[2026:RJ-JP:7506-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Miscellaneous Appeal No. 2483/2012 Smt. Anju @ Laxmi, Wife of Mukesh, D/o Ranmiwas aged 26 years, resident of Basadi Khandela Mod, Tehsil Srimadhopur, Dist. Sikar. ----Appellant Versus Mukesh S/o Ram Narayan, aged 30 years, resident of Ward No.17, Shastri Nagar, Sikar, Dist. Sikar. Respondent For Appellant(s) : Mr. Saransh Saini Mr. Vinod Kumar Sharma Mr. Neeraj Pal Ms. Ayushi Singh Ms. Sanjana Choudhary For Respondent(s) : Mr. Nitesh Pareek for Mr. A.K. Bajpai, Sr. Adv. HON'BLE MR. JUSTICE SUDESH BANSAL HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Judgment 17/02/2026 1. This appeal under Section 28 of Hindu Marriage Act, 1955 (for short, ‘the Act of 1955’) was filed by wife, feeling aggrieved by dismissal of her divorce petition bearing Civil Miscellaneous Case No.47/2009 vide judgment dated 11.04.2012 by Additional District Judge, Neemkathana, District Sikar. 2. We have heard counsel for both parties and perused the record. 3. In brief, the relevant facts are that marriage between parties was solemnized on 13.02.2001; no child was born out of their wedlock; wife filed divorce petition on 20.08.2009 alleging inter [2026:RJ-JP:7506-DB] (2 of 8) [CMA-2483/2012] alia that she was subjected to cruelty due to which she is living separately from her husband since about three years, hence, she prayed to dissolve her marriage on the ground of cruelty and desertion. Divorce Petition was resisted by husband and in the reply, a counter claim for restitution of conjugal rights was made. 4. In support of allegation of cruelty, wife-appellant deposed her own statements as AW-1 and her father-Ram Niwas appeared as AW-2. The testimony of the statements of wife and her father has not been countered from the side of husband, since neither any cross-examination from both witnesses was made nor any counter evidence by husband was adduced. 5. It is noteworthy that during course of divorce petition, on an application under Section 24 of the Act of 1955, claiming maintenance pendente lite, husband was directed to pay interim maintenance @ Rs.2,000/- per month vide order dated 10.11.2010, but since he miserably failed to pay the interim maintenance, hence, defence of husband was struck out vide order dated 08.03.2011. 6. Family Court, vide judgment impugned, not only dismissed the counter claim of husband for restitution of conjugal rights for want of any evidence, but also dismissed the divorce petition of wife fundamentally for the reason that younger sister of wife also entered into marriage with brother of husband and she didn’t appear in the witness box to support the allegations of cruelty made by wife against husband, hence, the Family Court drew an inference that no cruelty was committed with wife. 7. Having gone through the statements of wife and her father (AW-1 & AW-2), we find that it has been deposed that younger [2026:RJ-JP:7506-DB] (3 of 8) [CMA-2483/2012] sister-Smt.Meenakshi, though was married with brother of her husband, but both of them started to live separately from the joint family and wife continued to live in the joint family, hence, wife alone was subjected to cruelty by her husband and family members of her in-laws for demand of dowry, beaten up and finally she was turned out from her matrimonial home. Such allegations of cruelty, have not been refuted by the husband. From the statements of wife and her father, the allegations of cruelty stand established and non-appearance of his younger sister, does not give any adverse inference against wife to hold that her allegations of cruelty are not proved. 8. Cruelty as a ground of divorce in matrimonial cases is seen as “human conduct” and “behavior” in the matrimonial relationship. In every case, cruelty need not be in form of a violent act or intentional, but it can be circumstantial and unintentional as well. In every matrimonial relationship, parties look for companionship, sharing, mutual confidence and cohesiveness. Maintaining a physical relationship and cohabitation between a married couple, obviously plays a pivotal role and virtually is the bedrock of a sound and strong matrimonial relationship. 9. The Hon’ble Supreme Court in case of Praveen Mehta v. Inderjit Mehta [(2002) 5 SCC 706], held and observed in Para Nos. 20 & 21 as under: “20. In the case in hand the foundation of the case of 'cruelty' as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically she [2026:RJ-JP:7506-DB] (4 of 8) [CMA-2483/2012] refused. As the condition of her health deteriorated she became irritating and unreasonable in her behavior towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K. Jain. This Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane [(1975) 2 SCC 326] observed : "Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment". 21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.” (underline supplied) 10. In oft-quoted and celebrated judgment of Hon’ble Supreme Court delivered in case of Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511], the Court observed that the entire married life, as a whole, should be reviewed in order to see whether the conduct of the spouse amounts to cruelty. It was opined that cruelty can be physical as well as mental. It was also observed that cruelty can [2026:RJ-JP:7506-DB] (5 of 8) [CMA-2483/2012] even be unintentional. The relevant portion of Para No.46 is being referred hereunder: “46.....The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment." (underline supplied) Further in Para No. 101, few illustrations, though not exhaustive, were enumerated which could come within broad parameters of mental cruelty: “101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: * * * * (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” (underline supplied) 11. Following the ratio decidendi expounded by the Hon’ble Supreme Court in case of Samar Ghosh (supra), recently the Apex Court in case of Rakesh Raman v. Kavita, [(2023) 17 SCC 433], while dealing with the issue of irretrievable break- down of marriage and long separation between parties and non- cohabitation for a long period, it was held and observed in Para Nos.20 & 27 as under: [2026:RJ-JP:7506-DB] (6 of 8) [CMA-2483/2012] "20. Matrimonial cases before the Courts pose a different challenge, quite unlike any other, as we are dealing with human relationships with its bundle of emotions, with all its faults and frailties. It is not possible in every case to pin point to an act of "cruelty" or blameworthy conduct of the spouse. The nature of relationship, the general behaviour of the parties towards each other, or long separation between the two are relevant factors which a Court must take into consideration. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] a three judge Bench of this Court had dealt in detail as to what would constitute cruelty Under Section 13(1) (ia) of the Act. An important guideline in the above decision is on the approach of a Court in determining cruelty. What has to be examined here is the entire matrimonial relationship, as cruelty may not be in a violent act or acts but in a given case has to be gathered from injurious reproaches, complaints, accusations, taunts, etc. The Court relied on the definition of cruelty in matrimonial relationships in Halsbury's Laws of England (Vol 13, 4th Edn, Para 1269, Pg 602) which must be reproduced here: "The general Rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that Rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists." [2026:RJ-JP:7506-DB] (7 of 8) [CMA-2483/2012] 27. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty Under Section 13(1) (ia) of the 1955 Act." (underline supplied) 12. In our considered opinion, the trial Court could not consider and appreciate the concept of cruelty in its true purport and committed error of fact and law in dismissing divorce petition of wife. 13. In addition, trial Court failed to consider that wife has established the ground of desertion as well. She was staying separate from her husband since three years prior to filing of divorce petition. Wife assigned a just and reasonable cause to leave her husband and a counter-claim filed by husband, for Restitution of Conjugal Rights was dismissed due to not adducing any evidence by husband. Hence, the intention of husband to abandon the matrimonial relationship with wife can be inferred. In this view, wife is also entitled for a decree of divorce on the ground of desertion as well. 14. It appears that in the divorce petition, wife made a claim of permanent alimony to the tune of Rs.15,00,000/- but in her evidence, not a single word was whispered by her to support claim of permanent alimony. In absence of any supportive evidence of wife, to substantiate her claim of permanent alimony, we do not find any reason to grant permanent alimony to wife, more so in [2026:RJ-JP:7506-DB] (8 of 8) [CMA-2483/2012] the backdrop of factual matrix that there is no child born from this wedlock and wife is living separately since about 2006 onwards. 15. The net outcome of the aforesaid discussion is that the appellant-wife is entitled for a decree of divorce on the ground of cruelty and desertion under Section 13(1)(i-a)(i-b) of the Act of 1955 but she is not entitled for permanent alimony as claimed against her husband. 16. Accordingly, the present appeal is allowed to this extent. The impugned judgment dated 11.04.2012 is hereby quashed and the marriage solemnized between parties dated 13.02.2001 is hereby dissolved. 17. The Registry to draw a decree accordingly. 18. All pending application(s), if any, also stands disposed of. 19. Record of the Family Court be sent back. (ANIL KUMAR UPMAN),J (SUDESH BANSAL),J GAUTAM JAIN/RONAK JAIMAN/26-S