Tag Archives: MP HC

Both men & women can be guilty u/s 354 (criminal force to outrage modesty) – MP HC !!

The MP HC has categorically stated that a woman could also be help guilty u/s 354 IPC. Use this section if your your wife outrages the modesty of your mother or sister or aunt or grandma or any woman close to you !!!

Whether women can outrage Modesty of women?

“…The argument of Mr. Gupta is that as the Penal Code does not make the act of assault or use of criminal force to any man with intent “to outrage his modesty” an offence, Section 354, Penal Code contravenes Article 14 of the Constitution and that in enacting Section 354, Penal Code, the legislature has discriminated in favour of women only on the ground of sex and that therefore, Section 354 offends against Article 15(1). In my view this argument is unsound and must be rejected. The offence under Section 354 is committed only when a person assaults or uses a criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is not the act of outraging the modesty that is made an offence under this section. In order to constitute an offence under Section 354, Penal Code there must be an assault or use a criminal force to any woman with the intention or knowledge that the woman’s modesty will be outraged. The offence under Section 354, Penal Code can be committed by any man or a woman with the necessary intent or knowledge. For, a woman can assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force has been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having. The pronoun “he” used in the expression “that he will thereby outrage her modesty” must therefore be taken under Section 8, Penal Code as importing a male or a female. It is thus clear that : under Section 354, Penal Code a man as well as a woman can be held guilty of the offence of assaulting or using criminal force to any woman with the intention or knowledge that the woman’s modesty will be outraged, and be punished for the offence. Section 354, therefore, operates equally upon all persons whether males or females and it cannot be maintained that as women are exempt from any punishment under this section, it offends against the provisions of Article 14 of the Constitution….”

 

Madhya Pradesh High Court
Girdhar Gopal vs State on 18 December, 1952
Equivalent citations: 1953 CriLJ 964
Author: Dixit
Bench: Dixit
ORDER Dixit, J.

  1. In this case the petitioner Girdhar Gopal has been convicted by the City Magistrate, Lashker for offences under Sections 342 and 354, Penal Code and sentenced to six months and one year rigorous imprisonment respectively for each of the offences. The sentences were directed to run concurrently. The Sessions Judge of Gwalior rejected an appeal preferred by the accused against the convictions and sentences. The applicant has now come up in revision to this Court.

  2. Before me, Mr. Bhagwandas Gupta learned Counsel for the applicant did not challenge the conviction and sentence of the applicant under Section 342, Penal Code, His contention was that Section 354, Penal Code offended against the provisions of Articles 14 and 15 of the Constitution of India and that therefore, Section 354 being void, the conviction of the applicant under that section was illegal. The argument of Mr. Gupta is that as the Penal Code does not make the act of assault or use of criminal force to any man with intent “to outrage his modesty” an offence, Section 354, Penal Code contravenes Article 14 of the Constitution and that in enacting Section 354, Penal Code, the legislature has discriminated in favour of women only on the ground of sex and that therefore, Section 354 offends against Article 15(1). In my view this argument is unsound and must be rejected. The offence under Section 354 is committed only when a person assaults or uses a criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is not the act of outraging the modesty that is made an offence under this section. In order to constitute an offence under Section 354, Penal Code there must be an assault or use a criminal force to any woman with the intention or knowledge that the woman’s modesty will be outraged. The offence under Section 354, Penal Code can be committed by any man or a woman with the necessary intent or knowledge. For, a woman can assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force has been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having. The pronoun “he” used in the expression “that he will thereby outrage her modesty” must therefore be taken under Section 8, Penal Code as importing a male or a female. It is thus clear that : under Section 354, Penal Code a man as well as a woman can be held guilty of the offence of assaulting or using criminal force to any woman with the intention or knowledge that the woman’s modesty will be outraged, and be punished for the offence. Section 354, therefore, operates equally upon all persons whether males or females and it cannot be maintained that as women are exempt from any punishment under this section, it offends against the provisions of Article 14 of the Constitution.

  3. It is true that the act of assault or use of criminal force to any man with the intention or knowledge of “outraging his modesty” is not made an offence under the Penal Code. Learned Counsel for the applicant was, however, unable to say what according to him was the meaning of the expression “outraging the modesty of a man” or whether the expression meant “offending the impudence of man” or dishonouring him. It would however, appear from Section 353 that an assault or use of criminal force to any man by a woman intending thereby to dishonour him otherwise than on grave provocation is punishable. Be that as it may the objection of the learned Counsel for the applicant that the Penal Code gives no protection to man against assault or criminal force with intent to “outrage his modesty” is really an objection as to the policy of law in not creating a particular offence. It is not an objection as to the infringement of Article 14 of the Constitution. This Article provides that the State shall not deny to any person equality before the law or the equal protection of laws within the territories of India. Article 14 has been construed by the Supreme Court in several cases See Raning Rawat v. State of Saurashtra ; Charanjitlal v. Union of India and by this Court also in Miss Sumitra Devi v. State of Madhya Bharat 1952 Madh B LR 385 (C) and in effect it means that every law that the State makes shall operate alike upon all persons, and property under the same conditions and circumstances. It does not mean that all persons, property or ‘ occupation must be treated alike by the State. As pointed out by His Lordship Das J. in : While Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act.

  4. From these observations it is clear that a reasonable classification of groups for purposes of legislation is permissible and what is prohibited is discrimination between persons who are included in the group to which the law applies. If, therefore, the Legislature has in its wisdom thought it fit to treat men differently from women in regard to modesty and to make an assault or use of criminal force with intent to outrage the modesty punishable under Section 354 when committed only with respect to women, the provisions contained in Section 354, Penal Code cannot be condemned as repugnant to Article 14 of the Constitution.

  5. The contention of the learned Counsel for the applicant that Section 354 violates the provisions of Article 15(1) of the Constitution is equally untenable. This Article says that the State shall not discriminate on grounds only of religion, race, caste, sex, place of birth or any of them. The word “only” is important and deserves to be noted. It emphasises the fact that the discrimination that is prohibited; under Article 15(1) is a discrimination based on the ground of sex, or race, etc. alone. If the discrimination is based not merely on any of the grounds stated in Article 15(1) but also on considerations of propriety, public morals, decency, decorum and rectitude, the legislation containing such discrimination would not be hit by the provisions of Article 15(1). It cannot be denied that an assault or criminal force to a woman with intent to outrage her modesty is made punishable under Section 354 not merely because women are women, but because of the factors enumerated above. Our country is not peculiar in making the acts described in Section 354 punishable as an offence. Such acts constitute a penal offence in all other civilised countries. After all civilisation depends on morality. In any country claiming or aspiring to be a civilised country morality and all the incidents of morality are as essential as justice to the citizen and personal liberty. No civilised country whose action is directed towards securing “the greatest good of the greatest number” can allow assaults or criminal force to women with intent to outrage their modesty to go unpunished and permit the position of women to be injuriously affected by chartered libertines. In my opinion, the contention advanced on behalf of the applicant that Section 354 offends Article 15(1) must be rejected.

  6. As to the facts of the case, I see no reason to differ from these concurrent conclusions arrived at by the Courts below. On the evidence on record it is conclusively established that on the afternoon of 10.2.1951 at about -4-30 p.m., the applicant who is a Pujari of a Mandir caught hold of a young girl named Saroj of about 9 years of age, took her to his house on the pretext of giving “Parshad” to her and then when she was inside he closed the door of the room, made her lie on a bed, put a covering on her and then sat upon her for some time. Later on the applicant became naked and asked Saroj, to remove all her clothes. When the girl shouted and called her brother, who happened to come near the house in search of Saroj, the applicant forcibly closed her mouth. Saroj was then rescued by the neighbours who forcibly opened the door and entered the room. On her return home, Saroj then complained to her mother. Mr. Bhagwandas Gupta urged that as Saroj was a little girl of nine years of age, she could not have developed the sense of modesty of a woman as contemplated by Section 354, Penal Code and further as her mother was not examined, to support her statement that she complained to her mother, it was doubtful whether the applicant had committed any offence at all under Section 354, Penal Code. Learned Counsel relied on Soko v. Emperor AIR 1933 Cal 142 (D). In that case Jack J., felt some doubt as to whether the act of a man putting a finger into the private parts of a girl of five and half years of age, constituted an offence under Section 354, Penal Code. The learned Judge was inclined to think that when the girl had no hesitation in telling her mother exactly what had happened and having regard to her age, it could not be said that she Had developed a sense of modesty, Ghose J., who was the other member of the Bench which decided that case did not agree with the view taken by his learned brother that the case did not fall under Section 354, Penal Code. In the Calcutta case, the accused was ultimately convicted under Section 323, Penal Code and the sentence of six months rigorous imprisonment which had been awarded to him by the trial Magistrate under Section 354, Penal Code was maintained. Having regard to the circumstance that the sentence was maintained, Bose J., did not wish to differ with the conclusion arrived at by Jack J. With all respect to Jack J., I am unable to find myself in agreement with his reasoning. It is unnecessary to consider here whether a little girl of five years of age can be said to have developed a sense of modesty contemplated by Section 354, Penal Code. So far as the present case is concerned, it is clear that when the applicant asked Saroj to remove her clothes, she refused to do so and shouted. It cannot, therefore, be said that she had not developed any sense of modesty. To my mind, the act of the applicant in confining Saroj in a room, in making her lie on a bed and then sitting on her and becoming naked is clearly one amounting to use of criminal force with the intention or knowledge that the girl’s modesty will be outraged. The applicant has been rightly convicted under Sections 354 and 342, Penal Code. The appropriateness of the sentences awarded to him is amply made out.

  7. In the result this revision petition is dismissed.

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Wife’s mum, a prominent lawyer seeks judge’s personal favor & gets exposed! Hubby fighting Int maint 40000 p.m.

Wife wants 40000 p.m! Her mum, a prominent lawyer seeks judge’s personal favor & gets exposed! MP HC

While hearing the matter, Hon’ble Judge made a public statement in the Court clearly stating in presence of counsel for the petitioner Mr. A.S. Rathore, counsel for Mrs. Radhika, some senior lawyers and some other lawyers practicing before this Court that the present respondent, the mother of Mrs. Radhika had come to his house to make an approach for obtaining a favourable order. Hon’ble Judge expressed his anguish and anger by saying that it was uncalled for and was undesirable, due to which he was not willing to hear the matter. The Hon’ble Judge also stated in the Open Court that in view of the conduct expressed by the present respondent, he would not like to hear the matter.

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE

Hon’ble Shri P.K. Jaiswal and
Hon’ble Shri Virender Singh, JJ.

Contempt Criminal No.1/2016

Ritwik Garg S/o Shri Ramesh Garg

Vs.

Smt. Nisha Dubey W/o Shri Deepak Dubey

-x-x-x-x-x-x-x-

Shri Prateek Maheshwari, learned counsel for the
petitioner.

-x-x-x-x-x-x-x-x-

ORDER

(Passed on 25th of November, 2016)

Per : Virender Singh, J.

It is submitted by learned counsel for the petitioner that divorce petition is pending between the petitioner and Mrs. Radhika Garg, in which the Court has fixed maintenance @ Rs.40,000/- per month as alimony. Later, the petitioner found some documents and filed an application for modification of the order granting aforesaid alimony. Mrs. Radhika did not co- operate with the Court in disposing this application, therefore, Court closed her right to file reply. The said order challenged by Mrs. Radhika before this Court vide W.P. No.8314/2015. The order passed by the trial Court for taking the affidavits on record was also challenged before this Court vide W.P. No.7046/2015. It is averred that the respondent Smt. Nisha Dubey, the mother of Smt. Radhika and daughter of a former Judge is well versed with the Court proceedings and she herself a Law Graduate and is imparting education in the legal field as Principal of Indore Law College. She also had been Vice-Chancellor of Baraktullah University, Bhopal. She knows the piousness of the Court proceedings. She also aware of the fact that how a distance from a Judge is to be maintained by a Lawyer, litigant or relation of a litigant.

It is further submitted that the petition filed by Mrs. Radhika came-up for hearing before Hon’ble Shri Justice Prakash Shrivastava on 07/12/2015. After hearing, the Court issued notice on the question of admission and on IA No.6139/2015 and thereafter present petitioner filed his detailed reply in the matter. The case came-up for hearing on 08/03/2016 before Hon’ble Shri Justice S.C. Sharma, who directed that the matter be listed before other Bench but the matter was again listed before Hon’ble Shri Justice S.C. Sharma on 09/03/2016 at motion hearing Serial No.139 in the Daily Cause-List and came-up for hearing before lunch-break. While hearing the matter, Hon’ble Judge made a public statement in the Court clearly stating in presence of counsel for the petitioner Mr. A.S. Rathore, counsel for Mrs. Radhika, some senior lawyers and some other lawyers practicing before this Court that the present respondent, the mother of Mrs. Radhika had come to his house to make an approach for obtaining a favourable order. Hon’ble Judge expressed his anguish and anger by saying that it was uncalled for and was undesirable, due to which he was not willing to hear the matter. The Hon’ble Judge also stated in the Open Court that in view of the conduct expressed by the present respondent, he would not like to hear the matter.

According to the petitioner, the conduct of the respondent has scandalized and lowered authority of the Court and amounts to Contempt of Courts as defined in Section 2 (c) of the Act and punishable under the Contempt of Courts Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

It is requested to take appropriate action against the respondent and punished for her act for criminal contempt.

The petitioner has filed copies of the order-sheets of W.P. No.8314/2015 dated 07/12/2015, 08/03/2016, 09/03/2016 and 10/03/2016 and the sanction obtained from Advocate General for preferring and prosecuting the present petition.

The petition is also supported with the affidavit of the petitioner.

We have gone through the record.

It is submitted by the petitioner that the Hon’ble Court expressed his anguish and made a public statement that the respondent had approached him. But these facts did not find place in the record of the Court in the order-sheets of W.P. No.8314/2015. It is stated that a request was made to Hon’ble Judge to record the conduct of the present respondent in approaching the Hon’ble Judge but the Hon’ble Judge refused to do so, stating that when such a statement was made publically and openly in the presence of lawyers which includes lawyer of the respondent, there was no need to record the same. But prima facie without any supporting evidence, this is improbable, unnatural and unbelievable.

In the present petition, no statement of Judge is on record in any way. Order-sheet dated 09/03/2016 simply states:-

“Parties as before this Court.

Office is directed to comply with the order dated 08/09/2016 and the matter be listed tomorrow positively i.e. 10/03/2016.”

Looking to the nature of incident only a Judge who was approached by any party was the best witness or his statement was the best possible evidence but in the present case, nothing has been stated or recorded by the Judge.

The petitioner submits that the Judge had made the alleged statement in the Open Court in presence of many persons including the lawyers but neither any record of the Court nor any affidavit of the persons who were present at the relevant point of time, showing occurrence of any such incident has been filed by the petitioner.

It is also pertinent to mention that during the said proceedings, the petitioner was not present in the Court. He has mentioned in the affidavit filed in support of the petition that he made an inquiry from his counsel, who informed him that the respondent has approached the Hon’ble Judge at his residence for obtaining a favourable order for her daughter Mrs. Radhika. It is further mentioned in the affidavit that his counsel Shri A.S. Rathore informed him that such statement was made in his presence. Shri Rathore also informed him that such statement was made by the Judge in the presence of other lawyers practicing in the High Court. Thus, it is clear that the petitioner had not heard the statement of the Judge directly or personally. His statement is based on the information of his counsel but any statement on affidavit has not been filed by the counsel Shri Rathore, therefore, the statement of the petitioner is only a hearsay evidence, which is not supported by any document and cannot be made basis for initiation of any contempt proceedings against the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

It is clear that the learned Judge has recorded nothing in the proceedings, the petitioner was not present during the Court proceedings, persons present there have not supported the statement of the petitioner, any legally admissible evidence about the remark of the learned Judge regarding contemptuous conduct as alleged by the petitioner is not available on record, therefore, initiation of any criminal contempt proceedings, as requested for by the petitioner cannot be done against the respondent.

Learned counsel for the petitioner placed reliance on the decisions in the matter of Devi Jude vs. Hannah Grace & others 2003 Vol.6 Judgment Today 484, Reliance Petrochemicals Limited vs. Indian Express Newspapers AIR 2004 SC 456, Abdul Karim vs. M.K. Prakash and others (1976) 1 SCC 975 and State of Maharashtra and others vs. Ravi Prakash Babulalsing Parmar and another Manupatra 2006 SC 4725 but these judgments are distinguishable on the facts with the present case and not helpful for the petitioner.

Considering the aforesaid and keeping in view the various disputes pending between the parties, we find that the averments made in the petition are not sufficient to initiate contempt proceedings against the respondent, therefore, the admission is declined and petition filed by the petitioner is hereby dismissed.

(P.K. Jaiswal) (Virender Singh)
Judge Judge

Aiyer*


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Maintenance granted 30+ years after divorce! though husband remarried long ago!, MP HC

In India life long maintenance is the norm. There are so many cases where women have come back to claim the moollah after divorce. However this one takes the case, in that woman seeks maintenance approx 30 years after divorce  and wins that too !!

  • In addition to other objections, The husband’s counsel argues that “…submitted that divorce decree was passed on 21.09.1978 and for about 30 years no objection for maintenance was filed by the respondent and after lapse of 30 years, this petition has been filed on 05.01.2009, …”
  • However the honourable court opines that “…… So far as this objection as per provision of the Section 25 of Act 1955 “any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto” respondent has right to file application for permanent alimony and maintenance and there is no specific limitation provided for filing such petition under Section 25 of Act 1955. ….”
  • and “…it is admitted fact that in the year 2007, application for granting the maintenance under Section 125 of the Cr.P.C., 1973 has been filed by the respondent and in that application appellant was agreed to pay Rs.3,000/- per month as a maintenance to the respondent and at that time also no such objection was raised and after passing that order on 02.07.2008 immediately on 05.01.2009, this petition has been filed under Section 25 of Act 1955 therefore, this submission of the learned counsel for the appellant also having no force and is rejected….”
  • and the honourable court goes on to decide that “…So far as awarding the Rs.15,000/- per month as permanent alimony and maintenance, it is also not excessive or exorbitant looking to the status of the appellant as he was being posted and retired from Principal Secretary Water Resources Department, M.P. Government. He is earning more than Rs.43,000/- per month. He is having one house in Indore. His second wife is a Doctor and she is also in service and getting salary, ….”*****

    HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT JABALPUR

    FIRST APPEAL No.168/2013

    SUNIL KUMAR VERMA

    Versus

    SMT. KAMALA BAI

    Present:
    Hon’ble Shri Justice Rajendra Menon

    Hon’ble Shri Justice Sushil Kumar Gupta

    Shri R.P. Agrawal, learned Senior Counsel with Shri Vivek Rusia, learned counsel for the appellant.

    Shri Shobhitaditya, learned counsel for the respondent.

    Whether approved for reporting- Yes

    JUDGMENT

    ( 17/07/2015)

    Per: Sushil Kumar Gupta, J.

  1. This appeal under Section 28 of The Hindu Marriage Act, 1955 (in short ‘Act 1955’) arises out of the judgment and decree passed by the IInd Additional Principal Judge of Family Court, Bhopal in RCS No.599-A/2008, whereby the appellant has been directed to pay amount of Rs.15,000/- per month as maintenance to the respondent.
  2. It is undisputed fact that the appellant got married with respondent before 55 years. It is also undisputed that appellant was retired from the post of Principal Secretary Water Resources Department. It is also undisputed that appellant and respondent lived as husband-wife about 20 years and out of their wedlock respondent blessed with two daughters. It is also undisputed that appellant filed a Civil Suit No.35-A/1978 for divorce under Section 13 of Act 1955 against respondent and vide order dated 21.08.1978, Court of Additional District Judge, Bhopal has granted the decree of divorce in favour of appellant. It is also undisputed that appellant got re-married with Dr. Indra Sharma. It is also undisputed that both the parties are living separately. It is also undisputed that in favour of the respondent Chief Judicial Magistrate has granted maintenance Rs.3,000/- per month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. Apart from the aforesaid undisputed facts the brief facts of the case are that respondent has filed an application under Section 25 of Act 1955 before the Family Court Bhopal claiming maintenance of Rs.3.00 lacs per year from the appellant on the ground that appellant is a man of crores and he has got Rs.26,000/- per month from the pension and he has also possessed 90-92 bighas agriculture land by which he is earning 10-15 lacs per-annum. It is also pleaded that appellant also having a big house in Indore by which he is earning Rs.35,000/- per month as a rent. It is also stated that appellant also lend the money on interest. It is also stated that appellant is having many luxury vehicles and his second wife is in service. It is also stated that respondent is receiving only Rs.3,000/- per month which is not sufficient for her maintenance. She is not having any means for earning therefore she prays for grant of Rs.3 lacs per year as a maintenance.
  4. Besides the admissions as aforesaid in P. No.2, appellant, in reply, refuted the pleadings of the respondent and pleaded that with malafide intention, within a year, the respondent has filed this application under Section 25 of Act 1955. Appellant also stated that with the consent of both parties he is already paying maintenance of Rs.3,000/- to the respondent by virtue of order dated 20.07.2007 passed by the competent Court. It is also stated by the appellant that at the time of divorce respondent was given 8.2 Hectare (32 Bigha) agriculture land from the ancestral property of appellant and by way of cultivation she is already earning Rs.3.00 lacs per year. It is also stated that he is getting only Rs.20,000/- as a pension and Rs.11,000/- as a rental income. Accordingly, on these grounds he prayed for dismissal of the petition.
  5. In support of her application respondent, besides herself, examined Lalit Sustani (PW-2) and Smt. Pramila Singh (PW-3) and in defence the appellant examined himself.
  6. After appreciating and marshaling of evidence, learned trial Court allowed the petition of the respondent and passed the impugned order as stated in para No.1.
  7. Learned counsel for the appellant challenging the impugned judgment and decree on the ground that learned Family Court has committed jurisdictional error while entertaining the application under Section 25 of Act 1955. That the respondent is residing in Gram Sustani Pargana District- Rajgarh and deliberately described herself resident of Bhopal and filed the application before the Family Court at Bhopal. Neither the appellant nor the respondent are residing at Bhopal therefore, the Family Court Bhopal has no territorial jurisdiction to decide the petition. It is further submitted that the respondent is already getting maintenance of Rs.3,000/- per month from the appellant in compliance of consent order passed by the Chief Judicial Magistrate, Rajgarh and in compliance of that order, appellant is already paying maintenance of Rs.3,000/- per month to the respondent. It is also submitted that learned trial Court did not consider this fact that respondent is already owner of agriculture land measuring 8.2 Hectare in Gram Sustani and earning Rs.3.00 lacs per year by way of cultivation. It is also submitted that appellant is a retired Government Servant and he is getting Rs.32,000/- per month by way of pension which is also insufficient for himself. It is further submitted that learned Family Court has directed to pay Rs.15,000/- per month out of Rs.32,000/- which is highly excessive and disproportionate earning of appellant.
  8. Per contra, learned counsel for the respondent opposes the submissions advanced by the learned counsel for the appellant and submitted that impugned order passed by the learned trial Court are based on proper appreciation and marshaling of evidence and does not require any interference and he prayed for dismissal of appeal.
  9. Having heard and considered the arguments advanced by the learned counsel for the parties and perused the entire record minutely.
  10. Before coming to the factual aspect of this case, we would like to reproduce the relevant provision of Act 1955.
    • “25. Permanent alimony and maintenance.:-
      • (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant [the conduct of the parties and other circumstances of the case] it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
      • (2) ***********
      • (3) *********** ” 
    • [19. Court to which petition shall be presented.–
      • Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction–
      • (i) the marriage was solemnized, or
      • (ii) the respondent, at the time of the presentation of the petition, resides, or 
      • (iii) the parties to the marriage last resided together, or
      • [(iii-a) in case the wife, is the petitioner, where she is residing on the date of presentation of the petition, or] 
      • (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]
  11. The first contention raised by the learned counsel, appearing for the appellant, is that learned Family Court has committed jurisdictional error while entertaining the application under Section 25 of Act 1955. He submitted that respondent is residing in Gram Sustani, District-Rajgarh and this petition has been filed in Bhopal describing herself resident of 25, Betwa Apartment, Bhopal. He further submitted that neither the appellant nor the respondent are residing at Bhopal therefore, Family Court Bhopal have no territorial jurisdiction to decide the petition.
  12. So far as the territorial jurisdiction of Family Court Bhopal entertaining application under Section 25 of Act 1955 of the respondent. Firstly it is pertinent to mention here that no such objection was taken by the appellant, before the lower Court, in his written statement. In reply appellant has not raised any objection that respondent is not living on the given address 25, Betwa Apartment, Bhopal. In para No.12 of petition respondent specifically pleaded about jurisdiction of Family Court Bhopal and stated that appellant has got decree of divorce from Ist Additional District & Sessions Judge, Bhopal in Civil Suit No.35-A/1978 by dated 21.08.1978 therefore, this Court has territorial jurisdiction to here this petition but in reply of this para No.12 no objection has been raised by the appellant about territorial jurisdiction and this objection has been raised first time in appeal before this Court.
  13. Despite this fact that this objection has been raised first time in this Court, even though keeping in view the provisions of Section 25 of Act 1955, Family Court Bhopal has territorial jurisdiction to hear the petition of respondent under Section 25 of Act 1955.
  14. Section 25 of Act 1955 clearly provided that “any Court exercising jurisdiction under this Act, at the time of passing any decree or at any time subsequent thereto” that clearly shows that Family Court Bhopal having territorial jurisdiction to entertain the petition under Section 25 of Act 1955 because appellant has filed divorce petition against respondent before the Ist Additional Sessions Judge, Bhopal showing her address at Bhopal and decree of divorce has been granted in his favour and at that time no order was passed in favour of respondent for permanent alimony and maintenance, therefore, keeping in view the provision under Section 25 of Act 1955 where under Section 13 of Act 1955 that petition has been filed in Bhopal Court therefore, respondent has every right and having jurisdiction to file petition under Section 25 of Act 1955 at Bhopal. Therefore, Bhopal Court has jurisdiction to entertain the petition of the respondent. Therefore the objection raised by the learned counsel for the appellant about the territorial jurisdiction has no substance.
  15. The second contention made by the learned counsel, appearing for the appellant, is that there is huge delay in filing the present petition under Section 25 of Act 1955 therefore, is not maintainable. He further submitted that divorce decree was passed on 21.09.1978 and for about 30 years no objection for maintenance was filed by the respondent and after lapse of 30 years, this petition has been filed on 05.01.2009, therefore is not maintainable.
  16. So far as this objection as per provision of the Section 25 of Act 1955 “any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto” respondent has right to file application for permanent alimony and maintenance and there is no specific limitation provided for filing such petition under Section 25 of Act 1955. So far as the delay in filing of this petition it is admitted fact that in the year 2007, application for granting the maintenance under Section 125 of the Cr.P.C., 1973 has been filed by the respondent and in that application appellant was agreed to pay Rs.3,000/- per month as a maintenance to the respondent and at that time also no such objection was raised and after passing that order on 02.07.2008 immediately on 05.01.2009, this petition has been filed under Section 25 of Act 1955 therefore, this submission of the learned counsel for the appellant also having no force and is rejected.
  17. The third contention made by the learned counsel for the appellant is that no positive evidence is produced by respondent to show the income of appellant. He further submitted that at present appellant is getting only Rs.32,000/- monthly as a pension, Rs.7,500/- per month as a rent of Indore house and Rs.2,900/- per month out of the earning of agriculture and out of which he has to pay income tax expenditure, agriculture operation and maintenance of house of Indore. In the addition, learned counsel for the appellant also submitted that in such a way appellant’s monthly income comes to 22 to 26 thousands but learned trial Court wrongly recorded the finding in para No.16 of the judgment is Rs.43,000/- per month. This finding is based on misreading of evidence and liable to be set aside. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  18. Appellant Sunil Kumar Verma (non-appellant No.1) admitted in para No.16 of cross-examination that he is having 18 hectare (about 72 Bigha) of agriculture land. In para No.21 of the cross-examination he again admitted that he is getting Rs.11,000/- rental income from his house. He has also admitted in para No.10 that he is getting Rs.32,000/- as a pension therefore, it indicates that appellant getting Rs.32,000/- pension, Rs.11,000/- per month rental income total income is Rs.43,000/- per month. Though appellant stated in para No.10 of his examination-in-chief that he is having 3.5 bigha agriculture land by which he is getting Rs.35,000/- per year agriculture income but keeping in view the admission in para no.16 of the cross- examination of the appellant he is having 18 hectare (about 72 bigha) agriculture land, certainly he is earning lacs of the rupees from the agriculture land, therefore, it is amply proved by the evidence of the appellant that he is having income more than Rs.50,000/- per month and learned trial Court has not committed any error in giving the finding that appellant is earning Rs.43,000/- per month. Therefore, it is found proved that appellant is having sufficient means to pay the permanent alimony and maintenance to the respondent.
  19. So far as the another contention has been raised by the appellant that the respondent having sufficient means to maintain herself, therefore she is no entitled for any maintenance.
  20. So far as this submission made by learned counsel for the appellant, it is not required for the respondent to prove this fact that she is unable to maintain herself Under Section 25 of Act 1955, it is not requirement of the law in aforesaid provisions that if the wife having sufficient means and able to maintain herself, she cannot get the permanent alimony and maintenance.
  21. Relevant part of the provisions of Section 25 of Act 1955 and provisions of Section 125 of the Code of Criminal Procedure, 1973 (in short ‘Code 1973’) have some difference and reads as under:-
    • “Section 25. Permanent alimony and maintenance:-
      • (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto…..
      • (2) *********
      • (3) *********
    • Section 125. Order for maintenance of wives, children and parents :-
      • (1) If any person having sufficient means neglects or refuses to maintain-
      • (a) his wife, unable to maintain herself, or
      • (b) *********
      • (c) *********
      • (d) ********* .”
  22. However, under Section 25 of Act 1955 order for permanent alimony and maintenance is passed while exercising jurisdiction under Act, 1955 at the time of passing any decree or at any time subsequent thereto, but under Section 125 of the Code 1973 an application for maintenance can be filed independently at any time when a person having sufficient means neglects are refuses to maintain, his wife “unable to maintain herself” thereby means if wife able to maintain herself is not entitled for maintenance under Section 125 of the Code 1973, but under Section 25 of Act 1955 there is no such requirement of law.
  23. So far as awarding the Rs.15,000/- per month as permanent alimony and maintenance, it is also not excessive or exorbitant looking to the status of the appellant as he was being posted and retired from Principal Secretary Water Resources Department, M.P. Government. He is earning more than Rs.43,000/- per month. He is having one house in Indore. His second wife is a Doctor and she is also in service and getting salary, therefore appellant having no liability and responsibility.
  24. Hon’ble Apex Court in the case of Vinny Parmvir Parmar Vs. Parmvir Parmar (2011) 13 SCC 112 that “As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent’s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband.”
  25. On the aforesaid discussion, we are of the considered opinion that learned trial Court has not committed any error in passing the decree of permanent alimony and maintenance against the appellant, therefore, we are not inclined to interfere in the impugned order passed by the learned Family Court, hence this appeal sans merit and liable to be dismissed, therefore, this appeal is hereby dismissed.

There is no order as to costs.

(Rajendra Menon)                 (Sushil Kumar Gupta)
Judge                                    Judge

Ajay/-

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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forcing hubby as Ghar Jamaee, deserting him on refusal, not attending 2 his ailments CRUELTY. Divorce decreed. MP HC

In this case the couple get married at a very young age. Right from the start of the matrimonial relations the wife and her father pressurize the husband to live as a Ghar Jamaee. He refuses to ditch his parents and live with them. So the wife misbehaves with him and starts living with her parents. She does not attend to him even though he is an Asthma Patient. His attempts to bring her back fail. He files for divorce in lower court, but looses the case in lower court. He appeals to the HC. The Hon HC appreciates the evidence and correspondence between parties and ascertains the wife’s cruelty and desertion. Husband gets divorce.

Excerpts :
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The Hon HC appreciates the evidence : “……21. The evidence as above would indicate that the petitioner desired that respondent should live with him, but the respondent and his family members insisted that the petitioner should come to Indore and should live with the respondent’s parents. It also appears from the above evidence that the respondent/wife, was not willing to live with the petitioner, in her matrimonial home; and that she used to quarrel and misbehave with the petitioner and her parents, even during the short period for which she lived with them. Thereafter, she returned back to her parents home in the year 1984, and did not return back despite persuasion of petitioner and his family members. It is also clear that the petitioner’s elder brother Ravishankar who was married on the same day, on which the petitioner was married, was required to live with the in-laws as ‘Ghar Jamaee’ under their pressure and expressed regrets and remorse about the above state of affairs, as would be evident from letters Ex. P-1 and Ex. P-2, written by him…..”

“…….22. In view of above, the petitioner’s statement that he was being persuaded and forced to live with his in-laws at Indore as ‘Ghar Jamaee’ is rendered plausible and believable. In fact, a letter Ex. P-3 written by respondent’s father, clearly contains a veiled threat that the petitioner’s parents would be loosing their younger son i.e., the petitioner also, as was the case with their elder son, i.e., Ravishankar. …..”

The Honourable HC concludes as follows “…..34. It would appear from the evidence as discussed above, that the respondent and her father had been continuously pressing the petitioner/husband to live with them as ‘Ghar Jamaee’. On the petitioner’s refusal to yield their unjust demand as above, the respondent/wife started misbehaving and maltreating the petitioner/husband and his family members. The respondent/wife had forsaken the company of the petitioner/husband without any justifiable cause and against his wishes. The petitioner/husband was an asthama patient. However, he was left alone to suffer in his misery and ailment, while he was posted at Bakhtara, as has been stated by him. Though married the petitioner, never enjoyed the marital bliss and comfort of a home. She did not return back despite requests and efforts made by the petitioner. The respondent’s father had extended threats to the father of the petitioner that he would be losing his younger son i.e., the petitioner also, as was the case of the elder brother of the petitioner.

35. It is, therefore, clear that the petitioner had to live a lonely life for a very long period of 17 years. The cumulative effect of the above facts and circumstances indicate that the respondent had treated the petitioner with cruelty.

36. It is thus clear that the grounds of desertion and cruelty have been established by the evidence and the facts and circumstances of the case. Thus, grounds for granting a decree of divorce as enumerated in Section 13(1)(i-a) and 13 (1) (i-b) have been made out…………….”

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Madhya Pradesh High Court

Gajendra vs Smt. Madhu Mati on 16 March, 2001

Equivalent citations: AIR 2001 MP 299, II (2001) DMC 123, 2001 (3) MPHT 335

Author: V Agrawal

Bench: V Agarwal

JUDGMENT V.K. Agrawal, J.

1. This appeal preferred under Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and decree dated 23-12-1991 by Third Additional District Judge, Bhopal, dismissing the petition under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’ for short), praying for divorce.

2. Undisputably, the parties were married in the month of February, 1976 at Indore. Both of them were minors at the time of their marriage. I; is also not in dispute that the elder sister of respondent was also married to the elder brother of petitioner on the same day, on which the parties were married. The ‘Gauna’ ceremony took place in the year 1978; whereafter, the respondent/wife came to the house of petitioner husband for a short while and then went back to the house of her parents. She continued to reside with her parents at Indore till the year 1983. The parents of appellant/husband are permanently residing at Bhopal. It is also now not in dispute that the parties last resided together at Bhopal till the year 1984, whereafter the respondent is living with her parents.

3. The petitioner filed an application under Section 13(1)(i-a) and 13(1)(i-b) of the Act, praying for dissolution of marriage by a decree of divorce. He averred therein that the petitioner made several efforts upto the year 1983 to bring his wife – the respondent to the matrimonial home at Bhopal, however the respondent was reluctant to come to the matrimonial home and the father of respondent desired that the petitioner/husband should reside at Indore in the house of respondent/wife as ‘Ghar Jamaee’. It was alleged that, when the pressure tactics of respondent and her father failed, the respondent started behaving in a harsh manner. It was alleged that she used to misbehave with the family members of petitioner and created nuisance and rowdy scenes. She would threaten that she would commit suicide in case the petitioner does not shift to Indore as desired by respondent, and if she was compelled to reside at Bhopal. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. It was further averred that ultimately the petitioner yielded to the persuasion and pressure tactics of respondent and shifted to Indore in June 1983 with her. A job in a private factory was procured by the father of respondent. However, as the petitioner was not inclined to reside with his in-laws in their house, he started residing in his own house at Indore, despite pressure from respondent and her father to live with them. Annoyed on account of resistance as above on the part of the petitioner, the respondent and her father used to quarrel with him. They also desired that the earnings of petitioner should be handed over to the respondent’s father. On account of constant nuisance and ill-treatment of respondent and her father, the petitioner went back to Bhopal in December, 1983. It was averred that the respondent after great persuasion agreed to accompany the petitioner and came to Bhopal. However, the respondent continued to compel and pressurise the petitioner to return to Indore. The petitioner refused to yield to the above pressure. Having failed in their efforts, the father of respondent took her away to Indore in February, 1984. It has also been averred by the petitioner that since then the respondent did not come back to the petitioner, despite several efforts made by him. The respondent filed an application under Section 125, CPC for maintenance at Indore, which has been allowed. A criminal revision against the said order was pending.

5. The petitioner further averred that the demand of respondent and her father that the petitioner should leave his parents and should live with the respondent’s father was unacceptable to the petitioner. Since the petitioner refused to accede to the above demand, the respondent is living with her father for a long period and has thus deserted the petitioner for a period of more than two years. The petitioner/husband therefore prayed for a decree for divorce on the ground of cruelty and desertion as above on the part of the respondent.

6. The respondent/wife resisted the petition and the above averments were denied. According to the respondent/wife she never misbehaved or maltreated the petitioner or his family members. She has also denied that she or her father desired that the petitioner should live with the father of respondent as ‘Ghar Jamaee’. According to the respondent, she never deserted the petitioner and in fact she made several attempts to come to her matrimonial home, but she was not permitted to do so.

7. The learned Trial Court framed mainly two issues, which were to the effect: as to whether the respondent treated the petitioner/husband with cruelly and as to whether the respondent has deserted the petitioner for a period of more than two years preceding the filing of the petition ?

8. The learned Trial Court found that the evidence led by the petitioner regarding allegations of cruelty or desertion is not worth acceptance, and thus it held that it was not proved that the respondent treated the petitioner with cruelty or had deserted him. Thus both the issues have been decided by the Trial Court against the petitioner/husband. The petition of divorce filed by him was therefore dismissed.

9. Learned counsel for petitioner/appellant submitted that the marriage between the parties took place while they were minors. It was also submitted that the petitioner’s elder brother was married to the respondent’s elder sister. The petitioner’s elder brother has been made to live by his wife’s parents as ‘Ghar Jamaee’, and the respondent and her father desired and persistently pressed the petitioner to live with them at Indore at the house of respondent’s parents as ‘Ghar Jamaee’. When the petitioner/husband refused to accede to their desire as above, the respondent started maltreating and misbehaving with the petitioner and his family members. She ultimately left the matrimonial home in the year 1984 and has not returned so far, despite persistent efforts by the petitioner. It was therefore, submitted that the respondent has treated the petitioner with cruelty and has deserted him. It has also been submitted by the learned counsel for the appellant that the marriage between the parties has completely broken down and there are no chances of their reunion. It was therefore submitted that the petition filed by the husband for decree of divorce deserves to be allowed.

10. None appeared for the respondent at the time of hearing.

11. The first question that requires consideration is, as to whether it has been established that the respondent/wife has deserted the petitioner for a period of two years or more ?

12. Under Section 13(1)(i-b) of the ‘Act’ one of the grounds for granting divorce is desertion. A decree for divorce can be granted on the ground that the other spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The expression ‘desertion’ is not defined in the ‘Act’. ‘Desertion’ in the context of matrimonial law represents a legal conception which is very difficult to define. Essential ingredients of desertion’, so as to furnish a ground for the relief of divorce are:

(a) Factum of separation;

(b) Intention to bring cohabitation permanently to an end -Animus deserendi; and

(c) The element of permanence i.e., elements (a) and (b) as above should continue during the entire statutory period.

The explanation clause of Section 13(1)(i-b) of the ‘Act’ provides that the expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. Thus, the above explanation has widened definition of desertion to include wilful neglect of the respondent and so as to amount to matrimonial offence, desertion must be without reasonable cause and without the consent or against the wish of the petitioner. The offence of desertion thus commences when the fact of separation and the animus deserendi co-exist.

13. As laid down in Smt. Rohini Kumar Vs. Narendra Singh (AIR 1972 SC 459) desertion does not imply, only a separate residence and separate living, but it is also necessary that there must be a determination to put an end to marital relation and cohabitation. Without animus deserendi there can be no desertion.

Similarly in Sanat Kumar Agarwal Vs. Smt. Nandini Agarwal (AIR 1990 SC 594), it has been observed that:

“The question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both interior and subsequent to the actual act of separation.”

14. In the instant case, undisputably the parties are living separately from each other from February, 1984, i.e., for a much longer period of two years. In the circumstances, the question that requires consideration would be as to whether the respondent can be said to have ‘deserted’ the petitioner. Therefore, the evidence regarding the circumstances, in which the parties are residing separately shall now be considered.

15. The petitioner/husband Gajendra (A.W. 1) has stated that he was married in the year 1976 with the respondent, when he was aged about 14 years. He further stated that his elder brother was married to the respondent’s elder sister on the same day. Thereafter, the respondent went back alongwith her parents to Bombay where they were then residing; while the petitioner came back to Bhopal to his parents’ house. He further states that in the year 1978 the ‘Gauna’ ceremony took place and his wife the respondent, came and resided with him at their house at Indore for a couple of days and then left for Bombay to her parental home. The petitioner Gajendra (A.W. 1) has stated that in the year 1983 he went to Indore, where her parents had settled to bring his wife – the respondent, with him. He stales that the parents of his wife however, were not prepared to sent her with him, and desired that the petitioner should come and live with them at Indore and serve at the place as may be directed by them. He has stated that in 1983 with great difficulty he could persuade his wife – the respondent, to come to Bhopal. The petitioner Gajendra (A.W. 1) has further stated that the respondent wife had come to Bhopal with him reluctantly, and lived with him at Bhopal only for about two or three months. During the above period the brother and parents of his wile used to come to Bhopal and tried to take the respondent as well as the petitioner to Indore. They also interfered in his domestic affairs. He also states that the respondent would also threaten him with dire consequences and also of committing suicide. She would also insult and humiliate him and used abusive language.

16. Petitioner Gajendra (A.W. 1) also stated that ultimately he was forced to go to Indore with his wife. However, at Indore he stayed at his own house. Further statement of Gajendra (A.W. 1) was that at Indore also the parents of respondent/wife would insist that the petitioner and his wife should reside with them in their house and should give them the income earned by him. He has stated that his elder brother Ravishankar was already living with the parents of his wife as ‘Ghar Jamaee’ and was giving his in-laws his income, which t hey would spend as they desired. Gajendra (A.W. 1) further states that he returned back alongwith the respondent to Bhopal where she stayed with him till February, 1984. During the above period also she misbehaved with him. In February, 1984 she went away with her father and never came back.

17. Petitioner Gajendra (A.W. 1) has also stated that he was unemployed till December, 1985. He was suffering from Asthama. He got an employment in the year 1986. His statement is that despite knowledge of his ailment the respondent never lived with him and he remained uncared for, while he stayed at Baktara, where he was posted in the year 1986. He stated that on account of behaviour of respondent and her parents as above, his life became miserable and mental and physical pain and suffering was caused to him. He also stated that the respondent/wife filed an application under Section 125, CPC for maintenance at Indore. That application was allowed and that he has filed a revision against the said order.

18. The statement as above has been corroborated by the statement of his father Bagirath (A.W. 4). He has stated that his elder son Ravishankar was residing as ‘Ghar Jamaee’ with his in-laws under their pressure. He has also stated that from 1986 onwards his elder son Ravishankar had not come to visit them. Bagirath (A.W. 4) states that the behaviour of respondent was objectionable. She used to abuse them and misbehave with them. She used to threaten them and quarrel with her husband – the petitioner. He has also stated that when the respondent was with them in Bhopal, her father and brother used to visit them and coax the petitioner to come to Indore and reside with them. This behaviour of respondent and her family members caused great disturbance in their family. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. The petitioner has also examined Kanhaiyalal (A. W. 2) who belongs to their community. The statement of Kanhaiyalal (A.W. 2) would indicate that Bagirath (A.W. 4) the father of petitioner complained to him that the respondent was living with her parents, who did not send her to the petitioner’s house. He has stated that he also tried to persuade the respondent to live with the petitioner but, her father did not agree to send her.

20. Kamal (A.W. 3) who is the maternal uncle of petitioner has also stated that the petitioner Gajendra (A.W. 1) complained to him that he was under tension due to the behaviour of his wife – the respondent. Kamal (A.W. 3) further stated that when he visited the house of petitioner at Indore, there was quarrel between the petitioner and respondent and her father.

21. The evidence as above would indicate that the petitioner desired that respondent should live with him, but the respondent and his family members insisted that the petitioner should come to Indore and should live with the respondent’s parents. It also appears from the above evidence that the respondent/wife, was not willing to live with the petitioner, in her matrimonial home; and that she used to quarrel and misbehave with the petitioner and her parents, even during the short period for which she lived with them. Thereafter, she returned back to her parents home in the year 1984, and did not return back despite persuasion of petitioner and his family members. It is also clear that the petitioner’s elder brother Ravishankar who was married on the same day, on which the petitioner was married, was required to live with the in-laws as ‘Ghar Jamaee’ under their pressure and expressed regrets and remorse about the above state of affairs, as would be evident from letters Ex. P-1 and Ex. P-2, written by him.

22. In view of above, the petitioner’s statement that he was being persuaded and forced to live with his in-laws at Indore as ‘Ghar Jamaee’ is rendered plausible and believable. In fact, a letter Ex. P-3 written by respondent’s father, clearly contains a veiled threat that the petitioner’s parents would be loosing their younger son i.e., the petitioner also, as was the case with their elder son, i.e., Ravishankar. It also appears from Ex. P-3 that the relationship between the parents of the parties were strained and the respondent’s father desired that the petitioner should also come and live with them. The contents and the language used in letter Ex. P-3 of respondent’s father corroborates the version of petitioner that the respondent and her father pressurised the petitioner to live with them as ‘Ghar Jamaee’.

23. As against the petitioner’s evidence as above, the respondent/wife Madhu Mati (N.A.W. 1) in her statement has denied the above allegations. According to her, she used to behave properly with the petitioner as also her in-laws and that she wanted to live with the petitioner, but was not permitted to do so by him. Kishore Kumar (N.A.W. 3) the father of respondent has supported the version of respondent Madhu Mati (N.A.W. 1). According to him the petitioner never turned up to take his wife – the respondent, with him. He has stated that his son-in-law – the petitioner, had written a letter to him that since he could not get accommodation, he is not taking his wife with him. However, the said letter has not been produced in the case.

24. The respondent has also examined her brother Jagdish (N.A.W. 2), who has stated that they had gone to Bhopal on receiving information of accident of younger brother of petitioner. However, at the Hospital the father of petitioner asked them to go away. It may be noticed that there is no specific mention about the above incident in the pleadings of the respondent.

25. Though, the respondent and her father claim that the petitioner wrote to them about his inability to take respondent with him and to live with her, yet none of such letters or other documents have been produced by them. It may also be noticed that no notice was served by the respondent beseeching or requesting the petitioner to take her with him. It may also be noted in the above connection that the respondent had not returned back to the petitioner, despite petitioner’s notice having been served on her. The foregoing circumstances clearly indicate that the respondent has deliberately abandoned her matrimonial home and had shown her unwillingness to return back and to live with the petitioner.

26. Thus weighing the evidence as above led by the respective parties, it appears that the version as put forth by the petitioner is more probable. The fact that petitioner’s elder brother is living with the respondent’s parents as ‘Ghar Jamaee’ lends support to the assertion of the petitioner that his in-laws wanted that the petitioner should also live as ‘Ghar Jamaee’ with them. As noticed above, the language and contents of the letter Ex. P-3 written by the respondent’s father also indicate that the relations between the parties were strained and that the respondent’s father had gone to the extent of extending threat the petitioner’s father that he would be loosing his younger son i.e., the petitioner also, as was the case with his elder son.

27. In the foregoing circumstances, the observation of the Trial Court that the evidence of the petitioner could not be accepted in the face of discrepancies between the pleadings and proof, does not appear to be justified. It is clear that minor discrepancies as pointed out by the learned Trial Court, could not constitute a valid ground for discrediting the whole of petitioner’s evidence. It is clear that in such cases broad probabilities have to be considered to weigh and assess the truthfulness or otherwise of the rival cases of the parties, keeping in view the circumstances of the case. In the instant case, the evidence led by the petitioner and the circumstances as pointed out above are indicative of the fact that it was the respondent/wife who was responsible for leaving the matrimonial home and preferring to live with her parents.

28. The evidence led as above by the petitioner appears to be probable. There appears to be no other reason as to why the petitioner would not keep the respondent with him if the petitioner and respondent were married in childhood, and ‘Gaunna’ ceremony look place as far back as in the year 1976 when the parties were young. Had three been cordiality between the two families, there was no reason why at that adaptable age the parties would not have amicably lived together. However, their relationship appears to have grown sour on account of unreasonable demand and desire of the respondent and her father that the petitioner should follow the path of his elder brother and live with them as ‘Ghar Jamaee’. Clearly, the respondent and her parents could certainly not force the petitioner to live with them as ‘Ghar Jamaee’. The petitioner was justified in refusing to yield to their unreasonable demand as above.

29. The foregoing discussion also indicates that the respondent/wife had left the company of the petitioner/husband and did not accede to her request to come back. There was no intention on her part to resume cohabitation unless and until the petitioner/husband acceded to the demand of the respondent/wife and her father to live with them as ‘Ghar Jamaee’. In view of above, the evidence placed on record indicates that there was abandonment and non-performance of marital obligations by the respondent/wife with an intention to do so. The conduct as above of the respondent goes to show that she is living separately from the petitioner without any reasonable cause and against his wishes and has wilfully neglected the petitioner.

30. It may be noted that the Supreme Court in Lachman Utamchand Kirpalani Vs. Meena alia Mota (AIR 1964 SC 40), while discussing desertion has observed:

“For the offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there, (1) the factum of
separation, and (2) the intention to bring cohabitation permanently
to an end (animus deserendi). Similarly, two elements are essential
so far as the deserted spouse is concerned: (1) absence of consent,
and (2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention
aforesaid. Desertion is a matter of inference to be drawn from the
facts and circumstances of each case. The inference may be, drawn
from certain facts which may not in another case be capable of
leading to the same inference; that is to say, the facts have to be
viewed as to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and subsequent to
the actual acts of separation. If, in fact, there has been a
separation, the essential question always is whether that act could
be attributable to an animus deserendi. The offence of desertion
commences when the act of separation and the animus deserendi coexist.”

31. To reiterate, in the instant case the demand of the respondent/wife and her father that the petitioner should live as her ‘Ghar Jamaee’ was unreasonable and it cannot be said that the petitioner/husband was not justified in not yielding to such a demand. In the circumstances, the blame for the differences between the parties in the instant case squarely lies on the shoulders of the respondent/wife and her father. As noticed above, it is also clear that the respondent/wife not only continued to live separately for a long period right from the year 1984, but she had intention to put to an end the marital relations. Thus, there was animus deserendi on her part. Therefore, the foregoing facts and circumstances of the case and conduct of the respondent, lead to an irresistible conclusion that it was the respondent/wife who deserted her husband – the petitioner.

32. The next question that requires consideration is as to whether the respondent/wife treated the petitioner with cruelty ?

33. Section 13(1)(i-a) of the ‘Act’ provides that a decree of divorce can be granted on the ground that the other party had treated the petitioner with cruelty. It is also well established that cruelty could be either physical or mental. The cruelty may be inferred from all the facts and matrimonial relations of the parties and inter-action between them in their daily life, as disclosed by the evidence. The question as to whether the petitioner was treated with cruelty, can be answered only after all the facts have been taken into account, and the Court has to ascertain whether or not the treatment or conduct of the offending party would amount to cruelty. What is a cruel treatment to large extent would depend on the facts and circumstances of each case. In V. Bhagat Vs. Mrs. D. Bhagat (AIR 1994 SC 710), it has been observed in the above context that:

“Mental cruelty in Section 13(1)(i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental paid and
suffering as would make it not possible for that party to live with
the other. In other words, mental cruelty must be of such a nature
that the parties cannot reasonably be expected to live together. The
situation must be such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with the other
party. It is not necessary to prove that the mental cruelty is such
as to cause injury to the health of the petitioner. While arriving at
the conclusion regard must be had to the social status, educational
level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are
already living apart and all other relevant facts and circumstances
which it is neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty in another
case. It is a matter to be determined in each case having regard to
the facts and circumstances of that case. If it is a case of
accusations and allegations, regard must also be had to the context
in which they were made.”

34. It would appear from the evidence as discussed above, that the respondent and her father had been continuously pressing the petitioner/husband to live with them as ‘Ghar Jamaee’. On the petitioner’s refusal to yield their unjust demand as above, the respondent/wife started misbehaving and maltreating the petitioner/husband and his family members. The respondent/wife had forsaken the company of the petitioner/husband without any justifiable cause and against his wishes. The petitioner/husband was an asthama patient. However, he was left alone to suffer in his misery and ailment, while he was posted at Bakhtara, as has been stated by him. Though married the petitioner, never enjoyed the marital bliss and comfort of a home. She did not return back despite requests and efforts made by the petitioner. The respondent’s father had extended threats to the father of the petitioner that he would be losing his younger son i.e., the petitioner also, as was the case of the elder brother of the petitioner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

35. It is, therefore, clear that the petitioner had to live a lonely life for a very long period of 17 years. The cumulative effect of the above facts and circumstances indicate that the respondent had treated the petitioner with cruelty.

36. It is thus clear that the grounds of desertion and cruelty have been established by the evidence and the facts and circumstances of the case. Thus, grounds for granting a decree of divorce as enumerated in Section 13(1)(i-a) and 13 (1) (i-b) have been made out.

37. Yet another aspect of the matter, arising from the facts and circumstances of the case, deserves notice in the instant case. The parties are admittedly living separately for a long period of about 17 years. Their marriage appears to have irretrievable broken with no chance of reunion or resumption of their marital relations. The marriage between the parties therefore appears to be beyond repair. This would also constitute and justify grant of decree for divorce, as prayed by the petitioner.

38. In Smt Saroj Rani Vs. Sudarshan Kumar Chadha [(1984) 4 SCC 90], it has been laid down that the right of the husband or the wife to the society of the other spouse is not merely a creature of the statute. Such a right is inherent in the very institution of marriage itself. The essence of marriage lies in sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection of one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage – “breakdown” and if it continues for a fairly long period, it would indicate destruction of the essence of marriage – “irretrievable breakdown”. Similarly in Romesh Chander Vs. Smt. Savitri (AIR 1995 SC 851), the Supreme Court considered it just and proper to grant a decree for divorce in a case where there was irretrievable break down and the marriage was held to be dead.

39. In the instant case also, since the parties are living separately for the last about 17 years and have in fact spent the prime of their life without the company of each other, and as there appears to be no chance for their reunion and living together, and as the grounds under Sections 13(1)(i-a) and 13 (1) (i-b) of the ‘Act’ are made out, decree for divorce deserves to be granted.

40. Therefore, this appeal deserves to be and is hereby allowed. The impugned judgment and decree is set aside. The petitioner’s application for divorce under Section 13(1)(i-a) & 13(1)(i-b) of the ‘Act’ is allowed, and decree for divorce as prayed by the petitioner/husband is granted and their marriage is dissolved.

41. First Appeal allowed.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Minor taunts or dowry demands cannot B reasonable cause to desert husband & never return! MP HC .

Minor taunts or dowry demands cannot B reasonable cause to desert husband & never return!  MP HC . NO prohibition in the Act for filing a joint petition for restitution and IF restitution fails, for divorce

In this case the wife leaves the husband after a very short stay. Husband makes MANY efforts to get the wife back. He sends his people. He send letters etc. Wife refuses to come back. It transpiers that the wife’s father is adamant in not letting the wife go back to the husband’s place. Unable to proceed further, the husband sends a legal notice and then approaches the court. He wins divorce on grounds of desertion. Wife goes on appeal to HC.

The HC affirms the divorce in favour of the husband and says

“…Only because during a brief stay of the wife at her husband’s home, there was some taunts or demands of dowry, it cannot be said that they furnished a reasonable cause to the wife to leave the home of the husband and never to return. I, therefore, hold that there did not exist any reasonable cause for the wife to refuse to return to the husband. …”

“…It cannot be disputed that normal place of living of the wife after marriage is the husband’s home. Heavy burden, therefore, lies on the wife to prove that there was such ill-treatment to her at the husband’s place that her living there was impossible. The “reasonable cause” as contemplated by explanation below Section 13(1) should be a cause, which should be sufficiently gave and weighty so as to justify the living of the wife away from the husband….”

“….the only excuse offered by the wife not to rejoin her husband was that she wanted the husband or some elderly person in the family to take responsibility that she would not be ill-treated in the marital home. To me, it appears that such an expectation from the husband cannot constitute a good ground or a reasonable ground for the wife to refuse to live with the husband. In marital relationship, there is no question of any responsibility being taken by the spouses of each other or by the elder members of their families. As I have held above, the wife utterly failed to produce any reliable evidence that she was ill-treated in her brief stay with the husband, by the mother. In her romantic letter sent to the husband after their long separation she did not even make a passing reference of having suffered any ill-treatment from him or his relations during her stay. The version of the wife and her father, therefore, neither appears believable nor reasonable. …..”

“….The last submission made by the learned counsel for the respondent now needs to be considered that there could be no joint petition, both for restitution and divorce. I do no find any legal prohibition under the provisions of the Act for filing a petition by a spouse for restitution or in the alternative, for a decree of divorce on the ground of desertion. The husband has frankly come forward with a case that he was willing at the time of filing of the petition to receive her back in the marital home and in the alternative, if she still continued to refuse, she should be held guilty of a matrimonial offence of desertion and the marriage be dissolved. ….”

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Madhya Pradesh High Court

Smt. Bhavna Adwani vs Manohar Adwani on 8 May, 1991

Equivalent citations: AIR 1992 MP 105, I (1992) DMC 286, 1992 (0) MPLJ 40

Author: D Dharmaadhikari

Bench: D Dharmadhikari

JUDGMENT D.M. Dharmaadhikari, J.

1. In this appeal by the wife, under the provisions of Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred as to the Act), the question that needs to be decided is, whether the conduct of the wife, as brought out by evidence on record, amounts to ‘wilful neglect’ on her part, within the meaning of explanation appended to Section 13(1) of the Act, so as to uphold the decree of divorce under Section 13(1)(ib) of the Act?

2. Parties were married on 27-4-1983 at Raipur. Admittedly, they lived together after marriage at Raipur between 27-4-1983 to 19-6-1983. It is also not disputed that one Murlidhar, brother-in-law of the wife, took her back on 20-6-1983 to Katni for a brief stay with her parents.

3. The case of the husband is that thereafter he made repeated approaches personally, through his relations and also by sending her letters requesting her to come back home, but she persistently expressed her inability to do so. In the course of these attempts to bring the wife back to home, on 29-11-1983, the husband himself went to Katni with his sister, Padma and brother-in-law, Arjundas to bring back the wife ceremoniously, according to the caste-custom. It is admitted that the husband and wife lived at Kanti and cohabited. During this brief stay of the husband, he requested the parents, of the wife to send his wife with him and his relations, who had gone to Katni to bring her, but the parents refused to send her and the wife also did not express any willingness to accompany him back, stating that she had no courage to act against the wishes of her parents. The husband made a second attempt through his uncle Ramesh Adwani, who was sent to persuade the parents of the wife and her to come back to the husband’s house. But, again they refused. On 28-8-1984, the wife gave birth to a female child named Varsha, now about three years old. The husband sent a letter on 14-9-1985 (Ex. P/l) to the wife requesting her to come back to him. The wife sent a reply dated 20-9-1985 (Ex. P/2) in which she expressed her desire to lead a happy married life with him, but again expressed her helplessness, because there was misunderstanding between the husband and her father. The husband sent one more letter on 28-9-1985 (Ex. P/10) and gave her an option that either she should remain at Katni in obedience to the wishes of her father or come back to him, for which, the husband showed his willingness to come up to Bilaspur Station to receive her there for return to Raipur. The wife, however, did not send any reply to the aforesaid letter. The husband then sent a legal notice addressed to the wife (Ex. P/4) calling upon her to return to him within a week of the receipt of the notice or else proceedings for restitution of conjugal rights or in the alternative judicial separation would be filed in the Court of law. he sent a separate legal notice dated 31-8-1986 (Ex. P/6) addressed to the father of the wife and alleged that his wife was being illegally withheld and detained for which the father was stated to be liable for compensation. The repeated attempts made by the husband having failed to persuade the wife to rejoin him, he filed petition under Section 9 of the Act for restitution of conjugal rights and in the alternative, for grant of a decree of divorce under Section 13 of the Act.

4. In her written statement filed in the petition, the wife took a plea that during stay with the husband, his mother used to make dowry demands and used to ill treat her. It is also pleaded by the wife that the husband, during the pendency of the case in the trial Court, has gone through a second marriage and, therefore, cannot the relief either of restitution of conjugal rights or of divorce. The trial Court, by order under appeal dated 30-3-1990, held that the wife was guilty of desertion of the husband for a period of more than two years of the filing of the petition. The trial Court held that the remarriage of the husband was not proved. The trial Court, therefore, granted a decree of divorce against the wife on the ground of desertion.

5. The learned counsel appearing on behalf of the respondent-wife assailed the decree of the trial Court firstly on the ground that the contents of the letters and the legal notice sent by the husband to the wife themselves nullify the case set-up against the wife of her desertion. It was also stated that the letter sent in reply by the wife (Ex. P/2) also does not make out that the wife had deserted the husband. It was stated that the contents of the letter of the wife show that she was very eager to join the husband and, in fact, invited him for a meeting. According to the counsel for the wife, one of the essential ingredients of the matrimonial offence of animus deserendi on the part of the wife is totally absent in this case and, therefore, decree on the ground of desertion could not be passed.

6. The second submission of the learned counsel of the wife was that the husband has failed to prove that the desertion with animus deserendi continued on the part of the wife during the entire statutory period of two years immediately preceding the presentation of the petition. It was stated that animus deserendi, if at all, on her part could be presumed against her from the date of legal notice dated 31-1-1986 and the petition filed on 12-12-1986 was before expiry of two years statutory period, provided under Section 13(1)(ib) of the Act. Lastly, it was submitted on behalf of the wife that there would be no joint petition seeking relief of restitution of conjugal rights or in the alternative, a decree of divorce and the petition was liable to be rejected for misjoinder of causes of action.

7. The learned counsel appearing on behalf of the husband supported the decree passed by the trial Court submitting, inter alia, that the husband made all possible efforts to persuade the wife to come back to him and her continuous conduct in remaining away from husband constituted desertion within the meaning of Section 13(1)(ia) read with the explanation appended thereunder. It was also stated that the wife had lived separately from the husband for a period of more than two years before filing of the petition and there was no legal prohibition to grant a decree of divorce. The learned counsel for the appellant also submitted that there is nothing in the Act that in a petition for restitution of conjugal rights, an alternative relief of divorce could not be claimed.

8. Having gone through the pleadings of the parties, the documentary and oral evidence on record and the submissions made by the counsel for the parties, I have formed an opinion that this case is an unhappy instance of a happy marriage being ruined because of the timidity of the wife and the tack less handling and ill-advice of the father of the wife.

9. I take up first the question, whether decree of divorce could be passed on the ground of desertion. It is to be noticed that in order to widen the meaning of desertion as a matrimonial offence and to include within it even the case of constructive desertion, explanation was added below Section 13(1) by the Marriage Laws (Amendment) Act, 1976, which reads as under :–

“Explanation.– In this Sub-section the expression “desertion” means
the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish
of such party and includes the wilful neglect of the petitioner by
the other party to the marriage, and its grammatical variations and
cognate expressions shall be construed accordingly.”

It is thus clear that now after addition of the above explanation to Section 13(1), even if the wife is guilty of wilful neglect of the husband, she would be guilty of desertion to constitute a ground of divorce. The first question before me is whether there was any reasonable cause for the wife to live away from the husband? It is to be noted that in none of her letters, she ever complained of any ill-treatment for dowry demands by the mother of the husband, much less, by the husband. The case of ill-treatment to the wife for dowry demands came to be stated for the first time in the reply filed in the Court to the petition and in her deposition. So far as her pleadings on the subject of alleged ill-treatment to her is concerned, it may be noticed that the plea is totally vague and bereft of all necessary particulars of ill-treatment. In para 7 of the written statement, only a general statement has been made that the husband and his mother used to repeatedly demand dowry and complain that sufficient dowry was not brought by the wife. In the same paragraph, it was stated that they used to ill-treat her. No details have been given as to when, where and how the demands were made and that was the nature of ill-treatment. In her deposition as N.A.W.-l, she made a general statement that her mother-in-law used to say that she is not beautiful and both her husband and mother-in-law used to ill-treat her for not bringing scooter and more presents in the marriage. In the cross-examination, she was confronted with her letter (Ex. P/2). She admitted that she sent it, but could not give any explanation why she did not complain to the husband of ill-treatment that she received at his house. There is nothing on record to show that she ever complained of ill-treatment by the husband and his family members to her father. Her father Pariamal has been examined as N.A.W. 5. In para 8 of his cross-examination, he admitted that no dowry was settled at the time of marriage. He also admitted that three times the husband approached to him at Katni to take back the wife. His version was that on each occasion, he was willing to send her back, provided she was promised no ill-treatment for dowry demands by the husband and her family members. From the above state of evidence on record, even if the wife and her father are to be believed that there were some dowry demands and some ill-treatment to the wife, it cannot be inferred that the ill-treatment was of such a magnitude that she should have left the husband’s home for all times. It cannot be disputed that normal place of living of the wife after marriage is the husband’s home. Heavy burden, therefore, lies on the wife to prove that there was such ill-treatment to her at the husband’s place that her living there was impossible. The “reasonable cause” as contemplated by explanation below Section 13(1) should be a cause, which should be sufficiently gave and weighty so as to justify the living of the wife away from the husband. Only because during a brief stay of the wife at her husband’s home, there was some taunts or demands of dowry, it cannot be said that they furnished a reasonable cause to the wife to leave the home of the husband and never to return. I, therefore, hold that there did not exist any reasonable cause for the wife to refuse to return to the husband. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

10. The second question is whether the wife can be held to be guilty of desertion within the wider meaning of that expression contained in explanation below Section 13(1) of the Act? In other words, whether it could be said, in the background of the facts of the case, that there was any wilful neglect of the petitioner by her constitute constructive desertion? From the evidence on record and the pleadings of the parties, it has to be accepted that, to begin with, when after the marriage and brief stay with her husband at his house, she returned to her parents, there was no intention to desert the husband. It was only a return to the parents as per the custom prevalent in the community. According to the husband, when he personally went with his sister and his brother-in-law on 21-11-1983 to Katni to bring her back, she expressed helplessness due to the wishes of her father. In para 2 of her deposition in the Court, her version is that the husband asked her to accompany, whereupon she replied that she was willing to return with him, but the husband to take any responsibility for likely misbehaviour from his mother. In para 6 of her statement, she admitted that Ramesh Advani, uncle of the husband had gone to Katni for the second time to bring her and she expressed to them that if they were agreeable to take her responsibility, she would return. Her father Panamal, examined as N.A.W.-5, substantially supported her version and stated in para 2 of his deposition that when the husband’s relations approached him to take the wife, he expressed his willingness to send her, but he complained that she was ill-treated for dowry and that they should send some responsible person to him again for necessary talks and giving assurance on the subject. The father of the wife also accepted that Ramesh Adwani, uncle of the husband, had also approached him for the purpose and to him also, he expressed that he should take the responsibility that no one should misbehave or ill-treat her, whereupon, the uncle of the husband is said to have refused to take any such responsibility. In the light of the above deposition and version of the wife and her father, it has to be judged whether the conduct of the wife amounts to a wilful neglect on her part so as to constitute desertion? The expression “wilful neglect” used in explanation under Section 13(1) of the Act has been commented by Mulla in Hindu Law, 16th Edition at page 674 and it has been explained thus:–

“…..In the context of matrimonial law wilful neglect would seem to
mean that the person is consciously acting in a reprehensible manner
in the discharge of its marital obligations or is consciously failing
in a reprehensible manner in the discharge of those obligations; and
connotes that degree of neglect, which is shown by an abstention from
an obvious duty, attended by a knowledge of the likely results of the
abstention….. The neglect to become desertion must be such as
amounts to forsaking or abandonment of one spouse by the other by a
conscious disregard of the duties and obligations of the married
state considered as a whole.”

11. Understanding the expression “wilful neglect” from the commentary above, it may be seen that in this case, the only excuse offered by the wife not to rejoin her husband was that she wanted the husband or some elderly person in the family to take responsibility that she would not be ill-treated in the marital home. To me, it appears that such an expectation from the husband cannot constitute a good ground or a reasonable ground for the wife to refuse to live with the husband. In marital relationship, there is no question of any responsibility being taken by the spouses of each other or by the elder members of their families. As I have held above, the wife utterly failed to produce any reliable evidence that she was ill-treated in her brief stay with the husband, by the mother. In her romantic letter sent to the husband after their long separation she did not even make a passing reference of having suffered any ill-treatment from him or his relations during her stay. The version of the wife and her father, therefore, neither appears believable nor reasonable. She can, therefore, be held guilty of a wilful neglect in the discharge of her marital obligations towards the husband.

12. Now the stage in considering the objection raised on behalf of the wife that the husband failed to prove desertion on the part of wife for a continuous statutory period of two years. The agreement of the learned counsel for the wife is that the two years period could not be reckoned prior to the service of the legal notice dated 31-1-1986 (Ex. P/4) and non-compliance thereof by the wife.

13. This argument also does not seem to sound. As I have stated above, on 20-6-1983, when she first left the husband’s place, there was neither any intention to leave forever, nor was there any act of wilful neglect. According to me, the wife would be guilty of wilful neglect when the husband personally approached her on 29-11-1983 and she refused to return with him, on the pretext that he had refused to take responsibility for the alleged ill-treatment by his mother. The period of desertion can, therefore, be reckoned from 29-11-1983, when she would be deemed to be . guilty of wilful neglect in discharge of her marital obligation. Reckoning period of desertion from the above date, the petition filed on 12-2-1986 was much after the expiry of two years statutory period provided in Section 13(1)(ib) of the Act.

14. The last submission made by the learned counsel for the respondent now needs to be considered that there could be no joint petition, both for restitution and divorce. I do no find any legal prohibition under the provisions of the Act for filing a petition by a spouse for restitution or in the alternative, for a decree of divorce on the ground of desertion. The husband has frankly come forward with a case that he was willing at the time of filing of the petition to receive her back in the marital home and in the alternative, if she still continued to refuse, she should be held guilty of a matrimonial offence of desertion and the marriage be dissolved. Her testimony in the Court and the letter sent by her to her husband do not at all show that she ever made any sincere effort to return to the husband. The learned counsel for the wife submitted that her letter sent to the husband expressing yearning for him and keen desire to meet him, terminated the desertion. This argument does not appear to be correct. As commented by Mulla in Hindu Law at page 677, “desertion may also be terminated by supervening animus revertendi expressed by a genuine offer to return to the deserted spouse or in case of constructive desertion by a bona fide attempt to get back the aggrieved spouse. If a deserting spouse takes advantage of the locus poenitentiae provided by law and goes back to the deserted spouse by a bona fide offer or resuming the matrimonial home with all the implications of marital life before the statutory periods is out or even thereafter before any proceedings for relief have been commenced, desertion conies to an end and if the deserted spouse unreasonably refuses the offer the entire position would become different and the latter of the former would become the deserter.”

15. From the correspondence exchanged between the parties, I find that in her letter, although she expressed her intense desire and keen anxiety to meet the husband, but at the same lime again referred to the misunderstanding that was created between him and her father. Before concluding the letter, she merely expressed a fond hope and invited him to her arms, but did not clearly express any desire to go to him. Her letter was replied by the husband vide Ex. P/16 and he gave her a clear option to either live with the father or return to him. He also expressed his willingness to come up to Bilaspur Station to receive her. No attempt on the part of the wife thereafter to return to the husband was made and it was, therefore, a clear indication that her offers earlier made to meet him were either not genuine or in any case she could not muster sufficient courage to disobey her father, who wanted that the husband should live as Ghar Jamai at Katni, like husband of his other daughters. In my opinion, on the basis of evidence led in the case, it can be safely held that where a wife submits herself meekly to the dictates of her father and has no courage to disobey and leave the parental house to go to the husband, she is guilty of wilful neglect. The husband in this case made all possible efforts to persuade and bring back the wife to his home and even after setting totally frustrated, made last attempt by filing a petition for restitution of conjugal rights, although, in the alternative, he claimed a relief of divorce. As I have said above, this is a tragedy, which has been fallen on the wife due to her own shyness and timidity coupled with the tactless handling of the entire situation by her father, who appears to have given undue importance to the frivolous quarrels and minor irritations, which were caused, in initial period of their married life. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

16. At the end, the learned counsel for the wife submitted that the husband has taken another woman from whom he has children and, therefore, her going back to him to now an impossibility. He prayed for fixing a lump-sum amount as a permanent alimony. In this case before me, there is no application for fixing permanent alimony under Section 25 of the Act which, when made, will have to be decision the basis of evidence with regard to the husband’s income and the requirement of the wife.

17. So far as the alleged second marriage of the husband is concerned, the trial Court held that the marriage was not proved. In deciding the above controversy, I had tried to remain completely uninfluenced by that fact, because even if the husband has gone through a second marriage during the subsistence of the first, with the present wife, the second marriage would be a nullity in law and has to be overlooked for the purpose of deciding this case.

18. The trial Court, keeping in view the fact that the wife will require some money for her maintenance, has fixed a sum of Rs. 200/-per month, which will be paid by the husband to the wife till her remarriage. The amount of Rs. 200/ – per month appears to me rather on lower side, taking into account the financial status of the parties, as disclosed from the evidence on record. The husband is doing private service and is earning a fixed salary. Keeping in view the fact that his income is likely to increase as also the needs of the wife, I think it proper to increase the monthly maintenance from Rs. 200/- to Rs. 300/- per month.

19. Consequently, with the above slight modification in the amount of maintenance, the appeal fails and is hereby dismissed, but without any order as to costs.