Madhya Pradesh High Court
Dr. Deepa @ Jaya Nahata D/O Shri Ganpat ... vs Dr. Sandeep Nahata on 25 November, 2024
Author: Hirdesh
Bench: Hirdesh
1 FA 137-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE SHRI ANAND PATHAK &
HON'BLE SHRI HIRDESH, JJ
ON THE 25TH OF NOVEMBER, 2024
FIRST APPEAL NO. 137 OF 2023
DR. DEEPA @ JAYA NAHATA
Versus
DR. SANDEEP NAHATA
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Appearance:
Shri Upendra Yadav- learned Counsel for appellant-wife
Shri Amit Lahoti and Shri Divakar Vyas- learned Counsel for respondent-
husband
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JUDGMENT
Per Shri Hirdesh, J:-
The instant first appeal under Section 19 of the Family Courts Act is preferred by appellant- wife, challenging the judgment and decree dated 13 th of December, 2022 passed by Additional Judge to the Court of Principal Judge, Family Court, Gwalior in RCSHM No.3082 of 2022 and RCSHM 3075 of 2022 whereby the application filed by respondent- husband under Section 13(1)(i-a) of the Hindu Marriage Act [hereinafter it would be referred to as ''the HM Act''] for grant of decree of divorce on the ground of cruelty, has been allowed and the application filed by appellant-wife under Section 9 of the HM Act for restitution restitution of conjugal rights, has been dismissed. (2) Briefly stated the facts of case are that in the application for grant of decree of divorce (RCSHM 3082 of 2022), it was alleged by respondent-
husband that his marriage was solemnized with appellant on 12 th of October, 2010 at Gwalior as per Hindu rites and rituals. At the time of engagement, it 2 FA 137-2023 was alleged that diamond ring worth of Rs.30,000/-, cash of Rs.5,000/-, clothes, jewellery, total worth Rs.4 lac were given by him and same are now with the appellant. It was further alleged that after marriage, when appellant came at her in-laws house, her behaviour remains changed. She used to taunting over pity matters and not doing work properly, used to disrespect elders of his family. From the very beginning, appellant used to pressurize him to stay away. When he and his family members told parents of appellant, appellant and her family members gave a threat that they will implicate in a false dowry case. Appellant also used to give a threat to kill herself by consuming poison, burning herself and in other ways.
It was further alleged on behalf of respondent that when he disagreed with the appellant's proposal for staying away, she made false allegations against him and his family members of cruelty upon her. It was further averrred that at the time of marriage, the parents of appellant had suppressed the fact regarding BDS Qualification of appellant. The entire expenditure of studies of appellant was borne by herself and her family is false.
Respondent- husband further alleged that that after death of his uncle, he brought appellant from Gwalior to Ujjain where she stayed only for four days and during this time, at the behest of her parents and relatives, appellant filed a false report of dowry on 10th of February, 2011 against him and his family members. Within seven days thereafter, parents of appellant came to Ujjain and took away all belongings of appellant without informing anyone. Thereafter, appellant filed a false case against respondent for restitution of conjugal rights and maintenance. During this period, appellant gave birth to a daughter. When he went to Gwalior, he was pressurized if he would live separately with her, she would withdraw both cases pending in Gwalior on the basis of compromise.
Respondent further alleged that he filed a case to declare the marriage with appellant as null and void on the ground of false Degree as well as mental 3 FA 137-2023 illness of appellant and also filed an application before this Court for getting case transferred. It was further alleged that when respondent came to Ujjain at the time of hearing, even during reconciliation proceedings, she clearly refused to stay with him. At the time of marriage of younger brother of respondent, appellant again came to Ujjain accompanied her parents and sister and stayed for 100 days at Ujjain. When he asked appellant to compromise in dowry case and harassment, the appellant came before Ujjain Court and refused to compromise and on the same day, she went with her father to Gwalior and since then, she is living with her parents in her maternal home and practicing as a Dentist.
Respondent further alleged that on 08-08-2013, appellant along-with her parents came to Ujjain and withdrew application for transfer of case from CJM Court, Ujjain with a condition that a compromise has already been arrived at between appellant and respondent and they do not wish to take any further action and case for transfer of case be cancelled and also assured not to take any action under Section 498-A of IPC.
Respondent further alleged that on the basis of wrong advice of her parents and her Advocate, appellant made another false written complaint with police against respondent and his family members and went back to Gwalior. Ever since, appellant has been living separately from him. Appellant used to say that she will seek divorce from him as she is not dependent on him and she can maintain herself and her daughter, because she is practicing as a Dentist.
Respondent further alleged that appellant is a woman of liberal thinking and does not want to live in joint family with own volition and she used to pressurize him to live separately from his family and does not care about dignity of elders. She used to behave abnormally and indecently with him and his family. Because of such behaviour, his family has suffered a lot of social and mental as well as financial loss in the society. Her behaviour became cruel towards him and his family.
4 FA 137-2023 By way of amendment application, it was averred by respondent that appellant has also lodged a false false Private Complaint No.7490 of 2016 against him before the Court of JMFC, Gwalior for offence punishable under Section 494 of IPC in which, he got the benefit of bail. Appellant has also filed a case of domestic violence against him and his family before the Court of JMFC, Gwalior in which, an order of interim maintenance was passed, against which, respondent filed a criminal appeal before Sessions Court, Gwalior and same was disposed of vide order dated 01-10-2014 by Sessions Court by remitting the matter back to the trial Court. Due to non-appearance of appellant before the Trial Court concerned, on 19-01-2015 case was dismissed. Again, on behalf of the appellant an application was filed for restoration and the same was also dismissed vide order dated 03-11-2015. Because of such act and cruel behaviour of appellant, respondent faced a lot of mental agony.
In the amendment application,it was further averred on behalf of respondent that the domestic violence case filed by appellant before Sessions Court has been dismissed vide order dated 11-08-2015. He suffered a lot of mental agony due to cruel behaviour towards him and his family. It was further alleged that appellant filed a petition before the Gwalior Bench for registration of a criminal case against him on the ground that respondent has obtained job of Medical Officer on the basis of giving false declaration and in pursuance of order dated 08-11-2016 passed by this Court, his service was snatched at the hands of appellant. Then, respondent challenged the said order before the Indore Bench and the same is kept pending.
Under these circumstances, respondent has suffered a lot of mental and physical distress for which, he had left no option but to file an application for grant of decree of divorce on the ground of cruelty against the appellant. (3) In reply to the application filed by respondent- husband, appellant-wife denied all allegations of respondent that her marriage was solemnized without any dowry. The appellant-wife in her counter alleged that at the time of her 5 FA 137-2023 marriage, her parents had given sufficient dowry including jewellery worth Rs.1 lac, cash of Rs.1,50,000/- and other household articles. Respondent has not given any types of articles or cash at the time of engagement before marriage. Respondent and his family members used to beat up her inhumanly and harass her with regard to demand of dowry and threw her out of house. She is living in her maternal home and leading a life of burden.
It was further alleged that appellant has always discharged her duties and responsibilities towards respondent and his family. She is ready to live with respondent even today. Therefore, she has submitted an application under Section 9 of the HM Act for restitution of conjugal rights. It was further alleged that respondent abandoned her without any proper or sufficient reason. The respondent is not legally entitled to obtain a decree of divorce against her.
It was further alleged by appellant that when her marriage was fixed, there was no such condition that she would live with respondent in joint family or live separately. Respondent is not ready to keep her with him, therefore, she has filed an application under Section 24 of CPC to the effect that application filed under Section 9 of the HM Act be transferred to the Court of Ujjain. During conciliation proceedings, even respondent did not appear on various dates. She has never made any false, baseless allegations against respondent and his family members nor did she create any disturbance in in-laws house nor did she ever behave cruelly. While fixing her marriage, all types of correct information regarding her qualification was given by her and her family members. It was further denied that respondent and his family had spent on her further education.
Appellant in her counter further alleged that respondent and his family members are extremely greedy for dowry and they used to beat her for dowry demand and harass her physically and mentally due to which she was forced to report. When her family members did not fulfil demand, respondent abandoned her without any valid reason and since then, no care of her and no 6 FA 137-2023 maintenance have been given. Respondent had filed an application under Section 12 of the HM Act before the Family Court Ujjain and she had also filed a petition before the Gwalior Bench. During this time, she was six months pregnant.
It was further alleged that respondent inhumanly beat her on the demand of dowry due to which she suffered injuries on both her hands and neck. Respondent and his family members threatened her that unless Rs. 5 lac as additional dowry is fulfilled, they will not keep her with them, whereby she was bound to file a dowry and harassment case against respondent and his family members. On these grounds, respondent is not entitled to obtain decree of divorce and prayed for dismissal of divorce application. (4) Appellant in her application filed under Section 9 of the HM Act (RCSM 3075 of 2022), it was averred that her marriage was solemnized with the respondent as per Hindu rites and rituals on 12 th of February, 2010 at Gwalior. Out of said marriage, she gave birth to a daughter, Ku. Ananya, who is minor and is living now with her. In marriage, her father had given jewellery worth Rs.1 lac, cash Rs.1,50,000/- and other household articles as per capacity. Since 15-20 days after marriage, respondent and his family members used to harass and torture her physically and mentally by demanding Rs.5 lac. It was further averred in the application that on 09-02-2011 she was beaten by respondent and his family members inhumanly on the issue of dowry due to which, she had sustained injuries on both her hands and neck. It was further averred that respondent and his family members used to give threat that unless demand is fulfilled, they would not keep with them and threw her out of house. At that time, she was pregnant of four months. She informed her parents as well as the police about the incident. Thereafter, she filed an application under Section 125 of CrPC before the Family Court, Gwalior for maintenance and Section 9 of the HM Act for restitution of conjugal rights. It was further averred that a compromise was arrived at between them before the Court and since then, 7 FA 137-2023 neither respondent came to her nor did he make any arrangement for her maintenance etc. During this period, she gave birth to a daughter Ku. Ananya but respondent had neither borne the delivery expenses nor did he come to see her and her daughter.
It was further alleged that respondent and his family members are very greedy for dowry. She and her parents tried a lot to convince with respondent and his family members but they were adamant. Now, she is living in her maternal home along- with her daughter and leading a miserable life. Respondent abandoned her without any proper and sufficient reason. She had made a lot of efforts to live with respondent respondent is unwilling to keep her with him. Respondent is not discharging his marital relationships towards her, as a result of which she has been helpless and, therefore, prayed for obtaining a decree for restoration of marital relations. (5) In reply to the application filed by appellant under Section 9 of the HM Act, it was averred on behalf of respondent that appellant filed an application under Section 12 of Domestic Violence Act in which, an order of maintenance to the tune of Rs.2,000/- per month in favour of appellant and Rs.1,000/- in favour of minor daughter Ananya has been passed and no order has been passed in favour of the appellant for jointly living. It was further averred that he is not in any regular Government service nor does he practice privately as a doctor. Under the influence of her parents and relatives, appellant has made false and baseless allegations against him and his parents. Always appellants wants to live separately by pressurizing him which shows dubious and mean mentality attitude. It was further countered that false and baseless allegations of dowry and domestic violence have been made against him and his family members which have caused mental cruelty. Appellant herself as a Dentist, does not want to live with him and his family. Her father is also posted as Senior Accountant in MPDM Department in Gwalior City and received a monthly salary of about 50-60 thousand per month. Appellant does not want to 8 FA 137-2023 live in a joint family of her own free will. Therefore, he has filed a divorce application against the appellant before the Family Court, Ujjain.
It was further alleged that from the very beginning, appellant is mentally unfit, has lost her mental balance and used to behave abnormally as she is suffering from insomnia and chronic disease. She used to create ruckus while staying at home. She used to leave the house without informing anyone. In month of December, 2010, parents of the appellant took her from in-laws house for her treatment and then on 7th of February, 2011, on pretext of marriage in house of the respondent, appellant was again brought back to in-laws house. As per conspiracy of the family and relatives of appellant, he has been forced to live separately. It was further alleged that that on 9 th of February, 2011, appellant herself made an attempt to cut veins of her hand by scratching them with her nails to put pressure on his family. As per pre-planned conspiracy, he and his family were implicated in a dowry case by making a false report of dowry demand by appellant.
It was further averred that he is a doctor in profession and is facing mental, financial and physical loss due to illness and fights of appellant and appellant is creating a situation whereby his life has become dark. It was further alleged that his reputation and image as well as of his family has been tarnished in public. It was further averred that after obtaining degree of Dentist appellant has completed internship and is now practicing as Dentist in Gwalior City from which she used to earn about 40-50 thousand rupees monthly. It was further alleged that appellant has concealed the fact of being a Dentist herself in the original application and deliberately concealed this fact for getting relief from the Court. It was further alleged that that appellant being self-dependent, is living separately from him and his family on her free will and she herself wants to dissolve marriage. Therefore, application filed by appellant under Section 9 of the HM Act deserves to be rejected.
(6) After hearing the pleadings of both the parties, the learned Family Court 9 FA 137-2023 framed issues. After recording evidence of parties and considering the material available on record, the learned Family Court vide impugned judgment and decree dated 13-12-2022 dismissed application filed by wife under Section 9 of the HM Act for restitution of conjugal rights and allowed application filed by husband under Section 13 of the HM Act for grant of divorce on the ground of cruelty.
(7) Learned Counsel for appellant- wife submits that impugned judgment and decree passed by Family Court is perverse. Although many attempts were made on behalf of appellant that her willingness is to reside with respondent but the Family Court in para 62 of its judgment and decree held that for such a long period of living separate, no efforts have been made to reconcile. The Family Court has committed an error in rejecting the application for restitution of conjugal rights and in para 35 of the judgment and decree has not taken note of complaint regarding cruelty filed by wife. Allegation made by respondent and his family members in regard to cruelty is frivolous and fabricated. Appellant has always expressed her willingness even in mediation proceedings to live together but respondent neither turned up nor agreed to live with her. It is prayed that impugned judgment and decree be set aside and her application under Section 9 of the HM Act deserves to be allowed.
(8) On the other hand, learned Counsel for respondent- husband while supporting impugned judgment and decree in granting decree of divorce on the ground of cruelty against wife, submits that respondent has successfully proved(14) Heard learned Counsel for the parties at length and perused impugned judgment and decree as well as evidence available on record. case of ''cruelty''. The learned Family Court has considered the entire evidence and material in right perspective and there was no possibility of any reconciliation between the parties. Learned Counsel further contends that appellant does not want to live peacefully with respondent and his family and taking into consideration the unbridgeable gap between the parties, there does not arise 10 FA 137-2023 any question of reunion at this stage, as because of false lodging dowry as well as domestic violence case, although respondent and his family have been acquitted vide judgment dated 20th of January, 2023 by the trial Court as well as confirmed by Sessions Court vide judgment dated 04-09-2024 regarding offence under Sections 498-A, 323, 34 of IPC and Section 3/4 of Dowry Prohibition Act, but respondent and his family have already suffered social, physical, mental and personal loss in the society at large. Appellant has utterly failed to prove before the Family Court that respondent deprived the appellant of marital bliss without any reasonable cause, therefore, appellant was not entitled to get a decree for restitution of conjugal rights against the respondent. Now, sufficient period has expired and marriage between them had become dead for all practical purposes and link in the domestic relationship between them has became discontinued and, therefore, respondent does not intend to live with the appellant anymore. It is further contended that appellant being a Dentist by profession and is residing in the City of Gwalior and must be earning handsome money to meet day-to-day expenses. Hence, he prayed for dismissal of this appeal.
(9) Heard learned Counsel for the parties at length and perused impugned judgment and decree as well as evidence available on record. (10) The pivotal questions for determination of appeal are as to (i) whether respondent- husband is entitled to obtain a decree of divorce on the ground of cruelty or not ? (ii) Whether appellant is entitled to get a decree for restitution of conjugal rights against the respondent or not ?
(11) 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
11 FA 137-2023 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."
(12) 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.
(13) The Hon'ble Supreme Court in the matter of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has also considered the instances of cruelty as well as the aspects 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 2023 Live 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 12 FA 137-2023 be read as ''cruelty'' under Section 13(1)(i-a) of the HM Act. (14) It transpires from the facts of record that the marriage between the parties took place on 12 th of October, 2010 at Gwalior as per Hindu rites and rituals. The demand of dowry as well as harassment was allegedly raised by wife on 10th of February, 2011 i.e. after four months of marriage which persuaded the parties to knock the door of the Court. It is further proved on record that on 08-08-2013, appellant along-with her parents came to Ujjain and do not proceed against respondent and withdrew application for transfer of case from the Court of CJM, Ujjain with an assurance not to take any action in offence under Section 498 of IPC. It is further relevant to mention here that the domestic violence case filed by appellant against her husband and in-laws was dismissed by the Sessions Court vide order dated 11-08-2015 finding no substance. Subsequent thereof, appellant had filed a petition before this Court seeking a direction for registration of criminal case against her husband in which she alleged that her husband secured the job of Medical Officer on the pretext of false declaration and resultantly, action of wife snatched the job of respondent and career of respondent is completely ruined. (15) It is further found proved on record that the allegations against the husband made by the wife for causing injury have not been found supported by medical evidence on record. Respondent and his family have been acquitted of offence under Sections 498A, 323, 34 of IPC and Section ¾ of Dowry Prohibition Act vide judgment dated 20 th of January, 2023 by trial Court and the same was affirmed by the Sessions Court vide its judgment dated 04-09- 2024.
(16) 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 the respondent wife had filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty. Further, the Hon'ble 13 FA 137-2023 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.
(17) Behaviour of wife proves that there are indifferences between the parties to an irreparable extent and there is no possibility of reconciliation. It is also found proved that the Court below taking into consideration the broad facts regarding the tendency of filing of criminal cases against husband, declined to grant her relief under Section 9 of the HM Act. (18) The husband was in favour in granting a decree of divorce on the assessment of evidence on record in which, it has been found proved that the wife has actually caused mental agony throughout the life of respondent and separated herself from him since 2013. It is apparent from the above narration of the facts that the wife has not made out a case in her favour, as was rightly declined the relief by the Family Court. Respondent has successfully proved the case of cruelty and there was no possibility of any reconciliation between the parties. The marriage between them had become dead for all practical purposes and under such circumstances, there was no useful purpose to drag such relationship any further.
(19) If we examine the facts in its entirety, this Court does not find any illegality in reaching to a just conclusion in the matter. Thus, the findings recorded by the Family Court are based on proper appreciation on record and do not warrant any interference at this stage. Both the parties have proved that there is no chance of reunion and the marital bond is also shaken. The Family Court has considered the overall facts and circumstances of case and rightly analyzed the evidence in the impugned judgment concluding that the overall conduct of the appellant-wife constitutes mental cruelty. Hence, no useful purpose would be served to interfere with the findings recorded by the Family Court and the present appeal is accordingly allowed so far as respondent- husband is concerned and the decree of divorce passed by the Family Court 14 FA 137-2023 under Section 13(1)(i-a) of HM Act stands maintained. The judgment and decree passed by the Family Court dismissing the prayer of wife for restitution of conjugal rights under Section 9 of the Hindu Marriage Act is well-merited. (20) So far as the grant of interim maintenance amount is concerned, it is found that earlier, on application under Section 125 of CrPC filed by wife, this Court vide order dated 10 th July, 2024 has enhanced interim maintenance amount to the tune of Rs.10,000/- per month out of which Rs.8,000/- in favour of wife and Rs.2,000/- per month in favour of minor daughter. (21) In pursuant thereto, as far as an interlocutory application filed by appellant-wife in the shape of IA No.6537 of 2024, it is alleged by wife that arrears of interim maintenance amount to the tune of Rs.42,000/- is outstanding against her husband and, therefore, a direction is sought to pay the same in favour of wife. Respondent- husband filing reply to interlocutory application has concurred the facts, as narrated in the said IA of appellant- wife and on 28th of August, 2024, respondent-husband submitted before the Court that he shall clear all the maintenance dues which are payable to the wife as per his own, subject to passing any further direction from this Court. (22) In view of iniquitous nature of matter at hand, this Court thinks it just and proper to allow permanent alimony @ Rs.15 lac in favour of the wife and minor daughter, which is payable to the wife by her husband either in lump sum by way of bank draft or in two equal instalment by way of bank draft, first of which shall be payable in the first week of December, 2024 and remaining balance shall be paid at the end of January, 2025. Out of amount of Rs.15 lac, Rs.6 lac shall be deposited in Fixed Deposit in the name of minor daughter till she attains majority. Therefore, while paying the permanent alimony as directed above, respondent- husband shall also pay first instance the amount of arrears of interim maintenance amount to wife (if not paid) and deposit the receipt before the Family Court concerned. Marriage between the parties is dissolved by way of granting aforesaid permanent alimony. On receiving the 15 FA 137-2023 amount of permanent alimony, appellant- wife shall withdraw the criminal cases, if any, pending before the competent Court of jurisdiction. (23) Subject to above compliance of direction, decree be drawn accordingly.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
MAHENDRA
Digitally signed by MAHENDRA BARIK
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=8c6d4d6122d7ee987e457a3bec5922cacbc050c998981397a35d9758a BARIK 2b55074, postalCode=474001, st=Madhya Pradesh, serialNumber=AB90F893988F10D718DA01F8065D87F25DDC9B6C8C3FF0E5E2 80DD36D476F6BA, cn=MAHENDRA BARIK Date: 2024.12.03 10:49:39 +05'30'