Madhya Pradesh High Court
Brajesh Prabhakar vs Smt. Shashilata Ahirwar on 2 April, 2025
Author: Hirdesh
Bench: Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE SHRI ANAND PATHAK &
HON'BLE SHRI HIRDESH, JJ
ON THE 2ND OF APRIL, 2025
FIRST APPEAL No.509 OF 2023
BRAJESH PRABHAKAR
Versus
SMT. SHASHILATA AHIRWAR
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Appearance:
Shri Sanjay Kumar Sharma and Shri Mohar Singh Suman- learned Counsel
for appellant-husband
Shri D. S. Rajawat- learned Counsel for respondent- wife.
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JUDGMENT
Per Justice Hirdesh:-
Being dissatisfied with the judgment and decree dated 20-01-2023
passed by Principal Judge, Family Court, Gwalior in RCSHM No. 10298 of
2017 dismissing the divorce application filed by appellant under Section 13(1)
(i)(1-a) (1-b) of Hindu Marriage Act, the instant first appeal has been preferred
under Section 28 of the Family Courts Act.
(2) It is not in dispute that marriage of appellant with respondent was
solemnized on 18th of June, 2006 in Gwalior according to Hindu rites and
rituals and out of their wedlock, a son, namely, Aditya was born on 29 th of
June, 2007. Respondent is residing separately from the appellant along with
her son.
(3) In a narrow compass, necessary facts for disposal of this instant appeal
in short are that by way of filing divorce application before the Family Court,
it was averred by appellant-husband that his marriage was solemnized withSignature Not Verified
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2respondent without any dowry and his parents had gifted gold and silver
ornaments to respondent in their marriage. He had taken respondent to Kullu
Manali for honeymoon where respondent without establishing conjugal
relations with him, stated that she did not want to marry him and her parents
got her married against her will. Upon much persuasion, respondent barely
engaged in physical relations with him on two occasions. At the time of
marriage, he was working as a Professor in MITS College, Gwalior and
respondent was working as a Field Officer at Tribunal Finance Development
Corporation, Chhindwara. Respondent did not want to come to Gwalior from
Chhindwara due to personal reasons. After many efforts, her transfer from
Chhindwara to Datia took place in March, 2007.
(4) The subsequent averments of appellant in divorce application that prior
to transfer of respondent to Datia and while residing in Chhindwara, she came
to Gwalior only twice. He had gone to Chhindwara only twice to make
conjugal relations harmonious. Respondent hesitated in engaging physical
relations with him, did not show any eagerness and used to say that she wanted
to live an independent life. She used to say that now, she was married, she
could go anywhere freely and no one could stop her. In March 2007,
respondent got pregnant at the time of her transfer to Datia. She told him that
she did not want to become a mother yet, her future would be ruined and her
chances of promotion would decrease. However, after his and his parent’s
persuasion, she barely agreed to give birth to a male child on 29 th of June,
2007. After birth of son, there was no change in the behaviour of respondent
and his efforts were focused on her residing with him in Bhopal. Due to
disputes, on 15th of July, 2007, she left for her parental home with all her
jewellery and clothes and she is residing in her parental home with her son
without any valid reason.
(5) It was further averred by appellant in his divorce application that during
his posting at Bhopal, on many occasions, when he tried to know the reasonSignature Not Verified
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3from the parents of respondent, she clearly stated that she did not want to live
with him for personal reasons. If he tried to bring her back forcefully, she
would take legal action against him and she gave a threat that if he came to her
parental home again, she would not hesitate to get him killed by thugs. Due to
such disputes, he was transferred to Bhopal on 16-10-2008 where respondent
did not come to meet him nor did she allow him to meet his son and used to
say that if he tried to meet her son, she would file a report against him and
send him to jail. She has deserted him without any valid reason since 2007 and
is deliberately not fulfilling her marital obligations. After marriage, she has
had continuous illicit relationship with other persons.
(6) It was further alleged by appellant in his divorce application that in
March 2007, after respondent took charge as District Coordinator in Tribal
Finance Department at Datia, she used to commute daily from her in-laws
house to Datia. Her close friends used to call and send SMS messages on her
mobile phone. When he enquired about this, she would not tell him anything
nor would she let him to see her mobile phone. Instead, she would quarrel with
him. Upon enquirying, he came to know about the persons i.e. Nitin and Pintu
from Bhopal who used to call respondent on her mobile phone. When he asked
to change her SIM, she would tell him that she could change herself but not
SIM. He found a diary written by respondent in cupboard which contained
details of SMS messages. He found that respondent had deep relationships
with aforementioned persons and she had also established illicit relationship
with other persons.
(7) Further, appellant alleged in his divorce application that he filed a
divorce petition against respondent on 22 nd of March, 2010 in which, during
conciliation proceedings in the Court 4 th of August, 2010, he agreed to
withdraw the case and settle it through compromise. On 14 th of August, 2010,
respondent had registered a false and frivolous case against him and his family
members under Sections 498-A, 34 of IPC and Section 3 /4 of DowrySignature Not Verified
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4Prohibition Act. On the basis of compromise, pending case was withdrawn and
after compromise, the FIR in connection with Crime No.715 of 2010 lodged
by respondent was quashed by this Court. Despite this, respondent did not turn
to live with him and did not fulfil her conjugal obligations by residing at her
parental home for approximately 6 to 7 years . She has abandoned him without
any just and sufficient reason, depriving him of conjugal happiness. On these
grounds, he prayed that his marriage solemnized with respondent on 18 th of
June, 2006 be dissolved on the grounds of cruelty and abandonment.
(8) In counter, respondent filed her reply denying the allegation of appellant
and pleaded that her marriage was solemnized with demand of dowry. At the
time of her discharging duty in Chhindwara, her husband- appellant and
mother-in-law kept all her Stridhan with them which she is legally entitled to
receive. Physical relations were established between her and appellant on
several occasions with mutual consent as a result of which, their son Aditya
was born. She used to come from Chhindwara to Gwalior every Saturday and
Sunday to establish marital life. She got her transferred from Chhindwara to
Datia and on many occasions, conjugal relations were also established
between her and appellant with free consent. On four occasions, appellant
came to Chhindwara from Gwalior and made physical relations with mutual
understanding. She never refused to live with appellant. She is always ready,
even today, to fulfil proper conjugal relations with appellant in due course. She
has no relations with any other person. Appellant has made false, fabricated
and baseless allegations against her in order to obtain a decree of divorce and
to remarry. Before filing present divorce application, appellant had filed
another case for divorce i.e. Case No. 153-A of 2010 which was dismissed by
the Family Court on 09-08-2010, therefore, the second divorce application is
liable to be dismissed as legally untenable and unsustainable based on
principle of res judicata.
(9) Respondent in her reply further averred that appellant under a well-
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thought out conspiracy, left her at her parental home in Bhopal on the festival
of Makar Sankrati dated 14-01-2016 by saying that he would take her back
after a week. However, despite her calling him on numerous occasions,
appellant neither came to take her back nor made any effort to keep her with
him. She continued to fulfil her conjugal obligations by living with appellant
until 14-01-2016. Appellant left her in Bhopal in January, 2016. The Family
Court of Bhopal has jurisdiction to hear the case, therefore, the divorce
application of appellant deserves dismissal on the ground of territorial
jurisdiction. On 12th of July, 2017, her father and brother-in-law went to
Gwalior and directly contacted appellant and his parents, requesting them to
resume conjugal relations, but all efforts were unsuccessful. She sent a
registered notice to appellant through her advocate on 28 th of April, 2018.
Even after receipt of notice, the appellant did not turn up. Subsequently, a suit
for restitution of conjugal rights was filed by her against appellant which is
pending before the Court.
(10) Appellant examined himself as AW-1 and his father S.S. Prabhakar as
AW-2 and filed exhibited documents whereas respondent examined herself as
NAW-1.
(11) After considering the pleadings of both the parties, the Family Court
framed issues. After appreciating evidence of both the parties as well as
material available therein, dismissed the divorce application filed by the
husband on the ground that appellant-husband failed to prove ”desertion and
cruelty” against respondent.
(11) Being dissatisfied with the impugned judgment and decree, the
appellant has knocked the door of this Court by way of instant first appeal.
(12) It is contended on behalf of appellant that the impugned judgment and
decree passed by the Family Court without going through the evidence
produced by the parties which is contrary to law and facts on record. The
Family Court has committed an error in relying uncrossed evidence of
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respondent. Even after giving various opportunities, respondent did not turn
up and make herself available before the Family Court for cross-examination.
The document Ex.P24 produced on behalf of appellant shows that respondent
is living in adultery, but the said aspect has not been taken into consideration
by the Family Court. The factum of desertion is admitted by respondent during
counselling proceedings before the Family Court. Without any valid reason,
respondent had instituted criminal case against appellant and his family
members which amounts to cruelty. Although sufficient evidence produced in
regard to desertion, cruelty and adultery, learned Family Court has failed to
appreciate all these facts while rejecting divorce application of appellant. It is
further contended that the marriage of appellant with respondent had
completely broken down with no hope of revival, therefore, marriage between
the parties can be dissolved on the ground of long period of continuous
separation. Therefore, appellant is entitled for decree of divorce on these
grounds by allowing the instant appeal.
(13) Per contra, learned Counsel for respondent opposed the contentions of
appellant. It is submitted that so far the question in regard to registration of
harassment against the appellant and his family is concerned, the said case was
registered in 2010 which was quashed on the basis of compromise vide order
dated 17-09-2010 in MCRC No.614 of 2010. After that, appellant and
respondent not only lived together as husband and wife but also cohabited and
thereafter, no criminal case was registered by respondent either against
appellant or any member of his family. Some isolated incidents of long past
and that too found to have been condoned due to compromise of parties,
cannot constitute an act of cruelty within the meaning of Section 13(1)(i-a) of
the HM Act, therefore, decree of divorce cannot be granted by placing reliance
on criminal proceedings. So far as question of intemperate behaviour and
allegation of adultery against respondent is concerned, the appellant could not
be able to produce concrete evidence before the Family Court. Further, so far
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as question of irretrievable breakdown of marriage is concerned, the marriage
cannot be dissolved on the ground of long period of continuous separation
where it involves normal wear and tear of marital life, future of child and more
particularly, when application for restitution of conjugal rights is filed. It is
further submitted that no claim for restitution of conjugal rights under Section
9 of the HM Act was ever presented by appellant against respondent. Instead,
it was the respondent, who presented application under Section 9 of the HM
Act against appellant. It was necessary for appellant to prove that he and
respondent have been residing separately for exactly two years prior to
presentation of divorce application whereas appellant presented divorce
application in 2017 and both the parties resided together until 2016 due to
which, divorce application was premature before Family Court. Appellant is
not entitled to any kind of benefits. The learned Family Court after evaluating
the evidence in proper perspective, rejected the divorce application filed by
appellant. Hence, prayed for dismissal of this appeal.
(14) Heard learned counsel for both the parties and perused the impugned
judgment as well as record.
(15) The legal principle with regard to “desertion” is concerned, the Hon’ble
Apex Court in the matter of Bipinchandra Jaisinghbhai Shah Vs. Prabhavati
AIR 1957 SC 176 has explained as under:-
” 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. The
petitioner for divorce bears the burden of proving those elements
in the two spouses respectively. Here a difference between the
English law and the law as enacted by the Bombay Legislature
may be pointed out. Whereas under the English law those
essential conditions must continue throughout the course of the
three years immediately preceding the institution of the suit forSignature Not Verified
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8divorce; under the Act, the period is four years without
specifying that it should immediately precede the
commencement of proceedings for divorce. Whether the
omission of the last clause has any practical result need not
detain us, as it does not call for decision in the present case.
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 separation,
the essential question always is whether that act could be
attributable to an animus deserendi ”
(16) Regarding”irretrievable breakdown of marriage” the Hon’ble Supreme
Court in the cases of R. Srinivas Kumar V. R. Shametha, 2019 (4) SCC 409,
Munish Kakkar Vs Nidhi Kakkar, AIR 2020 SC 111 and Neha Tyagi Vs
Lieutenant Colonel Deepak Tyagi (2022) 3 SCC 86, has held that an
irretrievable breakdown of marriage is a marriage where husband and wife
have been living separately for a considerable period and there is absolutely no
chance of their living together again.
(17) Similarly, in the case of Samar Ghosh Vs Jaya Gosh, 2007 (4)SCC 511,
the Hon’ble Apex Court has held that cruelty can be physical as well as
mental :
”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 cannotSignature Not Verified
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9be 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) On perusal of record, it is explicitly clear that marriage between the
parties was solemnized on 18th of June, 2006 and out of their wedlock, a male
child, namely, Aditya was born on 29th of June, 2007, who is presently living
with the respondent. From the record, it also transpires that appellant had
previously filed a divorce petition against respondent on 22-03-2010 in which,
during conciliation proceedings by the Family Court on 04-08-2010, appellant
chose not to proceed with case and settled it through a compromise. Just after
five days, respondent on 14-08-2010 filed a case against appellant and his
family members for offence under Sections 498-A, 34 of IPC and Section 3/4
of Dowry Prohibition Act. On the basis of compromise, appellant filed a
petition under Section 482 of CrPC for quashment of FIR in connection with
Crime No.715 of 2020 registered at the instance of respondent and the said
petition was allowed by this Court vide order dated 17-09-2010 and the
criminal proceedings initiated against appellant and his family were quashed.
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Despite this, respondent did not come to live with appellant. Respondent
without fulfilling her conjugal obligations, has been residing at her parental
home for approximately 6-7 years thereafter.
(19) Contention of respondent is that appellant left her in Bhopal in January,
2016 and Family Court, Bhopal had jurisdiction to hear the case, therefore, the
divorce application of the appellant deserves dismissal on the ground of
territorial jurisdiction. Further contention of respondent is that on 12 th of July,
2017, her father and brother-in-law went to Gwalior and directly contacted
appellant and his parents, requesting them to resume conjugal relations, but all
efforts were unsuccessful, therefore, she sent a registered notice to appellant
through her Advocate on 28th of April, 2018. Even after receipt of notice,
appellant did not turn up. Subsequently, a suit for restitution of conjugal rights
was filed by her against appellant which is pending consideration. So far as
the alleged notice for restitution of conjugal rights made by respondent is
concerned, the same has not been proved and tested on the anvil of cross-
examination of respondent.
(20) It is not out of place to mention here that respondent had preferred a
petition under Section 24 of CPC seeking transfer of Civil Suit No.298-A of
2017 (HMA) pending before Principal Judge, Family Court Gwalior to Family
Court, Bhopal and the prayer of the respondent was declined by learned Single
Judge of this Court vide order dated 25-01-2018 passed in MCC No.248 of
2017 observing although appellant was open for compromise talks but
respondent refused to appear and refused to enter into any compromise. Her
stubborn attitude coupled with the fact appellant has levelled allegations of
mental cruelty are sufficient to establish his case to continue at Gwalior.
(21) After dismissal of petition for transferring the case from Gwalior to
Bhopal, a maintenance case was presented before the Family Court – Bhopal
i.e. MJCR No. 942 of 2019 and the same was also dismissed vide order dated
07-08-2024 for want of prosecution. No marital relationship has been
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established between the parties since 2007. Respondent did not wish to live
with appellant and even after the impugned judgment and decree passed by the
Family Court, the appellant was never permitted to live with respondent and,
therefore, marital co-habitation could not be established. Therefore, the
appellant may claim mental cruelty committed by respondent to the extent that
respondent has deserted the appellant for very long. In any case, respondent is
found to have deserted the appellant and to have sustained that desertion for a
long period, which has now exceeds near about 18 years. That willful act of
respondent and her refusal to cohabit with appellant to revive her matrimonial
relationship appears to be an act of desertion committed of degree as may
itself lead to dissolution of marriage. It appears that both the parties are living
separately for a long period. Marriage is irreparably broken down. No fabric
of marriage is persisting.
(22) This Court left with no other option, but thinks it appropriate that since
the relationship of both the parties must end as its continuation is causing
cruelty either on the parties, therefore, the long separation, absence of
cohabitation, complete breakdown of all meaningful bonds and existing
bitterness between the two, has to be read as ”cruelty”. Where the marital
relationship has broken down irretrievably, where there is a long separation
and absence of cohabitation, then continuation of such marriage would only
mean giving sanction to ”cruelty” with each is inflicting on the other.
(23) So far as the question of permanent alimony is concerned, now
appellant is employed as Deputy Director, Rashtriya Utpadakta Parishad,
Kanpur and respondent is employed as Field Officer Tribal Finance
Department, Bhopal. They are gainfully employed. The only child born to
them has remained in custody of the respondent. He is about now at the age of
18 years. Therefore, neither any prayer has been made nor any occasion exists
to provide for permanent alimony.
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(24) Accordingly, the appeal is allowed. The judgment and decree dated 20-
01-2023 passed by Principal Judge, Family Court, Gwalior in RCSHM No.
10298 of 2017 is set aside. Marriage between the parties is dissolved. A decree
be drawn accordingly.
(25) A copy of this judgment be communicated to concerned Family Court
for necessary information.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
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