Rajasthan High Court – Jaipur
Smt. Manju Saini D/O Shri Shrawan Lal … vs Subhash Saini S/O Shri Mahaveer Prasad … on 7 July, 2025
Bench: Inderjeet Singh, Anand Sharma
[2025:RJ-JP:24806-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 5989/2018
Smt. Manju Saini D/o Shri Shrawan Lal Saini W/o Shri Subhash
Saini, At Present R/o Khetawali Dhani (Boytawala) Benad Road
Tehsil Amer District Jaipur (Raj)
----Appellant
Versus
Subhash Saini S/o Shri Mahaveer Prasad Saini, R/o Village
Tankarda Tehsil Chomu District Jaipur (Raj)
----Respondent
For Appellant(s) : Mr. Yunus Khan
For Respondent(s) : None present
HON'BLE MR. JUSTICE INDERJEET SINGH
HON'BLE MR. JUSTICE ANAND SHARMA
Judgment
07/07/2025
1. By way of filling the instant appeal under Section 19 of the
Family Courts Act 1984, the Appellant-wife has challenged the
judgment and decree dated 14.11.2018 passed by Additional
District and Sessions Judge, Chomu, Dist. Jaipur, whereby decree
of divorce has been granted in favour of the respondent-husband
by allowing his application under Section 13 of the Hindu Marriage
Act, 1955 (for short, ‘the Act of 1955’).
2. Brief facts giving rise to the instant appeal are that
respondent-husband filed an application under Section 13 of the
Act of 1955, mentioning therein that marriage between the
appellant-wife and respondent-husband took place on 16.02.2010
in accordance with Hindu rites and ceremony. However, the
attitude of appellant-wife towards the marriage was totally
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indifferent right from the day one, she refused to cohabit with the
respondent-husband and also refused to consummate the
marriage. She revealed that she performed the marriage only on
account of insistence of her parents. It was further contended in
the application by the respondent-husband that the appellant-wife
remained at matrimonial home only for a short period of hardly
three months. Thereafter, she left the matrimonial home and
resided with her parents. During the period she remained at
matrimonial home, her behaviour towards the respondent-
husband was totally cruel and she always misbehaved with him.
She rudely refused to co-habit with him and used to threaten him
that in case he would touch her then she would commit suicide.
3. It was also contended in the application by respondent-
husband that the appellant-wife was a lady of pugnacious and
combative nature and she used to quarrel with the respondent-
husband. She has caused physical as well as mental trauma to the
appellant-wife and has also misbehaved with the family members.
She along with her family members insisted for purchasing a
separate house in her name. She threatened to send the
respondent-husband to jail. It was further contended by the
respondent-husband that the appellant-wife has never fulfilled the
obligations of married life and on account of her consistent rude
and cruel behaviour mental cruelty has been caused to the
respondent-husband. He stated that he tried to reconcile with the
appellant-wife, yet she did not come back to the matrimonial
home. Hence, he prayed for granting decree of divorce on the
ground of cruelty and desertion.
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4. The appellant-wife replied to the application by categorically
denying all the allegations of committing cruelty or even deserting
the husband. Rather she levelled counter allegation against the
respondent-husband, stating therein that she was subjected to
cruelty by the respondent-husband for demand of dowry, hence,
she also lodged an FIR under Sections 498A and 406 of IPC
against the respondent-husband and also lodged a case under
Section 12 of The Protection of Women from Domestic Violence
Act 2005. She also stated that the respondent has also obtained
an ex-parte decree under Section 9 of the Act of 1955 for
restitution of conjugal rights. She prayed for rejecting the
application filed by the respondent-husband.
5. On the basis of pleadings of the parties, as many as three
issues were framed, out of which Issue No. 1 was related to
cruelty whereas Issue No.2 was in respect of unwarranted
desertion by the wife.
6. The respondent-husband produced himself as AW-1 in order
to support pleadings of his application and also got examined
Mahaveer Prasad Saini as AW-2, Hanuman Prasad as AW-3 and
Gyarsi Lal as AW-4. Whereas the appellant-wife gave her own
testimony as NAW-1 and other witnesses were produced on behalf
of the appellant.
7. Thereafter, on the basis of pleadings and record, the Family
Court allowed the application under Section 13 filed by the
respondent-husband and granted decree of divorce in his favour.
8. Learned counsel for the appellant would submit that the
judgment and decree dated 14.11.2018 is totally against the
pleadings of the parties, material evidence on record as well as it
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is against the law prevailing at the relevant time. Hence, the same
is liable to be set-aside.
9. Learned counsel for the appellant submits that the judgment
dated 14.11.2018 is based upon misappreciation of evidence and
misconstruction of the prevailing law, therefore, the findings
arrived at by the Court below are perverse and irrational and
liable to be quashed.
10. Learned counsel for the appellant submits that the
respondent-husband has caused cruelty with the appellant-wife,
therefore, she also lodged an FIR for the offences under Sections
498-A & 406 of IPC and also filed an application under the
provisions of domestic violence act which are pending against the
respondent-husband.
11. Learned counsel for the appellant submits that as per
Section 23 of the Act of 1955, a person who himself is accused of
causing cruelty upon other spouse, has not got right to claim
divorce on the basis of cruelty.
12. Learned counsel for the appellant would submit that she has
never deserted the respondent-husband, and decree under
Section 9 of the act of 1955, if any is not enforceable against the
appellant. Learned counsel for the appellant would further submit
that the incidents cited by the respondent-husband in his
application under Section 13 of the Act of 1955 are regular wear
and tear of marital life, and therefore, such routine incidents
cannot be taken as cruelty of such intensity, which may enable the
Court below to pass decree of divorce on the ground of cruelty.
13. Learned counsel for the appellant would also submit that as
the husband was cruel towards the appellant-wife and has also
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lodged criminal cases against her and therefore, she has justified
grounds for leaving the matrimonial home, which may not be
considered as desertion against her.
14. By giving aforesaid reasons and grounds, learned counsel for
the appellant prayed for allowing the appeal and to quash the
judgment dated 14.11.2018.
15. We have heard learned counsel for the appellant and
meticulously examined the record.
16. It has come on record that decree of Section 9 of the Act of
1955 has been passed against the appellant-wife and in favour of
the respondent-husband, which has attained finality and is,
therefore enforceable also. Legal consequence of not making
compliance of decree of restitution of conjugal rights are
apparently clear as non compliance of such decree for a period of
one year would give rise to legitimate ground for seeking divorce
to the party in whose favour such decree has been passed.
17. In this regard, provisions of Section 13(1A) (ii) are quite
clear and are being reproduced as under:-
“13(1A) Either party to a marriage, whether solemnized
before or after the commencement of this Act, may also
present a petition for the dissolution of the marriage by a
decree of divorce on the ground
(ii) that there has been no restitution of conjugal rights as
between the parties to the marriage for a period of [one
year] or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they
were parties.”
18. Learned counsel for the appellant has admitted that the
aforesaid decree of restitution of conjugal rights has not yet been
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complied with by the appellant-wife and it has not been quashed
by the Higher Court. Thus, mere non compliance of decree of
restitution of conjugal rights for a period of one year in itself is
sufficient to grant decree of divorce. In the instant case, decree of
divorce was granted in favour of the respondent-husband on
23.11.2012 and since it was not carried out by the appellant-wife
till the date of judgment by the court below i.e. till 14.11.2018,
therefore, the court below is fully justified in passing the decree
only on his ground, without addressing other material issues
arising in the case.
19. Apart from above, not resuming the conjugal rights despite
there being decree of restitution of conjugal rights would also
come under the definition of ‘desertion’ and no justified ground
whatsoever has been given by learned counsel for the appellant
for withdrawal of the appellant-wife from the conjugal relationship
with the respondent-husband.
20. We also find that respondent has placed sufficient evidence
on record to establish the sustained cruel pattern of behaviour on
the part of appellant-wife, where she has used abusive language
and misbehaved with the respondent-husband. During statements
it has been deposed by the respondent-husband that his wife
addressed him as impotent person having stinking body and she
always used to utter that she found it shameful even to refer the
respondent as her husband. The other witnesses produced by the
respondent-husband have also supported his evidence with regard
to cruel behavior of appellant-wife. They have also reiterated the
fact that behavior of the appellant-wife was quite insulting and
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intolerable towards the respondent-husband. She used to give
threats of committing suicide and evidence has also been led
regarding the fact that wife has left cohabitation with the
respondent-husband.
21. In the case of Lata Kumari Vs. Om Prakash Mandal
reported in 2023 SCC OnLine Del 4933, the Delhi High Court
has held as under:-
“15. It is a known fact that the bedrock of any matrimonial
relationship is the conjugal relationship of which co-
habitation forms a very strong basis. There is no reason to
disbelieve the testimony of the respondent that the
appellant used to go away for a period of 15 days to 30
days at times without informing the respondent/husband
and that she also withheld herself from cohabitation. Any
denial of cohabitation by other spouse amounts to severe
cruelty. This conduct was compounded by appellant’s
frequently leaving the matrimonial home. Regular quarrels
may be trivial when considered individually, however,
collectively, these quarrels on a regular basis can not only
disrupt the mental peace but also become a source of
mental agony.”
22. Hon’ble Supreme Court in the case of Rakesh Raman Vs.
Kavita reported in 2023 (17) SCC 433 has held as under:-
“27. 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.”
23. In the case of Debananda Tamuli Vs. Kakumoni Katady
reported in 2022 (5) SCC 459, the Hon’ble Supreme Court has
also observed; as under:-
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“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 the case of Lachman Utamchand Kirpalani
(supra) 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. The
view taken by this Court has been incorporated in the
Explanation added to sub-section (1) of Section 13 by Act
No.68 of 1976. The said Explanation reads thus:
“13. Divorce.–(1)
Explanation.–In this sub-section, the expression
“desertion” means the desertion of the petitioner by
the other party to the marriage without reasonable
cause and without the consent or against the wish of
such party, and includes the wilful neglect of the
petitioner by the other party to the marriage, and its
grammatical variations and cognate expressions shall
be construed accordingly.]”
24. Apart from above, it is an admitted fact that the appellant-
wife and respondent-husband have been living separately since
last 15 years and during the aforesaid period, there is no
cohabitation between them. Hence, after such long period, the
possibility of shattering of emotional intimacy, mutual respect and
trust between them cannot be ruled out.
25. In the case of Samar Ghosh Vs. Jaya Ghosh reported in
2007 (4) SCC 511, the Hon’ble Supreme Court has observed as
under:-
“101 (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(Downloaded on 18/07/2025 at 11:46:24 PM)
[2025:RJ-JP:24806-DB] (9 of 9) [CMA-5989/2018]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.”
26. In the light of above, we are satisfied that the Court below
has committed no illegality in deciding the Issue Nos.1 and 2 in
favour of the respondent-husband. The impugned judgment and
decree is based upon due analysis of evidence on record and is
also based upon sound findings, hence, no interference is called
for in the instant appeal. Resultantly, the instant appeal is
hereby dismissed.
27. Record of the Court below be sent back.
(ANAND SHARMA),J (INDERJEET SINGH),J
PCG /18
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