It has to be definitely acknowledged in all fairness that while ruling on a very significant legal point pertaining to cruelty by wife, the Madhya Pradesh High Court at Jabalpur in a most progressive, pertinent, pragmatic and peculiar judgment titled X vs Y in First Appeal No. 618 of 2021 that was heard on 10/05/2024 and then was finally pronounced on 30/05/2024 has minced just no words to hold in no uncertain terms that the denial of the wife for making physical relationship with the husband amounts to cruelty. We thus see that the High Court has affirmed the decision of the Family Court which had granted divorce to the husband under Sections 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955 (HMA) on grounds of cruelty and desertion by the wife since she had refused point blank to maintain physical relations with him and had left her matrimonial house voluntarily immediately after her marriage. It also ought to be noted here that a Division Bench of Hon’ble Shri Acting Chief Justice Sheel Nagu and Hon’ble Shri Justice Amar Nath (Kesharwani) had observed most unequivocally that, “Averments of the respondent that on the first night, the appellant/wife refused to make physical relationship with respondent/husband is proved…The denial of the appellant/wife for making physical relationship with respondent/husband amounts to cruelty with respondent.” No denying it. So the appeal filed by the wife as appellant against the judgment of the Principal Judge of Family Court in Satna was very rightly dismissed by the Jabalpur High Court.
At the very outset, this cogent, commendable, courageous and creditworthy judgment authored by Hon’ble Shri Justice Amar Nath (Kesharwani) for a Division Bench of the Madhya Pradesh High Court at Jabalpur comprising of Hon’ble Shri Acting Chief Justice Sheel Nagu and himself sets the ball in motion by first and foremost putting forth in para 1 that, “This first appeal under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984, has been filed by appellant/wife being aggrieved by judgment and decree dated 17/08/2021 passed by Principal Judge, Family Court, Satna (M.P.) in Hindu Marriage Case No.45/2018, whereby the application filed by respondent/husband for divorce under Section 13-1 (i-a) & (i-b) of the Hindu Marriage Act, 1955, (which shall be here-in-after referred to as the “H.M. Act”) has been allowed.”
To put things in perspective, the Division Bench while elaborating on the facts of the case envisages in para 2 observing that, “Brief facts of the case are that on 15/01/2018 respondent-husband filed a divorce petition under Section 13-1 (i-a) & (i-b) of the H.M. Act before the learned Principal Judge, Family Court, Satna on the ground of cruelty and desertion by the appellant/wife, averring that his marriage was solemnized with appellant on 26/05/2013 as per Hindu customs and rites but on the first night itself appellant-wife refused to establish physical relations with him and also told that she does not like him and she got married under the pressure of her parents. Thereafter, on 29/05/2013 brother Sandeep and cousin brother of appellant-wife came to the house of respondent-husband and took the appellant-wife with them for making her appear in final exams, which was allegedly scheduled for 30/05/2013. On 31/05/2013 when family members of respondent-husband went to the house of appellant-wife to take her to matrimonial home, her parents denied to send the appellant-wife with him and ever since appellant did not return to her matrimonial home. It was also alleged in the petition that appellant-wife also lodged a report at Mahila Thana, Sidhi with regard to demand of dowry and in lieu of that on 19/06/2013 respondent-husband and his family members went to Mahila Thana, Sidhi, where even upon insistence of the respondent-husband, the appellant-wife just refused to go with him. Thereafter, on 18/07/2013 respondent-husband returned the house hold articles and jewellery to the appellant-wife which he got at the time of marriage. On the same day, the appellant gave an affidavit to the effect that she is voluntarily divorcing the respondent. There is no relationship of husband and wife between her and the respondent and neither will she have any right in the property of the respondent. The respondent is free to marry whoever he wants and she will not take any legal action against the respondent in future and she also wrote that she does not want to take any action in the report relating to demand of dowry lodged on 13/06/2013 before the Mahila Police and in pursuance of that the respondent and his father also executed their affidavits. Sometime later on 21/04/2014 appellant/wife lodged a case against the respondent/husband under the Domestic Violence Act before the Court of Chief Judicial Magistrate, Sidhi (M.P.). Such conduct of the appellant/wife persuaded the respondent-husband to file application under Section 13 of the “H.M. Act” for dissolution of marriage on the ground that marriage of the parties was solemnized on 26/05/2013 and wife has deserted him on 29/05/2013 without any cogent reason and there was no cohabitation ever since between the parties and also on the ground of cruelty caused by the appellant-wife and her family members towards the respondent-husband and his family members and prayed for decree of divorce in favour of respondent-husband.”
As it turned out, the Division Bench then enunciates in para 8 stating that, “In Support of his pleadings Respondent/Husband has examined himself as AW-1 and witnesses Bhopal Vishwakarma (AW-2), Dayanand Vishwakarma (AW-3) and Motilal Vishwakarma (AW-4). Similarly, we see that Appellant/Wife has examined herself as NAW-1.”
Do note, the Division Bench notes in para 9 that, “Appellant Smt. Sanchita Vishwakarma (NAW-1) has admitted in para 11 of her cross-examination that on 29/05/2013, her brother Sandeep and Cousin came to her in-laws house for taking her to parental house for appearing in M.Com final examination. She has also admitted in this para that on 31/05/2013, her father-in-law, elder brother of father-in-law, brother-in-law and some other persons came to her parental house for taking her to her matrimonial home. She has also admitted in para No.12 of her cross-examination that on 31-May-2013 when her father-in-law came to her parental house for taking her to her matrimonial home at that time her father told the respondent/husband that now the examination of her daughter are going on, therefore, you may come in the month of June, 2013 for taking her. It is also admitted in para 13 of her cross-examination by NAW-1 that on 31/05/2013 when her father-in-law alongwith other relatives came to her parental house to take her, she did not go with them due to her examination. NAW-1 has also stated that after 29/05/2013 she never went to her in-laws house although, because her in-laws did not come to take her from parental house. She has also admitted in para 13 of her cross-examination that on 19/06/2013, when her family members, her husband, her father-in-law and some other relatives went to the police station, then she refused to go to her in-laws house. She has also admitted in para 15 of her cross-examination that she has lodged the report (Ex. P/2) at Police Station Kotwali and read out and signed the same. She has also admitted in this para that she has also lodged a case against her husband under Domestic Violence Act and she has not filed any appeal against order dated 01/09/2016 (Ex. P/22) passed by the Court of Chief Judicial Magistrate, Sidhi (M.P.). She has also admitted that in her statement (Ex. P/28) recorded before the court of Chief Judicial Magistrate, Sidhi (M.P.) in para No.4, it is mentioned clearly that she stayed for 2 days in her in-laws house and during that period no physical relations were established between the appellant/wife and the respondent/husband.”
Most significantly, we must note here that the Division Bench then notes in para 10 what constitutes the real cornerstone of this robust judgment holding clearly that, “Hence, from the admission of appellant/wife, it is proved that after solemnization of marriage on 26/05/2013, she went to her in-laws house and stayed there till 28/05/2013 and thereafter, on 29/05/2013, she came back to her parental house with her brother for appearing in M.Com. final examination and when her father-in-law alongwith other relatives came to her parental house for taking her back to her in-laws house, then she did not go with them. It is also proved from para 4 of her statement recorded before the Court of Chief Judicial Magistrate, Sidhi (M.P.) that no physical relation was established between the appellant and respondents. Hence, averments of the respondent that on the first night, appellant/wife refused to make physical relationship with respondent/husband is proved.”
It is definitely worth noting here that the Division Bench notes in para 11 that, “The denial of the appellant/wife for making physical relationship with respondent/husband amounts to cruelty with respondent. It is also proved that on 31/05/2013, when father of respondent and other relatives came to parental house of appellant/wife for taking her to matrimonial home, she refused to go with them and on 13/06/2013, she lodged a written complaint (Ex. P/2) before Police Station Kotwali. Thus, it is proved in the case beyond doubt that the appellant/wife and respondent/husband are residing separately from 29/05/2013 and it is also proved that on 31/05/2013, when father-in-law and other relatives of appellant went to her parental house for taking her back to matrimonial home, appellant refused to go with them and since then appellant/wife is living at her parental house and has lodged a report against respondent and his family members for demand of dowry and after that she has executed an affidavit alleging that she has given divorce to the respondent with her consent and she has no objection if after getting the divorce, the respondent chooses to remarry and nothing remains in their relations. She also stated in the affidavit that she will not be claiming any right over the movable or immovable property of respondent in future and she has also averred that she does not want any action on her written complaint dated 13/06/2013 (Ex.P-2). Appellant Sanchita Vishwakarma (NAW-1) has admitted her signature on the affidavit (Ex.P-4) in Para-14 of her cross-examination.”
Be it noted, the Division Bench notes in para 12 that, “As discussed above, appellant/wife resided in her in-laws house for only 3 days and during this period there was no co-habitation between the parties and after since then the appellant/wife and respondent/husband have resided separately for last more than 11 years.”
Briefly stated, the Division Bench while referring to relevant case law points out in para 13 that, “In the case of Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558, Hon’ble Apex Court has held that once the parties have separated and the separation has continued for sufficient length of time and one of them has filed petition for divorce, it can well be presumed that the marriage has broken down.”
As a corollary, the Division Bench then expounds in para 14 that, “Looking to the aforesaid facts and circumstances of the case and in the light of judgment pronounced by Hon’ble Apex Court in the case of Praveen Mehta Vs. Indrajit Mehta, (2002) AIR (SC) 2582 and in the case of Naveen Kohli Vs. Neelu Kohli, AIR 2006 SC 1675, we are of the view that no illegality or impropriety is found in the impugned judgment and decree which requires any interference by this Court.”
It is worthwhile to note that the Division Bench then acknowledges in para 15 that, “As regards the judgment relied upon by learned counsel for appellant in the case of Bijendra (supra) being distinguishable on facts is of no help to the appellant.”
Resultantly, the Division Bench then holds in para 16 that, “Hence the appeal being devoid of any merits, deserves to be and is hereby dismissed and judgment and decree dated 17/08/2021 passed by Principal Judge, Family Court, Satna (M.P.) in HMA Case No.45/2018 is hereby affirmed.”
For clarity, the Division Bench clarifies in para 17 that, “Looking to the facts and circumstances of the case, parties will bear their own costs.”
Finally, the Division Bench then concludes by directing in para 19 that, “Let a copy of this judgment alongwith record be sent back to the Court concerned.”