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2025 DIGILAW 1382 (RAJ)

Manju Saini D/o Shri Shrawan Lal Saini v. Subhash Saini S/o Shri Mahaveer Prasad Saini

2025-07-07

ANAND SHARMA, INDERJEET SINGH

body2025
JUDGMENT : ANAND SHARMA, J. 1. By way of filling the instant appeal under Section 19 of the FAMILY COURTS ACT 1984, the Appellant-wife has challenged the judgment and decree dated 14.11.2018 passed by Additional District and Sessions Judge, Chomu, Dist. Jaipur, whereby decree of divorce has been granted in favour of the respondent-husband by allowing his application under Section 13 of the HINDU MARRIAGE ACT , 1955 (for short ‘the Act of 1955’). 2. Brief facts giving rise to the instant appeal are that respondent-husband filed an application under Section 13 of the Act of 1955, mentioning therein that marriage between the appellant-wife and respondent-husband took place on 16.02.2010 in accordance with Hindu rites and ceremony. However, the attitude of appellant-wife towards the marriage was totally indifferent right from the day one, she refused to cohabit with the respondent-husband and also refused to consummate the marriage. She revealed that she performed the marriage only on account of insistence of her parents. It was further contended in the application by the respondent-husband that the appellant-wife remained at matrimonial home only for a short period of hardly three months. Thereafter, she left the matrimonial home and resided with her parents. During the period she remained at matrimonial home, her behaviour towards the respondent- husband was totally cruel and she always misbehaved with him. She rudely refused to co-habit with him and used to threaten him that in case he would touch her then she would commit suicide. 3. It was also contended in the application by respondent- husband that the appellant-wife was a lady of pugnacious and combative nature and she used to quarrel with the respondent- husband. She has caused physical as well as mental trauma to the appellant-wife and has also misbehaved with the family members. She along with her family members insisted for purchasing a separate house in her name. She threatened to send the respondent-husband to jail. It was further contended by the respondent-husband that the appellant-wife has never fulfilled the obligations of married life and on account of her consistent rude and cruel behaviour mental cruelty has been caused to the respondent-husband. He stated that he tried to reconcile with the appellant-wife, yet she did not come back to the matrimonial home. Hence, he prayed for granting decree of divorce on the ground of cruelty and desertion. 4. He stated that he tried to reconcile with the appellant-wife, yet she did not come back to the matrimonial home. Hence, he prayed for granting decree of divorce on the ground of cruelty and desertion. 4. The appellant-wife replied to the application by categorically denying all the allegations of committing cruelty or even deserting the husband. Rather she levelled counter allegation against the respondent-husband, stating therein that she was subjected to cruelty by the respondent-husband for demand of dowry, hence, she also lodged an FIR under Sections 498A and 406 of IPC against the respondent-husband and also lodged a case under Section 12 of The Protection of Women from Domestic Violence Act 2005. She also stated that the respondent has also obtained an ex-parte decree under Section 9 of the Act of 1955 for restitution of conjugal rights. She prayed for rejecting the application filed by the respondent-husband. 5. On the basis of pleadings of the parties, as many as three issues were framed, out of which Issue No. 1 was related to cruelty whereas Issue No.2 was in respect of unwarranted desertion by the wife. 6. The respondent-husband produced himself as AW-1 in order to support pleadings of his application and also got examined Mahaveer Prasad Saini as AW-2, Hanuman Prasad as AW-3 and Gyarsi Lal as AW-4. Whereas the appellant-wife gave her own testimony as NAW-1 and other witnesses were produced on behalf of the appellant. 7. Thereafter, on the basis of pleadings and record, the Family Court allowed the application under Section 13 filed by the respondent-husband and granted decree of divorce in his favour. 8. Learned counsel for the appellant would submit that the judgment and decree dated 14.11.2018 is totally against the pleadings of the parties, material evidence on record as well as it is against the law prevailing at the relevant time. Hence, the same is liable to be set-aside. 9. Learned counsel for the appellant submits that the judgment dated 14.11.2018 is based upon misappreciation of evidence and misconstruction of the prevailing law, therefore, the findings arrived at by the Court below are perverse and irrational and liable to be quashed. 10. Hence, the same is liable to be set-aside. 9. Learned counsel for the appellant submits that the judgment dated 14.11.2018 is based upon misappreciation of evidence and misconstruction of the prevailing law, therefore, the findings arrived at by the Court below are perverse and irrational and liable to be quashed. 10. Learned counsel for the appellant submits that the respondent-husband has caused cruelty with the appellant-wife, therefore, she also lodged an FIR for the offences under Sections 498-A & 406 of IPC and also filed an application under the provisions of domestic violence act which are pending against the respondent-husband. 11. Learned counsel for the appellant submits that as per Section 23 of the Act of 1955, a person who himself is accused of causing cruelty upon other spouse, has not got right to claim divorce on the basis of cruelty. 12. Learned counsel for the appellant would submit that she has never deserted the respondent-husband, and decree under Section 9 of the act of 1955, if any is not enforceable against the appellant. Learned counsel for the appellant would further submit that the incidents cited by the respondent-husband in his application under Section 13 of the Act of 1955 are regular wear and tear of marital life, and therefore, such routine incidents cannot be taken as cruelty of such intensity, which may enable the Court below to pass decree of divorce on the ground of cruelty. 13. Learned counsel for the appellant would also submit that as the husband was cruel towards the appellant-wife and has also lodged criminal cases against her and therefore, she has justified grounds for leaving the matrimonial home, which may not be considered as desertion against her. 14. By giving aforesaid reasons and grounds, learned counsel for the appellant prayed for allowing the appeal and to quash the judgment dated 14.11.2018. 15. We have heard learned counsel for the appellant and meticulously examined the record. 16. It has come on record that decree of Section 9 of the Act of 1955 has been passed against the appellant-wife and in favour of the respondent-husband, which has attained finality and is, therefore enforceable also. 15. We have heard learned counsel for the appellant and meticulously examined the record. 16. It has come on record that decree of Section 9 of the Act of 1955 has been passed against the appellant-wife and in favour of the respondent-husband, which has attained finality and is, therefore enforceable also. Legal consequence of not making compliance of decree of restitution of conjugal rights are apparently clear as non compliance of such decree for a period of one year would give rise to legitimate ground for seeking divorce to the party in whose favour such decree has been passed. 17. In this regard, provisions of Section 13 (1A) (ii) are quite clear and are being reproduced as under:- “13(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.” 18. Learned counsel for the appellant has admitted that the aforesaid decree of restitution of conjugal rights has not yet been complied with by the appellant-wife and it has not been quashed by the Higher Court. Thus, mere non compliance of decree of restitution of conjugal rights for a period of one year in itself is sufficient to grant decree of divorce. In the instant case, decree of divorce was granted in favour of the respondent-husband on 23.11.2012 and since it was not carried out by the appellant-wife till the date of judgment by the court below i.e. till 14.11.2018, therefore, the court below is fully justified in passing the decree only on his ground, without addressing other material issues arising in the case. 19. Apart from above, not resuming the conjugal rights despite there being decree of restitution of conjugal rights would also come under the definition of ‘desertion’ and no justified ground whatsoever has been given by learned counsel for the appellant for withdrawal of the appellant-wife from the conjugal relationship with the respondent-husband. 20. 19. Apart from above, not resuming the conjugal rights despite there being decree of restitution of conjugal rights would also come under the definition of ‘desertion’ and no justified ground whatsoever has been given by learned counsel for the appellant for withdrawal of the appellant-wife from the conjugal relationship with the respondent-husband. 20. We also find that respondent has placed sufficient evidence on record to establish the sustained cruel pattern of behaviour on the part of appellant-wife, where she has used abusive language and misbehaved with the respondent-husband. During statements it has been deposed by the respondent-husband that his wife addressed him as impotent person having stinking body and she always used to utter that she found it shameful even to refer the respondent as her husband. The other witnesses produced by the respondent-husband have also supported his evidence with regard to cruel behavior of appellant-wife. They have also reiterated the fact that behavior of the appellant-wife was quite insulting and intolerable towards the respondent-husband. She used to give threats of committing suicide and evidence has also been led regarding the fact that wife has left cohabitation with the respondent-husband. 21. In the case of Lata Kumari Vs. Om Prakash Mandal , 2023 SCC OnLine Del 4933 , the Delhi High Court has held as under:- “ 15. It is a known fact that the bedrock of any matrimonial relationship is the conjugal relationship of which co-habitation forms a very strong basis. There is no reason to disbelieve the testimony of the respondent that the appellant used to go away for a period of 15 days to 30 days at times without informing the respondent/husband and that she also withheld herself from cohabitation. Any denial of cohabitation by other spouse amounts to severe cruelty. This conduct was compounded by appellant's frequently leaving the matrimonial home. Regular quarrels may be trivial when considered individually, however, collectively, these quarrels on a regular basis can not only disrupt the mental peace but also become a source of mental agony.” 22. Hon’ble Supreme Court in the case of Rakesh Raman Vs. Kavita , 2023 (17) SCC 433 has held as under:- “ 27. 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. Hon’ble Supreme Court in the case of Rakesh Raman Vs. Kavita , 2023 (17) SCC 433 has held as under:- “ 27. 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 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.” 23. In the case of Debananda Tamuli Vs. Kakumoni Katady , 2022 (5) SCC 459 , the Hon’ble Supreme Court has also observed; as under:- “7. We have given careful consideration to her submissions. Firstly, we deal with the issue of desertion. The learned counsel appearing for the appellant relied upon the decision of this Court in the case of Lachman Utamchand Kirpalani (supra) which has been consistently followed in several decisions of this Court. The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976. The said Explanation reads thus: “13. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976. The said Explanation reads thus: “13. Divorce.— (1) Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” 24. Apart from above, it is an admitted fact that the appellant- wife and respondent-husband have been living separately since last 15 years and during the aforesaid period, there is no cohabitation between them. Hence, after such long period, the possibility of shattering of emotional intimacy, mutual respect and trust between them cannot be ruled out. 25. In the case of Samar Ghosh Vs. Jaya Ghosh , 2007 (4) SCC 511 , the Hon’ble Supreme Court has observed as under:- “101 (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.” 26. In the light of above, we are satisfied that the Court below has committed no illegality in deciding the Issue Nos.1 and 2 in favour of the respondent-husband. The impugned judgment and decree is based upon due analysis of evidence on record and is also based upon sound findings, hence, no interference is called for in the instant appeal. Resultantly, the instant appeal is hereby dismissed. 27. Record of the Court below be sent back.