Post Karana, Tehsil Bansoor, District Alwar Raj v. Smt. Kishandevi W/o Shri Ratiram Shukla D/o Bhanwarlal Raigar

: Mr. Hari Krishana Sharma, Advocate. HON'BLE MR. JUSTICE INDERJEET SINGH HON'BLE MR. JUSTICE ANAND SHARMA Order 15/07/2025

1. This appeal has been filed on behalf of the appellant (hereinafter to be referred as ‘husband’) under Section 28 of the Hindu Marriage Act, 1955 (hereinafter to be referred as ‘Act of 1955’) against the judgment and decree dated 09.03.2017 passed by learned Court below whereby the application filed on behalf of the husband filed under Section 13 of the Act of 1955 was dismissed.

2. Brief facts of the case are that the marriage between the parties was solemnized on 17.02.1991 as per Hindu Rites and Customs and the husband filed a divorce petition in the year 2010 under Section 13 of the Act of 1955 against the respondent (hereinafter to be referred as ‘wife’) stating therein that the behaviour of the wife, from the very beginning, was cruel to the [2025:RJ-JP:26257-DB] (2 of 8) [CMA-2060/2017] husband and most of the times, she was staying with her own parents. It was further stated that she does not want to go and live with the parents of the husband and asked him to live separately. It was further stated in the application that his wife denied him cohabitation many a time and when she left her matrimonial home in the year 2008, she never turned back to stay with the husband. Lastly, prayed for granting the decree of divorce.

3. The wife submitted reply to the said application and denied the allegations leveled by the husband. She further stated in her reply that her husband and his family members demanded dowry from her, on account of which she has lodged the criminal case under Sections 498A and 406 IPC against the husband. Lastly, prayed for dismissal of the application.

4. On the basis of the pleadings of the parties, learned Court below framed the following issues: Þ1& vk;k vizkFkhZ;k izkFkhZ dh oSokfgd iRuh gS] rkjh[k 17-02-1991 ds Ik'pkr~ vizkFkhZ;k dk O;ogkj izkFkhZ ds lkFk Øwjrkiw.kZ jgk gS\ 2& vk;k vizkFkhZ;k izkFkhZ dk fnukad 16-02-2008 ls ifjR;kx dj mldks lgokl ls oafpr dj vius ihgj jg jgh gS vkSj mlds }kjk izkFkhZ ds lkFk jgus ls badkj fd;k\ 3& vk;k izkFkhZ vizkFkhZ;k ls ;kfpdk esa vafdr vk/kkjksa ij rykd dh fMØh izkIr djus dk vf/kdkjh gS\ 4& vuqrks"k\Þ

5. Husband, in support of his contentions, submitted his own evidence as AW-1, evidence of AW-2 namely Gokul Chand and AW3 namely Shanker Lal and submitted documentary evidence Ex.1 to Ex.15. [2025:RJ-JP:26257-DB] (3 of 8) [CMA-2060/2017]

6. The wife, in support of her contentions, submitted her own evidence as NAW-1, evidence of NAW-2 namely Prakash Chand and and NAW-3 namely Gokul Chand.

7. Thereafter, the learned Court below, after recording the evidence of both the parties, dismissed the application filed on behalf of the husband vide its judgment and decree dated

09.03.2017.

8. Being aggrieved of the judgment and decree dated

09.03.2017, the husband filed the present appeal.

9. Counsel for the husband submits that the findings recorded on issues no.1 and 2 by the Court below are perverse. Counsel further submits that the wife has lodged false criminal case against the husband under Sections 498A and 406 IPC in which he was acquitted by the concerned Trial Court vide judgment and order dated 05.10.2016. Counsel further submits that the wife is living separately since the year 2008 and she has denied co- habitation to him and she has deserted him. Lastly, prayed for allowing this appeal.

10. Counsel for the wife opposed the submissions made on behalf of the husband. Counsel further submits that the wife has no source of livelihood and is ready and willing to live with the husband. Lastly, prayed for dismissal of the appeal.

11. Heard counsel for the parties and perused the record.

12. The point of cruelty has been considered by the Hon’ble Supreme Court at length and depth in catena of judgments and in a recent judgment delivered in the matter of Rakesh Raman Vs. Kavita (Civil Appeal No.2012/2013) decided on 26.01.2023, wherein in Paras No.17 and 18, it has been has held as under:- [2025:RJ-JP:26257-DB] (4 of 8) [CMA-2060/2017] “17. Cruelty has not been defined under the Act. All the same, the context where it has been used, which is as a ground for dissolution of a marriage would show that it has to be seen as a ‘human conduct’ and ‘behavior” in a matrimonial relationship. While dealing in the case of Samar Ghosh (supra) this Court opined 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 cannot be 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. (emphasis supplied)

18. 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 [2025:RJ-JP:26257-DB] (5 of 8) [CMA-2060/2017] 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. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a ‘marriage’ would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock.”

13. The Hon’ble Supreme Court in the matter of Narasimha Sastry Vs. Suneela Rani reported in 2020 (18) SCC 247 wherein para No.13, it is held as under: “13. In the present case, the prosecution is launched by the respondent against the appellant against the appellant under Section 498-A IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by the respondent under Section 498-A IPC, the High Court? made the following observation in para 15: (Rani Narsimha Sastry case, SCC OnLine Hyd) "15. ... Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty.” The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal of his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as crueltv. But, when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498- [2025:RJ-JP:26257-DB] (6 of 8) [CMA-2060/2017] A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has been meted out on the husband. As per the pleadings before us, after parties having been married on 14-8- 2005, they lived together only 18 months and, thereafter, they are separately living for more than a decade now.”

14. The Hon’ble Supreme Court in the matter of Narendra Vs. K Meena reported in 2016 (9) SCC 455 wherein para No.14 it is held as under:- “14. In the opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the Respondent husband. We do not see any reason to justify the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of ‘cruelty.”

15. The Hon’ble Supreme Court in the matter of Parveen Mehta Vs. Inderjit Mehta reported in 2002 (5) SCC 706 in para No.16, has held as under:- “16. In the case of Savitri Pandey vs. Prem Chandra Pandey this Court construing the question of 'cruelty' as a ground of divorce under Section 13(1)(i-a) of the Act made the following observations : "6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily [2025:RJ-JP:26257-DB] (7 of 8) [CMA-2060/2017] injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life."

16. We have gone through the judgments and orders passed by the learned Court below and the evidence submitted by the parties before it.

17. In our considered view, the wife has lodged a false criminal case against the husband under Sections 498-A and 406 IPC in which the husband has been acquitted by the learned Trial Court vide its judgment and order dated 05.10.2016. In our considered view, lodging of false criminal case against the husband amounts to cruelty.

18. We have also considered the fact that the husband has been deserted by the wife since the year 2008 and there is no rebuttal by the wife with regard to denial of cohabitation by her. [2025:RJ-JP:26257-DB] (8 of 8) [CMA-2060/2017]

19. In our considered view, the husband has successfully proved the fact that the wife has deserted him without any reason and she has been living with her parents since the year 2008. Therefore, we are of the opinion that the learned Court below has erred in recording the finding on issue no.2 against the husband.

20. We have also considered the fact that both the husband and the wife have been living separately since the last seventeen years. Thus, after a lapse of seventeen years, asking both of them to live together would amount to cruelty to both of them.

21. Thus, in view of above discussion, findings recorded on issues no.1 and 2 deserve to be set aside and the same are accordingly set aside. Appeal filed on behalf of the husband is allowed. Judgment and decree dated 09.03.2017 passed by the learned Court below are set aside. Marriage solemnized between the parties on 17.02.1991 stands dissolved.

22. Office is directed to prepare the decree accordingly. Record of the Court below be sent back. (ANAND SHARMA),J (INDERJEET SINGH),J Tushar/96