Allowed

Dev Das Darsena v. Smt.Girja Bai Darsena

Chhattisgarh HC7 Feb 2010FA/253/1992

Case brief

AI extract

What is this about?

In an appeal against a dismissal of a divorce petition, this Court held that the respondent's persistent refusal to cohabit and deny marital relations constituted mental cruelty. The trial court's finding that the conduct was condoned was reversed as mere reconciliation efforts without restored cohabitation do not amount to condonation, allowing the divorce decree.

What did the court decide?

The judgment and decree of the trial court are set aside; the parties stand dissolved by a decree of divorce.

Dev Das Darsena Vs Smt.Girja Bai Darsena — Matrimonial and Divorce | Chhattisgarh HC (2010)

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'IL v‘ { bout 35 ye” g!

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VgV

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EEG}! €QURT OF CHHATTISGARH AT EILASPUR

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FA. N0. 253 OF 1992

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‘ A?PELLNT Dev Das Darsena

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VersuS

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RESNDENT?G

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Smt. Girija Bai Darsena

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QRDER

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Post for S’ 22010

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Sd/\J‘ T. P. Sharma ,Jpdge

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EEIGH (2033'? 9F CHEATTESGARE A? B§L&$P{7R

FA Na 253 OF 1992

A??ELLNT

36v Dag“: Daména

Vexsag

RE3PONDENT

Suit. Girija Baj Darsena

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3IE¥§LE BEKCH? Hon. Shri NK. Agamva}, J

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PRESENT :-

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Shri S.C‘ Verma, Advocate, for the^appeliant. Shri D.N. Prajapati, Advocate for the resspondant.

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oRnER

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( g^-2—2010)

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1. Instam appeal is dirécted agamst the judgm€nt and decme dated 28~9- 1992 passai^by the^{HirdAdditionalJudgstothe} Court of District Judge, Rajpur in Civii Suit NO. 129—A1/9 whereby and Wheremder application^fordivorce preferred by the appeliant under Setcion 13(1){i—a} of the Hndui Mairiage Act, 1955 (briefly, ‘Act’) has been dismissed. It i3 not in dispute that parties to the proceedmge^weremarried as per Hindu rites on 1‘5— 1982,^They lediv^{togetherupto30-} 4- 1987 and since tereafterh they are living^separately.

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:2. Accorcii‘ng to the piaintiff, the respondent^{aeveraiiowedhim} to have marital intercourse. Earlier the appeiiant got examined her by uoctor, but seh was mediealiy found fit. She refused for marital intercourse^{Without.anyreasonabie} and probable cause throughout and also iii treated his famdy members in Novembe,r 1982, she made unsuccessful atemptt of running^{awayfromthematrimonial} home. Gnce she tried to jmpu^{intothewellandwasrescued} with the help of Villagers. She then^{wentRaigarhwithher} maternal atmt and thereafter^{shewas1ivingwithherfather.} She confessed her guiit before ‘viilage panchayat and executed an agreement of^{confessiontherefo"e,theappeilant} brought her back to matriinoniai^{homeWhereshelivedfor4} mon is but her behaviour^{remainedunchanged.} Still she was not aiiowing the appellant^{tokeepmatrimonialreiations}

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‘ "A

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a 1161.13 -. in1 mis1 way, 1116 I‘Espondent’S bahaviour with €h€

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app-61mm is Vély @1161 and thaw: was 31c optian f0? the app€11ar1$ but :0 app1y for diverca

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C9 . The respondent tiled her written statement an‘ denied the ailegaiian and piaadec1 that she never yéfused to keap mam‘inwriiai relatioas. She never ilHreated the appelEam’s family members. She used to d0 every WOrk in the matrimonial home. It is the appe11a11t who does not waat to live with her because the respondent iS villager and 3.130 uneducated. Hewever, she had admitted in her written statement that due to intervention of Viilage panchayat, the appeliaiit brought her back to ma’m’monial home.

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x4 .lssues were framed by the trial Court and parties led e’tidence.

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OI Leai‘ned Court below on a close scrutiny of the evidence led, material placed and Submissioris made, recorded a finding that the appellant failed to prove the grouod taken in the petition^{anddismissedthe} petition.

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. Shri Verma, learned counsel for the appellant would submit that learned Court below had erred in recording a finding that, the appellant. had failed to prove the ground taken in the said petition and thereby dismissing the petition.

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Per contra, Shri D.N. Prajapati, learned counsel for the respondent would submit that trial Court has rightly dismissed the petition and the finding arrived at by the trial fourt is based on appreciation of evidence and judgment

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and decree passed by the trial Court deserves to be upheld.

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. l iave heard learned counsel for the parties. Perused the impugned judgnent and decree and record of the trial Court.

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The existence of cruelty depends not on the magnitude but rather on the consequences of matrimonial offence of cruelty actual or apprehended. Personalities of the parties is an important element for the decision as to Whether the status between the two spouses had been cruel. Cruelty as envisaged under the Act is not restricted to aets of physical violence and may extend to behaviour which may cause pain

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anti injury t0 fhs mind as W€11 as to render the continuénw in matrimeniai homa an ord€a1 Wher€ it beconms impogsibk for them to 1ive together Without mental agony, isrture or “cruelty” zlistmSs. Thé 6X1pression as envisag€d umier Sécticm 13 of the Act dearly admits in its ambit and scope Such aces Whieh may even cause mental agony to aggrieved party. Cruelty may result where the compiajning spouse estabiishes his/her being treated with cruelty Whether -acts physical, mental, social or othezwise but the complained of must be more serious than the ordiilaxy^wear and tear of marriage falling in the category of conscioua^acts cruel in iature as^that is the underlymg requirement^ofthe pl‘CVlSlOi’l. 10‘ The intention to be cruel is not an essential^elementof cruelty as envisaged under Section 13(1)(i-a) of the Act. if bitter waters are flowing it is not necessary^{toenquirefrom} which source they spring. The intention or motive^behind the cruelty has lost significance in^{theChangedsocietyand} the social atmosphere of the present^{day.Itissuiticientthat} ii" the crue ty is of the type which indicates^{thattherelations} between the spouses had deteriorated to such an extent due to the conduct of one or the^{otherthatithasbecome} impossible for them to li^"e together without mental agony. in marital matters, the feelings and attitudes^ofmindsare material.

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Test of cruelty to be inferred by any conduct^ofspouse

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in its ordinary and natural meaning.^{Crueityisnotdefined} specifically. it is Courts responsibility^{tointerpretanalysis} and define it. The allegations of ill-treatment, abusing indulgence in undesired activities; neglect of matrimonial obligations and driving out the^{Wifeoutofhermatrimonial} home by her husband is mental cruelty. Mental cruelty causes gievous injury and createsreasonable^apprehension of unsafe.

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1. it is settled position of law that^{refusalorvoluntary} acts of a party to the marriage depriving^{theotherofsociety} and cohabitation or to have sexual intercourse for a long

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time amounts t0 cru€1ty. Failure^”to comply with 01m of th€ aSsential oi31£gations of th€ marital lif€ by the Wifé WOuld amount to subj€cting th€ husbarid to crudtyx Th6 agreemsnt EX. P—l i316d in the case is a1} inportant piece 0f evidemce by which fhe reepondent confessed her default and pyemieed^{tobehaveinamannerwhichwife/daughter‘in—mw} i$ required to behave 1'11 a maflimonial home and on her promise^{andherfather’s} premise^{a?theinstanceofviilage} palchayat,^{theeppeHantbroughthe:back} ‘te mam‘imoniaé Ewme. There she resided. for 4‘ months. Behaviour of the respondent was not chahged‘ This fact that no chahge was observed iii the respondent’s behaviour has been admitteC‘: by her in para 8 her wm‘tteh statemeht. If that admission is read along with Ex. P—l, it wouki be clear that she does not want to cohabit with her husband i.e. the appeilaht.

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I have goae through the pleadings of parties. hi her written statement, she had not alleged anything against appellant or his family members. She had only said that she never denied marital relations with the appeiiant and never dissatisfied the appeilant but nowhere it has been said that she in fact, had such relations with the appeilant. She had admitted allegations leveled by the appellant upon her in confession agreement Ex. P—l. The appellant after her confession tried to reconcile with her and in furtherance, he brought her back to matrimonial home. But position remained unchanged and in View of above, it cannot he said that the appellant’s petition for divorce on the ground of cruelty under Section l3(1}{ia) of the Act is Without merit. After a careful scrutiny of die evidence led and material placed^onrecord, in the considered opinion of this Court, the appellant has been able to prove persistent deiiberate denial of respondent to have marital relationship with the appellant. l4. So far as the finding recorded by learned Tribunal that the above conduct/of the respondent hasbeen condoned by the appellant is concerned, the same is also sans merit. Mere effort on the part of a spouse to reconcile with his or

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no,⁷

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5 @

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1161“ counter pent does not amount to condonation. TO constitute^{condonaticn,thafargivenesshastobefollowad} by restoration and^{cchabitation.Toconstitutecondonation,} {ham must, therefore, be two things; forg‘veness a11d restoration. As to What constitute forgiveness wouid apparently depend^{uponthefactsofeachcase.Heremthe} present^{case,theappellanttriedtoreconcilewithherwith} an altention^{tolivewithherandtoleadhappymarrieélife,} but even thereafter^she did not allow^him to intercourse and, therefore,^{nooptionleftwiththeappellantbuttoleave} her. In the circumstances, it cannot be said that the respondent’s^{defaulthasbeencondoned.}

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In the facts and^{circumstancesofthecase,thefinding} recorded^{bythetrialCourtisnotcorrectandtheappellant} has succeeded^{inestablishingthegroundofCruelty.Besides} that, it is^{notindisputethat} parties^{totheproceedingsare} living separately^{sinceApril,1987i.eforabout23years,for} no fault of^{appellant;Therefore,theappellantisentitledfor} decree of^divorce. _

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in the result,^{theappealisallowed.Thejudgmentand} decree of trial^{Courtissetaside.Themarriagesolemnized} between^{theappellantandtherespondentstandsdissolved} by decree^ofdivorce.

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X H Sd/// .lL^NeKAgarwal Judge

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l 7. No order^astocosts.

Dev Das Darsena v. Smt.Girja Bai Darsena

Case brief

What is this about?

What did the court decide?

Dev Das Darsena v. Smt.Girja Bai Darsena

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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