Smt. Kiran Pasi vs Shri Subhashchandra Pasi

These appeals have been preferred by the appellant-wife under Section 19 of the Family Court Act, 1984 for setting aside the common

judgment dated 05.08.2014 passed by the Principal Judge, Family Court, Jabalpur in Civil Suit No. 150-A/2012 and 151-A/2012 whereby

restitution of conjugal rights has been granted in favour of the respondent-husband and appellant''s application for divorce has been refused. As

both these cases arise out of a common order, therefore, we propose to deal with the matters analogously and dispose of both the appeals by this

common judgment.

It is not disputed that the appellant is the wife of respondent and their marriage was solemnized on 20.04.2008 as per Hindu rites and customs.

Brief facts of the case is that, sometime after the marriage, the respondent-husband deserted the appellant-wife. The respondent and his family

members demanded Rs. 3 lakhs from the appellant-wife to purchase a house. When the demand was not fulfilled, they harassed her. The

respondent did not support the appellant and was not interested to take her to Delhi, where the respondent was working. The family members of

the respondent compelled her to give away her salary to them and when the appellant refused to do so, she was thrown out of the house. Hence,

the appellant filed a complaint under Section 498-A of the Indian Penal Code against the respondent and his family members. The appellant-wife

was not interested to reside with the respondent. A petition under Section 9 of the Hindu Marriage Act, 1955 was filed by her husband which

deserves to be dismissed. On the above grounds the appellant-wife prayed for a decree of divorce in her favour under Section 13(1) of the Hindu

Marriage Act.

In his reply, the respondent-husband denied the allegations and submitted that the appellant was working as a Jr. Engineer in Railways at

Jabalpur. Before their marriage, they had met each other. After their marriage, the appellantwife resided with the respondent only for few days.

Thereafter, she was not inclined to reside with the respondent. Appellant-wife blamed the respondent that he had illicit relationship with another

lady named Mrs. Sonal Satpati which created dispute between them. On 10.02.2009, she left her matrimonial house and went to reside with her

parents. She also took her ornaments, clothes and scooty. Her parents were dependent on the income of the appellant. Therefore, the respondent

claimed that he is entitled to restitution of conjugal rights against the appellant. The petition under Section 13 of the Hindu Marriage Act deserves

to be dismissed.

After considering, the entire record and evidence, the learned trial Court found that, as the appellant is working as Jr. Engineer in Railway

Department, due to her ego, she did not perform her matrimonial duties and obligation towards the respondent. Parents of the appellant also

supported her. The learned Trial Court did not find that the respondent caused any mental or physical cruelty on the appellant-wife.

Learned Trial Court found that the appellant-wife failed to prove, the charges leveled against the respondent with regard to physical and mental

cruelty. The learned Trial Court also found the appellant-wife is liable to continue her marital relationship and perform her conjugal duties, towards

the respondent. Therefore, the learned Trial Court dismissed the petition under Section 13 of the Hindu Marriage Act and allowed the petition

under Section 9 of the Hindu Marriage Act for restitution of conjugal rights within one month from the impugned order.

Both these appeals have been filed by the appellant-wife under Section 19 of the Family Court Act, 1984, on the grounds that the application

under Section 9 of the Hindu Marriage Act, 1955 was filed by respondent to show his bonafide in order to make a defence and inspite of the fact

that he knowing it very well that in any case it is not possible for the appellant-wife and respondent-husband to live together, filed the application.

The appellant was harassed by the respondent to such an extend that it was not possible on the part of the appellant-wife to live with him. She was

badly abused, beaten and harassed by the respondent and his family members demanding her salary. The learned Trial Court wrongly held that the

appellant due to her ego, has disturbed all family relations. The learned trial Court believed one side of the story of the respondent husband.

Therefore, the appellant-wife has prayed to set aside the impugned order and pass a decree of divorce in favour of the appellant under Section 13

of the Hindu Marriage Act.

We have heard learned counsel for both the parties. Perused the record.

It is apparently clear from the record that the marriage between appellant and the respondent was solemnized on 20.04.2008. At paragraph 16

of the cross-examination, the appellant deposed that she resided at her matrimonial house till April, 2009. Divorce petition was filed by her on

26.10.2009. At paragraph 20 of the cross-examination, she admitted that a complaint was filed by her husband before the parivar paramarsh

kendra in April, 2009 in which her husband wanted the appellant to reside with him. After considering the cross-examination of the appellant, it

appears that the appellant was working at Jabalpur and her husband was working at Delhi. Her husband wanted the appellant to live with his

parents and serve them. It was not acceptable to the appellant to reside with the parents of the respondent. We also find that the appellant herself

never tried to go and live with her husband at Delhi.

The Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 has discussed ""mental cruelty"" which is a ground of divorce

under Section 13(1)(i)(i-a) of the Hindu Marriage Act. The relevant extracts are as under :

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''.........................................

(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.

(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.

(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............................

After following the above principle, a coordinate bench of this Court in case of Smt. Surabhi Trivedi Vs. Pushkar Trivedi [First Appeal No.

465 of 2013, judgment dated 11. 09.2017] has considered that after a long period of continuous separation and no efforts by the party to take

unilateral decision or refusal to have intercourse for a considerable time without there being any physical incapacity or valid reason may amount to

mental cruelty"". The marriage becomes a fiction by refusing to serve the law.

In case of Durga Prasanna Tripathy Vs. Arundhati Tripathy [AIR 2005 SC 3297] and Satish Sitole Vs. Ganga [AIR 2008 SC 3093],

Hon''ble Supreme Court has held that if the husband is unable to make out grounds, facts however shows that the parties live separately for a

considerable period of time making acrimonious allegations against each other and attempts at reconciliation has been proved futile, in such

situation continuance of marriage would itself amount to cruelty. Accordingly, decree of divorce granted with adequate provision of alimony in

exercise of powers under Article 142 of the Constitution of India. [see also Malathi Ravi, MD vs. D.V.Ravi, MD, (2014) 7 SCC 640].

In the present case, it clearly appears that the parties are residing separately since long i.e. from the year 2009. None of them made personal

efforts to continue their marital relationship. After marriage they resided separately and never tried to live together or to maintain their relation as

husband and wife.

Looking to the aforesaid facts and circumstances of the case and considering the evidence that has come on record, in our opinion, it would be

just and proper to award a decree of divorce in favour of the appellant. Consequently, the appeals filed by the appellant is hereby allowed. The

impugned judgment passed by the trial Court is hereby set aside. A decree of divorce under Section 13 (1) of the Hindu Marriage, 1955 is hereby

granted in favour of the appellant. It is further declared that the marriage solemnized between the appellant and respondent is dissolved.

Parties shall bear their own costs.