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2026 DIGILAW 3 (RAJ)

Chhote Lal Saini, S/o Kishan Lal Saini v. Jamana, W/o Chhote Lal Saini

2026-01-12

SANDEEP TANEJA, SUDESH BANSAL

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JUDGMENT : Sandeep Taneja, J. 1. The present appeal filed under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act of 1955") lays challenge to the judgment and decree dated 31.03.2009 passed by the District Court, Dausa, whereby the Divorce Petition No.34/2005, filed by respondent - wife, seeking dissolution of the marriage solemnized between the parties, was allowed. 2. Briefly stated, the facts of the case are that the respondent - wife entered into marriage with appellant-husband on 17.02.2001 and thereafter, when her marriage was not consummated, she filed a divorce petition on 03.08.2005 under Section 13 of the Act of 1955, alleging therein that on the third day of marriage, the appellant cast aspersions on her character; addressed her an adulteress and refused to accept her as his wife. It was further alleged that no marital and physical relations were ever established between the appellant and the respondent. It was stated that on the fifth day of marriage, the brother of respondent, as per prevalent customs and rituals, took her to her parental home where she disclosed the entire incidents to her family members. It was further stated that the family members of the respondent made efforts to persuade the appellant to live with the respondent and treat her with dignity; however such efforts remained unsuccessful as the appellant refused to do so and since then, she has been residing at her parental home. On the ground of cruelty and desertion, the respondent sought dissolution of marriage. 3. The appellant filed reply to the divorce petition in which he denied all the allegations. He refuted the allegation of casting aspersion on the character of respondent. It was also stated in the reply that he was willing to accept her as his wife whereas the respondent did not wish to live in the joint family and insisted on living separately, and that she was acting under the influence of her parents. The allegation of desertion was also denied, stating that the respondent had voluntarily left the matrimonial home, taking her jewellery with her. It was also stated that two sisters of the respondent were married to two brothers of the appellant and were living happily in their families. 4. On the basis of the pleadings, the Trial Court framed the following issues :- 5. It was also stated that two sisters of the respondent were married to two brothers of the appellant and were living happily in their families. 4. On the basis of the pleadings, the Trial Court framed the following issues :- 5. Respondent examined herself as PW -1 and also produced two witnesses namely; Gulab Chand (PW-2) and Prabhu Dayal Gurjar (PW-3). On the other hand, the appellant examined himself as DW-1 and produced two witnesses namely; Kishan Lal Saini (DW-2) and Ghasi Ram (DW-3). 6. After hearing the parties and appreciating the evidence, the Trial Court decided issue No.1 in favour of the respondent and against the appellant and passed the impugned judgment and decree allowing the petition for dissolution of marriage filed by the respondent. Hence, this appeal. 7. Learned counsel for the appellant has contended that the Trial Court, while allowing the divorce petition has erred in not appreciating the evidence in right perspective. Learned counsel further submitted that the appellant never made any allegation regarding the character of respondent. 7.1 Learned counsel has also submitted that the respondent averred, in her application filed under Section 24 of the Act of 1955, that the appellant was under an obligation to maintain her but he failed to do so, which compelled her to file the divorce petition. It is argued that as per the said averment, if the appellant had maintained the respondent, there would have been no occasion for her to file the divorce petition, meaning thereby the grounds taken in the divorce petition are baseless. 7.2 Learned counsel also submitted that appellant has not deserted the respondent, rather respondent herself without any cogent reason, has deserted the appellant. He submitted that the respondent lived with the appellant at different intervals for a total period of two months and thereafter, left the matrimonial home for attending the engagement ceremony of her niece (daughter of elder brother), assuring that she would return within 15-20 days. On her demand, she was given jewellery for the ceremony, however she did not return. It is also contended that the absence of physical relations in the initial period of marriage was due to the respondent undergoing her menstrual cycle, during which period she slept with her elder sister. On her demand, she was given jewellery for the ceremony, however she did not return. It is also contended that the absence of physical relations in the initial period of marriage was due to the respondent undergoing her menstrual cycle, during which period she slept with her elder sister. Therefore, counsel for the appellant has prayed that the present appeal may be allowed and the impugned judgment and decree passed by the Trial Court may be set aside. 7.3 Learned counsel for the appellant has relied upon the judgment passed by the Hon'ble the Supreme Court in the case of Dr. Nirmal Singh Panesar Vs. Mrs. Paramjit Kaur Panesar @ Ajinder Kaur Panesar : [ (2023) 13 SCR 832 ]. 8. Per contra, learned counsel for the respondent has submitted that the Trial Court has rightly decided the issue after appreciating the evidence available on record. He has submitted that the impugned judgment and decree is just and proper and hence requires no interference by this Hon'ble Court. 9. Heard learned counsel for both the parties and perused the material available on record. 10. We have carefully examined the pleadings, the evidence led by the parties and the impugned judgment and decree passed by the Trial Court. The Trial Court on the basis of pleadings and evidence held that the respondent has been able to prove the allegation of cruelty and desertion on the part of the appellant. 11. The case of the respondent before the Trial Court was that within the first five days of marriage, the appellant levelled allegation on her character and addressed her as adulteress. Further, the respondent stayed in the matrimonial home only for five days, and during that period no marital relationship was established. Thereafter, she continuously resided at her parental home, and the appellant made no effort to bring her back. 12. We find that the respondent (PW-1) in her testimony, categorically stated that she stayed in her matrimonial home for only four to five days and that no physical relations took place, and she slept with her elder sister. She further stated that the appellant had addressed her as a woman of loose character in the presence of several persons, though she could not recall their names. She further stated that the appellant had addressed her as a woman of loose character in the presence of several persons, though she could not recall their names. The Trial Court, in our opinion, rightly held that it is natural that a bride may not be familiar with the names of her husband’s relatives during the initial days of marriage. 13. With regard to the issue as to whether there were physical relations between the appellant and the respondent, it is relevant to note that, in the cross - examination, there was no suggestion form the appellant to the respondent that she was undergoing her menstrual cycle during first five days of the marriage, hence, his plea of non-consumation of marriage, for such reason, cannot be believed. Moreover, the appellant’s father, Kishan Lal Saini (DW- 2), admitted in his cross-examination that during the first five days of marriage, the appellant and respondent had no occasion to even converse with each other. This admission, read with the respondent’s testimony, clearly establishes that no marital relations existed between the parties. This fact, otherwise has not been refuted by appellant-husband and his explanation is baseless. 14. From the evidence it is clear that on the fifth day of marriage, the respondent’s brother took her to her parental home. The appellant failed to produce cogent and convincing evidence to show that he made sincere efforts to bring her back and for restitution of conjugal rights. On the other hand, appellant’s witnessGhasi Ram (DW-3) admitted in his cross-examination that Babu Lal, the respondent’s brother, visited at her in-laws’ house several times after the marriage and requested that the respondent be taken back to her matrimonial home. This clearly demonstrates that although efforts for reconciliation were made from the respondent’s side but no sincere corresponding efforts were made by the appellant. Mere verbal plea of appellant to have desire for restitution of conjugal rights is not suffice. 15. We find from the evidence that no attempt on the part of the appellant or from his family members was made to bring the respondent to her matrimonial home and for resumption of his matrimonial life. On the contrary, it was respondent-wife and her family members, who were making continuous endeavour to convince the husband to keep the respondent. The failure of such endeavour compelled the respondent to file divorce petition. On the contrary, it was respondent-wife and her family members, who were making continuous endeavour to convince the husband to keep the respondent. The failure of such endeavour compelled the respondent to file divorce petition. In that view of the matter, we find that there is willful desertion on part of appellant for no cogent reason and hence, find no error in the reasoning of the Trial Court. 16. From the evidence of parties, an undisputed fact has been revealed that the parties lived together for only five days after solemnization of their marriage in the year 2001 and the marriage was never consummated, hence no child born to their wedlock. The parties have been living separately for nearly 25 years. In this way, there is sufficient reason to assume that the marriage is surviving on papers only, else same has virtually turned to dead marriage and no marital obligations by parties were performed against each other during this long spare of 25 years. 17. The word “cruelty” has not been defined under the Act of 1955. All the same, the context where it has been used, which is a ground for dissolution of marriage, would show that it has to be seen as a “human conduct and behavior” in a matrimonial relationship. In the celebrated and oft-quoted judgment of Hon’ble Supreme Court delivered in the case of Samar Ghosh Vs. Jaya Ghosh reported in (2007) 4 SCC 511 , the Hon’ble Supreme Court has opined that the cruelty can be physical as well as mental and it can be even unintentional. For ready reference, the relevant portion of the judgment and illustrations of mental cruelty, expounded by the Hon’ble Court in the case of Samar Ghosh (Supra) is being reproduced hereunder :- 72. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. 73. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty. 73. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration. 74. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. (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. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to 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. (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. (underline supplied) 18. Following and reiterating the ratio decidendi expounded in the case of Samar Ghosh (Supra) , the Hon’ble Supreme Court recently in case of Rakesh Raman Vs. Kavita [(2023) 17 SCC 433] ,espoused its opinion and views about the cruelty as under :- “20.Matrimonial cases before the courts pose a different challenge, quite unlike any other, as we are dealing with human relationships with its bundle of emotions, with all its faults and frailties. It is not possible in every case to pinpoint to an act of “cruelty” or blameworthy conduct of the spouse. The nature of relationship, the general behaviour of the parties towards each other, or long separation between the two are relevant factors which a court must take into consideration. In Samar Ghosh v.Jaya Ghosh [Samar Ghosh v.Jaya Ghosh, (2007) 4 SCC 511 ] a three-Judge Bench of this Court had dealt in detail as to what would constitute cruelty under Section 13 (1)(i-a) of the Act. An important guideline in the above decision is on the approach of a court in determining cruelty. What has to be examined here is the entire matrimonial relationship, as cruelty may not be in a violent act or acts but in a given case has to be gathered from injurious reproaches, complaints, accusations, taunts, etc. The Court relied on the definition of cruelty in matrimonial relationships in Halsbury's Laws of England(Vol. 13, 4th Edn., Para 1269, p. 602) which must be reproduced here: “The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. 13, 4th Edn., Para 1269, p. 602) which must be reproduced here: “The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.” 23. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflict cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13 (1)( i-a ) of the Act . 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 from the wedlock. The matrimonial bond is completely broken and is beyond repair. 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 from 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)( i-a ) of the 1955 Act. “. (underline supplied) In the light of ratio decidendi expounded by the Hon’ble Supreme Court, referred hereinabove and considering the factual matrix of case in hand, it can not be said that learned District Judge erred in granting a decree of divorce on the ground of cruelty in favour of respondent-wife and decree of divorce on the ground is hereby affirmed. 19. Coming to the issue of “desertion”, it is well established that two essential conditions must be proved for issuance of a decree of divorce in favour of deserted spouse on the ground of desertion (i) the factum of separation and (ii) the intention to bring the co- habitation permanently to an end (animus deserendi). 20. As far as factum of separation is concerned, indisputably appellant and respondent were living separately for more than two years on the date of filing of divorce petition on 03.08.2005, since it has come in her evidence that wife stayed only for five days at her matrimonial home after her marriage on 17.02.2001. We have already concluded in the forgoing paragraphs that wife did not leave the matrimonial company of a husband without any reasonable cause, rather she was compelled to live separately on account of misbehaviour and bad attitude shown by the husband towards her. We have also concluded, after appreciating the evidence on record that though from the side of wife some efforts were made and willingness was shown for conciliation, but the appellant-husband was not serious for cohabitation and restitution of conjugal rights. We have also concluded, after appreciating the evidence on record that though from the side of wife some efforts were made and willingness was shown for conciliation, but the appellant-husband was not serious for cohabitation and restitution of conjugal rights. No application for restitution of conjugal rights was ever moved by and on behalf of the appellant-husband, hence, the intention on the part of the appellant-husband, to resume cohabitation is not established, therefore, it is fit case where an inference can be drawn that there has been an animus deserendi on the part of appellant-husband. 21. In the case of Debananda Tamuli Vs. Kakumoni Kataky [ (2022)5 SCC 459 ] , the Hon’ble Supreme Court while reiterating the proposition of law expounded in the case of Darshan Gupta Vs. Radhika Gupta [ (2013)9 SCC 1 ] , opined that “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 deserting spouse. There must an absence of consent on the part of deserting spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserted spouse to leave matrimonial home.” 22. In the case at hand, respondent-wife may not be held at fault and it is the conduct and behaviour of appellant-husband, which compelled her to leave his company and matrimonial home. The ground of desertion as required to be established within parameters of law, has been proved by and on behalf of respondent-wife, hence the Trial Court has not erred in granting a decree of divorce in her favour on the ground of desertion as well and We are not inclined to interfere therein. 23. It is not a case where the respondent wife is trying to take benefit of her own default, rather she has successfully established the ground of cruelty and desertion. 24. 23. It is not a case where the respondent wife is trying to take benefit of her own default, rather she has successfully established the ground of cruelty and desertion. 24. Applying the above referred ratio decidendi to the facts of case in hand, indisputably, cohabitation and physical relation of husband and wife between the parties never took place and no child born to the parties out of their wedlock, as much as the married couple is living separately since about 25 years. Therefore, the decree of divorce, passed in favour of wife on the ground of cruelty, requires no interference and deserves to be affirmed. 25. Considering the totality of facts and circumstances of the case, the evidence on record brings the case of the respondent- wife squarely within the purview of cruelty and desertion by appellant. Unfounded allegation, neglect by the appellant, unjustifiable withdrawal from the matrimonial company without any consummation of marriage and long period of continuous separation, constitute cruelty in terms of the instances indicated in the case of Samar Ghosh (supra) 26. Counsel for the appellant has sought to rely upon the averments made by the respondent in her application filed under Section 24 of the Act of 1955, to show that the divorce petition filed by the respondent was baseless. Counsel argued that in the said application, the respondent had contended that failure of the appellant to maintain the respondent, compelled her to file the divorce petition. We are not impressed with the said argument for the reasons; firstly, the divorce petition has been decided on the basis of pleadings, and evidence led in the said proceedings; secondly, an averment made in the application under of the Act of 1955, in isolation, cannot be the basis to decide the divorce petition. 27. The judgment of Dr. Nirmal Singh Panesar (supra) relied upon by learned counsel for the appellant is also not applicable to the facts of the present case, as in that case the Hon'ble Supreme Court declined to exercise power under Article 142 of the Constitution of India to dissolve the marriage between the parties on the ground that the marriage had irretrievably been broken, whereas in the instant case, the Trial Court has passed the judgment and decree for dissolution of marriage in favour of respondent on the ground of cruelty and desertion on the part of the appellant. 28. 28. In view of the foregoing discussion, we are not inclined to interfere with the judgment and decree passed by the Trial Court. Consequently, the appeal fails and is hereby dismissed . The judgment and decree dated 31.03.2009 passed by the Trial Court is hereby affirmed. 29. All pending applications also stand disposed of.