BENCH AT JAIPUR v. Smt. Mange Devi

Judgment

1. Laying challenge to judgment and decree dated

26.03.2015, whereby the divorce application filed by the appellant- husband under Section 13 of the Hindu Marriage Act been rejected by the learned Additional District Judge, Sambhar Lake, Jaipur, this appeal under Section 28 of the Hindu Marriage Act, 1955, has been filed by him.

2. Facts which are relevant for the purpose of adjudication of the dispute involved in the instant appeal are that on 22.10.2011, the appellant-husband filed an application under Section 13(1)(i-a) and (i- b) of the Hindu Marriage Act, 1955, against the respondent-wife, contending therein that the marriage between the appellant-husband [2025:RJ-JP:27183-DB] (2 of 15) [CMA-2200/2015] and the respondent-wife was solemnized in the year 1997 according to

Hindu rites and customs. As a result of this wedlock, a daughter was born, who presently resides with the respondent-wife and is about six years old.

3. Further, it was contended in the divorce application that from the beginning, the respondent-wife exhibited a quarrelsome and arrogant temperament. Though her behavior was tolerable for some time after the marriage, it started deteriorating approximately seven years ago. The respondent-wife stopped respecting her husband, picked quarrels over trivial matters, and began using foul language toward her in-laws and husband. She frequently returned to her parental home and remained there for extended periods. When the appellant-husband visited to bring her back, she refused to return.

4. It was also alleged by the husband that on 16.02.2006, the respondent-wife, without informing anyone and without any lawful justification, took the minor daughter along with jewelry, ornaments, and clothes, and returned to her parental home, where she has been residing ever since without lawful cause, despite multiple efforts by the appellant-husband and his father to bring her back.

5. On 17.07.2006, the respondent-wife, with the intent to escalate the litigation unnecessarily, sent a false and concocted legal notice through her advocate, accusing the Appellant-husband of assault and expelling her from the matrimonial home, even though the appellant-husband and his parents always treated her with dignity and respect. After receiving the notice, the appellant-husband responded to it and subsequently approached the respondent-wife along with [2025:RJ-JP:27183-DB] (3 of 15) [CMA-2200/2015] respectable members of society, including individuals from the respondent-wife’s own village, to persuade her to return. However, neither the respondent-wife nor her parents paid any heed to their words; rather, they insulted those respected members and told them to leave. The respondent-wife even stated that she would end her life if forced to return to her matrimonial home.

6. The appellant-husband averred that despite this, several more attempts were made by community elders to reconcile the couple, but it was of no avail. Distressed and helpless due to the respondent-wife’s behaviour and in an effort to save the marriage, the appellant-husband was compelled to approach the court by filing an application under Section 9 of the Hindu Marriage Act on 02.03.2007 before the learned Court, which was registered as Case No. 40/06 titled as Ramjilal v. Mangi Devi. After summoning the respondent- wife and recording evidence from both sides, the Hon’ble Court allowed the said application in favour of the appellant-husband.

7. Further, it was alleged that the respondent-wife, disregarding all social norms and familial obligations, continued to live at her parental home and kept the appellant-husband deprived of marital companionship and parental affection towards his daughter. Even after the decree, when she did not return, the appellant-husband once again went to bring her back. At that time, the respondent-wife and her parents, under a pre-planned scheme, demanded that a compromise agreement be executed in the presence of community members before she would return. In a spirit of goodwill, a compromise was eventually drawn up in the presence of respectable [2025:RJ-JP:27183-DB] (4 of 15) [CMA-2200/2015] members of the community, after which the respondent-wife returned to the matrimonial home. However, she did not bring the child along. She stayed for merely two months, during which time she also conceived.

8. Furthermore, it was also contended in the application that quite abruptly, on a fine morning, she left the matrimonial home without informing anyone. When questioned, she said she had no intention of returning or letting the appellant-husband live in peace. Since then, she has been living at her parental home, where she gave birth to a second daughter in February 2011, who also remains in her custody.

9. The appellant-husband alleged that the respondent-wife had merely pretended to reconcile in order to defeat the purpose of justice and to inflict further mental agony on him. Despite numerous efforts, the respondent-wife did not mend her ways or show remorse. Through her conduct, litigation, and cruelty, she made it evident that she did not intend to resume matrimonial life. As a result of her continued misbehavior and willful desertion, the appellant-husband has lost complete faith in the respondent-wife and finds no possibility of sustaining the marriage. He claims to have been subjected to mental cruelty and seeks a decree of divorce.

10. In response, the respondent-wife filed reply to the application and categorically denied all the allegations and further stated that both the daughters were residing with her and are being raised under the care of the respondent-wife’s father. The respondent- wife is a simple homemaker, who always respected her husband and in-laws. However, the appellant-husband and his parents frequently [2025:RJ-JP:27183-DB] (5 of 15) [CMA-2200/2015] abused and harassed her verbally and physically, even over petty issues. Despite enduring such ill-treatment, she never complained to her parents and continued to try and save her marriage for the sake of her family and children.

11. The respondent-wife claimed that on 16.02.2006, she left the matrimonial home with her daughter only after obtaining her mother-in-law’s consent and in her presence. She did not take any jewelry or valuables along. She denied ever attempting to escalate litigation and stated that all such acts were committed by the appellant- husband. In compliance with the decree passed under Section 9 of the Act, she returned to the matrimonial home with mutual understanding, and on account of result of resumption of cohabitation, she gave birth to their second daughter on 22.01.2011.

12. In reply to the application, respondent-wife highlighted that despite her continuous efforts to sustain the marital bond, the appellant-husband and his parents continued to treat her with cruelty and physical violence. Even after being advised by her father and community members, the appellant-husband showed no change in his behaviour. She alleged that the appellant-husband has beaten her even during pregnancy, due to which she was compelled to return to her parental home with her daughter out of fear and compulsion. The appellant-husband has failed in his marital responsibilities and is now trying to hide his own faults by placing the blame on the respondent- wife.

13. Furthermore, in reply to the application, the respondent- wife reiterated that she has always been willing to live peacefully with [2025:RJ-JP:27183-DB] (6 of 15) [CMA-2200/2015] the appellant-husband and has made consistent efforts toward reconciliation. In the end, she prayed for dismissing the application filed by the appellant-husband.

14. On the basis of pleadings of the parties, as many as 4 Issues were framed by the learned Court below, out of which Issue no. 1 was with regard to allegation that as to whether the respondent-wife treated the appellant-husband with cruelty or not, Issue no. 2 was in respect of allegation of desertion against the respondent-wife that as to whether, despite the decree under Section 9 of the Hindu Marriage Act in favour of the appellant-husband, the respondent-wife has deserted the appellant-husband. Whereas Issue no. 3 was that whether all possibilities of resumption of matrimonial life between the parties have come to an end or not?

15. In evidence, in order to prove his allegations, the appellant- husband examined himself as AW-1, Bhura Ram (AW-2), Heeralal (AW-3) and Ramnath (AW-4). Whereas, in counter, the respondent- wife appeared herself in witness box as NAW-1 for supporting her defence.

16. After hearing both the sides, the court below rejected the application filed by the appellant-husband for seeking divorce vide judgment and decree dated 26.03.2015.

17. While pressing his appeal, learned counsel for the appellant-husband would submit that the court below has utterly mis- appreciated the evidence led by the parties and on the basis of perverse findings application filed by the respondent-husband has been erroneously dismissed. [2025:RJ-JP:27183-DB] (7 of 15) [CMA-2200/2015]

18. During the course of arguments, learned counsel for the appellant husband placed before the court, photocopy of the judgment dated 29.01.2025 passed by the Add. Chief Judicial Magistrate, whereby after holding trial pursuant to FIR lodged by the wife, appellant-husband and his family members were acquitted from the charges under Section 406 IPC, however, was convicted under Section 498-A & 323 of IPC. That apart, copy of one more judgment dated 01.08.2016, passed by the ACJM Dudu, District Jaipur rejecting complaint filed by the respondent-wife under Section 12 of the Protection of woman from Domestic Violence Act, 2005 was placed before the Court. As both the aforesaid judgments have been delivered by the respective courts during the pendency of the instant appeal and are also relevant for the purpose of examining the controversy in hand, hence, while taking judicial notices of the aforesaid, on account of there being no objection from the side of respondent-wife, copies of both the judgments dated 29.01.2025 and 01.08.2016 have been taken on record.

19. Learned counsel for the appellant-husband, while relying upon the above judgments passed by the respective criminal courts, would submit that the allegations levelled against him, were either false or not proved in accordance with law, yet the appellant husband and his family members were dragged in vexatious criminal litigation, which has ultimately caused deep mental trauma and intolerable agony to the appellant husband and his family. Hence, the appellant is entitled for decree of divorce. [2025:RJ-JP:27183-DB] (8 of 15) [CMA-2200/2015]

20. Learned counsel for the appellant also vehemently argued that despite there being decree of restitution of conjugal rights in favour of the husband, the respondent-wife left the matrimonial home without there being any justified cause, whatsoever. Hence, it was a clear-cut case of desertion attributable to the wife, entitling the husband to grant of decree of divorce, yet the learned Court below has rejected his application on the basis of irrational and perverse findings. Therefore, he prayed for allowing the appeal and granting him decree of divorce by setting aside the impugned judgment.

21. Per contra, learned counsel appearing on behalf of respondent-Wife, while defending the impugned judgment and decree has submitted that the family court has meticulously examined the pleadings of the parties and has also properly analysed the evidence on record. Findings of the learned Court below is based upon rational findings and sound reasonings, hence, there is no perversity in the impugned judgment and decree.

22. Learned counsel for the respondent submits that so far as the allegations regarding alleged ill-treatment of husband and his relatives, the learned Court below found no credible proof that wife ever behaved badly towards appellant’s parents, hence, in view of such categorical finding, the allegation stands disproved.

23. Learned Counsel for the respondent would also submit that false allegation was levelled upon the wife regarding failure to perform domestic duties, whereas the evidence shows that she managed household responsibilities being a woman totally dedicated to the family. [2025:RJ-JP:27183-DB] (9 of 15) [CMA-2200/2015]

24. Learned counsel for the respondent-wife would also submit that in the surrounding circumstances and looking to the conduct of the appellant-husband, mere his acquittal in the criminal cases instituted by the respondent-wife under Section 406 IPC does not, by itself, constitute mental cruelty so as to entitle him to a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. More so when he has been convicted for charges under Sections 498-A & 323 of IPC.

25. It was also submitted by learned counsel for the respondent-wife, that in compliance with the decree of restitution of conjugal rights, wife resumed cohabitation and marital companionship with the appellant-husband and gave birth to a child. However, she was subsequently ousted from the matrimonial home during her pregnancy by the appellant-husband without any cogent justification. Hence, looking to his own wrongs and faults, the learned Court below has rightly denied grant of decree in his favour.

26. Learned counsel for the respondent-wife would also indicate that after the decree of restitution of conjugal rights, the appellant himself entered into compromise with the respondent-wife, in which he has categorically admitted his own mistakes in quite explicit and unambiguous terms, therefore, under such circumstances, the learned Court below was justified in not granting decree of divorce in his favour. Hence, the counsel prayed for rejecting the appeal filed by the appellant. [2025:RJ-JP:27183-DB] (10 of 15) [CMA-2200/2015]

27. We have meticulously examined the record and carefully heard the rival contentions raised at the bar by the learned counsel for the parties.

28. The principal contention raised by the appellant-husband- husband is that he is entitled to a decree of divorce on the ground of cruelty, premised upon his acquittal in the criminal proceedings instituted by the respondent-wife under Section 406 IPC. It is a settled law that mere acquittal in criminal cases, from some of the charges, cannot ipso facto be construed, as an act of cruelty on the part of the wife so as to entitle the husband to divorce more particularly when husband has been convicted under Section 498-A & 323 of IPC. The criminal justice system operates on the cardinal principle that the prosecution must prove the guilt of the accused beyond reasonable doubt, a standard that is far more exacting than the preponderance of probabilities applied in civil and matrimonial matters. An acquittal from charges under Section 406 of IPC, therefore, only denotes that the prosecution has failed to discharge this burden and does not conclusively establish that the allegations levelled by the wife were false, malicious, or motivated. More, when bare perusal of the judgment dated 29.01.2025 would reveal that the appellant-husband was acquitted only for the charges under Section 406 IPC, but convicted under Sections 498-A & 323 of IPC. Therefore, even otherwise, contention of the appellant is not tenable in the eye of law.

29. The Hon’ble Supreme Court in V. Bhagat v. D. Bhagat reported in [(1994) 1 SCC 337] clarified that mental cruelty must be assessed from the impact of the conduct on the aggrieved spouse and [2025:RJ-JP:27183-DB] (11 of 15) [CMA-2200/2015] whether it has caused a reasonable apprehension that it would be injurious to cohabit further. In K. Srinivas Rao v. D.A. Deepa reported in [(2013) 5 SCC 226], the Apex Court held that a deliberately false criminal complaint by one spouse against the other may constitute cruelty; however, such a conclusion must be drawn based on affirmative evidence showing that the complaint was knowingly and maliciously false. Similarly, in Mangayakarasi v. M. Yuvaraj reported in [(2020) 3 SCC 786], the Court reiterated that the mere failure to convict, or the husband's acquittal, does not ipso facto entitle him to a decree of divorce. There must be an additional finding, based on evidence, that the complaint was filed with a malicious intent to harass or humiliate.

30. In the present case, the appellant-husband has not adduced any cogent or credible evidence to demonstrate that the respondent-wife’s allegations were patently false or motivated by malice. There is no finding by the criminal court that the complaint was false or fabricated. The prosecution’s inability to prove the charge under Section 406 of IPC beyond reasonable doubt does not automatically translate into a finding of mental cruelty in the matrimonial context, more so when husband has been convicted under Sections 498-A & 323 of IPC. Hence, this Court is of the considered opinion that the Appellant-husband cannot be permitted to rely solely on his part acquittal in the criminal proceedings as a ground to seek dissolution of marriage. Accordingly, the argument advanced on behalf of appellant-husband is rejected as being devoid of legal merit. [2025:RJ-JP:27183-DB] (12 of 15) [CMA-2200/2015]

31. The respondent-wife has vehemently opposed the application for divorce by asserting that pursuant to the decree for restitution of conjugal rights obtained by the appellant -husband under Section 9 of the Hindu Marriage Act, 1955, she dutifully resumed cohabitation with the appellant-husband in compliance with the judicial mandate. It is her categorical plea that, as a result of the renewed matrimonial consortium, she conceived and later gave birth to a child, which fact stands undisputed on record. However, she alleged that during the advanced stages of her pregnancy, she was unceremoniously expelled from the matrimonial home by the appellant-husband without any just cause, leaving her vulnerable and destitute at a time when she required maximum care, support, and emotional security.

32. This Court finds considerable substance in the defence taken by the respondent-wife. The fact that the wife complied with the decree of restitution of conjugal rights, rejoined the matrimonial companionship and bore a child evidences her bona fides and willingness to sustain the marriage. The appellant-husband, who sought enforcement of cohabitation through judicial means, cannot be permitted to subsequently plead breakdown of the very bond that he had earlier invoked the law to preserve especially when such breakdown, if any, has been occasioned by his own conduct.

33. The doctrine of fault theory, which is intrinsic to Section 23(1)(a) of the Hindu Marriage Act, 1955, squarely applies in the present case. The said provision mandates that a party seeking relief under the Act must not be taking advantage of his own wrong or [2025:RJ-JP:27183-DB] (13 of 15) [CMA-2200/2015] disability. The Hon’ble Supreme Court in N.G. Dastane v. S. Dastane reported in [(1975) 2 SCC 326] elucidated that relief under the Act is conditioned upon the appellant-husband’s conduct being above reproach, and that matrimonial remedies cannot be granted to one who is himself guilty of misconduct or cruelty. Similarly, in Samar Ghosh v. Jaya Ghosh reported in [(2007) 4 SCC 511], the Court cautioned that matrimonial relief cannot be allowed where the breakdown of the marriage is attributable to the appellant-husband’s own unjustifiable behaviour.

34. It has also come on record that after grant of decree of restitution of conjugal rights in favour of husband, one compromise was entered into between the husband and wife, wherein the husband has accepted his mistakes. Such factum of entering into compromise by accepting his guilt would make it clear that the husband was evidently cruel towards the respondent-wife.

35. It is settled that cruelty cannot be assessed only on the basis of any single incident and all the incidents referred and evidence led are to be examined in cumulative manner in order to arrive at the conclusion as to whether cruelty has taken place or not. After cumulative assessment of the material on record, it is clear that rather the husband was guilty of committing cruelty with the wife and the application for seeking divorce was filed by him with oblique motive in order to save himself from the liability of maintaining wife and their daughters. It is also clear at record that despite there being two daughters out of their wedlock, the husband has done nothing to maintain their daughters. [2025:RJ-JP:27183-DB] (14 of 15) [CMA-2200/2015]

36. In the present case, the appellant-husband has failed to produce any convincing explanation for ousting the respondent-wife from the shared household during pregnancy, which was a stage marked by physical vulnerability and emotional dependency. No credible material has been placed on record to justify this abandonment. On the contrary, the act of driving away the wife while she was with child amounts to moral and emotional dereliction, if not cruelty, and undermines the appellant-husband’s claim of suffering cruelty at the hands of the respondent-wife.

37. Consequently, the Court is of the considered view that the appellant-husband cannot invoke the jurisdiction of the Court to seek dissolution of marriage while simultaneously being the very architect of the matrimonial discord which he now complains. Permitting such a plea would be a travesty of justice and a negation of the equitable mandate contained in Section 23 of the Act.

38. In light of the above, this defence of the respondent-wife is accepted, and the conduct of the appellant-husband disqualifies him from securing the discretionary relief.

39. In view of the foregoing detailed discussion, legal analysis, and findings recorded by the Court, more particularly, the conduct of the appellant-husband in driving away his wife at a vulnerable stage, after seeking judicial assistance to resume cohabitation, amounts to matrimonial misconduct and disentitles him from seeking relief on the principles of fault theory embodied in Section 23(1)(a) of the Hindu Marriage Act, 1955. [2025:RJ-JP:27183-DB] (15 of 15) [CMA-2200/2015]

40. The appellant-husband, having failed to prove cruelty attributable to the Respondent-wife and having himself acted in breach of matrimonial obligations, cannot be permitted to take advantage of his own wrong.

41. Accordingly, the Appeal filed by the appellant-husband is hereby dismissed.

42. Record of the Court below be sent back. (ANAND SHARMA),J (INDERJEET SINGH),J DIVYA /154