereafter, on 15.03.2015, without any information, she went to her parental home at Damoh. On 27.03.2015, she came back to Jabalpur at 11 a.m. for performing pooja and informed that as she did not take any leave from the office, she returned back to Damoh at 5 p.m. Thereafter, she never returned back. From 11.03.2015 i.e. the date of marriage till the date of filing of the application for divorce, no physical relations were developed between them. She failed to discharge her matrimonial obligations of conjugal relationship. The standard of proof required in matrimonial disputes is of the preponderance of evidence. The statement of this witness on the above account remained unchallenged. His testimony is duly corroborated by other witnesses.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 5:38:30 PM 49. On the other hand, the wife as DW1, in order to justify her conduct of living separately, alleged that she was tortured by the family members of the husband on the ground of demand of dowry and she was ousted from her matrimonial house. In her cross-examination, she admitted that she never tried to get her transfer to Indore.
10. The learned Family Court after referring to the evidence tendered by both the parties, has allowed the application filed by the respondent-husband holding that the allegation of cruelty as well as desertion has been proved by him. While doing so the Family Court had referred in detail to the evidence that had been tendered. All the findings given by the learned trial Court are based on the proper appreciation of evidence.
11. The term "cruelty" has not been defined in the Hindu Marriage Act, 1955. Cruelty may be of two kinds, one is physical cruelty and second is mental cruelty. So far as mental cruelty is concerned, according to us the cruel treatment by the spouse beyond the degree of tolerance power which a normal person can tolerate and it should be up to the degree that the spouse is unable to live with the husband or wife as the case may be. There cannot be a definite yardstick to measure mental cruelty and it is to be decided on the basis of circumstances of each case. However, if the behaviour of the spouse is such that it is crossing the limits which a prudent or sensible person is not expected to do then it may amount to mental cruelty.
12. In case of Naveen Kohli (supra), it is held by the Hon'ble Supreme Court in para 66 as under :-
"66. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 5:38:30 PM 5 married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered as noted above in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complainee spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party."
13. It is a settled law that the burden of proving desertion - the "factum" as well as the "animus deserendi"- is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner husband has still to satisfy the Court that the desertion was without just cause.
14. The record indicates that the marriage was solemnized between the parties on 11.03.2015 at Damoh. She stayed in the matrimonial home only for three days and went back to her parental house. She had taken an amount of Rs.5 lakhs and jewellery with her. On 27.03.2015, she came back to Jabalpur at 11 a.m. and informed that she did not take any leave as she was a Government servant. Therefore, she went back to Damoh at 5 p.m. and thereafter she never returned back. From 11.03.2015 till the date of filing of the application for Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 5:38:30 PM 6 divorce, no physical relations were developed between them. From April, 2015 to May 2015, when the respondent was hospitalized at Indore and the same was informed to the wife, she did not even bother to come there to see him. The husband was working on the post of Assistant Grade III in the High Court of Madhya Pradesh Bench at Indore. The wife is also a Government servant but she has never made any attempt to get herself transferred to Indore. She got herself transferred to Hata and started residing with her brother-in-law (Jija) namely Vijay Rai. She was talking to him for hours together. She used to roam here and there with him.
15. The record further indicates that a criminal case was got registered for offence under Section 489A of the IPC by the wife on 23.08.2016 and after lodging of the FIR, she has written a letter to the High Court of Madhya Pradesh Bench at Indore pointing out that there is a criminal case registered against the respondent, therefore, he cannot be permitted to continue in the Government job. Under these circumstances, the respondent was removed from the job. The record also reveals that vide judgment dated 13.02.2019 passed in Criminal Case No.RCT 2041550 of 2016 (State of M.P. vs Sunil and others), though the family members of the respondent were acquitted but the respondent was convicted under Section 498A of the IPC and sentenced to undergo R.I. for 1 year and fine of Rs.500/- and under Section 4 of the Dowry Prohibition Act and sentenced to undergo R.I. for 6 months and fine of Rs.500/-. He preferred an appeal against the judgment of conviction which was allowed in CRA No.15 of 2009 vide judgment dated 03.01.2020 and the respondent was acquitted of both the charges. The wife had preferred an appeal against the acquittal of other family members. The same has been dismissed vide CRA No.20 of 2019 by the same judgment dated 03.01.2020.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 5:38:30 PM 716. It is argued that the husband and the entire family had to face a criminal prosecution on a false complaint registered by the wife. The family members were already acquitted by the JMFC and thereafter, the husband was also acquitted by the appellate court. It is seen from the record that the wife has resided only for three days in her matrimonial house which could not be disputed by the wife. The marriage was solemnized on 11.03.2015.
17. The statements which have been recorded before the trial Court clearly reflect that there are specific allegations against the wife regarding cruelty and having relations with her brother-in-law. She had never bothered to live with the husband and for no reason she has deserted him. No attempt was made by her to get herself transferred to Indore where the husband was working. On the contrary, a false criminal case was registered against the husband and his family members in which he has already got an acquittal from the appellant court.
18. The learned trial Court vide impugned judgment has considered the aforesaid aspect of the matter and has allowed the application filed by the husband for seeking a decree of divorce. The registration of a false criminal case against the husband and his family members clearly falls under the definition of 'cruelty' as has been considered by the Hon'ble Supreme Court in large number of judgments including in in the cases of Naveen Kohli (supra), A. Jayachandra vs Aneel Kaur reported in (2005) 2 SCC 22 and K. Srinivas Rao v. D.A. Deepa reported in (2013) 5 SCC 226.
19. The counsel appearing for the appellant-wife could not dispute the fact regarding registration of a criminal case and acquittal of husband and his family members. However, it is argued that the husband was convicted by the learned JMFC but he has subsequently been acquitted, therefore, it cannot be said that Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 5:38:30 PM 8 a false case has been registered by the wife. However, the fact remains that the learned appellate court has given a specific finding that no case is made out against the husband looking to the facts and circumstances of the matter. The fact that the wife has resided only for three days with the husband after the marriage and she has not performed her conjugal relationship and matrimonial duties, therefore, the same also amounts to cruelty. The law is well settled that if either of the parties to a marriage being in a healthy physical capacity refuses to have sexual intercourse, the same would amount to cruelty entitling the other party to a decree.
20. The Hon'ble Supreme Court in the case of Suman Kapur vs Sudhir Kapur reported in (2009) 1 SCC 422 has held that continuous cessation of marital intercourse or total indifference on the part of the wife towards marital obligations would lead to legal cruelty. In Samar Ghosh vs Jaya Ghosh reported in (2007) 4 SCC 511, the Hon'ble Supreme Court laid down various acts which may amount to mental cruelty and one such illustration was unilateral decision of refusal to have intercourse for considerable period of time without there being no physical incapacity or valid reason. In the case of Rajeev Chadha vs Shama Chadha Nee Shama Kapoor reported in (2012) 188 DLT 313, it was observed that the marriage without sex is an anathema and denial of sex in marriage has extremely unfavourable repercussions and there is nothing more fatal to marriage than disappointment in sexual relationship. Further, in Shakuntala Kumari vs Om Prakash Ghai reported in AIR 1983 Delhi 53, it was observed that wilful denial of sexual relationship by a spouse amounts to cruelty, especially when the parties are newly married and this itself is a ground for grant of divorce.
21. The learned Family Court has discussed the entire evidence and has Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 5:38:30 PM 9 reached to the finding that the husband has proved the allegations of cruelty and desertion. The evidence available on record as discussed above would suggest in definite terms that the behaviour of the appellant-wife was not respectful towards the respondent and his family member. The same would construe as a cruelty towards the husband. Further, the allegation of desertion was proved by the husband and thereafter burden shifted to the wife to prove that act could not be attributable to an animus deserendi and she is living separately due to reasonable cause. However, the wife had failed to prove the same and consequently, the husband was rightly held entitled for decree of divorce on the ground of desertion also.
22. The learned trial Court has considered the aforesaid aspect of non- performance of marital relationship and duties being falling under the definition of cruelty. On both counts, the learned trial Court has not committed any error in granting decree of divorce in favour of the respondent-husband by dissolving the marriage dated 11.03.2015. No other argument is addressed before this Court by the appellant. Hence, no interference is called for in a well reasoned judgment passed by the trial Court. The impugned judgment and decree is just and proper looking to the overall facts and circumstances of the case. There is nothing on record to show that even an attempt was made by the wife to reconcile the marital relations whereas the husband has made possible efforts to bring back the wife which is reflected from the statements recorded before the learned Family Court. In the opinion of this Court, the respondent-husband cannot be reasonably expected to live with the appellant-wife.
23. In the result, the appeal, sans merit, is liable to be and is hereby dismissed, leaving the parties to bear their own cost(s).
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 5:38:30 PM 1024. Let a decree be drawn accordingly. Record of the Family Court be returned along with copy of judgment and decree.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
VV
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 5/24/2024
5:38:30 PM