Somesh Shukla v. Smt. Seeta Shukla

Smt. Seeta Shukla w/o Somesh Shukla aged about 23 years, R/o Akaltara, Distt. Janjgir Champa C/o Suresh Kumar Tiwari, Pan Bhandar, Near Railway Station, Akaltara, Distt.Jangjir Champa (FIRST APPEAL UNbER SECTCON 28 OF THE HINDU MARRIAGE ACT, 1955) Present : Mr. Parag Kotecha, counsel for the appellant. Mr.Harsh Vardhan Sharma, counsel for the respondent. Judgment (Delivered on 14th May, 2009) This appeal is directed against the judgment i& decree dated

21.9.2004 passed by the Additional District Judge, Sakti, in Civil Suit No.lOA/2004 whereby learned Additional Distnct Judge has dismissed the suit for dissolution of marriage by a decree of divorce filed on behalf of the present applicant i.e. husband of respondent on the ground of mental torture.

2. Judgement & decree is challenged on the ground that the Court below has not considered the evidence adduced on behalf of ^y) appellant relating to mental cruelty committed by the respondent by not discharging her marital obligation i.e. cohabitation.

3. I have heard learned counsel appearing for the parties and perused the record of the Court below.

4. According to case of the parties, the appellant and the respondent are husband and wife governed by Hindu Law. Suit for dissolution of marriage by a decree of divorce was filed by the appellant against the respondent/wife on the ground that after solemnizing the marriage, the respondent has refused to cohabit and faited to discharge her marital obligation and the respondent is also not in a position to discharge the marital obligation on the ground of disability. Allegation of complaint is denied by the respondent and specifically alleged that she has discharged her marital obligation and submitted herself for cohabitation and she is not suffering frorn any sexual disease or disability, but the appellant has committed unnatural sexual act and has committed cruelty upon her. The respondent is fully competent for physical relation and sexual relation. The appellant has also committed cruelty in connection with demand of dowry.

5. Issues on the basis of pleadings have been framed and after affording an opportunity of adducing evidence and arguments, suit for dissolution of marriage by a decree of divorce was dismissed.

6. Learned counsel appearing for the appellant argued that the respondent i.e. wife of the appellant has utterly failed to discharge her marital obligation. She has failed to surrender herself cohabitation and even she is not fit for cohabitation. She is suffering from intemal disability. She is not living with the appellant since 2003 and has deserted the appellant. Learned counsel further submits that .•»8.-^T the act of the respondent falls within the purview of mental cruelt/ and therefore, the appellant is entitled for dissolution of marriage by a decree of divorce on the ground of mental torture.

7. Learned counsel appearing for the appellant placed reliance on the decision of the Apex Court in the matter of Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi in which the Apex Court while dealing with the question of desertion has held that neglection by the spouse would amount a legal desertion. Leamed counsel further placed reliance on the decision of the Apex Court in the matter of Parveen Mehta v. Inderjit Mehta in which the Apex Court while dealing with the question of mental cruelty has held that mental cruelty is a state of mind and feelings and is therefore necessarily a matter of inference to be drawn from the facts and circumstances of the case. Mental cruelty could be the result of an extremely stubborn attitude, and/or inexplicable and unreasonable conduct on the part of a spouse. Refusal of normal cohabitation by spouse is also mental cruelty. Learned counsel also placed reliance on the decision of the Apex Court in the matter of Naveen Kohli v. Neelu Lohli in which the Apex Court while dealing with the question of mental cruelty has held that a cruelty means conduct complained of should be grave and weighty, not ordinary war and tear of married life. Conduct should be such that no reasonable person would tolerate it.

8. On the other hand, learned counsel appearing for respondent supported the impugned judgment & decree and argued that the appellant has committed cruelty and is committing cruelty upon the respondent. The appellant has also deserted the respondent. The respondent has surrendered herself for cohabitation. Parties