Madhya Pradesh High Court
Chen Singh vs Smt.Munni Bai on 11 October, 2022
Author: Chief Justice
Bench: Ravi Malimath, Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE ANAND PATHAK
ON THE 11th OF OCTOBER, 2022
FIRST APPEAL No. 251 of 2004
BETWEEN:-
CHEN SINGH S/O BHEEKAM SINGH, AGED 45 YEARS,
CASTE-KUSHWAHA, R/O VILLAGE THANNER, TAHSIL
AND DISTRICT VIDISHA (MADHYA PRADESH)
.....APPELLANT
(SHRI P.K.SHRIVASTAVA - ADVOCATE AND OTHERS - ABSENT )
AND
SMT. MUNNI BAI W/O CHEN SINGH, AGED 40 YEARS,
R/O VILLAGE THANNER, PRESENTLY RESIDENCE OF
VILLAGE MANORA, TAHSIL GYARASPUR, DISTRICT
VIDISHA (MADHYA PRADESH)
.....RESPONDENT
(SHRI BHAGWAN PANDEY - ADVOCATE AND OTHERS - ABSENT )
............................................................................................................
This appeal coming on for hearing this day, Hon'ble Shri Justice
Anand Pathak passed the following:
JUDGMENT
Instant First Appeal is filed by the appellant/husband under Section 28 of Hindu Marriage Act, 1955 against the judgment and decree dated 29/7/2004 passed by 4th Additional District Judge, Vidisha in case No. 5-A/2004 (HMA); whereby, suit of appellant under Section 13 of Hindu Marriage Act seeking divorce has been dismissed.
22. Precisely stated facts for adjudication are that appellant/husband filed a suit under Section 13 of Hindu Marriage act seeking decree of divorce from his wife(respondent herein), on the basis of grounds of Mental Cruelty and Desertion.
3. It was the pleadings and submissions of appellant that marriage of appellant with respondent was solemnized around year 1980 and they were blessed with two sons Krishangopal and Omprakash and two daughters Mohanbai and Neetu, out of the wedlock. Respondent/wife was quarrelsome and woman of volatile temperament. Her disposition and demeanor; whereby she constantly fought with family members of appellant constitutes mental cruelty. Therefore, because of her disposition, peace of the home was disturbed and despite persuasion and counseling, she did not mend her ways.
4. It was further pleaded that her family members have taken her back on 19/12/2003 alongwith Rs. 15,000/- and jewellery, which was given to her by appellant. False complaint has been registered against the appellant by respondent for offence under Sections 323, 294 and 506 of IPC.
5. Respondent/wife in her reply to the allegations denied the same and it was her submission that she is living for last 30 years as his wife and performing his duties. He deliberately threw her out from family household. She wants to live with her husband. Suit has been filed on incorrect facts.
6. Court below on the basis of pleadings formed two issues on which evidence was led by parties and after due appreciation, trial Court passed the impugned judgment in which suit preferred by appellant seeking divorce was rejected. Therefore, this appeal was preferred by appellant/husband in year 2004.
7. Matter was listed today but nobody appeared on behalf of parties.
8. Matter was admitted earlier vide order dated 5/5/2005, thereafter cases was pending consideration. Nobody appeared on behalf of parties but looking 3 to the old pendency, matter was taken up for hearing on the basis of pleadings and record of the Court below.
9. In the case in hand, appellant has raised the point regarding mental cruelty. So far as legal position regarding mental cruelty is concerned, same is being explained by the Apex Court in the case of Dr. N.G. Dastane Vs. Mrs. S. Dastane, AIR 1975 SC 1534, the relevant extract of the 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 over- look 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 bout 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."
The said judgment still holds the field and is source of wisdom time and again in respect of mental cruelty.
10. The aforesaid decision was referred to with approval in AIR 2002 SC 2582 (Praveen Mehta Vs. Inderjit Mehta), (2007) 4 SCC 511 {Samar Ghosh Vs. Jaya Ghosh}, (2010) 4 SCC 339 {Manisha Tyagi Vs. Deepak 4 Kumar}, (2012) 7 SCC 288 {Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal}, (2013) 2 SCC 114 {U. Sree Vs. U. Srinivas}. In all these cases, the judgment rendered in the case of Dr. N.G. Dastane (supra) is relied upon. In the case of Samar Ghosh (supra), the Supreme Court has enumerated the illustrative instances of human behaviour which may be relevant for dealing with the cases of mental cruelty. Same is reproduced for ready reference:
"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) ** ** ** 5
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) ** ** **
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond 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."
It is equally well settled in law that lodging of false complaint amounts to cruelty. {See: (2014) 7 SCC Malathi Vs. B.B. Ravi, (2013) 5 SCC 226 K. Shrinivas Rao Vs. D.A. Deepa, (2014) 16 SCC 34 K. Shrinivas Vs. Ku. Sunita and AIR 2003 MP 271 Johnson M. Joseph alias Shajoo Vs. Smt. Aneeta Jhonson)}.
11. We may now advert to legal principles with regard to desertion. In AIR 1957 SC 176 (Bipinchandra Jaisinghbai Shah Vs. Prabhavati), the Supreme Court has explained that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a 6 separation, the essential question always is whether that act could be attributable to an animus deserendi.
Later on the said principle on desertion is reiterated in AIR 1964 SC 40 (Lachman Utamchand Kirpalani Vs. Meena alias Mota), (2002) 1 SCC 308 {Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi} to (2006) 4 SCC 558 {Naveen Kohli Vs. Neelu Kohli}.
12. The law so laid down is being tested on the anvil of evidence led by the parties.
13. Appellant-Chen Singh appeared in witness box as PW/1 and specifically mentioned in his examination-in-chief that he seeks divorce on the basis of dispute existing between the two in respect of money given by him to respondent/wife for purchasing tractor was utilized somewhere else, therefore, he is disturbed by this fact, therefore, divorce is being sought. He wants to keep his younger daughter with him and wants to maintain her but because of behavior of respondent/wife; he does not want her to be in family fold. In cross-examination, he admits the fact that they have consumed the marriage for last 27 years and those 27 years have been lived by respondent in good stead. Three of their four children are major and from perusal of his statement, it appears that no ground for mental cruelty is being made out by the appellant through his deposition. In his cross-examination, he admits that life was peaceful with respondent and all four children are their own. On pretext of some financial transaction, dispute erupted between the two and result was filing of the case.
14. Testimony of other witnesses does not have material bearing over the case because appellant himself deposed before the Court below as PW/1, therefore, testimony of other witnesses hold no ground.
15. Respondent/wife also deposed before the Court below as DW/1; wherein, she made the allegations in examination-in-chief that appellant fights with her and demands money. In her cross-examinaiton, she stood firm over 7 her deposition. Other witnesses also narrate the incident and plea of mental cruelty has not been proved.
16. When the rival pleadings and evidence led by parties are tested on the anvil of law laid down by Apex Court as referred above and other subsequent judgments passed from time to time, it appears that at best it was a case of inflated ego or misunderstanding but certainly not a case of mental cruelty. Because other plea has not been established by appellant in his pleadings as well as evidence led by him, therefore, cumulatively, no case for interference is made out.
17. Having perused the pleadings and evidence led by the parties and when tested on the anvil of facts and law, then it appears that appellant could not prove his case by leading cogent evidence and Court below rightly appreciated the pleadings and evidence of the parties and thereafter dismissed the suit preferred by appellant seeking decree of divorce. No interference in the impugned judgment is warranted. Appeal sans merits and is hereby dismissed.
(RAVI MALIMATH) (ANAND PATHAK)
CHIEF JUSTICE JUDGE
jps/-
JAI
Digitally signed by JAI PRAKASH SOLANKI
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR, ou=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, postalCode=474001,
PRAKASH
st=Madhya Pradesh,
2.5.4.20=287738d30aabaeda9b10cecdf179cec865c 7633f4cfb9e38ce14fcbb05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8CB21 93780D8357, SOLANKI serialNumber=8D6BC1C9FCE36623D0BD6B8072A2 D8C01433EBD48AE4F609F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2022.10.14 18:46:46 +05'30'