1 HIGH COURT OF MADHYA PRADESH: BENCH: INDORE (DIVISION BENCH: HON.MR.JUSTICE SHANTANU KEMKAR AND HON.MR.JUSTICE PRAKASH SHRIVASTAVA) FIRSTAPPEAL NO.451/2003 Prakashrao S/o Omkarrao Deshmukh ... Appellant Vs. Smt.Jyoti W/o Prakashrao Deshmukh ... Respondent For appellant: Shri V.P.Saraf, Advocate. For respondent: Shri Sachin Subnis, Advocate. ----------------------------------------------------------------------------------- J U D G M E N T (Delivered on 5th December, 2011) Per Prakash Shrivastava,J:- This First Appeal under Section 28 of the Hindu Marriage Act is at the instance of the husband challenging the judgment and decree dated 19th August, 2003 passed by the Court of Additional District Judge, Shujalpur, dismissing the Case No.2/2002. [2] The appellant had filed the application seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act, pleading that his marriage with the respondent was solemnised on 21/2/2000. After 5-6 months of the marriage, the respondent had started creating disputes. She used to abuse and insult the parents of 2 the appellant and falsely tell her relatives that her in-laws were demanding dowry and torturing her. She had made a false report under Section 498-A of the IPC which had ended into compromise. One day she had started fighting on the old issues and had thrown belan on the appellant and had said that she would commit suicide and send her in-laws to jail. On these pleadings, a prayer for grant of decree of divorce on the ground of cruelty was made. [3] The respondent by filing the written statement had denied the allegations by stating that she had always tried to keep her husband and his family members happy, but they used to mistreat her for not bringing the adequate dowry and Rs.10,000/-, colour TV and cooler demanded by them. She further pleaded that since she was beaten by the appellant and his mother and the dowry was demanded, therefore, she had made a complaint to the police under Section 498-A of the IPC which had ended into compromise in the presence of respectable members of the family. She had denied the allegation of insulting and mistreating her in-laws or abusing the appellant and throwing Belan on him. She had also denied the allegation of extending threat to commit suicide and had categorically stated that she wanted to live with the appellant and perform her 3 duty as wife. [4] The trial Court, by the impugned judgment dated 19/8/2003 has dismissed the application for divorce on reaching to the conclusion that the appellant had failed to establish the cruelty on the part of the respondent. The said finding has been arrived at by the trial Court after considering the evidence brought on record by the parties. [5] Learned counsel appearing for the appellant submitted that from the evidence on record, the cruelty on the part of the respondent-wife is established, therefore, the appellant is entitled for the decree of divorce under Section 13(1)(ia) of the Act. He further submitted that it is a case of irretrievable breakdown of marriage, therefore, in terms of the various judgment of the Supreme Court, the appellant is entitled to the decree on this ground also. In support of his submissions he has relied upon several judgments of this Court as well as the Supreme Court. [6] Learned counsel for the respondent has supported the judgment of the trial Court by submitting that from the evidence on record, the ground of cruelty is not established. He has also submitted that it is not a case of irretrievable breakdown of marriage and no decree on this ground can be granted in the 4 facts of the present case. In support of his submissions he has also relied upon several judgments of this Court as well as the Supreme Court. [7] We have heard the learned counsel for parties and perused the record. [8] The issues which arises for consideration in this appeal are as under:- (1) Whether the appellant has successfully established the ground of cruelty entitling him for decree of divorce under Section 13(1)(ia) of the Act ? (2) Whether it is a case of irretrievable breakdown of marriage ?. Both the issues are interconnected, therefore, they are decided together. [9] The appellant in order to prove the ground of cruelty had examined himself as PW.1. He has stated that the respondent used to abuse and humiliate his parents whereas the statement of PW.2 Kusum Deshmukh, mother of PW.1 shows that respondent used to treat her father-in-law like her father. The incidents narrated by PW.1 in his statement are the usual frictions which take place in the matrimonial life between husband and wife. The incidents of not bringing the drinking 5 water for the guests, refusing to do the work of all the persons etc. are the small issues which would not constitute cruelty and even otherwise they are not supported by any independent evidence. The appellant has stated that the respondent used to abuse his sister and mother but the sister of the appellant has not been examined to prove it and PW.2 Smt. Kusum Deshmukh, mother of the appellant has not supported it. He has stated about the incident of beating by respondent with Belan but the same is not only unsupported statement but also seems improbable keeping in view the other evidence on record. The appellant himself has stated that after the incident he had met his parents but had not informed them about this incident which makes the version of the appellant doubtful. [10] PW.2 Smt. Kusum Deshmukh, the mother of the appellant has stated that the respondent used to tell lie in respect of the wiping of the floor of the house and used to cook extra food etc, but she has categorically stated that no hot talks ever took place between her and the respondent. Her statement only indicates that there were some differences and disputes on the small household issues which are normal and natural in any family. Her statement also indicates that the respondent used to treat the parents of the appellant with respect. 6 [11] PW.3 Praveen Onkarrao Deshmukh is the brother of the appellant but his statement is mainly a hearsay statement based upon the information received from other persons. The incident of putting less salt in breakfast cannot be termed as an act of cruelty. [12] PW.4 Mukesh Deshmukh is a friend of the appellant who has categorically stated that in his presence no dispute between the respondent and her in-laws had taken place and even otherwise he is not a reliable witness as he had given the affidavit in-chief as per the instructions of the appellant and his family members. [13] As against this, the respondent had examined herself stating that her father-in-law is a simple and religious person and his behaviour towards her was good and that she had never insulted her father-in-law. Her statement indicates that the behaviour of the appellant and his mother towards the respondent was not proper, yet the respondent wants to live with the appellant since she is from a poor family and in the society to which she belongs, second marriage is not permissible. Statement of DW.3 Manoj Deshmukh, brother of the respondent also indicates that the behaviour of the appellant and his family members towards the respondent was not good and 7 that the respondent is from a poor family. [14] The above analysis indicates the witnesses of the appellant have failed to disclose the specific incidents which would amount to cruelty on the part of the respondent. From their statements it appears that at some occasions some disputes had taken place between the respondent and her husband or in- laws on small household issues relating to day today work, but such disputes are not unusual in the joint families and no inference of cruelty can be drawn on that basis. [15] It has further been argued before this Court that cruelty is also established from the fact that the respondent had lodged a false criminal case under Section 498-A of the IPC, resulting in harassment to the appellant and his family members. [16] The statement of the respondent shows that she had to file the case under Section 498-A of the IPC since the appellant and his family members were demanding dowry and were harassing her. It is not the case of the appellant that in pursuance to the said complaint, the appellant or his family members were arrested or kept in custody. The evidence on record also indicates that the family members of the respondent themselves had taken the initiative to compromise the matter and on the basis of the said compromise the criminal case had come to an 8 end. Therefore, in such circumstances making of complaint by the respondent under Section 498-A of the IPC would not amount to cruelty. [17] Learned counsel for the appellant has placed reliance upon the judgment of this Court in the matter of Anuradha Prafull Vaidh Vs. Prafull Vaidh reported in 2007(4)MPLJ 123, but the said judgment is distinguishable on its own facts since in that case on the complaint under Section 498-A of the IPC the family members of the husband were sent to jail and parents were required to suffer incarceration for more than two years and their conviction was set aside by the Sessions Court giving benefit of doubt and there was reasonable apprehension in the mind of the husband that living together with the spouse was not possible, but the fact situation in the present case is different. Similarly the benefit of the judgment in the matter of Vandana Gupta(Smt.) Vs. Ramesh Gupta reported in 2009(1)MPWN 16 cannot be granted to the appellant since in that case the false allegation of demand of dowry, misbehaviour with the parents of the husband, calling the husband impotent, threatening the husband to involve in criminal case were established, therefore, the Court held that the same would amount to cruelty, but in the present case no such allegations 9 have been proved which would amount to cruelty on the part of the respondent. [18] Learned counsel for appellant has also placed reliance upon the judgment of the Supreme Court in the matter of Naveen Mohli Vs. Neelu Kohli reported in 2006(3) MPLJ 1, wherein it has been held that the cruelty allegations largely depend upon the type of the life the parties are accustomed or their economic or social conditions or their cultural and human values and each case has to be decided on its own merit. We have already examined the entire circumstances of the case in the preceding paragraphs and have found that the appellant has failed to establish the cruelty on the part of the wife, therefore, this judgment is of no help. [19] The appellant has also advanced the plea of irretrievable breakdown of marriage but the facts of the present case are different. The marriage was solemnised only in 2000 and thereafter the parties had lived together peacefully for some time. The evidence indicates that the respondent is not living separately voluntarily, but the appellant is not allowing her to live with him. The respondent has taken a categorical stand before the trial Court as well as before this Court that she wanted to live with the appellant as wife. The reluctance is only 10 on the part of the appellant-husband. Thus, the irretrievable breakdown of marriage is not established. [20] Learned counsel for appellant has placed reliance upon the judgment of the Supreme Court in the matter of Durga Prasanna Tripathy Vs Arundhati Tripathy reported in 2006(2)MPLJ1 wherein complete irretrievable breakdown of marriage has been held since the parties had separated for last 14 years and there was no possibility of their resuming normal matrimonial life, but in the present case since the wife is willing to live with the appellant and the allegation against the wife are not of serious nature, therefore, the possibility of re- union of the parties cannot be ruled out. [21] The ground for irretrievable breakdown of marriage cannot be upheld also for the reason that the Supreme Court in the matter of Shyam Sunder Kohli Vs. Sushma Kohli @ Satya Devi reported in 2005(1) MPLJ 14 has held that the Court only in extreme circumstances may use the ground of irretrievable breakdown of marriage for dissolving marriage. In the matter of Chetan Dass Vs. Kamla Devi reported in AIR 2001 SC 1709 the Supreme Court has taken the view that the husband who commits wrong cannot be given an advantage of his own wrong and cannot be granted divorce on the ground of 11 desertion on the part of his wife who is still prepared to live with him. In the matter of Murarilal S/o Late Harprasad Vs. Saraswati d/o Late Khuman w/o Murarilal reported in 2003(2)MPLJ 489 this Court has taken the view that the husband having failed to prove cruelty on the part of the wife is not entitled to decree of divorce invoking the concept of irretrievable breakdown of marriage. [22] In view of the aforesaid analysis, we are of the considered opinion that the appellant has failed to establish the ground of cruelty as required under Section 13(1)(ia) of the Act and in the facts of the present case, irretrievable breakdown of marriage is also not proved. Thus, the trial Court has not committed any error in dismissing the suit for divorce filed by the appellant. [23] Accordingly, the appeal has no merit and the same is dismissed. (Shantanu Kemkar) (Prakash Shrivastava) JUDGE JUDGE VM