{"id":191661,"date":"2010-08-09T00:00:00","date_gmt":"2010-08-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-vs-dharmisthaben-on-9-august-2010"},"modified":"2018-06-24T15:25:52","modified_gmt":"2018-06-24T09:55:52","slug":"rajendra-vs-dharmisthaben-on-9-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-vs-dharmisthaben-on-9-august-2010","title":{"rendered":"Rajendra vs Dharmisthaben on 9 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Rajendra vs Dharmisthaben on 9 August, 2010<\/div>\n
Author: Jayant Patel,&Nbsp;Honble Kumari,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nFA\/969\/2010\t 23\/ 26\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nFIRST\nAPPEAL No. 969 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL  \nHON'BLE\nSMT. JUSTICE ABHILASHA KUMARI\n \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=====================================================\n \n\nRAJENDRA\nRATILAL DALAL - Appellant(s)\n \n\nVersus\n \n\nDHARMISTHABEN\nWD\/O REJENDRA R DALAL & D\/O BABULAL KAMDAR - Defendant(s)\n \n\n===================================================== \nAppearance\n: \nMR VL THAKKAR for Appellant \nMS\nDHARA M SHAH FOR MR SHIVANG M SHAH for\nDefendant. \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 09\/08\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HON’BLE SMT. JUSTICE ABHILASHA KUMARI)<\/p>\n
1.\tThe
\npresent appeal is directed against  judgment and decree dated
\n26-8-2009 passed by the Family Court No.3, Ahmedabad, in Family  Suit
\nNo.211 of 2003, whereby, the marriage  between the appellant-husband
\nand respondent-wife (hereinafter referred to as  the appellant
\nand  the respondent  as they appear in this appeal respectively)
\nhas been dissolved with effect from the date of judgment, under the
\nprovisions of Section 13(1) of the Hindu Marriage Act,1955 ( The
\nHindu Marriage Act  for short) and a permanent injunction has also
\nbeen granted against the appellant.\n<\/p>\n
2.\tThe
\nimpugned judgment and decree came to be passed in a Suit filed by
\nthe respondent wife before the Family Court, being Family Suit No.211
\nof 2003, wherein she has prayed for a decree under Section 12 of the
\nHindu Marriage Act declaring that her marriage with the appellant as
\nnull and void on the ground that it has  not been consummated, owing
\nto the impotency of the appellant. Alternatively, a decree for
\ndissolution of marriage under Section 13(1) of the Hindu Marriage Act
\nwas also prayed for.\n<\/p>\n
3.\tIn
\norder to appreciate the issues involved, it would be necessary to
\nbriefly state the relevant facts, which are as under:\n<\/p>\n
3.1\tThe
\nmarriage between the appellant and respondent was solemnised on
\n28-1-2000. The respondent is serving as Junior Accounts Officer in
\nthe Telephone Department whereas the appellant is working
\nin a Private Firm.  After the marriage the respondent started staying
\nwith the appellant in the joint family. However, it is the case of
\nthe respondent that the marriage has never been consummated due to
\nthe impotency  of the appellant, and this state of affair has
\ncontinued throughout. According to the respondent the appellant,
\napart from being unable to fulfil his marital obligations,  has
\ninflicted mental and physical cruelty on her, due to which she has
\nbeen driven out of the house and has been living separately since
\n7\/9 January, 2001 (except for 24-1-2001). She has, therefore,
\napproached the Family Court by way of the above-mentioned
\nSuit, praying for the relief of declaration that the marriage be
\ndeclared as null and void under Section 12 of the Hindu Marriage Act.
\nAlternatively, it was prayed that as the respondent has treated her
\nwith cruelty, a decree of divorce may be granted.\n<\/p>\n
3.2\tAs
\nfar as the aspect of cruelty is concerned it was asserted by  the
\nrespondent before the Family Court that the appellant has treated her
\nwith cruelty as his behaviour changed towards her after the marriage.
\nThe appellant started harassing her and forcing
\nher to give Rs.9000\/- per month from her salary and also to transfer
\nthe Flat purchased by her before the marriage, situated at Himgiri
\nApartments, in his name. As the respondent did not agree to the same,
\nshe was subjected to physical and mental cruelty
\nand torture and also had to endure beatings and false allegations.
\nShe has even broken one of her fingers due to the beating given by
\nthe appellant. As per the say of the respondent, she tolerated such
\nbehaviour even though the appellant was unable to  consummate the
\nmarriage.   On the proposal of the appellant and his  mother, she
\nagreed to  live with them separately from the joint family at her
\nFlat at Himgiri Apartments
\nas the existing premises, where the  joint family was staying, were
\nsmall and were shared by the brother-in-law of the respondent and his
\nfamily. However, the harassment continued and the appellant
\nthreatened that he would commit suicide, if she refused to transfer
\nthe flat. It is the case of the respondent that due to the harassment
\nof the appellant, she was compelled to leave her own Flat, and to
\nstart residing with her parents. Even after her departure the
\nappellant and his mother continued to reside in the Flat of the
\nrespondent at Himgiri Apartments.\n<\/p>\n
On 24-1-2001, the appellant came to the parental house of the
\nrespondent and apologized for his misbehaviour,  asserting that he
\nwould treat her well,therefore, the respondent had returned to
\nHimgiri Apartments, on  his assurance, but on the very
\nsame night the appellant started torturing her in order to compel her
\nto transfer the Flat in his name. Even then the appellant could not
\nfulfil his marital obligations, therefore, the respondent  returned
\nto her parental home on 25-1-2001. According  to the respondent, the
\nappellant threatened her that he would not allow her or her family
\nmembers to live a peaceful  life but on the very next day i.e.
\n26-1-2001 a devastating
\nearthquake took place and Himgiri Apartments, was destroyed. The
\nappellant sustained injuries and was admitted to V.S. Hospital. It is
\nthe case of the respondent that she had taken care of the appellant
\nduring the period while he was injured and served him as a dutiful
\nwife, and had even taken him to a Private Hospital for better
\ntreatment. However, after recovering from the injury, the appellant
\nhas fraudulently taken a cheque for Rs.50,000\/-, which was given by
\nMahudi Trust as compensation towards earthquake relief, by
\nmisrepresenting  that he has
\npurchased the Flat in the name of the respondent.  The appellant had
\nassured her that he would return the amount of Rs.50,000\/- to her,
\nbut the same has not been done. It was further the case of the
\nrespondent  that the parties
\nhave been living separately for more than two years and there is no
\nrelationship of husband and wife between them.  However, the
\nappellant used to come to the office of the respondent in order to
\nharass and abuse her in the presence of her colleagues, which has
\nresulted in an apprehension  in her mind  that there is  danger to
\nher life and limb from the appellant. Further, with the intervention
\nof elders, a compromise was
\narrived at, in order to take divorce by mutual consent between the
\nparties, wherein it was agreed that the compensatory amount of
\nRs.50,000\/- would be returned by the appellant to the respondent, who
\nwas to delete her name from the Locker of the Bank, and give back
\narticles of the appellant and the key thereof. According to the
\nrespondent, she has deleted her name from the Bank Locker and
\nreturned the key and has not taken any  ornaments belonging to the
\nappellant. The appellant has committed breach of the agreement and
\nnot returned Rs.50,000\/- and
\nalso refused to sign on the  petition for divorce by mutual consent,
\njust to harass the respondent and extract money from her, as she is
\ndrawing a better salary than him.  It was the case of the respondent
\nthat as there is no physical relationship
\nbetween the appellant and her and as the appellant has treated her
\ncruelly,  harassed and tortured her physically and mentally, she was
\nconstrained to file the Suit for divorce, before the Family Court.\n<\/p>\n
4.\tThe
\nappellant opposed the Suit,  denying all the allegations levelled
\nagainst him. According to the appellant, the allegation of impotency
\nis false and  incorrect and the marriage has been consummated on the
\nvery first night. The appellant is capable of fulfilling his marital
\nobligations and the Report of the Laboratory,  for analysis of  his
\nsemen is in his favour, and the same does not prove that he is
\nimpotent. The allegations of cruelty, physical and mental torture,
\nharassment, and beatings  have been  denied. On the other hand, the
\nappellant has stated that it is solely  because the respondent does
\nnot want his mother to live with him that she had levelled false and
\nconcocted allegations against him,for obtaining divorce. It is denied
\n that he has compelled the respondent to leave the matrimonial home
\nand  is asserted that she left   on her own, on 25-1-2001. Though the
\nappellant has admitted that the respondent took care of him after he
\nwas injured during the earthquake, he has further asserted that when
\nthe respondent came to know that he suffered from a paralytic effect,
\nshe left his company. The appellant has admitted that he has received
\nRs.50,000\/- as compensation from Mahudi Trust and as per the
\ncompromise he was to give the said amount to the respondent, but has
\nasserted that the respondent has not honoured her part of the
\ncompromise. All other allegations have been denied by the appellant,
\nwho has specifically stated that he is not ready to give divorce to
\nthe respondent, unless she returns the cash and ornaments which were
\nlying in the joint Locker. According to the appellant, as the
\nrespondent comes from a well-off family and was used to living a
\nlavish life, and as her salary is more than that of appellant,she was
\ndissatisfied with the marriage from the very beginning and had,
\ntherefore,decided to take a divorce from him. In this background,
\nbeing aggrieved by the impugned judgment and decree of the Family
\nCourt, the appellant has filed the present appeal.\n<\/p>\n
5.\tOn
\nthe pleadings of parties, the Family Court framed issues for
\ndetermination at Exh.14,which are reproduced herein under:\n<\/p>\n
\t“(1)
\n\tWhether the petitioner proves that the marriage has not been
\n\tconsummated owing to the impotence of the respondent,and therefore,
\n\tthe marriage is null  and void?\n<\/p>\n
\t(2)<\/span><\/p>\n
\tWhether the petitioner proves that after solemnization of the
\n\tmarriage the respondent treated petitioner with cruelty as alleged
\n\tin the petition?\n<\/p>\n
\t(3)<\/span><\/p>\n
\tWhether the petitioner proves that the respondent has deserted the
\n\tpetitioner for a continuous period of not less than two years
\n\timmediately preceding from the date of the presentation of the
\n\tpetition without any cause and without consent of the petitioner?\n<\/p>\n
\t(4)\tWhether
\n\tthe petitioner is entitled to get a decree of dissolution of
\n\tmarriage on any of the above grounds,if yes,on which ground?\n<\/p>\n
\t(5)\tWhether
\n\tthere is any legal ground under Section 23 of the Hindu Marriage Act
\n\tfor not granting the petition?\n<\/p>\n
\t(6)\tWhat
\n\torder and decree?\n<\/p>\n
6.\tThe
\nfindings of the Court on issues Nos.1,2 and 3 are in the affirmative
\nand on issue No.4 it is found that the respondent is entitled to get
\na decree of dissolution of marriage on the grounds of cruelty and
\ndesertion.\n<\/p>\n
7.\tMr.V.L.Thakkar,
\nlearned advocate for the appellant has submitted that the  judgment
\nand decree under challenge is liable to be quashed and set aside as
\nthe same is not in accordance with law and  has been passed without
\napplication of mind, inasmuch as the Family Court has not considered
\nthe facts in proper perspective and had wrongly passed the decree in
\nfavour of the respondent, on the ground of cruelty and desertion. It
\nis further submitted that even on the ground of impotency, there was
\nno material before the Family Court to make good the allegations of
\nthe respondent, as a semen test is not sufficient evidence for
\nestablishing whether the appellant is impotent or not, therefore, the
\nfinding of the Family Court on this ground is un-justified. On the
\ncontrary, apart from the report of the Genetics Test Laboratory dated
\n3-7-2001 at Exh.22 produced by the respondent, where it is mentioned
\nthat the semen ‘motility’ is ‘poor’,  other reports are produced by
\nthe appellant at Exh.43 wherein the count of semen is  stated to be
\n‘fair’, but the Family Court has not taken these into consideration,
\nand only the documents produced by the respondent have been relied
\nupon to arrive at the conclusion that the appellant is impotent and
\nthat the marriage has not been consummated. It is further submitted
\nby Mr.Thakkar that ‘poor motility’, as mentioned in the report at
\nExh.22, refers to the semen count, and as such it cannot be presumed
\nto mean that the petitioner is impotent and incapable of consummating
\nthe marriage, therefore, the finding  on issue No.1 regarding
\nimpotency of the appellant is incorrect, and not supported by any
\nmaterial on record.\n<\/p>\n
7.1\tRegarding
\nthe issue of cruelty, it is submitted by the learned counsel for the
\nappellant that the fact that the appellant has taken Rs.50,000\/- from
\nMahudi Trust as compensation for the Flat cannot be considered as
\ncruelty to the respondent. Though it is denied that the appellant has
\ninflicted beatings upon the respondent, it is admitted by the learned
\ncounsel for the appellant that it may have happened once or twice but
\nbeatings cannot be considered to be ‘cruelty’ as these type of
\nincidents are the normal wear and tear of married life. It is further
\ndenied on behalf of the appellant that he was pressurising the
\nrespondent to transfer the Flat in  his name. It is submitted that as
\nthe respondent was paying the loan on the Flat, there was no point in
\nasking for transfer of the same, therefore, the allegation of cruelty
\nis not proved. Similarly, the learned counsel for the appellant has
\nsubmitted that there is no question of asking the respondent to hand
\nover her salary to the appellant as the respondent was paying the
\nloan installments therefrom, and hardly anything was left over after
\npayment of the same. It is asserted by the learned counsel for the
\nappellant  that the appellant was also paying the monthly loan
\ninstallments towards the Flat along with the respondent. Further, it
\nis submitted that the  respondent has taken money and ornaments from
\nthe joint Locker of the respondent and appellant during the time when
\nthe earthquake took place and she has not returned the same, which
\nhas not been considered by the Family Court.\n<\/p>\n
7.2.\tOn
\nthe point of desertion it is contended by the learned counsel for the
\nappellant, that the appellant  has never treated the respondent with
\ncruelty nor has inflicted mental or physical torture upon her, or
\nharassed her at home or at the work place, so as to compel her to
\nleave the house. On the contrary, the respondent  has voluntarily
\ngone on her own, therefore, the finding of the Family Court that the
\nappellant is guilty of desertion as  the respondent had been
\ncompelled to leave the house due to his ill- behaviour and cruelty,is
\nincorrect.\n<\/p>\n
8.\tOn
\nthe above grounds, it is submitted by the learned counsel for the
\nappellant that the impugned judgment and decree deserves to be
\nquashed and set aside.\n<\/p>\n
9.\tMs.Dhara
\nShah, learned counsel for the respondent has strongly opposed the
\nappeal by contending that the judgment of the Family Court is just
\nand proper, and has been passed after proper application of
\nmind,after considering the  cogent evidence on record. It is
\nsubmitted that the appellant has not been able to adduce sufficient
\nproof to the effect that he is not impotent and that the marriage was
\nconsummated. It is further contended that the appellant has admitted
\nin his cross-examination that he used to quarrel with the respondent.
\nThe cruelty and harassment meted out by the appellant were of such a
\ndegree that the respondent was forced to leave her own flat. The
\nlearned counsel for the respondent has emphasised that there is no
\nmarital relationship between the appellant and the respondent, and
\nthey have been living separately since the year 2001, nor is  there
\nany likelihood of  reconciliation between the parties.  The learned
\ncounsel for the respondent has further submitted that even though the
\nrespondent had to leave her own Flat,  she had taken care of the
\nappellant when he was injured after the earthquake. Further, the
\nrespondent was  living in the said Flat on the request of the
\nappellant’s mother and brother, and at no point of time has she
\nrefused to live in the joint family. It is further contended on
\nbehalf of the respondent that the appellant has not submitted any
\noriginal documents before the Family Court and has only levelled
\nbaseless allegations, without any proof, therefore, on the facts and
\nin the circumstances of the case,the Court may not interfere with the
\ndecree of divorce passed by the Family Court, which is perfectly
\nlegal and justified.\n<\/p>\n
10.\tWe
\nhave heard the learned counsel for the respective parties at length
\nand in detail, in order to decide the appeal finally, at this stage
\nwith their consent. We have also perused various documents on
\nrecord,including the deposition of parties and other relevant
\nmaterial made available to us.\n<\/p>\n
11.\tThe
\nfirst aspect that arises for our consideration  is regarding the
\nfinding recorded by the Family Court on the issue of  impotency of
\nthe appellant, and his inability to consummate the marriage. After
\nexamining the entire material on record, we find that there is no
\nconclusive medical evidence of any expert, produced by either of the
\nparties which would prove that the appellant is impotent and unable
\nto perform his marital obligations. In his cross-examination, the
\nappellant has himself referred to the Certificate of the Genetics
\nCenter Laboratory at Exh.22 wherein, on analysis of the semen  the
\nreport states that the ‘motility’ is ‘poor’. The appellant has
\nproduced some reports of another Laboratory vide Exh.43 wherein it is
\nstated that the ‘motility’ is ‘fair’. On the basis of these reports,
\nthe appellant has sought to prove that he is not impotent. It is,
\nhowever, an admitted fact that the  reports at Exh.43 are not in
\noriginal and have not been proved by the appellant by examining any
\nDoctor or Specialist in the concerned field of Medical Science. In
\nthe absence of any conclusive proof or opinion of a medical expert,
\nit is not possible for us  to conclude that  poor  or  fair
\nmotility of the semen analysis of the appellant would mean that the
\nappellant is impotent, or unable to consummate the marriage. It is
\ntrue that the respondent has categorically stated  that the marriage
\nhas not been consummated in spite of the fact that the appellant and
\nrespondent went for their honeymoon for a week, which had to be cut
\nshort as they returned after two  or three days due to some
\ndifference of  opinion, but apart from the divergent stands taken by
\nthe parties on this issue, there is no material on record to enable
\nus to come to any definite conclusion regarding the impotency of the
\nappellant. The appellant has maintained that the marriage has been
\nconsummated and relations as husband and wife took place between the
\nparties  on several occasions. The respondent categorically denies
\nthis and has asserted that there is no consummation of the marriage
\nat all. It is the ipse dixit of the appellant against that of
\nthe respondent. However, such personal and intimate matters are known
\nonly to the partners to a marriage, and in the absence of any
\nspecific proof of impotency by a medical expert,in our view, the
\nfinding of the Family Court that the  respondent  has been successful
\nin establishing that the marriage has not been consummated due to the
\nimpotency of the appellant, cannot be endorsed. Though the respondent
\nhad sought a declaration under Section 12(1)(a) of the Hindu Marriage
\nAct that the  marriage be declared void and be annulled   on the
\nground that it has not been consummated owing to the impotency of the
\nappellant, the Family Court, though having found issue No.1 regarding
\nimpotency of the appellant against him, has not passed the impugned
\njudgment and  decree on the ground that the marriage is void as it
\nhas not been consummated, but has declared the marriage to be
\ndissolved under the provisions of  Section 13(1) of the Hindu
\nMarriage Act, on the grounds of cruelty and desertion.\n<\/p>\n
12.\tInsofar
\nas the issues  of cruelty and desertion are concerned, it is clear
\nfrom the evidence on record that the respondent was serving in the
\nTelephone Department and earning a decent salary, when she married
\nthe appellant. It is also an admitted position that the respondent
\nowned the Flat situated at Himgiri Apartments where she was staying
\nwith the appellant and his mother. Though the appellant has stated
\nthat he was also paying monthly loan installments towards the Flat
\nalong with  the respondent, there is no material on record to support
\nthis assertion. On the contrary, it is admitted by the appellant that
\nthe Flat was purchased by the respondent before her marriage and was
\nin her name and she was paying the monthly  installments. Though the
\nappellant has put up  a case that the respondent did not want his
\nmother to stay with them, it is clear from a perusal of the material
\non record that not only  did the respondent stay in the joint family
\nbefore moving into Himgiri Apartments but the mother of the appellant
\nalso came to live with them due to the fact that the joint family
\nhouse where they were previously staying was very small  and was
\nshared by the parents of the appellant, his brother and his family
\nconsisting, of wife and two children, aged 18 and 16 years
\nrespectively. The material  on record does not reveal that it was on
\nthe insistence of the respondent that they moved to Himgiri
\nApartments as asserted by the appellant. Further, we find that in
\nspite of the fact that the Flat where the respondent was staying with
\nthe appellant belonged to her, she was forced to leave the same  due
\nto the harassment,cruelty and continuous mental and physical torture
\nmeted out by the appellant, in order to compel her to transfer the
\nsame in his name. It is also clear from the material on record that
\nthe appellant has pocketed the amount of Rs.50,000\/- which was given
\nas compensation by the Mahudi Trust when the Flat was destroyed in an
\nearthquake. Further it is admitted by the appellant that the
\nrespondent came back to take care of him after he was injured in the
\nearthquake and had taken him to a Private Hospital for better
\ntreatment. The  Family Court has found that there is no material on
\nrecord to prove the assertion of the  appellant that the respondent
\nhas taken away  ornaments and cash from the Locker which was in her
\njoint  name along with the appellant. This finding cannot be
\nfaulted.The statement of the respondent that the Locker in question
\nwas given to her by her parents and the name of the appellant was
\nadded later on,as he was her husband, and that after the scandal of
\nMadhupura Bank, she had taken her ornaments and gifts from the
\nLocker, has also remained unchallenged.\n<\/p>\n
13.\tThe
\nfindings of  the Family Court   that the appellant has treated the
\nrespondent with cruelty by harassing and pressurising her  to
\ntransfer the Flat of the respondent in his name, and by pocketing the
\namount of Rs.50,000\/- towards  compensation for the said Flat is, in
\nour view, amply supported by material  on record.  It is evident that
\nthe respondent was compelled to leave her own Flat which she had
\npurchased out of her own money before the marriage, due to the
\ncruelty and harassment of the appellant. The material on record also
\npoints out to beatings given by the appellant to the respondent,
\nwhich also resulted in a broken finger which has virtually been
\nadmitted by the learned counsel for the appellant. The allegations of
\ntaking away the ornaments would, constitute mental cruelty and cause
\npain to any spouse. It is not possible for us to believe that the
\nrespondent would have left her own Flat, where the appellant and his
\nmother were staying, had she not been subjected to  physical and
\nmental cruelty of  such a degree, so as to compel her to do so. The
\nfinding of the Family Court  that the respondent has not left the
\nmatrimonial house without any reasonable cause as the appellant has
\nforced her to leave the flat  and that the appellant has, therefore,
\ndeserted the respondent for a continuous period of not less than two
\nyears immediately preceding the date of the presentation of the
\npetition not liable to be interfered with, as the same is
\nwell-founded and supported by material on record.\n<\/p>\n
14.\tIn
\nManisha Tyagi v. Deepak Kumar,<\/a> reported in (2010)4 SCC 339,  the
\nSupreme Court held as under:\n<\/p>\n
\t 26.
\nAt this stage we may notice the observations made by this Court in
\nNaveen Kohli v. Neelu Kohli. In<\/a> this case the court examined the
\ndevelopment and evolution of the concept of mental cruelty in
\nmatrimonial causes. In para 35 it is observed as follows: (SCC p.568)<\/p>\n
\t 35.
\nThe petition for divorce was filed primarily on the ground of
\ncruelty. It may be pertinent to note that, prior to the 1976
\namendment in the Hindu Marriage Act, 1955 cruelty was not a ground
\nfor claiming divorce under the Hindu Marriage Act. It was only a
\nground for claiming judicial separation under Section 10 of the Act.
\nBy the 1976 amendment, cruelty was made a ground for divorce and the
\nwords which have been omitted from Section 10 are ‘as to cause a
\nreasonable apprehension in the mind of the petitioner that it will be
\nharmful or injurious for the petitioner to live with the other
\nparty’.  Therefore, it is not necessary for a party claiming
\ndivorce to prove that the cruel treatment is of such a nature as to
\ncause an apprehension   a reasonable apprehension   that it will
\nbe harmful or injurious for him or her to  live with the other
\nparty.\n<\/p>\n
\t\t\t\t(emphasis
\nsupplied)<\/p>\n
27.\tThe
\nclassic example of the definition of cruelty in the pre-1976 era is
\ngiven in the well-known decision of this Court in N.G.Dastane (Dr.)
\nv. S.Dastane,<\/a> wherein it is observed as follows: (SCC p.337,para 30)<\/p>\n
\t 30….\n<\/p>\n
The enquiry therefore has to be whether the conduct charged as
\ncruelty is of such a character as to cause in the mind of the
\npetitioner a reasonable apprehension that it will be harmful or
\ninjurious for him to live with the respondent.\n<\/p>\n
This
\nis no longer the required standard. Now it would be sufficient to
\nshow that the conduct of one of the spouses is so abnormal and below
\nthe accepted norm that the other spouse could not reasonably be
\nexpected to put up with it. The conduct is no longer required to be
\nso atrociously abominable which would cause a reasonable apprehension
\nthat it would be harmful or injurious to continue the cohabitation
\nwith the other spouse.  Therefore to establish cruelty  it is
\nnot necessary that physical violence should be used. However,
\ncontinued ill-treatment, cessation of marital intercourse, studied
\nneglect, indifference of  one spouse to the other may lead to
\nan inference of cruelty. However, in this case even with
\naforesaid standard both the trial court and the appellate court had
\naccepted that the conduct of the wife did not amount to cruelty of
\nsuch a nature to enable the husband to obtain a decree of divorce.\n<\/p>\n
\t\t\t\t(emphasis
\nsupplied)<\/p>\n
15.\tThe
\nprinciples of law enunciated herein-above are applicable to the facts
\nand   circumstances of the present case, and the impugned judgment
\nand decree does not deserve to be interfered with.\n<\/p>\n
16.\tHowever,
\nbefore parting with this judgment we would like to make it clear that
\nthere is no conclusive evidence regarding the impotency of the
\nappellant, or the assertion  that the marriage has not been
\nconsummated.  The finding of the Family Court on this
\npoint,therefore, cannot be endorsed. However, as the decree of
\ndissolution of marriage has been passed by the Family Court under the
\nprovisions of Section 13(1) of the Hindu Marriage Act, on the ground
\nof cruelty and desertion and not under Section 12 thereof, the same
\nis not interfered with. Similarly, as the Family Court has recorded
\ncogent findings on  the ground of desertion and cruelty against the
\nappellant and in view of the material on record that the appellant
\nused to harass the respondent at her work place and misbehave with
\nher, the permanent injunction granted by the Family Court restraining
\nthe appellant from harassing the respondent at her work place and
\nmisbehaving with her and also with the father and brother of the
\nrespondent, is justified and not interfered with.\n<\/p>\n
17.\tThe
\nappeal is  devoid of any merit, therefore, fails and is dismissed.
\nThere shall be no orders as to costs.\n<\/p>\n
 (Jayant Patel,J)                                                    <\/p>\n
   \t\t           \t(Smt.Abhilasha Kumari,J)<\/p>\n
arg<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Rajendra vs Dharmisthaben on 9 August, 2010 Author: Jayant Patel,&Nbsp;Honble Kumari,&Nbsp; Gujarat High Court Case Information System Print FA\/969\/2010 23\/ 26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 969 of 2010 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HON’BLE SMT. JUSTICE ABHILASHA KUMARI ===================================================== 1 Whether […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-191661","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nRajendra vs Dharmisthaben on 9 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajendra-vs-dharmisthaben-on-9-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajendra vs Dharmisthaben on 9 August, 2010 - 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