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2024 DIGILAW 31 (RAJ)

Sandeep Jain v. Richa Garg (Smt. )

2024-01-04

ARUN BHANSALI, NARENDRA SINGH DHADDHA

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JUDGMENT : Arun Bhansali, J. This appeal is directed against the judgment and decree dated 20.1.2018 passed by Family Court No. 3, Kota whereby the petition filed by appellant/husband under section 13 of the Hindu Marriage Act, 1955 (the Act) for dissolution of marriage between the parties, has been dismissed. 2. The appellant and the respondent entered into wedlock on 20.2.2006. They lived together for some time at Mumbai and the couple was blessed with a girl child on 21.4.2008, however due to disputes, they started living separately since 29.10.2012. 3. The petition under Section 13 of the Act was filed seeking dissolution of the marriage on the ground of cruelty and desertion on 10.11.2014. the petition was opposed by the respondent/wife by making counter allegations against the appellant including allegations in relation to his character. 4. Based on the pleadings of the parties, the Family Court framed four issues, pertaining to cruelty, desertion, compliance of provisions of Section 23 of the Act and the relief. 5. On behalf of appellant/husband, he himself and one Satish Jain were examined and on behalf of respondent/wife, she herself was examined. 6. After hearing the parties, the Family Court after analyzing the evidence led by the parties came to the conclusion that the allegations pertaining to cruelty were partly established, inasmuch as the allegations made by the respondent against the appellant qua housemaid, amounted to cruelty. The issue pertaining to desertion was decided against the appellant. However, with regard to issue pertaining to compliance of provision of Section 23(1 )(b) of the Act, the Family Court came to the conclusion that the cruelty stood condoned and consequently dismissed the petition seeking dissolution of the marriage. 7. Learned Counsel for the appellant made vehement submission that the finding of the Family Court on issue No. 3 is ex-facie incorrect and against the settled position of law. Submissions have been made that the finding on issue No. 3 is cursory and the Court without considering the settled law on the aspect of condonation, only on account of the fact that during pendency of the petition, the appellant participated in reconciliation proceedings and gave proposals, which were never accepted by the respondent, jumped to the conclusion that cruelty was condoned, which is factually incorrect and against the settled law and, therefore, the finding deserves to be quashed and set aside. 8. Reliance was placed on Dr. 8. Reliance was placed on Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534 , Jagdish Prasad Tanwar v. Kasturi Devi, 2017 (2) WLC (Raj.) UC 421 and Saroj Kumari v. Rajesh Kumar, (2013) II DMC 44. 9. It was prayed that the finding on issue No. 3 be set aside and the appeal be allowed and the marriage between the parties be ordered to be dissolved. 10. Learned Counsel for the respondent vehemently opposed the submissions. It was submitted that the Family Court was justified in deciding the issue No. 3 against the appellant/husband, inasmuch as the very fact that the appellant has clearly made efforts and admitted during his statements before the Family Court that the proposals were given to ensure that the matrimony continues, is sufficient to come to a conclusion that cruelty, if any, stood condoned and in view of provisions of Section 23(l)(b) of the Act, decree couldn't have been granted by the Family Court and it has rightly dismissed the petition filed by the appellant. Submission were made that no case for interference in the finding recorded by the Family Court is made out. 11. Reliance was placed on Avadhesh Mani Mema v. Saroj Amita Mema, (1990) I DMC 327. 12. We have considered the submission made by Counsel for the parties and have perused the material available on record. 13. As noticed hereinbefore, the petition was filed seeking dissolution of the marriage on the ground of cruelty and desertion. Although several allegations were made in the petition alleging mental cruelty by the respondent, the Family Court after analyzing the evidence on record, came to the conclusion that the allegation of cruelty was partly established on account of false allegations made by the respondent pertaining to his relations with housemaid. The allegations pertaining to desertion were not found proved by the Family Court, however, while dealing with issue No. 3, pertaining to legal requirement, as envisaged under Section 23(l)(b) of the Act, wherein where the ground of petition is cruelty and the Court is satisfied that the petitioner has not, in any manner, condoned the cruelty, can grant the relief, based on the attempts made during pendency of the proceedings for reconciliation, came to the conclusion that cruelty stood condoned. 14. The Hon'ble Supreme Court, has elaborately laid down the law regarding condonation in the case of Dr. 14. The Hon'ble Supreme Court, has elaborately laid down the law regarding condonation in the case of Dr. N.G. Dastane (supra) and has observed as under:- "Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration." 15. In the case of Jagdish Prasad Tanwar (supra), a Division Bench of this Court, after referring to judgment in the case of Dr. N.G. Dastane (supra), inter-alia, came to the following conclusion:- "15. The finding of condonation of cruelty has been recorded by the Family Court on the basis of respondent staying together for some days on different occasions with the appellant. The Family Court has further found that physical relations were established between the appellant and respondent and as such, it has been held that appellant had condoned the acts of cruelty against the respondent. 16. The close scrutiny of evidence would show that the ground of cruelty was well established and appellant & his sisters were roped in a false criminal case which ultimately resulted into exoneration of all. The judgment by the Criminal Appellate Court was passed on 24.2.2003. The levelling of false case comes within ambit (10 of 14) [CMA-1438/2008] causing mental cruelty and as such. It cannot be wiped out from the mind of a person if he has been falsely implicated in a criminal case. 17. The Family Court has committed an illegality and the finding recorded is per se perverse for the reason that few alleged subsequent events of staying together for few days that too is not supported by the tangible evidence will not condone the acts of cruelty. The Court below has also erred in holding that due to physical relations being established between the parties, the acts of cruelty were condoned. It is no gain saying that relation between husband and wife are of intimate nature and by staying under one roof, necessary presumption cannot be drawn of having physical relations. The evidence which has come on record lacks credibility of their intimate relation as husband and wife. The finding of the Family Court on issue of condonation of cruelty is perverse and not sustainable and liable to be set aside. The evidence which has come on record lacks credibility of their intimate relation as husband and wife. The finding of the Family Court on issue of condonation of cruelty is perverse and not sustainable and liable to be set aside. From the above, it is settled that to constitute condonation, two things must be established: forgiveness and restoration. In the present case, the Family Court referred to the statement of the appellant, wherein in cross-examination, he was asked questions in relation to the efforts made during pendency of the proceedings for reconciliation, in which he, inter-alia, indicated that he gave proposals, which were not accepted and counter proposals were given and treasonable behaviour was meted out. He indicated the proposals given by him to Jakarta, where he was serving, which was refused by the respondent; another proposal pertained to periodic visits by respondent to Jakarta and by appellant to India, was turned down and the wife demanded that he must purchase a house or at at Mumbai or take it on rent, as that would be required for him to stay and when the appellant indicated that he would be staying with the respondent, his father-in-law refused the proposal. The appellant, inter-alia, also indicated as under: 16. On the basis of above proposals, counter proposal and part of the statement, the Family Court came to following conclusion:- 17. The finding recorded by the Family Court is solely based on the statement by the appellant that proposals during reconciliat on proceedings were given by him so as to restore the matrimony. The said finding apparently is contrary to law aid down by Hon'ble Supreme Court requiring forgiveness and restoration, as the two constituents for condonation. Mere giving of proposals and counter proposals for the purpose of restoration of matrimony, which resulted in nothing, cannot be armed as condonation of the cruelty, which was found established by the Family Court and qua the said finding, there is no cross-objection by the respondent. 18. Mere giving of proposals and counter proposals for the purpose of restoration of matrimony, which resulted in nothing, cannot be armed as condonation of the cruelty, which was found established by the Family Court and qua the said finding, there is no cross-objection by the respondent. 18. The Division Bench of the Court in the case of Jagdish Prasad Tanwar (supra), even in a case where the parties even stayed together for some days on different occasions and had physical relations, came to the conclusion that the same by itself will not condone the acts of cruelty whereas in the present case proposals and counter proposals were made during the course of reconciliation proceedings, which cannot under any circumstance by itself can be termed as condonation of the established cruelty. 19. So far as judgment in the case of Avadhesh Mani Mema (supra) is concerned, the MP High Court, only observed in paragraph 8 that condonation need not be express, it may be implied form the conduct of the parties and circumstances of the case and that there may not an agreement in strict sense, cut there must be an intention forgiving on the part of offending spouses and willingness of forgiving by the other, which original, even if applied to the present case, does not lead to the conclusion of there being any condonation on the pan of the appellant. 20. In view of above, the finding recorded by the Trial Court on issue No. 3 cannot be sustained and is, therefore, set aside. Consequently, on account o: finding on issue No. 1 pertaining to cruelty, the appellant would be entitled to a decree of divorce. However, the aspects of permanent alimony as well as custody-of minor child etc. have not been dealt with by the Family Court, nor the parities have made any submission in this regard before this Court, which needs to be determined. 21. Consequently, the appeal is partly allowed. The finding on issue No. 3 is reversed and it is held that the act of cruelty as established under issue No. 1, ha.-not been condoned by the appellant. 21. Consequently, the appeal is partly allowed. The finding on issue No. 3 is reversed and it is held that the act of cruelty as established under issue No. 1, ha.-not been condoned by the appellant. As a consequence, the appellant would be entitled to a decree of divorce, however, as the aspect pertaining to permanent alimony and custody of the girl child needs to be decided while granting the decree, the matter is remanded back to the Family Court to hear the parties and pass appropriate orders on the aspect pertaining to permanent alimony an: custody of minor child while Issuing a decree of dissolution of marriage between the parties. The parties shall appeal before the Family Court on 12.2.2024 when the matter shall be taken up by the Family Court and the same shall be decided accordance with above direction and law expeditiously.