{"id":7773,"date":"2010-09-30T00:00:00","date_gmt":"2010-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sanjay-agarwal-vs-smt-renu-agrawal-on-30-september-2010"},"modified":"2017-02-16T03:40:50","modified_gmt":"2017-02-15T22:10:50","slug":"sanjay-agarwal-vs-smt-renu-agrawal-on-30-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sanjay-agarwal-vs-smt-renu-agrawal-on-30-september-2010","title":{"rendered":"Sanjay Agarwal vs Smt. Renu Agrawal on 30 September, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Madhya Pradesh High Court<\/div>\n<div class=\"doc_title\">Sanjay Agarwal vs Smt. Renu Agrawal on 30 September, 2010<\/div>\n<pre>HIGH COURT OF JUDICATURE MADHYA PRADESH,\n                JABALPUR\n\n\nDIVISION BENCH:                   Hon'ble Mr. Justice Ajit Singh,\n                                                          &amp;\n                                  Hon'ble Mr. Justice N.K.Gupta, JJ.\n\n\n                 FIRST APPEAL NO.182 OF 2002\n\n                             Sanjay Agrawal.\n                                   Vs.\n                            Smt. Renu Agrawal.\n\n---------------------------------------------------------------------------------------\nShri Jagtendra Prasad, lawyer counsel for the appellant.\n\nShri Om Namdeo, learned counsel for the respondent.\n---------------------------------------------------------------------------------------\n                                  JUDGMENT\n<\/pre>\n<p>       (Delivered on this the 30th day of September, 2010)<\/p>\n<p>PER: N.K..GUPTA,J.\n<\/p>\n<p>               This first appeal has been preferred by the<\/p>\n<p>appellant        against       the     judgment         and      decree       dated<\/p>\n<p>11\/12\/2001 passed in Hindu Marriage Case No.19A\/1998<\/p>\n<p>by the Second Additional District Judge, Hoshangabad by<\/p>\n<p>which the application filed by the appellant under Section<\/p>\n<p>13 of the Hindu Marriage Act, 1955 (hereinafter referred<\/p>\n<p>to as the &#8216;Act, 1955&#8217;) was dismissed.\n<\/p>\n<p>2.             It is admitted that the marriage of the appellant<\/p>\n<p>and the respondent took place on 16\/2\/1997 at Itarsi.<\/p>\n<p>They lived at Itarsi for two months after their marriage.<\/p>\n<p>Thereafter the respondent visited to the appellant&#8217;s<br \/>\n<span class=\"hidden_text\">                                2<\/span><br \/>\n                                                 FA.No.182\/2002<\/p>\n<p>house in the month of April, 1997 after her short stay of<\/p>\n<p>few days at her parents&#8217; house. In her second visit she<\/p>\n<p>lived upto July, 1997.\n<\/p>\n<p>3.         The appellant has filed an application under<\/p>\n<p>Section 13 of the Act, 1955 before the trial Court on the<\/p>\n<p>ground that, in July, 1997 the respondent left the house<\/p>\n<p>of the appellant to perform the ceremony of Raksha<\/p>\n<p>Bandhan and thereafter she did not come back. Her<\/p>\n<p>behaviour with the appellant and his family members was<\/p>\n<p>discourteous. She was in the habit to insult the appellant<\/p>\n<p>and his family members. She was quarrelsome. She<\/p>\n<p>insisted upon the appellant to live separately from the<\/p>\n<p>family, though she was fully aware of the fact that the<\/p>\n<p>appellant was a member of the joint Hindu family and he<\/p>\n<p>did not have any capital to start his own business. The<\/p>\n<p>appellant tried to convince her that it is not possible for<\/p>\n<p>him   to   live   separately   from   the   family,   then   the<\/p>\n<p>respondent threatened to lodge a case for dowry demand.<\/p>\n<p>In July 1997, the respondent left the house of the<\/p>\n<p>appellant with a declaration that she will return back to<\/p>\n<p>the appellant&#8217;s house only when he will start living<\/p>\n<p>separately from his family. The appellant tried his level<\/p>\n<p>best to bring the respondent back. Even at Burhar the<\/p>\n<p>appellant and his father tried for conciliation with the<\/p>\n<p>help of some reputed persons of the society, but the<br \/>\n<span class=\"hidden_text\">                              3<\/span><br \/>\n                                             FA.No.182\/2002<\/p>\n<p>efforts of the appellant remained fruitless. Ultimately, in<\/p>\n<p>the year 1998 the appellant filed an application under<\/p>\n<p>Section 13 of the Act, 1955 before the trial Court. Again<\/p>\n<p>in the year 2000, he amended his application to the effect<\/p>\n<p>that the respondent has lodged an FIR under Section<\/p>\n<p>498-A of IPC against him and his family members, which<\/p>\n<p>amounts to be a cruelty against the appellant.<\/p>\n<p>4.        The respondent in her reply denied all the<\/p>\n<p>allegations made in the application. She has pleaded that<\/p>\n<p>it was impressed upon her parents that the appellant is<\/p>\n<p>an owner of &#8220;Sanjay Trading Company&#8221; which is a big<\/p>\n<p>shop of grocery and general stores, but the appellant did<\/p>\n<p>not have any stand in the family. The appellant had lost<\/p>\n<p>his mother in the past and at the time of his marriage<\/p>\n<p>stepmother was there whose behaviour was worst with<\/p>\n<p>the respondent. She used to torture her in every manner.<\/p>\n<p>Two younger brothers of the appellant were already<\/p>\n<p>married and the appellant was elder one. She never<\/p>\n<p>insisted for separation, on the contrary she was tortured<\/p>\n<p>for demand of dowry, and therefore, she was thrown out<\/p>\n<p>of the family. In reply to the amendment, she had pleaded<\/p>\n<p>that when she received a summon of the present case,<\/p>\n<p>she thought that no conciliation is possible at present,<\/p>\n<p>hence she lodged an FIR against the appellant and his<br \/>\n<span class=\"hidden_text\">                                 4<\/span><br \/>\n                                                 FA.No.182\/2002<\/p>\n<p>family   members     on   the   basis   of   factual   position,<\/p>\n<p>therefore, she had requested to dismiss the application.<\/p>\n<p>5.          After considering the evidence adduced by the<\/p>\n<p>parties and pleadings of the case, the learned 2nd<\/p>\n<p>Additional District Judge has found that the allegations of<\/p>\n<p>cruelty were not proved, and therefore, the appellant is<\/p>\n<p>not entitled to get divorce from the respondent, hence<\/p>\n<p>the application filed under Section 13 of the Act, 1955 by<\/p>\n<p>the appellant has been dismissed by the impugned<\/p>\n<p>judgment.\n<\/p>\n<p>6.          Before hearing the final arguments in the<\/p>\n<p>present matter, reconciliation proceedings were held by<\/p>\n<p>this Court, but they could not produce results, thereafter<\/p>\n<p>we have heard both the parties at length through their<\/p>\n<p>learned counsel.\n<\/p>\n<p>7.          Learned counsel for the appellant, in nutshell,<\/p>\n<p>has submitted that the behaviour of the respondent was<\/p>\n<p>worst. She was in habit to insult the appellant and his<\/p>\n<p>family members. Her father was informed in April, 1997<\/p>\n<p>regarding her behaviour and activities, but it was an<\/p>\n<p>effect-less effort. When she came back in the appellant&#8217;s<\/p>\n<p>family for the second time, she repeated similar activities.<\/p>\n<p>She was insisting upon the appellant to live separately<\/p>\n<p>from his family members. The appellant and his family<\/p>\n<p>members tried for reconciliation with the help of some<br \/>\n<span class=\"hidden_text\">                                5<\/span><br \/>\n                                                FA.No.182\/2002<\/p>\n<p>reputed persons of the society at Burhar, but such efforts<\/p>\n<p>became fruitless. Learned counsel for the appellant has<\/p>\n<p>further submitted that the respondent had left her<\/p>\n<p>husband&#8217;s house herself and she deserted the appellant<\/p>\n<p>unnecessarily. At present relations of the parties have<\/p>\n<p>come down to irretrievable breakdown of marriage, and<\/p>\n<p>therefore,    the   learned   Court   below   has    erred    in<\/p>\n<p>dismissing the divorce application of the appellant.<\/p>\n<p>8.           On the contrary, learned counsel for the<\/p>\n<p>respondent has submitted that there was no cruelty<\/p>\n<p>proved from the side of the respondent. Actually the<\/p>\n<p>stepmother     of   the   appellant   was   bitter   with    the<\/p>\n<p>respondent. The respondent in her statement before the<\/p>\n<p>learned trial Court has explained the cruelty of her<\/p>\n<p>mother-in-law in detail, and therefore, the learned 2nd<\/p>\n<p>Additional District Judge has rightly dismissed the<\/p>\n<p>divorce application of the appellant. Learned counsel for<\/p>\n<p>the respondent has further submitted that the appellant<\/p>\n<p>did not take any ground of desertion before the learned<\/p>\n<p>Court below, and therefore, no issue was framed on the<\/p>\n<p>ground of desertion, hence the appellant cannot raise<\/p>\n<p>such a new ground before this Court at this stage. He has<\/p>\n<p>further submitted that there is no ground mentioned in<\/p>\n<p>Section 13 of the Act, 1955 regarding &#8220;irretrievable<\/p>\n<p>breakdown of marriage&#8221;. It is the prerogative of the<br \/>\n<span class=\"hidden_text\">                                   6<\/span><br \/>\n                                                     FA.No.182\/2002<\/p>\n<p>Hon&#8217;ble Apex Court under Article 142 of the Constitution<\/p>\n<p>of India to provide such relief on such basis, but since<\/p>\n<p>there is no ground in Section 13 of the Act, 1955, no<\/p>\n<p>decree of divorce can be passed on the basis of that<\/p>\n<p>ground.\n<\/p>\n<p>9.          On perusal of the record of the Court below, it<\/p>\n<p>is clear that the appellant did not take any ground of<\/p>\n<p>desertion    in   his   divorce       application.   Actually   the<\/p>\n<p>marriage of the parties took place on 16\/2\/1997 and the<\/p>\n<p>appellant has filed the divorce application on 22\/7\/1998<\/p>\n<p>i.e. within two years of their marriage, and therefore,<\/p>\n<p>ground of desertion under Section 13(1) (ib) of the Act,<\/p>\n<p>1955 was not available to the appellant, hence no issue<\/p>\n<p>was framed in the trial. Learned counsel for the appellant<\/p>\n<p>has relied upon the judgment of this Court i.e. &#8220;Manju<\/p>\n<p>Rajak Vs. Parvinder Singh&#8221; [2010 (2) MPLJ 543], but<\/p>\n<p>since no ground for desertion is pleaded in the divorce<\/p>\n<p>application, the above cited case is of no help to the<\/p>\n<p>appellant at present. Under these circumstances, at this<\/p>\n<p>stage &#8220;desertion&#8221; cannot be considered to be a ground of<\/p>\n<p>divorce.\n<\/p>\n<p>10.         Regarding cruelty, if the evidence adduced is<\/p>\n<p>examined, then it would be clear that the appellant has<\/p>\n<p>failed to prove the cruelty of the respondent. Appellant<\/p>\n<p>examined only three witnesses in his favour including<br \/>\n<span class=\"hidden_text\">                                     7<\/span><br \/>\n                                                         FA.No.182\/2002<\/p>\n<p>himself.   There    is   a    material       contradiction      in   the<\/p>\n<p>statement of these three witnesses namely Sanjay (PW-1),<\/p>\n<p>Udit Narayan (PW-2) and Govind Prasad (PW-3). Also<\/p>\n<p>there is contradiction between the statements of these<\/p>\n<p>three witnesses with the pleading made by the appellant.<\/p>\n<p>Udit Narayan (PW-2) is the friend of the appellant, who<\/p>\n<p>quoted one incident that when the appellant directed the<\/p>\n<p>respondent to make tea for him, then she refused to make<\/p>\n<p>tea. But there is no such pleading in the appellant&#8217;s<\/p>\n<p>application. It is true that every incident of cruelty cannot<\/p>\n<p>be pleaded, but even the appellant Sanjay (PW-1) did not<\/p>\n<p>say   anything     about     this       incident   in   his   evidence,<\/p>\n<p>therefore, it is clear that the incident quoted by Udit<\/p>\n<p>Narayan (PW-2) is an after thought. However, it is clear<\/p>\n<p>from the evidence adduced by the parties that younger<\/p>\n<p>brothers of the appellant were already married, and<\/p>\n<p>therefore, it is possible that the kitchen was under the<\/p>\n<p>control of stepmother and two sister-in-law of the<\/p>\n<p>appellant, hence the respondent was unable to make tea<\/p>\n<p>for the friend of the appellant. It was for the appellant to<\/p>\n<p>observe the reason for such denial. It seems that he knew<\/p>\n<p>the reason, and therefore, he did not say anything in his<\/p>\n<p>evidence regarding this fact.\n<\/p>\n<p>11.        Similarly, Sanjay (PW-1) and Udit Narayan<\/p>\n<p>(PW-2) have stated before the trial Court that when they<br \/>\n<span class=\"hidden_text\">                              8<\/span><br \/>\n                                              FA.No.182\/2002<\/p>\n<p>reached Burhar to bring the respondent, the respondent<\/p>\n<p>did not permit them to stay in her house. She had stated<\/p>\n<p>that her father is not at home and till then they have to<\/p>\n<p>manage their own stay. The conduct of the respondent<\/p>\n<p>seems to be reasonable, as she was under no moral<\/p>\n<p>obligation to accommodate her husband and his friend as<\/p>\n<p>to be a guest at her parent&#8217;s house. Also with such<\/p>\n<p>strained relations, there was no possibility that the<\/p>\n<p>respondent could show her affection in permitting them<\/p>\n<p>to stay in the house in the absence of her father. It was<\/p>\n<p>for her to talk with the appellant and his friend and it was<\/p>\n<p>possible that they could assault her, therefore, the<\/p>\n<p>conduct of the respondent in such particular instance<\/p>\n<p>seems to be reasonable.\n<\/p>\n<p>12.       Sanjay (PW-1) and his father Govind Prasad<\/p>\n<p>(PW-3) have stated before the trial Court in a different<\/p>\n<p>manner. Sanjay says that the respondent was in the habit<\/p>\n<p>of adding too much chillies in the food, whereas his<\/p>\n<p>father alleges regarding addition of more salt in the food.<\/p>\n<p>He did not say anything regarding addition of chillies.<\/p>\n<p>Similarly, Sanjay (PW-1) did not complain regarding her<\/p>\n<p>behaviour for the first two months of the beginning,<\/p>\n<p>whereas his father Govind Prasad (PW-3) informed that in<\/p>\n<p>first two months, behaviour of the respondent was<\/p>\n<p>discourteous and quarrelsome, and therefore, the father<br \/>\n<span class=\"hidden_text\">                              9<\/span><br \/>\n                                             FA.No.182\/2002<\/p>\n<p>of the respondent was called and he took his daughter to<\/p>\n<p>his house with the assurance that he would convince his<\/p>\n<p>daughter. The appellant did not say anything for first two<\/p>\n<p>months of his marriage. He admits that in that period she<\/p>\n<p>did not refuse for having cohabition. There is no pleading<\/p>\n<p>in the application of the appellant about the fact that the<\/p>\n<p>father of the respondent was called and the respondent<\/p>\n<p>was sent back with her father with some complaints. In<\/p>\n<p>such circumstances, the evidence of Govind Prasad<\/p>\n<p>(PW-3) prima facie cannot be accepted on the basis that<\/p>\n<p>his statement is contrary to the pleadings, but the<\/p>\n<p>respondent Renu Agrawal (DW-1) in her statement<\/p>\n<p>informed the trial Court that she was sent back with her<\/p>\n<p>father due to some dowry demand, therefore, it seems<\/p>\n<p>that evidence given by witness Govind Prasad is correct<\/p>\n<p>to the fact that the respondent was sent back after two<\/p>\n<p>months of her marriage after calling her father. But, if<\/p>\n<p>the reason was so, which is stated by Govind Prasad<\/p>\n<p>(PW-3), then what was the problem to the appellant that<\/p>\n<p>he has hidden this fact in his statement and in his<\/p>\n<p>pleadings, therefore, the act of the appellant indicates<\/p>\n<p>that it is possible that the respondent was sent back with<\/p>\n<p>her father to create pressure of dowry demand, hence<\/p>\n<p>being guilty conscious, the appellant has no cheek to say<\/p>\n<p>anything regarding that event.\n<\/p>\n<p><span class=\"hidden_text\">                             10<\/span><\/p>\n<p>                                            FA.No.182\/2002<\/p>\n<p>13.       Renu Agrawal (DW-1) in her statement stated<\/p>\n<p>so many things about her torture in the appellant&#8217;s<\/p>\n<p>house. Learned counsel for the appellant submits that she<\/p>\n<p>alleged wildly without any basis and no such pleadings<\/p>\n<p>were made by the respondent in her reply to the<\/p>\n<p>application. He further submits that no such suggestions<\/p>\n<p>were given regarding such instances to appellant Sanjay<\/p>\n<p>(PW-1) and his father Govind Prasad (PW-3) in their cross<\/p>\n<p>examination. It is true that the respondent did not plead<\/p>\n<p>regarding such instances about the cruelty of her mother-<\/p>\n<p>in-law. It is also true that no such example was put<\/p>\n<p>forward in cross examination of Sanjay (PW-1) and his<\/p>\n<p>father Govind Prasad (PW-3), but the conduct of the<\/p>\n<p>respondent is clear that she has lodged an FIR for<\/p>\n<p>commission of offence under Section 498-A of IPC against<\/p>\n<p>the appellant and his family members after receiving<\/p>\n<p>summons of the divorce application, and therefore, she<\/p>\n<p>kept silence about the torture caused to her, hence the<\/p>\n<p>allegations made by the respondent cannot be thrown<\/p>\n<p>away in such a manner. It is clear from her conduct that<\/p>\n<p>some of the allegations made by her are correct. She has<\/p>\n<p>stated before the learned Court below that her mother-in-<\/p>\n<p>law prohibited her to make physical relation with the<\/p>\n<p>appellant in her second visit and therefore, she did not<\/p>\n<p>have such relation with the appellant in her second visit.<br \/>\n<span class=\"hidden_text\">                             11<\/span>\n<\/p>\n<p>                                             FA.No.182\/2002<\/p>\n<p>The appellant admits that there was no problem in<\/p>\n<p>cohabitation with the respondent in her first visit, but in<\/p>\n<p>the second visit she was denying to have such relations.<\/p>\n<p>14.       The respondent lived with the appellant only<\/p>\n<p>for four months after the marriage in her two visits, and<\/p>\n<p>therefore, in such a small period, she could not do such<\/p>\n<p>alleged cruelty, which can be a ground for divorce. It is<\/p>\n<p>clear that she was thrown out from the family twice.<\/p>\n<p>15.       Both the parties are alleging the cruelty<\/p>\n<p>against each other, therefore, to know the actual<\/p>\n<p>controversy, there was a need to examine an independent<\/p>\n<p>witness before the Court below. It is admitted by the<\/p>\n<p>appellant that he and his father informed these facts to<\/p>\n<p>some reputed persons of the society at Burhar, and<\/p>\n<p>therefore, such reputed persons, who were not influenced<\/p>\n<p>by father of the respondent could be the independent<\/p>\n<p>witnesses to tell the actual controversy between the<\/p>\n<p>parties, but no such witness is examined before the Court<\/p>\n<p>below and even no explanation has been given for such<\/p>\n<p>non-examination.\n<\/p>\n<p>16.       Learned counsel for the appellant submits that<\/p>\n<p>it was the duty of the respondent to examine such<\/p>\n<p>witnesses, but such submission cannot be accepted,<\/p>\n<p>because cruelty of the respondent was alleged by the<\/p>\n<p>appellant in his application, hence it was for him to prove<br \/>\n<span class=\"hidden_text\">                               12<\/span><br \/>\n                                                  FA.No.182\/2002<\/p>\n<p>this fact against the respondent and if he has proved the<\/p>\n<p>same,   then    it   would   be    the   responsibility   of   the<\/p>\n<p>respondent to rebut it. Unfortunately, the allegations<\/p>\n<p>made by the various witnesses of the appellant are<\/p>\n<p>contradictory amongst each other and also contradictory<\/p>\n<p>to the pleadings. In such circumstances, it cannot be said<\/p>\n<p>that either the allegations made by the appellant are<\/p>\n<p>correct or the allegations made by the respondent are not<\/p>\n<p>correct, therefore, the learned Court below was correct<\/p>\n<p>in holding that the appellant could not prove the cruelty<\/p>\n<p>of the respondent.\n<\/p>\n<p>17.          Learned counsel for the appellant has placed<\/p>\n<p>reliance on the decisions rendered by the Hon&#8217;ble Apex<\/p>\n<p>Court in the case &#8220;Suman Kapur Vs. Sudhir Kapur&#8221;,<\/p>\n<p>[(2009) 1 SCC 422] and &#8220;U. Swetha Vs. State&#8221;,<\/p>\n<p>[(2009) 6 SCC 757], in which cruelty was considered by<\/p>\n<p>the Hon&#8217;ble Apex Court. But, it is clear from the above<\/p>\n<p>two judgments, that cruelty can be assessed only on the<\/p>\n<p>basis of bundle of facts in each case, and therefore, when<\/p>\n<p>the case of the appellant is not established on factual<\/p>\n<p>aspect, then the above dictum are of no help to the<\/p>\n<p>appellant.\n<\/p>\n<p>18.          Learned counsel for the appellant has further<\/p>\n<p>submitted the respondent lodged an FIR for commission<\/p>\n<p>of offence under Section 498-A of IPC after two years of<br \/>\n<span class=\"hidden_text\">                              13<\/span><br \/>\n                                               FA.No.182\/2002<\/p>\n<p>the marriage against the appellant and his family<\/p>\n<p>members, and therefore, it amounts to be a cruelty. This<\/p>\n<p>contention of learned counsel for the appellant cannot be<\/p>\n<p>accepted. It is very much clear from the record that the<\/p>\n<p>respondent did not lodge any FIR till filing of divorce<\/p>\n<p>application by the appellant, and therefore, by her such<\/p>\n<p>conduct, no ground of cruelty was available at the time of<\/p>\n<p>filing of divorce application. She has every right to file an<\/p>\n<p>FIR to express her grievances against the appellant and<\/p>\n<p>his family members, and therefore, subsequent FIR after<\/p>\n<p>filing of the divorce application does not create any<\/p>\n<p>ground of cruelty.\n<\/p>\n<p>19.        Learned counsel for the appellant in the<\/p>\n<p>alternate submits that since July 1997 the respondent is<\/p>\n<p>not living with the appellant and so many reconciliation<\/p>\n<p>proceedings took place between them, but the same were<\/p>\n<p>fruitless. The appellant is deprived of the company of his<\/p>\n<p>wife since last 13 years, and therefore, it is a case of<\/p>\n<p>irretrievable breakdown of marriage, hence a decree of<\/p>\n<p>divorce be given on this count. In support of his<\/p>\n<p>contention, he has placed reliance on the following<\/p>\n<p>judgments of the Hon&#8217;ble Apex Court and this Court:-<\/p>\n<p>(i)    &#8220;Sanghamitra Ghose Vs. Kajal Kumar Ghose&#8221;,<br \/>\n       (2007) 2 SCC 220.\n<\/p>\n<p>(ii)   &#8220;Durga Prasanna Tripathy Vs. Arundhati Tripathy&#8221;,<br \/>\n       (2005) 7 SCC 353.\n<\/p>\n<p><span class=\"hidden_text\">                               14<\/span><\/p>\n<p>                                              FA.No.182\/2002<\/p>\n<p>(iii) &#8220;Naveen Kohli Vs. Neelu Kohli&#8221;, (2006) 4 SCC 558.\n<\/p>\n<p>(iv) &#8220;Madhuri Aswani Vs. Arjundas Aswani&#8221;, 2007(3)<br \/>\n       MPLJ 550.\n<\/p>\n<p>      Learned counsel for the appellant further submits<\/p>\n<p>that in all above judgments, decree of divorce was<\/p>\n<p>granted in such cases where it was found that the<\/p>\n<p>marriage of the parties is broken and it was not possible<\/p>\n<p>that they could live together with each other, then decree<\/p>\n<p>of divorce was given.\n<\/p>\n<p>20.       However, in the above cited judgments, the<\/p>\n<p>case of &#8220;Naveen Kohli&#8221; (supra) is most important, in<\/p>\n<p>which the Hon&#8217;ble Apex Court has held that no such<\/p>\n<p>ground regarding irretrievable breakdown of marriage is<\/p>\n<p>available in Section 13 of the Act, 1955, and therefore, it<\/p>\n<p>should   be   a   statutory   ground   and   without   such<\/p>\n<p>amendment in the Act no decree of divorce can be<\/p>\n<p>passed. In the said judgment, the Hon&#8217;ble Apex Court has<\/p>\n<p>advised that legislature must consider the opinion of their<\/p>\n<p>Lordships and to make such provision in the Hindu<\/p>\n<p>Marriage Act, 1955.\n<\/p>\n<p>21.       In the case of &#8220;Sanghamitra Ghosh&#8221; (supra)<\/p>\n<p>the Hon&#8217;ble Apex Court has considered the judgment of<\/p>\n<p>&#8220;Naveen Kohli&#8221; (supra) and has expressed the opinion<\/p>\n<p>that though there is no ground mentioned in Section 13<\/p>\n<p>of the Act, 1955, however the Apex Court can exercise<br \/>\n<span class=\"hidden_text\">                                  15<\/span><br \/>\n                                                     FA.No.182\/2002<\/p>\n<p>the   jurisdiction      given    under    Article    142   of   the<\/p>\n<p>Constitution of India, and therefore, in Sanghamitra&#8217;<\/p>\n<p>case the Hon&#8217;ble Apex Court has granted decree of<\/p>\n<p>divorce on the ground of irretrievable breakdown of<\/p>\n<p>marriage.\n<\/p>\n<p>22.         The dictum laid down by the Hon&#8217;ble Apex<\/p>\n<p>Court in the Sanghamitra&#8217;s case (supra) and Naveen<\/p>\n<p>Kohli&#8217;s case (supra), taken jointly, then it would be clear<\/p>\n<p>that since there is no ground available regarding<\/p>\n<p>&#8220;irretrievable breakdown of marriage&#8221; in Section 13 of<\/p>\n<p>the Act, 1955, no decree of divorce can be given in<\/p>\n<p>absence of such statutory provisions, but decree of<\/p>\n<p>divorce can be given with the jurisdiction of Article 142<\/p>\n<p>of the Constitution of India. But no such jurisdiction is<\/p>\n<p>available   to   this    Court    under    Article   142   of   the<\/p>\n<p>Constitution of India, hence in absence of any provision in<\/p>\n<p>Section 13 of the Act, 1955, no decree of divorce can be<\/p>\n<p>passed by this Court on the ground of &#8220;irretrievable<\/p>\n<p>breakdown of marriage&#8221;.\n<\/p>\n<p>23.         In the light of the above discussions, it is clear<\/p>\n<p>that no decree of divorce can be passed by this Court in<\/p>\n<p>favour of the appellant. The learned 2nd Additional<\/p>\n<p>District Judge has rightly dismissed the appellant&#8217;s<\/p>\n<p>application, hence the appeal of the appellant deserves to<\/p>\n<p>be dismissed.\n<\/p>\n<p><span class=\"hidden_text\">                             16<\/span><\/p>\n<p>                                            FA.No.182\/2002<\/p>\n<p>24.       In the result, this appeal does not succeed and<\/p>\n<p>is hereby dismissed with costs. The appellant shall bear<\/p>\n<p>the cost of the respondent also.\n<\/p>\n<\/p>\n<pre>      (Ajit Singh)                          (N.K.Gupta)\n          Judge                               Judge\n      30\/09\/2010                            30\/09\/2010.\n\n\n\nAnsari.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"<p>Madhya Pradesh High Court Sanjay Agarwal vs Smt. Renu Agrawal on 30 September, 2010 HIGH COURT OF JUDICATURE MADHYA PRADESH, JABALPUR DIVISION BENCH: Hon&#8217;ble Mr. Justice Ajit Singh, &amp; Hon&#8217;ble Mr. Justice N.K.Gupta, JJ. FIRST APPEAL NO.182 OF 2002 Sanjay Agrawal. Vs. Smt. Renu Agrawal. &#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212; Shri Jagtendra Prasad, lawyer counsel for the appellant. Shri [&hellip;]<\/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":[8,24],"tags":[],"class_list":["post-7773","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Sanjay Agarwal vs Smt. 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