Madhya Pradesh High Court
Smt. Shyama Devi vs Suresh Kumar Dixit on 23 January, 2025
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE SHRI ANAND PATHAK &
HON'BLE SHRI HIRDESH, JJ
ON THE 23RD OF JANUARY, 2025
FIRST APPEAL NO. 512 OF 2020
SMT.SHYAMA DEVI
Versus
SURESH KUMAR DIXIT
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Appearance:
Shri Ravindra Singh Kushwah- learned counsel for appellant- wife.
Shri Daya Ram Sharma with Shri Arjun Sharma- learned counsel for
respondent-husband
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JUDGMENT
Per Hirdesh, J:-
IA No.1362 of 2020, an application under Section 5 of the Limitation Act for condonation of delay in filing the first appeal is taken up, considered and allowed for the reasons mentioned therein.
(2) With the consent of parties, the matter is heard finally. (3) The instant first appeal under Section 28 Hindu Marriage Act read with Section 19 of the Family Courts Act has been preferred by appellant (wife) challenging the judgment and decree dated 12.03.2020 passed by Additional Principal Judge, Family Court, Gwalior (MP) in Case No.87-A/2015 (HMA), whereby application under Section 13(1) of Hindu Marriage Act [in short ''HM Act''] filed by respondent (husband) seeking a decree of divorce on the ground of ''cruelty'' has been allowed.Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 10-Feb-25 5:32:30 PM 2
(4) It is not in dispute that marriage of appellant with respondent was solemnized on 30.04.2002 at Phoop, District Bhind as per Hindu rites and rituals.
(5) Necessary facts for disposal of present appeal, in short, are that respondent submitted a divorce application, inter alia, alleging that his marriage was solemnized on 30.04.2002 with appellant as per Hindu rites and customs. Out of their wedlock, a daughter was born and thereafter, appellant-
wife started harassing him and his family members. His wife always used to talk to live separately from her in-laws. It is alleged that she was writing a letter in a poetic style and when he read it, she snatched from him and torn it. After their marriage, his wife stayed in her in-laws house only for two months and used to go to her maternal home after quarrelling with him without any valid reason. He is posted in Army on the post of Naik. When he was in training, his wife used to create domestic violence in her in-laws house and harassed his parents by behaving rudely and not doing any household work. (6) Further averment of respondent-husband is that in the year 2003, he took leave from his job for a period of one month and brought back his wife to his house and told her, if she had a child, she would live with her father along with that child. Thereafter, he treated his wife after which, she got pregnant and gave birth to a son. Thereafter, she again started quarreling with him and his family members and went back to her maternal home. Again in the month of July, appellant came back to her maternal home and despite several efforts made by him, she refused to come back.
(7) Further averment of respondent-husband is that on 16.08.2008, he telephonically received an information that his wife gave birth to a daughter. On receiving said information, he was totally astonished because his wife has never told him about her pregnancy nor did they have any physical relationship with each other, therefore, he raised a doubt that he is not the biological father of newly born daughter. On forgetting all these things, he brought back his Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 10-Feb-25 5:32:30 PM 3 wife along-with daughter to his house and started living in a rented premises, where his wife also refused to have physical relations with him, therefore, he suffered a mental distress.
(8) Further allegation of respondent-husband that his wife has relations with someone else and used to converse obscene conversation with some boy on phone. On one day of the incident i.e. 30/10/2019, he saw that his wife was found in a compromising position with a boy in rented premises. (9) It is further averred in the divorce application on behalf of respondent- husband that his wife filed an application for grant of interim maintenance under Section 125 of Cr.P.C on the basis of false assertion, after which a compromise was arrived at between them. Most of the times, his wife used to live in her parental home and did not take care of child. On 30/07/2011, his son also died due to negligence of her wife. Thereafter, he took his wife to Delhi with him where she also did not perform any household chores on the pretext of sickness and used to quarrel with landlord day-to-day and used to make conversation with other boy secretly whole night. On being asked, she used to threat to commit suicide. On his transferred place i.e. Pune, his wife used to lock the house and threaten to file a false case against him. On 24-01-2013, she demanded Rs.50,000/- from him and on his refusal, she beat his nose by means of utensil and attempted to commit suicide. On her repeated requests, he is ready to drop her to her maternal home. On the same day, appellant filed a complaint before Police Station Pune on 03.02.2013. On 12.04.2013, appellant went to her maternal home along with her daughter. On 14.02.2013 she gave a written complaint with Police Station Morar and Superintendent of Police, Gwalior. His Father also filed a written complaint against his wife before competent authority.
(10) Thereafter, as a counter-blast, his wife filed an application before the Court of JMFC, Bhind under Section 125 of CrPC for grant of interim maintenance as well as complaint under Section 12 of Protection of Women Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 10-Feb-25 5:32:30 PM 4 from Domestic Violence Act. It is further stated that appellant is living separately on her own will and volition and deserted him without any reason for a period of two years. Under these circumstances, because of such continuous harassment and mental cruelty, it is not possible for him to live with his wife, therefore, a decree of divorce may be granted.
(11) In reply, appellant refuted the allegations of her husband and pleaded that she has been faithfully fulfilled all her marital duties as wife, but her husband and in-laws used to demand additional dowry everyday. They used to harass her physically and mentally due to nonfulfilment of demand of dowry. She is a housewife and is being deliberately harassed physically and mentally by her husband and his family members by making false obscene allegations on her character. After getting job, behaviour of her husband was suddenly changed. Her husband and in-laws family were started demanding dowry of rupees one lac. Whenever she got pregnant, her husband would take her to the doctor, on the pretext of treatment and thereafter, medicines were given to her to cause her abortion on various occasions by her husband. On the pretext of false allegations on her character, her husband used to say that he is not the biological father of daughter.
(12) In reply, it is further alleged by the appellant-wife that her husband has a love affair as well as illicit relationship with a nurse, namely, Annu to whom he wants to marry. She denied of her talking with anybody on phone and attempt to commit suicide, so also talking secretly with anybody. Her husband wants to marry again, therefore, filed a divorce application on false grounds. If her husband stops torturing her, then she is ready and willing to live with him even today. Hence, prayed for dismissal of divorce application. (13) On the basis of pleadings of both the parties, the Family Court framed issues and vide impugned judge and decree passed a decree of divorce in favour of husband on the ground of cruelty of wife.
(14) Being dissatisfied, appellant-wife is before us by way of instant first Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 10-Feb-25 5:32:30 PM 5 appeal.
(15) Counsel for the appellant- wife contended that learned Family Court has granted a decree of divorce in favour of respondent-husband without going through the evidence available on record. Her husband and in-laws family used to beat and harass her with regard to demand of dowry and she was ousted from her in-laws house. She has filed a Criminal Revision No.465/2016 for enhancement of interim maintenance amount against order dated 13.04.2016 passed by Family Court, Bhind in Case No.288 of 2014 whereby the Family Court had only granted interim maintenance Rs.3,000/- per month and the same is pending consideration before this Court. Appellant and respondent have been living separately for the last seven years. Due to cruel behaviour of her husband and on the basis of false allegations, she is compelled to live separately from her husband. The above facts have not been taken into consideration by the Family Court while passing the impugned judgment and decree and wrongly passed a decree of divorce in favour of husband on the ground of cruelty. Evidence of both the parties with DNA report produced during trial show that respondent is the biological father of the daughter. Her husband has illicit relationship with a lady, namely, Annu and used to talk her on phone on several occasions. Allegations levelled by her husband on the character of appellant falls within the category of mental cruelty. Neither her husband has made any effort to bring her back to home nor filed any case in any of the Court in this regard. She has filed an application under Section 9 of HM Act for restitution of conjugal rights looking to bright future of her daughter, which is pending consideration before Family Court, Gwalior vide Case No.137-A/2019, but the Family Court did not consider this aspect while passing a decree of divorce in favour of respondent. Hence, prayed for setting aside the same.
(16) Counsel for respondent- husband, on the other hand, supported the impugned judgment and decree. He contended that after solemnization of Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 10-Feb-25 5:32:30 PM 6 marriage, appellant left her matrimonial home on her will without any valid reason and refused to live with him. He went to the house of appellant to bring her back, but she straightforward refused to turn home back. The learned Family Court has rightly passed a decree of divorce on the ground of ''cruelty'' in favour of respondent. There is a complaint of dowry demand only on false and frivolous allegations of harassment against husband and his family members, which has not been found proved by learned trial Court itself. It is further contended that respondent has filed Criminal Revision No.116/2017 before this Court against order dated 20.12.2016 passed by Lower Appellate Court in Case No.61/2016 whereby learned Lower Appellate Court affirmed the order passed by trial Court in Criminal Case No.132/2014. Under these circumstances, he prayed for dismissal of this appeal.
(17) Heard Counsel for both the parties and perused the impugned judgment and decree as well as material available on record.
(18) It is in not in dispute that the marriage of parties was solemnized on 30.04.2002 and they lived as husband and wife around one year. Respondent in support of his evidence examined himself as AW1, Raja Babu as AW2 and Nahar Singh as AW3, before Family Court whereas, appellant-wife examined herself as NAW-1. Respondent in Para 24 of his examination-in-chief deposed that after marriage, appellant has been living in her maternal home voluntarily without any valid reason since 03-03-2013 despite several efforts, she refused to live with him and more than eleven years have been lapsed and there is no possibility to live with each other as husband and wife.
(19) The main question for determination of present appeal is whether the Family Court has committed an error in passing a decree of divorce in favour of husband on the ground of cruelty or not ?
(20) 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 10-Feb-25 5:32:30 PM 7 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." (21) 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.
(22) The term ''cruelty'' as used in Section 13(1)(i-a) of the Act, cannot be defined in given parameters and there cannot be a comprehensive definition of ''cruelty'' within which all kinds of cases of cruelty can be covered and each case has to be considered depending upon its own unique factual circumstances. In the case of Gurbux Singh vs. Harminder Kaur (2010) 14 SCC 301, the Hon'ble Apex Court observed that the matrimonial life should be assessed as a whole and persistent ill-conduct over a fairly long of time would amount to cruelty and Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 10-Feb-25 5:32:30 PM 8 further held that the ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds its extremely difficult to live with the other party no longer may amount to mental cruelty.
(23) Similarly, 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 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.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 10-Feb-25 5:32:30 PM 9(xiii) ** ** ** (24) In view of above law laid down by Hon'ble Apex Court as well as on going through the impugned judgment and decree and material available on record, the wife has falsely implicated her husband of demanding dowry that respondent is conspiring to marry again to get dowry after getting a job in the Army and it has also been alleged that her husband has an illicit relationship with a female nurse. From the evidence available on record, it was found proved by Family Court that appellant is not willing to live with her husband. In such a situation, the entire conduct of appellant comes within the definition of cruelty, which is basis for divorce in favour of husband. This Court does not find any illegality or irregularity in the impugned judgment and decree and same is hereby affirmed. (25) Coming to the question of quantum of permanent alimony, the concept of Hon'ble Apex Court is that wife and children should not be left in a hapless state of distress, destitution and starvation. In catena of decisions, the Hon'ble Apex Court has already consistently observed that in order to ameliorate financial position of a woman, who had left her matrimonial home or even after a decree of divorce is passed by the Family Court, grant of maintenance is a means to secure woman's sustenance, along-with that of children, if any. The statutory provision entails that if husband has sufficient means, he is obligated to maintain his wife & children and he cannot escape from his moral and familial responsibilities. (26) During the Course of hearing, respondent and appellant filed their affidavits in the shape of Document No.04 of 2025 and IA No.705 of 2025, stating therein that they are not ready and willing to live together as husband and wife. Both the parties are agreed on the pretext that respondent shall give an amount of Rupees ten lacs as permanent alimony out of which, Rupees five lacs shall be given by respondent to appellant within a period of 45 days from the date of this judgment and the remaining amount of Rupees five lacs shall be given within a period of 45 days thereafter. The appellant has sworn on affidavit to withdraw all the criminal cases which are pending against respondent and his family members before any competent Court of law.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 10-Feb-25 5:32:30 PM 10(27) As a sequel, since the instant first appeal is already decided by this Court, therefore, in view of concessional statements made by both the parties, permanent alimony to the tune of Rupees ten lacs is granted to appellant to the extent as mentioned above.
(28) Before parting, it may be mentioned that the core submission and anxiety expressed by respondent in his affidavit is that he may be allowed to participate in the marriage of his daughter as and when the marriage is settled in future. He further asserted not to stop talking with his daughter and the same may be allowed in a routine way. Appellant in Clause (3) of her affidavit does not raise any objection as regards attending the marriage of her daughter by respondent on the occasion so arises. She also further expressed in her own affidavit that as and when marriage is fixed, prior intimation shall be given to respondent. Therefore, permission is granted to respondent only to the limited purpose as mentioned by appellant in Clause(3) of her affidavit that respondent shall be allowed to join the marriage of his daughter as and when occasion so arises and information regarding fixing of marriage shall be given to him at earlier point of time. (29) In view of above, the instant first appeal stands disposed of. (30) Office is directed to draw a decree accordingly.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 10-Feb-25
5:32:30 PM