Madhya Pradesh High Court
Smt. Girja @ Pooja vs Avinash Singh on 21 January, 2025
Author: Hirdesh
Bench: Hirdesh
1 FA 1781 of 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE SHRI ANAND PATHAK &
HON'BLE SHRI HIRDESH, JJ
FIRST APPEAL NO. 1781 OF 2023
SMT. GIRJA ALIAS POOJA
Versus
AVINASH SINGH
----------------------------------------------------------------------------------------------
Appearance:
Shri R. K. Shrivastava- learned counsel for appellant- wife.
Shri S. N. Seth- learned counsel for respondent-husband
-----------------------------------------------------------------------------------------------
Reserved on : 15-01-2025
Pronounced on : 21.01.2025
JUDGMENT
Per Hirdesh, J:-
The instant first appeal under Section 19 of the Family Courts Act has
been preferred by appellant (wife) challenging the judgment and decree dated
26th of July, 2023 passed by Principal Judge, Family Court, Bhind (MP) in
Case No.156/2021 (HMA) whereby application filed by respondent (husband)
under Section 13(1)(i-a) of Hindu Marriage Act [in short ”HM Act”] seeking a
decree of divorce on the ground of ”cruelty” has been allowed.
(2) It is not in dispute that marriage of appellant with respondent was
solemnized on 9th of June, 2011 at Welcome Garden, Bhind Road, Gwalior as
per Hindu rites and rituals.
(3) The facts, in a nutshell, are that respondent submitted divorce
application, inter alia, alleging that after marriage, as long as appellant stayed
with him, efforts were made to keep her happy, all her wishes were fulfilled
2 FA 1781 of 2023
and she was never harassed, she was always willing to stay at her maternal
home in Gwalior, due to which, no cohabitation took place. Appellant did not
return from her maternal home even after conciliation held at Police
Counselling Centre on 24-10-2017. It is further averred that he had filed an
application for restitution of conjugal rights under Section 9 of HM Act in
which, a decree was passed in his favour on 13-12-2019, but appellant did not
turn up. Then, he filed an agreement for execution of decree, in which, the said
agreement was rejected on 25-03-2021, as appellant is not living with him even
after mediation proceedings. Appellant deliberately does not want to live with
him without any valid reason, due to which, he was bound to file divorce
application.
(4) In reply, appellant refuted allegations of respondent. It has been averred
by her that she faithfully fulfilled all her marital duties as wife but respondent
and his family members used to demand rupees two lac more as additional
dowry everyday. They used to harass her physically and mentally and due to
non-fulfillment of dowry, respondent used to deprive her of cohabitation, due
to which she could not have any child. When she went to her in-laws house
with her brother in compliance with decree passed on 13-12-2019 consequent
to application for restitution of conjugal rights, they were not allowed to enter
the house of respondent. Now, she is ready to live with her husband-
respondent, but respondent does not want to keep her with him without any
reason. The divorce application has been filed on the basis of wrong facts.
Hence, prayed for its dismissal.
(5) On the basis of pleadings of both the parties, the Family Court framed
issues and passed the impugned judgment and decree in favour of respondent
by allowing divorce application filed by respondent under Section 13(1)(i-a) of
HM Act on the ground of ”cruelty”. Therefore, appellant is before us.
(6) It is contended on behalf of appellant that learned Family Court has
passed the impugned judgment and decree in favour of respondent without
3 FA 1781 of 2023
going through evidence available therein. Respondent and his family members
used to beat and harass her with regard to demand of dowry and she was
ousted from her in-laws house. In compliance of decree dated 13-12-2019
passed by Family Court consequent to application under Section 9 of the HM
Act for restitution of conjugal rights, appellant was not allowed to enter the
house of respondent and whenever she goes to the house of respondent,
respondent does not allow her to enter house. Respondent and his family
members used to harass her for dowry, as a result of which, she is residing with
her mother in her parental home since 2017. Even otherwise, in compliance of
order of this Court dated 07-01-2025, appellant again went to the house of
respondent, but she was not allowed to enter the house of respondent and was
abused by respondent and his family, therefore, she returned. She is not living
separately on the her free will and is still ready and willing to live with her
husband, if her husband- respondent keeps her at separate place, other than
where her in-laws reside because she has fear of threat to life with her father-
in-law and mother-in-law.
(7) It is further contended that the Family Court has committed an error in
rejecting claim of appellant filed under Section 24 of HM Act vide orders dated
11-11-2019 and 29-04-2022, with a finding that she is working with the HDFC
Bank and is able to maintain herself. It is further contended that she was never
employed as employee of HDFC Bank, on the contrary, she was only working
as Agent of HDFC Life Insurance and she has left her job. She is suffering
from tuberculosis and has no source of income to maintain herself; and
occupied no property in her own name. In support of contention, she has filed
documents in the shape of IA No.3354 of 2024. Respondent has left her for the
last seven years although he has legal obligation to maintain her. She has also
filed interim maintenance application under Section 125(3) of CrPC and
Family Court vide order dated 22nd of March, 2024 in MJCR No.227 of 2021
granted interim maintenance of Rs.8,000/- per month which is not just and
4 FA 1781 of 2023
proper, therefore, she has filed an application under Section 24 of Hindu
Marriage Act in the shape of IA No.1185 of 2024 before this Court and has
also filed an application under Section 25 of the HM Act in shape of IA
No.1183 of 2024 for grant of permanent alimony to the tune of Rs.59,40,000/-
on the ground that respondent is earning Rs.30,000/- per month from his
business and having two homes in District Bhind; 20 bigha of ancestral
agricultural land; and is living higher standard of life.
(8) It is further contended that she has always been ready and willing to stay
with respondent and complied with orders of this Court passed on various
occasions, but respondent is flouting orders of the Court. Under these
circumstances, she is residing separately on sufficient cause of ill-treatment
and harassment by her in-laws on the demand of dowry, so that the impugned
judgment and decree passed by Family Court in favour of respondent, deserves
to be set aside. In support of contention, appellant has relied on judgment of
Hon’ble Apex Court in the matter of Rina Kumari alias Rina Devi alias Reena
vs. Dinesh Kumar Mahto alias Dinesh Kumar Mahato and Another, 2025
INSC 55.
(9) Learned counsel for respondent, on the other hand, by supporting the
impugned judgment and decree, contended that after solemnization of marriage
on 9th of June, 2011, appellant left matrimonial home without any valid reason
and refused to live with respondent even after conciliation at Police
Counselling Centre held on 24-10-2017. Respondent along-with his relatives
on 25-01-2018 went to house of appellant to bring her back, but she refused to
come. Various efforts were given to appellant in compliance of decree passed
on 13-12-2019 consequent to the application under Section 9 of HM Act for
restitution of conjugal rights filed by respondent. Even after passing of
execution of decree, appellant directly refused to reside with respondent,
therefore, execution proceeding was rejected vide order dated 25th of March,
2021. It is further contended that the Family Court has rightly rejected
5 FA 1781 of 2023
application of appellant filed under Section 24 of HM Act vide order dated
11-11-2019 and 29-04-2022 respectively on the ground that she is working
with the HDFC Bank and is able to maintain herself. The Family Court has
rightly passed a decree of divorce on the ground of ”cruelty” in favour of
respondent. There is no complaint of dowry demand after passage of more than
seven years of separate living and only false and frivolous allegations of
harassment have been made by appellant with regard to demand of dowry,
which has not been found proved by Family Court itself.
(10) It is further contended that appellant is a well-qualified and Post
Graduate Engineer pursuing Ph.D and is having huge ancestral property i.e. 50
bigha of agricultural land. Besides that, there are three ancestral houses in
name of mother of appellant; one house at Hanuman Nagar and a two-storeyed
building is being constructed at Hanuman Nagar and two houses also belonged
to her mother are situated in Amaltas Colony, Gwalior and all these facts have
been suppressed by appellant at the time of filing of application under Section
25 of the HM Act, therefore, she is not entitled for any permanent alimony.
Under these circumstances, he prayed for dismissal of first appeal.
(11) Heard Counsel for the parties and perused the impugned judgment and
decree, as well as documents available on record.
(12) The pivotal question for consideration of instant appeal is that after
solemnization of marriage as to whether appellant has treated her husband-
respondent with mental cruelty in the light of provisions enumerated under
Section 13(1)(i-a) of the HM Act or not ?
(13) Concept of ”mental cruelty” has been elaborately discussed by Hon’ble
Apex Court in the matter of Dr. Narayan Ganesh Dastane Vs. Mrs. Sucheta
Narayan Dastane, AIR 1975 SC 1534 whereby 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
6 FA 1781 of 2023acts. 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.”
(14) The above-said 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.
(15) Now, examining the case at the touchstone of principles of law laid
down by Hon’ble Apex Court in the above-cited cases, suffice to say that the
evidence led by appellant-wife clearly demonstrates that after marriage
between the couple in the year 2011, the appellant lived with her husband-
respondent for a shorter period of time and most of time, she has been living at
her parental home and left house of her husband in the year 2017 without any
reason and did not turn back even after passing of decree during proceedings
7 FA 1781 of 2023
took place consequent to application under Section 9 of HM Act moved by
respondent in respect of restitution of conjugal rights. Several opportunities
were given to the appellant for turn home back, but she was adamant to live
with her husband- respondent and as it appears from her evidence that she
anyhow intends to live with her husband only on a condition that if respondent
agrees to accompany her at separate home. Due to rapture of marital cord, no
child was born and respondent was tortured physically and mentally. Therefore,
the Family Court after considering the evidence of both the parties, concluded
that appellant did not intend to live with her husband- respondent. The
meditation proceedings held in between the parties also could not bear fruitful
result. Appellant anyhow was not seen to have established her marital
relationship. The evidence of witnesses recorded by the Family Court also in
one breath stated that allegation raising demand of dowry is totally absurd. In
fact, the respondent made all possible efforts to bring back her wife-appellant
but she was not agreed and levelled false and vague allegations to anyhow
break her matrimonial fold.
(16) It is also a matter on record that at the first instance, when this Court
passed an order on 21-12-2023 on mutual agreement of parties to reside
together as husband and wife, the appellant did not obey the direction and
avoided to come to her husband’s house. The affidavit filed on 27-12-2023
regarding unwillingness of appellant to join the hands of respondent has been
filed by respondent, is on record. It was not the first instance, but thereafter on
so many dates/occasions, the Court directed to settle the scores between the
parties, but it appears that she denied the directions. The conduct of wife,
therefore, is apparent that she does not want to live with her husband-
respondent. She wants to live with her husband only on a condition that if
respondent keeps her at separate place. The motive of appellant is apparent that
she wants to live with her husband, not with her in-laws family. Her allegation,
therefore, appears to be false regarding raising of demand of dowry and it
8 FA 1781 of 2023
seems that false story has been made with an intention to implicate her in-laws
including husband in civil proceedings.
(17) Taking all these narration of facts into consideration, prima facie, there
appears that respondent has been subjected to mental cruelty at the hands of his
wife- appellant and she was desperate to live on her own terms and conditions.
The Family Court, therefore, cannot be said to have approached wrongly in
recording a finding which is well-merited, calling no interference by this Court
under appellate jurisdiction. Accordingly, the judgment and decree dated 26 th
of July, 2023 passed by Principal Judge, Family Court, Bhind (MP) in Case
No.156/2021(HMA) is affirmed. The instant first appeal fails and is hereby
dismissed.
(18) In the conspectus of above discussion, where this first appeal preferred
by appellant assailing the decree of divorce dated 26 th of July, 2023 passed by
the Family Court is dismissed, there is no question of allowing applications (IA
No.1185 of 2024 & IA No.1183 of 2024) which have been moved on behalf of
appellant seeking enhancement of maintenance amount as well as permanent
alimony respectively. Both the applications are, therefore, rejected finding no
merit.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MAHEN
Digitally signed by MAHENDRA BARIK
MKB DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
DRA
GWALIOR,
2.5.4.20=8c6d4d6122d7ee987e457a3bec
5922cacbc050c998981397a35d9758a2b5
5074, postalCode=474001, st=Madhya
Pradesh,
BARIK
serialNumber=AB90F893988F10D718DA
01F8065D87F25DDC9B6C8C3FF0E5E280
DD36D476F6BA, cn=MAHENDRA BARIK
Date: 2025.01.23 11:05:23 +05'30'
[ad_1]
Source link