Madhya Pradesh High Court
Smt. Sandhya Barman vs Prahlad Barman on 15 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 15 th OF MAY, 2024
FIRST APPEAL No. 384 of 2020
BETWEEN:-
SMT. SANDHYA BARMAN W/O SHRI PRAHLAD
BARMAN, AGED ABOUT 27 YEARS, OCCUPATION:
PROFESSION DOMESTIC HOUSE WIFE VILLAGE
MANIYARI GUDGAWAN TEHSIL AND P.S. PANAGAR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAKESH KUMAR JAIN - ADVOCATE)
AND
PRAHLAD BARMAN S/O SHRI MATHURA PRASAD
BARMAN, AGED ABOUT 29 YEARS, OCCUPATION:
PROFESSION AGRICULTURIST VILLAGE KHAMRIYA
GARDA P.S. PANAGAR (MADHYA PRADESH)
.....RESPONDENT
This appeal coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
This first appeal under Section 28 of the Hindu Marriage Act, 1955 has been filed assailing the judgment and decree dated 02.07.2019 by the Fourth Additional District Judge, Jabalpur in RCSHM No.19 of 2019 whereby the application filed by the respondent/husband under Section 13 of the Hindu Marriage Act has been allowed and the marriage has been dissolved.
Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 22. It is the case of the appellant that the marriage of the appellant and the respondent was solemnized on 05.05.2013 by Hindu rituals and custom. The respondent is a habitual drinker and is having relationship with other woman. On objection being raised on various occasions, the assurances were given by the respondent that he will maintain his behaviour but of no consequences. A child was born out of the wedlock on 03.03.2014. They lived together upto September, 2018 and thereafter, the respondent/husband started living with other woman. She was forced to live at her parental house. Thereafter a compromise was recorded on 14.10.2018 before the Mahila Police Station by the social counselor which is placed on record but there was a no change in the the nature of the respondent and again he was living with other woman which was again objected and ultimately she was thrown out of her matrimonial house and was forced to live at her parental house in January 2019. She heard the whispers that the husband is planning to marry with other woman and therefore, with the help of Mahila police she stopped the marriage of the respondent and the news was published in Dainik Bhaskar on 22.02.2020. At that time she came to know that the respondent has filed the divorce petition before the ADJ, Jablapur and an ex-parte judgment and decree was passed dated 02.07.2019 whereby the marriage was dissolved. She thereafter obtained the certified copy of the order and then contacted M.P. High Court Legal Aid, Jabalpur and thereafter this appeal has been filed.
3. It is her case the that the decree of divorce has been granted ex-parte and the appellant was not having any knowledge of filing of divorce case. No steps were taken to serve the appellant. The Trial Court has not adopted the procedure as provided under Order 5 Rule 20 of the Code of Civil Procedure Signature Not Verified for publishing in the newspaper to the effect service on the wife before passing Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 3 an ex parte order of decree of divorce. Even the judgment and decree has been passed on conjectures and surmises and no reality has been mentioned in the order. The learned Trial Court has failed to conduct the proceedings of divorce case in accordance with law. The learned Trial Court has not considered the factum of earlier compromise entered into between the parties. Therefore, this appeal has been preferred.
4. Counsel appearing for the appellant has argued that it is the case given to him from the Legal Aid as the appellant was not in a position to file the appeal. She was having no information with respect to the divorce case being filed by the husband. No notices were served to her. The order sheets indicates that she was declared ex-parte on 17.05.2019. Therefore, the trial Court proceeded ex- parte in the matter.
5. The record further indicates that she was living at her parental house since 03.07.2018 i.e. for more than six years from today. The statement of the husband was recorded as PW-1 and on that basis the learned Trial Court has passed the judgment and allowed the application which is per se illegal. If the pleadings are taken note of, there are specific allegations against the wife that she used to close the room and talk on mobile phone with some other person and when objected by the husband or any other family members she used to say that she has solemnized marriage under the compulsion of her parents. She was not liking the respondents. She used to abuse him and used to ask the husband to accompany her to her parental house and to live there along with her. She used to threaten the husband for implicating him and his family in a false case. There is further an allegation that she was having an affair with one Shrikant and she used to say that she will live with Shrikant and will have Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 4 physical relationship with him. She used to threaten and commit marpeet with the respondent and used to harass the respondent.
6. The learned Trial Court has taken note of all the matters and has passed the impugned judgment and decree. The learned Trial Court has considered the fact that the notices were issued by normal as well as by registered post to the appellant. The invoice report has been produced before the Trial Court but despite service she has chosen not to appear before the Court. Meaning thereby, she was having knowledge regarding filing of the divorce case. However, she herself has chosen not to appear before the learned Trial Court. Therefore, the learned Trial Court proceeded ex-parte in the matter. The statement of PW-1, the husband was recorded wherein he has categorically stated regarding the conduct of the present appellant. The marriage has taken place without any dowry. An application for divorce was filed basically on the ground of cruelty pointing out the fact that she has deserted the husband two years prior to filing of the application. In the statement she states that she has married with the respondent under the pressure of her parents. She was not liking the respondent/husband. She used to compel the respondent/husband to reside with her at parental house and if he refused to do that, she will falsely implicate him and his family members in dowry case. She used to threaten the respondent/husband of committing suicide.
7. The wife has resided with the husband last on 03.07.2018. Thereafter they have resided separately. There is no opposition filed by the wife to the aforesaid effect as she has chosen not to appear before the Family Court. The Ex.P/1 and P/2 are the postal receipts which clearly shows that notices were issued to her and she has chosen not to appear before the Court. There is no reason assigned regarding desertion by the wife. Along with this appeal, no such material has Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 5 been placed before this Court to show that after 2018 what steps have been taken by the wife to go back to the matrimonial house. Only the newspaper report has been filed to show that when the respondent was getting married with some other woman, she immediately went there and intervened in the marriage. At that time, she came to know that the divorce has been granted. However, the fact remains that there is no material on record to show that despite living separately since 03.07.2018 as pointed out by the learned Family Court what steps have been taken by the wife/appellant to go back to her matrimonial house. If the memo of appeal is seen then there is no denial made by her to the fact that she has never received a notice of the divorce case. Even in the application filed by her seeking condonation of delay, no reasons are assigned for condoning the delay in filing the appeal except the fact that the judgment and decree passed by the learned Family Court is not good moral to the society. No dates are mentioned in the application for condonation of delay that when she got the knowledge of passing of the judgment and decree of divorce, when she applied for the certified copy, when the certified copy was obtained, when she contacted the legal aid counsel etc. There is no assertion made in the application that whether she is a poor lady and does not have any source of income to enable her to file the appeal. The application for condonation of delay is a vague application. Even the appeal memo does not reflect any reasons to show that why she has deserted the husband since 2018.
8. Leaving the husband and living separately without any reason amounts to cruelty with the husband as has been considered by the Hon'ble Supreme Court in the case of K. Srinivas Rao vs. D.A. Deepa (Civil Appeal No.1794 of 2013) vide judgment dated 22.03.2013 has held as under:
Signature Not Verified"28. In the ultimate analysis, we hold that the respondent-wife has Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 6 caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant- husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant- husband because a lot of bitterness is created by the conduct of the respondent-wife.
31. Before parting, we wish to touch upon an issue which needs to be discussed in the interest of victims of matrimonial disputes. Though in this case, we have recorded a finding that by her conduct, the respondent- wife has caused mental cruelty to the appellant-husband, we may not be understood, however, to have said that the fault lies only with the respondent-wife. In matrimonial disputes there is hardly any case where one spouse is entirely at fault. But, then, before the dispute assumes alarming proportions, someone must make efforts to make parties see reason. In this case, if at the earliest stage, before the respondent-wife filed the complaint making indecent allegation against her mother-in-law, she were to be counselled by an independent and sensible elder or if the parties were sent to a mediation centre or if they had access to a pre- litigation clinic, perhaps the bitterness would not have escalated. Things would not have come to such a pass if, at the earliest, somebody had mediated between the two. It is possible that the respondent-wife was desperate to save the marriage. Perhaps, in desperation, she lost balance and went on filing complaints. It is possible that she was misguided. Perhaps, the appellant-husband should have forgiven her indiscretion in filing complaints in the larger interest of matrimony. But, the way the respondent-wife approached the problem was wrong. It portrays a vindictive mind. She caused extreme mental cruelty to the appellant-husband. Now the marriage is beyond repair."
9. The Apex Court further in the case of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511 in regard to mental cruelty which is a ground of divorce under Section 13(1)(i)(i-a) of the Hindu Marriage Act has held as under:
"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.Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 7
(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.
(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 Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 8 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.
(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. Under the breakdown theory, divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery of the parties."
10. In the case of Shri Rakesh Raman Vs. Smt. Kavita reported in 2023 LiveLaw (SC) 353, the Hon'ble Supreme Court has held as under :-
"17. Cruelty has not been defined under the Act. All the same, the context where it has been used, which is as a ground for dissolution of a marriage would show that it has to be seen as a 'human conduct' and 'behavior" in a matrimonial relationship. While dealing in the case of Samar Ghosh (supra) this Court opined that cruelty can be physical as well as mental:Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 9
46...If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
Cruelty can be even unintentional: -
...The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. This Court though did ultimately give certain illustrations of mental cruelty. Some of these are as follows:
(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.
(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.
18. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 10 cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a 'marriage' would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock."
11. The Hon'ble Supreme Court in Debananda Tamuli vs. Kakumoni Kataky reported in (2022) 5 SCC 459 has held as under :
"7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in Lachman Utamchand Kirpalani [Lachman Utamchand Kirpalani v. Meena, (1964) 4 SCR 331 : AIR 1964 SC 40] which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home.
12. Thus, in our considered view, the ground of desertion under clause (i-b) of sub-section (1) of Section 13 of the HM Act has been made out as the desertion for a continuous period of more than two years before the institution of the petition was established in the facts of the case. But, after having carefully perused the evidence on record, we find that no case is made out to disturb the findings recorded by the courts on the issue of cruelty."
12. There is specific allegation against the wife with respect to having relations with one Shrikant and she wants to reside with Shrikant. No reasons are given why she deserted husband for a considerable time. The wife has not produced any document to show that any effort was made by her to reside with the husband since 2018. Under these circumstances, the factum of cruelty in the form of unnecessary desertion has been proved. The learned Trial Court has considered the aforesaid aspect in correct perspective. Under these Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 5/22/2024 5:48:39 PM 11 circumstances, no case for interference is called for.
13. The first appeal sans merit and is accordingly dismissed.
14. Consequently, the application (I.A.No.3517 of 2020) an application for condonation of delay is disposed off.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
AM
Signature Not Verified
Signed by: ANINDYA
SUNDAR MUKHOPADHYAY
Signing time: 5/22/2024
5:48:39 PM