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2025 DIGILAW 652 (RAJ)

Rukma D/o Kaludas v. Sahdev S/o Prahalad Das

2025-03-06

CHANDRA PRAKASH SHRIMALI, PUSHPENDRA SINGH BHATI

body2025
JUDGMENT : CHANDRA PRAKASH SHRIMALI, J. 1. By way of both the instant civil misc. appeals filed under Section 19 of the Hindu Marriage Act, the appellant has raised her grievance against the judgment dated 24.05.2023 passed by the learned Judge, Family Court, Merta (hereinafter to be referred as ‘the Family Court’) in Civil Case Nos. 185/2021 and 189/2021, whereby the appellant’s application filed under Section 13 of the Hindu Marriage Act for divorce was rejected and the respondent’s application filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was allowed. 1.1. The appellant has invoked magnanimity of this Court to set aside the judgment impugned dated 24.05.2023, allow her application under Section 13 of the Hindu Marriage Act, dismiss the application of the respondent under Section 9 of the Hindu Marriage Act and pass a decree of divorce accordingly. 2. The brief facts necessary for disposal of the instant appeals are that the appellant solemnized marriage with the respondent on 25.05.2013 and their siblings also married each other as per ‘Aata Saata’ rituals. Subsequently, the respondent deserted the appellant shortly after the marriage, having treated her with cruelty and even returned her belongings on 21.06.2013. Upon such cruelty as well as desertion for more than 8 years, the appellant preferred an application under Section 13 of the Hindu Marriage Act for divorce before the learned Family Court on 12.11.2021. Afterward, the respondent preferred an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights before the learned Family Court on 13.09.2022 with the accusation that the appellant deserted him and subjected him to cruelty. 2.1. The learned Family Court vide a common judgment dated 24.05.2023, dismissed the application filed by the appellant under Section 13 of the Hindu Marriage Act and allowed the application filed by the respondent under Section 9 of the Hindu Marriage Act, thereby directing the appellant to live with the respondent and discharge her matrimonial obligations. 2.2. Being aggrieved by the judgment impugned dated 24.05.2023, the appellant has preferred these appeals for quashing of the same. 3. In support of the above facts, learned counsel for the appellant submits that the learned Family Court has erred in passing the judgment impugned, as the reply and the affidavits filed on behalf of the appellant remained unrebutted; therefore, the judgment deserves to be set aside. 3.1. 3. In support of the above facts, learned counsel for the appellant submits that the learned Family Court has erred in passing the judgment impugned, as the reply and the affidavits filed on behalf of the appellant remained unrebutted; therefore, the judgment deserves to be set aside. 3.1. It is also submitted that the contradictory statements of respondent, claiming a lack of children and physical relations during the marriage, are inherently implausible, exposing a calculated attempt to deceive and mislead the learned Family Court in order to secure a sympathetic ruling. Thus, the impugned judgment is flawed, manifestly perverse, illegal, unsupported by the record and as such warrants reversal. 3.2. It is further submitted that the learned Family Court has committed a significant error in not admitting the unrebutted facts of cruelty and mistreatment mated out to the appellant at the hands of the respondent, including ill-treatment, dowry harassment, physical violence while he was intoxicated and ultimately, her wrongful ouster from her marital house. Furthermore, it is submitted that the aforesaid facts were corroborated by the affidavits of the appellant and her family members, which remained uncontested as the respondent failed to appear before the learned Family Court and as such there was no legitimate reason for the learned Family Court to disregard these unrebutted facts; nevertheless, the learned Family Court overlooked the same and arbitrarily passed the impugned judgment, thereby allowing the application of the respondent and dismissing the application of the appellant. Thus, the impugned judgment is per se illegal and arbitrary and requires to be overturned. 3.3. Lastly, learned counsel for the appellant submits that it is pertinent to mention here that the respondent deserted the appellant solely to exert pressure on her and her family members because the respondent’s sister, who got married with the appellant’s brother as per ‘Aata Saata’ rituals, left her marital house to live at her parental house. Thus, without considering this fact, the learned Family Court has erred in passing the decree and impugned judgment for restitution of conjugal rights, which deserves to be set aside. 4. On the contrary, learned counsel for the respondents has opposed the prayer of the appellant and submitted that the respondent did not harass the appellant for dowry, subject her to cruelty or physical torture, and expel her from the house. 4. On the contrary, learned counsel for the respondents has opposed the prayer of the appellant and submitted that the respondent did not harass the appellant for dowry, subject her to cruelty or physical torture, and expel her from the house. Thus, the learned Family Court has rightly passed the impugned judgment and decree for restitution of conjugal rights, and as such, no interference is required in the present cases. 4.1. Learned counsel for the respondent has further submitted that the appellant left her marital house as per her own accord, being unhappy with the fact that the respondent’s sister, who was married with appellant’s brother as per ‘Aata Saata’ rituals, had filed a dowry case against the appellant’s family, after being ousted from marital house due to dowry issue and started living at her parental house i.e. house of the respondent. Thus, learned Family Court has not committed any error in passing the impugned judgment, thereby allowing the respondent’s application filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and directing the appellant to live with the respondent and discharge her matrimonial obligations. Hence, no interference is called for in the case in hand. 5. Heard learned counsel for the parties and perused the impugned judgment as well as material available on record. 6. Under Section 13(1)(ia) of the Hindu Marriage Act, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnisation of the marriage, treated the petitioner with cruelty. The cruelty may be physical and mental. 6.1. In the series of judgments the Hon’ble Supreme Court has repeatedly stated the meaning and outlined the scope of the term ‘cruelty’. The cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. The cruelty may be physical and mental. 6.2. The Hon’ble Supreme Court in the case of Smt. Roopa Soni Vs. Kamalnarayan Soni (Arising out of SLP (C) No. 15793/2014) decided on 06.09.2023 while dealing with the judgment rendered in V. Bhagat Vs. The cruelty may be physical and mental. 6.2. The Hon’ble Supreme Court in the case of Smt. Roopa Soni Vs. Kamalnarayan Soni (Arising out of SLP (C) No. 15793/2014) decided on 06.09.2023 while dealing with the judgment rendered in V. Bhagat Vs. D. Bhagat, (1994) 1 SCC 337 has held that the mental cruelty in Section 13(1)(ia) of Hindu Marriage Act can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. 6.3. Conversely, Section 9 of the Hindu Marriage Act provides that if one spouse withdraws from the society of the other without reasonable excuse, the aggrieved spouse may file application for restitution of conjugal rights, essentially seeking to compel the other spouse to resume marital cohabitation. 6.4. The Hon’ble Supreme Court in plethora of judgments clarified that Section 9 of the Hindu Marriage Act is an important legal remedy aimed at encouraging the resumption of marital cohabitation, and the Hon’ble Supreme Court has upheld this provision in cases where the spouse’s withdrawal is deemed unreasonable or unjustified. 7. 6.4. The Hon’ble Supreme Court in plethora of judgments clarified that Section 9 of the Hindu Marriage Act is an important legal remedy aimed at encouraging the resumption of marital cohabitation, and the Hon’ble Supreme Court has upheld this provision in cases where the spouse’s withdrawal is deemed unreasonable or unjustified. 7. This Court finds that the factum of marriages being solemnized between the appellant and respondent as well as between their respective siblings, as per ‘Aata Saata’ rituals, is undisputed. It is observed that apart from the appellant and the respondent, neither any eyewitness nor any other witness was examined; nor any documents other then their statements were produced to support the accusation of cruelty levelled by them against each other and the accusation of ill-treatment, dowry harassment, physical violence in a drunken state as well as her eviction from her marital house levelled by the appellant against the respondents. 7.1. It is further observed that though the appellant has levelled the allegations of cruelty, demand of dowry, physical abuse by the respondent after consuming liquor; however, she has stated in her cross-examination that she never saw him consuming liquor. It is also admitted by the appellant in her cross-examination that she neither lodged any criminal complaint regarding physical violence against the respondent nor underwent a medical examination by any doctor. It is further admitted in the cross-examination that after lodging of a criminal case by the respondent’s sister against the appellant’s family regarding demand of dowry and her eviction by them, the appellant left her marital house as per her own free will and resided at her parental house without any pressure from anyone. Not even this, the respondent has also not admitted the allegations of cruelty, demand of dowry, physical abuse in drunken state levelled by appellant. 7.2. There is distinction between intention to commit cruelty and the actual act of cruelty, as absence of intention may not, in a given case, make any difference if the act complained of is otherwise regarded as cruel. The deliberate and willful intention, therefore, may not matter. Whereas in the case in hand, any intention to commit cruelty and even the actual act of cruelty are absent. 7.3. Furthermore, the burden of proving the allegations lies with the appellant; but she has failed to substantiate the same before the learned Family Court as well as before this Court. 7.4. Whereas in the case in hand, any intention to commit cruelty and even the actual act of cruelty are absent. 7.3. Furthermore, the burden of proving the allegations lies with the appellant; but she has failed to substantiate the same before the learned Family Court as well as before this Court. 7.4. In view of the authoritative pronouncements of the Hon’ble Supreme Court, this Court is of the opinion that the absence of cruelty, willful desertion, voluntary conversion etc. are crucial factors in determining the viability of a marriage. The Court noted that if a marriage has not been marred by cruelty, willful desertion, voluntary conversion etc., it may be more appropriate to seek restitution of conjugal rights under Section 9 of the Hindu Marriage Act; rather than dissolution under Section 13 of the Hindu Marriage Act. Therefore, in the absence of cruelty, willful desertion, voluntary conversion etc., an application under Section 13 of the Hindu Marriage Act is likely to be rejected, while an application under Section 9 may be more favorably considered. 7.5. It is also an admitted position that though the mediation proceedings conducted by the Mediation Centre of this Court, pursuant to its directions, failed on several occasions; but the appellant admitted in her cross-examination that in a mediation proceeding conducted by the prestigious persons of the society as well as village, she had agreed to live with the respondent and she and her father had signed the mediation document. 7.6. In view of the above discussions, this Court is of the firm opinion that since the appellant had left her marital house as per her own accord, without any pressure or any reasonable sufficient cause, which have been admitted in her cross-examination, and the allegations of cruelty, demand of dowry, physical violence as well as her desertion from marital house are either absent or unproven; therefore, the learned Family Court has rightly rejected the appellant’s application filed under Section 13 of the Hindu Marriage Act for divorce and accepted the respondent’s application filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. 8. With these observations, the instant civil misc. appeals, stay applications, all the pending applications, if any, are dismissed. The judgment and decree dated 24.05.2023 passed by the learned Judge, Family Court, Merta in Civil Case Nos. 185/2021 and 189/2021 are hereby affirmed.