HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR
DIVISION BENCH: Hon'ble Mr. Justice Ajit Singh,
&
Hon'ble Mr. Justice N.K.Gupta, JJ.
FIRST APPEAL NO.182 OF 2002
Sanjay Agrawal.
Vs.
Smt. Renu Agrawal.
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Shri Jagtendra Prasad, lawyer counsel for the appellant.
Shri Om Namdeo, learned counsel for the respondent.
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JUDGMENT
(Delivered on this the 30th day of September, 2010)
PER: N.K..GUPTA,J.
This first appeal has been preferred by the
appellant against the judgment and decree dated
11/12/2001 passed in Hindu Marriage Case No.19A/1998
by the Second Additional District Judge, Hoshangabad by
which the application filed by the appellant under Section
13 of the Hindu Marriage Act, 1955 (hereinafter referred
to as the ‘Act, 1955’) was dismissed.
2. It is admitted that the marriage of the appellant
and the respondent took place on 16/2/1997 at Itarsi.
They lived at Itarsi for two months after their marriage.
Thereafter the respondent visited to the appellant’s
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house in the month of April, 1997 after her short stay of
few days at her parents’ house. In her second visit she
lived upto July, 1997.
3. The appellant has filed an application under
Section 13 of the Act, 1955 before the trial Court on the
ground that, in July, 1997 the respondent left the house
of the appellant to perform the ceremony of Raksha
Bandhan and thereafter she did not come back. Her
behaviour with the appellant and his family members was
discourteous. She was in the habit to insult the appellant
and his family members. She was quarrelsome. She
insisted upon the appellant to live separately from the
family, though she was fully aware of the fact that the
appellant was a member of the joint Hindu family and he
did not have any capital to start his own business. The
appellant tried to convince her that it is not possible for
him to live separately from the family, then the
respondent threatened to lodge a case for dowry demand.
In July 1997, the respondent left the house of the
appellant with a declaration that she will return back to
the appellant’s house only when he will start living
separately from his family. The appellant tried his level
best to bring the respondent back. Even at Burhar the
appellant and his father tried for conciliation with the
help of some reputed persons of the society, but the
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efforts of the appellant remained fruitless. Ultimately, in
the year 1998 the appellant filed an application under
Section 13 of the Act, 1955 before the trial Court. Again
in the year 2000, he amended his application to the effect
that the respondent has lodged an FIR under Section
498-A of IPC against him and his family members, which
amounts to be a cruelty against the appellant.
4. The respondent in her reply denied all the
allegations made in the application. She has pleaded that
it was impressed upon her parents that the appellant is
an owner of “Sanjay Trading Company” which is a big
shop of grocery and general stores, but the appellant did
not have any stand in the family. The appellant had lost
his mother in the past and at the time of his marriage
stepmother was there whose behaviour was worst with
the respondent. She used to torture her in every manner.
Two younger brothers of the appellant were already
married and the appellant was elder one. She never
insisted for separation, on the contrary she was tortured
for demand of dowry, and therefore, she was thrown out
of the family. In reply to the amendment, she had pleaded
that when she received a summon of the present case,
she thought that no conciliation is possible at present,
hence she lodged an FIR against the appellant and his
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family members on the basis of factual position,
therefore, she had requested to dismiss the application.
5. After considering the evidence adduced by the
parties and pleadings of the case, the learned 2nd
Additional District Judge has found that the allegations of
cruelty were not proved, and therefore, the appellant is
not entitled to get divorce from the respondent, hence
the application filed under Section 13 of the Act, 1955 by
the appellant has been dismissed by the impugned
judgment.
6. Before hearing the final arguments in the
present matter, reconciliation proceedings were held by
this Court, but they could not produce results, thereafter
we have heard both the parties at length through their
learned counsel.
7. Learned counsel for the appellant, in nutshell,
has submitted that the behaviour of the respondent was
worst. She was in habit to insult the appellant and his
family members. Her father was informed in April, 1997
regarding her behaviour and activities, but it was an
effect-less effort. When she came back in the appellant’s
family for the second time, she repeated similar activities.
She was insisting upon the appellant to live separately
from his family members. The appellant and his family
members tried for reconciliation with the help of some
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reputed persons of the society at Burhar, but such efforts
became fruitless. Learned counsel for the appellant has
further submitted that the respondent had left her
husband’s house herself and she deserted the appellant
unnecessarily. At present relations of the parties have
come down to irretrievable breakdown of marriage, and
therefore, the learned Court below has erred in
dismissing the divorce application of the appellant.
8. On the contrary, learned counsel for the
respondent has submitted that there was no cruelty
proved from the side of the respondent. Actually the
stepmother of the appellant was bitter with the
respondent. The respondent in her statement before the
learned trial Court has explained the cruelty of her
mother-in-law in detail, and therefore, the learned 2nd
Additional District Judge has rightly dismissed the
divorce application of the appellant. Learned counsel for
the respondent has further submitted that the appellant
did not take any ground of desertion before the learned
Court below, and therefore, no issue was framed on the
ground of desertion, hence the appellant cannot raise
such a new ground before this Court at this stage. He has
further submitted that there is no ground mentioned in
Section 13 of the Act, 1955 regarding “irretrievable
breakdown of marriage”. It is the prerogative of the
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Hon’ble Apex Court under Article 142 of the Constitution
of India to provide such relief on such basis, but since
there is no ground in Section 13 of the Act, 1955, no
decree of divorce can be passed on the basis of that
ground.
9. On perusal of the record of the Court below, it
is clear that the appellant did not take any ground of
desertion in his divorce application. Actually the
marriage of the parties took place on 16/2/1997 and the
appellant has filed the divorce application on 22/7/1998
i.e. within two years of their marriage, and therefore,
ground of desertion under Section 13(1) (ib) of the Act,
1955 was not available to the appellant, hence no issue
was framed in the trial. Learned counsel for the appellant
has relied upon the judgment of this Court i.e. “Manju
Rajak Vs. Parvinder Singh” [2010 (2) MPLJ 543], but
since no ground for desertion is pleaded in the divorce
application, the above cited case is of no help to the
appellant at present. Under these circumstances, at this
stage “desertion” cannot be considered to be a ground of
divorce.
10. Regarding cruelty, if the evidence adduced is
examined, then it would be clear that the appellant has
failed to prove the cruelty of the respondent. Appellant
examined only three witnesses in his favour including
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himself. There is a material contradiction in the
statement of these three witnesses namely Sanjay (PW-1),
Udit Narayan (PW-2) and Govind Prasad (PW-3). Also
there is contradiction between the statements of these
three witnesses with the pleading made by the appellant.
Udit Narayan (PW-2) is the friend of the appellant, who
quoted one incident that when the appellant directed the
respondent to make tea for him, then she refused to make
tea. But there is no such pleading in the appellant’s
application. It is true that every incident of cruelty cannot
be pleaded, but even the appellant Sanjay (PW-1) did not
say anything about this incident in his evidence,
therefore, it is clear that the incident quoted by Udit
Narayan (PW-2) is an after thought. However, it is clear
from the evidence adduced by the parties that younger
brothers of the appellant were already married, and
therefore, it is possible that the kitchen was under the
control of stepmother and two sister-in-law of the
appellant, hence the respondent was unable to make tea
for the friend of the appellant. It was for the appellant to
observe the reason for such denial. It seems that he knew
the reason, and therefore, he did not say anything in his
evidence regarding this fact.
11. Similarly, Sanjay (PW-1) and Udit Narayan
(PW-2) have stated before the trial Court that when they
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reached Burhar to bring the respondent, the respondent
did not permit them to stay in her house. She had stated
that her father is not at home and till then they have to
manage their own stay. The conduct of the respondent
seems to be reasonable, as she was under no moral
obligation to accommodate her husband and his friend as
to be a guest at her parent’s house. Also with such
strained relations, there was no possibility that the
respondent could show her affection in permitting them
to stay in the house in the absence of her father. It was
for her to talk with the appellant and his friend and it was
possible that they could assault her, therefore, the
conduct of the respondent in such particular instance
seems to be reasonable.
12. Sanjay (PW-1) and his father Govind Prasad
(PW-3) have stated before the trial Court in a different
manner. Sanjay says that the respondent was in the habit
of adding too much chillies in the food, whereas his
father alleges regarding addition of more salt in the food.
He did not say anything regarding addition of chillies.
Similarly, Sanjay (PW-1) did not complain regarding her
behaviour for the first two months of the beginning,
whereas his father Govind Prasad (PW-3) informed that in
first two months, behaviour of the respondent was
discourteous and quarrelsome, and therefore, the father
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of the respondent was called and he took his daughter to
his house with the assurance that he would convince his
daughter. The appellant did not say anything for first two
months of his marriage. He admits that in that period she
did not refuse for having cohabition. There is no pleading
in the application of the appellant about the fact that the
father of the respondent was called and the respondent
was sent back with her father with some complaints. In
such circumstances, the evidence of Govind Prasad
(PW-3) prima facie cannot be accepted on the basis that
his statement is contrary to the pleadings, but the
respondent Renu Agrawal (DW-1) in her statement
informed the trial Court that she was sent back with her
father due to some dowry demand, therefore, it seems
that evidence given by witness Govind Prasad is correct
to the fact that the respondent was sent back after two
months of her marriage after calling her father. But, if
the reason was so, which is stated by Govind Prasad
(PW-3), then what was the problem to the appellant that
he has hidden this fact in his statement and in his
pleadings, therefore, the act of the appellant indicates
that it is possible that the respondent was sent back with
her father to create pressure of dowry demand, hence
being guilty conscious, the appellant has no cheek to say
anything regarding that event.
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13. Renu Agrawal (DW-1) in her statement stated
so many things about her torture in the appellant’s
house. Learned counsel for the appellant submits that she
alleged wildly without any basis and no such pleadings
were made by the respondent in her reply to the
application. He further submits that no such suggestions
were given regarding such instances to appellant Sanjay
(PW-1) and his father Govind Prasad (PW-3) in their cross
examination. It is true that the respondent did not plead
regarding such instances about the cruelty of her mother-
in-law. It is also true that no such example was put
forward in cross examination of Sanjay (PW-1) and his
father Govind Prasad (PW-3), but the conduct of the
respondent is clear that she has lodged an FIR for
commission of offence under Section 498-A of IPC against
the appellant and his family members after receiving
summons of the divorce application, and therefore, she
kept silence about the torture caused to her, hence the
allegations made by the respondent cannot be thrown
away in such a manner. It is clear from her conduct that
some of the allegations made by her are correct. She has
stated before the learned Court below that her mother-in-
law prohibited her to make physical relation with the
appellant in her second visit and therefore, she did not
have such relation with the appellant in her second visit.
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The appellant admits that there was no problem in
cohabitation with the respondent in her first visit, but in
the second visit she was denying to have such relations.
14. The respondent lived with the appellant only
for four months after the marriage in her two visits, and
therefore, in such a small period, she could not do such
alleged cruelty, which can be a ground for divorce. It is
clear that she was thrown out from the family twice.
15. Both the parties are alleging the cruelty
against each other, therefore, to know the actual
controversy, there was a need to examine an independent
witness before the Court below. It is admitted by the
appellant that he and his father informed these facts to
some reputed persons of the society at Burhar, and
therefore, such reputed persons, who were not influenced
by father of the respondent could be the independent
witnesses to tell the actual controversy between the
parties, but no such witness is examined before the Court
below and even no explanation has been given for such
non-examination.
16. Learned counsel for the appellant submits that
it was the duty of the respondent to examine such
witnesses, but such submission cannot be accepted,
because cruelty of the respondent was alleged by the
appellant in his application, hence it was for him to prove
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this fact against the respondent and if he has proved the
same, then it would be the responsibility of the
respondent to rebut it. Unfortunately, the allegations
made by the various witnesses of the appellant are
contradictory amongst each other and also contradictory
to the pleadings. In such circumstances, it cannot be said
that either the allegations made by the appellant are
correct or the allegations made by the respondent are not
correct, therefore, the learned Court below was correct
in holding that the appellant could not prove the cruelty
of the respondent.
17. Learned counsel for the appellant has placed
reliance on the decisions rendered by the Hon’ble Apex
Court in the case “Suman Kapur Vs. Sudhir Kapur”,
[(2009) 1 SCC 422] and “U. Swetha Vs. State”,
[(2009) 6 SCC 757], in which cruelty was considered by
the Hon’ble Apex Court. But, it is clear from the above
two judgments, that cruelty can be assessed only on the
basis of bundle of facts in each case, and therefore, when
the case of the appellant is not established on factual
aspect, then the above dictum are of no help to the
appellant.
18. Learned counsel for the appellant has further
submitted the respondent lodged an FIR for commission
of offence under Section 498-A of IPC after two years of
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the marriage against the appellant and his family
members, and therefore, it amounts to be a cruelty. This
contention of learned counsel for the appellant cannot be
accepted. It is very much clear from the record that the
respondent did not lodge any FIR till filing of divorce
application by the appellant, and therefore, by her such
conduct, no ground of cruelty was available at the time of
filing of divorce application. She has every right to file an
FIR to express her grievances against the appellant and
his family members, and therefore, subsequent FIR after
filing of the divorce application does not create any
ground of cruelty.
19. Learned counsel for the appellant in the
alternate submits that since July 1997 the respondent is
not living with the appellant and so many reconciliation
proceedings took place between them, but the same were
fruitless. The appellant is deprived of the company of his
wife since last 13 years, and therefore, it is a case of
irretrievable breakdown of marriage, hence a decree of
divorce be given on this count. In support of his
contention, he has placed reliance on the following
judgments of the Hon’ble Apex Court and this Court:-
(i) “Sanghamitra Ghose Vs. Kajal Kumar Ghose”,
(2007) 2 SCC 220.
(ii) “Durga Prasanna Tripathy Vs. Arundhati Tripathy”,
(2005) 7 SCC 353.
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(iii) “Naveen Kohli Vs. Neelu Kohli”, (2006) 4 SCC 558.
(iv) “Madhuri Aswani Vs. Arjundas Aswani”, 2007(3)
MPLJ 550.
Learned counsel for the appellant further submits
that in all above judgments, decree of divorce was
granted in such cases where it was found that the
marriage of the parties is broken and it was not possible
that they could live together with each other, then decree
of divorce was given.
20. However, in the above cited judgments, the
case of “Naveen Kohli” (supra) is most important, in
which the Hon’ble Apex Court has held that no such
ground regarding irretrievable breakdown of marriage is
available in Section 13 of the Act, 1955, and therefore, it
should be a statutory ground and without such
amendment in the Act no decree of divorce can be
passed. In the said judgment, the Hon’ble Apex Court has
advised that legislature must consider the opinion of their
Lordships and to make such provision in the Hindu
Marriage Act, 1955.
21. In the case of “Sanghamitra Ghosh” (supra)
the Hon’ble Apex Court has considered the judgment of
“Naveen Kohli” (supra) and has expressed the opinion
that though there is no ground mentioned in Section 13
of the Act, 1955, however the Apex Court can exercise
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the jurisdiction given under Article 142 of the
Constitution of India, and therefore, in Sanghamitra’
case the Hon’ble Apex Court has granted decree of
divorce on the ground of irretrievable breakdown of
marriage.
22. The dictum laid down by the Hon’ble Apex
Court in the Sanghamitra’s case (supra) and Naveen
Kohli’s case (supra), taken jointly, then it would be clear
that since there is no ground available regarding
“irretrievable breakdown of marriage” in Section 13 of
the Act, 1955, no decree of divorce can be given in
absence of such statutory provisions, but decree of
divorce can be given with the jurisdiction of Article 142
of the Constitution of India. But no such jurisdiction is
available to this Court under Article 142 of the
Constitution of India, hence in absence of any provision in
Section 13 of the Act, 1955, no decree of divorce can be
passed by this Court on the ground of “irretrievable
breakdown of marriage”.
23. In the light of the above discussions, it is clear
that no decree of divorce can be passed by this Court in
favour of the appellant. The learned 2nd Additional
District Judge has rightly dismissed the appellant’s
application, hence the appeal of the appellant deserves to
be dismissed.
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24. In the result, this appeal does not succeed and
is hereby dismissed with costs. The appellant shall bear
the cost of the respondent also.
(Ajit Singh) (N.K.Gupta)
Judge Judge
30/09/2010 30/09/2010.
Ansari.