HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Miscellaneous Appeal No. 400/2008 Radhey Shyam S/o Shri Kesra, Aged about 45 years, R/o Rethi Mohalla Ward No. 8, Malpura, District Tonk. ----Appellant Versus Smt. Maina W/o Shri Radhey Shyam, D/o Bhanwar Lal, R/o Deval, Tehsil Malpura, District Tonk. ----Respondent For Appellant(s) : Ms. Mamta For Respondent(s) : Mr. Swaraj Panwar HON'BLE MR. JUSTICE SUDESH BANSAL HON'BLE MR. JUSTICE SANDEEP TANEJA Order 20/01/2026 1. Under challenge is the judgment dated 04.12.2007 passed in Divorce Petition No. 29/2004 by the Additional District Judge, Malpura, Tonk, dismissing Divorce Petition filed by and on behalf appellant-husband against respondent-wife under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act of 1955”). 2. From the record, the factual matrix of the case in brief, is as under:- 2.1 The marriage between parties was solemnized as per rites and ceremonies prevailing in the Hindus and although accurate date of marriage has not been disclosed by either party, but in the Divorce Petition, it has been averred that after marriage, out of the said wedlock, one son was born in the year 1982, who later on, passed away in the year 1983, hence, parties have no living child out of their wedlock. 2.2 Husband has pleaded that wife committed mental and physical cruelty with him in manifold manner; she usually was in (2 of 14) [CMA-400/2008] habit of quarreling and fighting with husband; she poured kerosene oil to commit suicide; she creates such an atmosphere and circumstances that it was not possible for them to live together as husband and wife, hence, finally with the mediation of the people of their community, she herself went to live with her parents at Deval and left the matrimonial company of husband since 14.01.1994, as much as took away her entire belongings and streedhan. 2.3 That apart, husband also averred that his wife arbitrarily implicated him in the false criminal proceedings for offences under Section 498-A, 406 and 494 IPC and he is facing criminal prosecution. 2.4 The Divorce Petition was filed by the husband on 17.08.2004, alleging the ground of cruelty and desertion with a prayer that his marriage with respondent be dissolved and a decree of divorce be passed in his favour. 2.5 Reply to the divorce petition was filed by and on behalf of respondent-wife on 06.05.2005 wherein she admitted the factum of death of her sole child and having no living child from the wedlock with appellant. Wife also admitted in her reply about filing of a criminal case against appellant for offences under Section 498-A, 406, 494 IPC and stated that he had entered into re- marriage with another woman viz. Chandrakanta and both are residing together as husband and wife. She denied the allegations of cruelty, though, admitted to live with her mother at parental home since 1994 onwards and stated that her husband turned her out of matrimonial home. Finally wife prayed for dismissal of Divorce Petition. (3 of 14) [CMA-400/2008] 2.6 Learned trial Court settled issues based on the rival pleadings and recorded evidence of both parties. 2.7 In the evidence, husband appeared as AW-1 and produced two witnesses, Polu S/o Ramdev (AW-2) and Ratanlal (AW-3). In rebuttal, wife appeared as NAW-1 and produced two witnesses, Hansraj (NAW-2) and Nanu (NAW-3). 2.8 It is noteworthy that during course of evidence, criminal case pending against husband for offences under Section 498-A, 406 & 494 IPC has been decided and husband has been acquitted vide judgment dated 13.06.2007 by the Court of ACJM, Malpura, District Tonk. The certified copy of this judgment of acquittal of husband dated 13.06.2007 was also placed on record as Exhibit-1. 2.9 Learned trial Court, vide judgment dated 04.12.2007 dismissed the Divorce Petition with findings and observation that from the evidence of husband, the grounds of cruelty and desertion are not established, hence, this appeal has been filed by the husband. 3. We have heard counsel for both parties and perused the record. 4. In respect of the ground of cruelty, husband has deposed evidence that nature of his wife was quarrelsome and she often entered into unwarranted quarrel with him causing mental and physical cruelty to him and at one occasion, she poured kerosene to commit suicide, to implicate the husband and his family members in the false case of dowry death. He has deposed that the marital relationship between husband and wife has turned sour to mere bitter and reached at the level where there is of no possibility of cohabitation, hence, in such circumstances, wife (4 of 14) [CMA-400/2008] decided to left him and receiving her entire belongings and streedhan, she shifted to her parental home in the year 1994. He has further deposed that since thereafter, she has segregated his marital relationship with appellant and has no intention to return back and, is continuously staying at her parental home. He has further deposed evidence that a false criminal case for offences under Section 498-A, 406 and 494 IPC was pursued by his wife against him wherein finally he has been acquitted vide judgment dated 13.06.2007 (Exhibit-1). The statements of husband has been corroborated by the two witnesses Polu (AW-2) and Ratanlal (AW-3), who are relatives of husband and known to both parties and about their family affairs. 5. In the counter evidence, wife has deposed her statements by way of submitting affidavit in chief and stated that she was thrown out of matrimonial home by husband on account of not fulfilling his demand of dowry and as much as her husband has entered into re-marriage with an another woman, hence, she had to lodge criminal complaint against him. Wife admitted in her cross- examination to live separately from husband since 13 years and staying at the place of her parents at Deval. The statements of NAW-2 and NAW-3 though, corroborate the statements of NAW-1, but are hearsay. 6. Having pondered over the evidence of parties and material available on record, we find that admittedly parties are living separately since year 1994 and wife levelled allegations against her husband to enter into re-marriage as much as initiated criminal proceedings for offences under Section 498-A, 406 & 494 IPC. In this criminal case, appellant has been acquitted vide (5 of 14) [CMA-400/2008] judgment dated 13.06.2007. The copy of judgment is available on record as Exhibit-1. In addition, husband has deposed evidence that his wife poured kerosene oil on her to commit suicide and threatened to prosecute him and his family members in false case of dowry death. 7. In case of Pankaj Mahajan Vs. Dimple [(2011) 12 SCC 1], the Hon’ble Supreme Court held and observed that repeated threats to commit suicide and attempts to commit suicide by wife is an action amounting to cruelty towards husband. It was observed therein that cruelty postulates a treatment of a spouse with such cruelty that it would be harmful or injurious to live with other spouse. 8. Similarly, in an another case of Narendra Vs. K. Meena [(2016) 9 SCC 455], the Hon’ble Supreme Court observed that the action of respondents such as locking herself in bathroom and pouring kerosene, so as to commit suicide, amounting to mental cruelty. It was further observed that had she been successful in committing suicide, it was the husband, who would have been put in immense difficulty because of the law and had his life ruined. 9. Further, we are of the considered opinion that although mere lodging a complaint or FIR by wife, ispo facto, cannot be treated as cruelty but when after undergoing rigmarole of the criminal trial for offences under Sections 498-A, 406 and 494 IPC, when the allegations of cruelty, demand of dowry and bigamy were found false, and husband has been acquitted from such charges, then it may not be said that no cruelty has been meted out on husband, particularly when false serious allegations were made by wife against him just to mount pressure and trap him in criminal case. (6 of 14) [CMA-400/2008] We find support of our view with the judgment of Hon’ble Supreme Court delivered in case of Rani Narasimha Sastry vs. Rani Suneela Rani [(2020) 18 SCC 247] wherein, in para 12 and 13, the Hon’ble Supreme Court held and observed as under :- “This Court has laid down that averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. This Court in Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate has laid down following in paragraph 7: "7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to 1. (2003) 6 SCC 334 feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and (7 of 14) [CMA-400/2008] rendered the maintenance of matrimonial home impossible." 13. In the present case the prosecution is launched by the respondent against the appellant under Section 498-A of IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498-A of IPC not only acquittal has been recorded but observations have been made that allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established. With regard to proceeding initiated by respondent under Section 498-A of IPC, the High Court made following observation in paragraph 15: 15.....Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A of IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty." The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now.” (emphasis supplied) 10. The Hon’ble Supreme Court in the celebrated judgment passed in case of Samar Ghosh Vs. Jaya Ghosh [(2007) 4 SCC 511], in the context of cruelty under Section 13(1) (i-a) of the Act of 1955, has observed that while trivial irritations, quarrels, normal wear and tear of the married life, which usually happens in day to day life in all families, would not constitute a ground of cruelty for passing a decree of divorce, but if the conduct and behaviour of one spouse with other has turned so quarrelsome and unbearable and same is continuing and subsisting unjustifiably, as much as affects the physical and mental health of (8 of 14) [CMA-400/2008] other spouse, then certainly an attitude, behaviour and conduct of another spouse leads to a mental cruelty. It was also observed that the marriage life should be reviewed as a whole, in order to see whether the conduct of one spouse towards other amounts to cruelty, due to which it is not possible for the other spouse to live together and it is extremely difficult to live with the other spouse any longer, fearlessly and happily. 11. Here, we also find it apposite to refer the recent judgment of Hon’ble Supreme Court in case of Rakesh Raman v. Kavita [(2023) 17, SCC 433] wherein it was held and observed in Para Nos. 23 & 27 as under:- “23. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the facade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13(1) (i-a) of the Act. 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 from 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) (i-a) of the 1955 Act.” 12. On appreciation of factual matrix of the case at hand and in the light of the proposition of law expounded hereinabove referred judgments, the conduct of wife certainly amounts to constitute a cruelty towards husband. Mere denial by the wife in her evidence (9 of 14) [CMA-400/2008] that she never quarreled with husband or not prosecuted him falsely for offences under Sections 498-A, 406 and 494 IPC, is not suffice. Husband has been acquitted from such charges and wife is living separately from him since 1994. There is nothing on record from the side of wife that she ever made any efforts or too serious attempt for restitution of her conjugal relationship with the husband. Therefore, we find that the trial Court erred in not passing a decree of divorce in favour of husband on the ground of cruelty, hence, we set aside the finding in respect of issue No.1 of the trial Court and find that the ground of cruelty has been established by the husband. 13. In respect of another ground of desertion, two factors are required to be established by the deserted spouse; (i) separation between parties for a period of more than two years on the date of presentation of divorce petition; (ii) Animus deserendi i.e. intention of deserting spouse so as not to resume cohabitation or marital relationship with the deserted spouse. 14. In the case at hand, it is not in dispute that wife is living separately from husband since 1994 onwards and a divorce petition by husband was filed on 17.08.2004, thus, a period of separation between both for more than two years is an admitted fact. As far as another factor of Animus deserendi is concerned, husband has deposed that wife herself left her matrimonial home in the year 1994 and took away all her belongings and Streedhan etc. and since thereafter neither has performed her marital obligation nor had any intention to resume the marital relations or come back to her matrimonial home. (10 of 14) [CMA-400/2008] In counter, though wife has deposed that she was harassed for demand of dowry and turned out of matrimonial home, as much as her evidence is that her husband had entered into remarriage with another woman but such allegations, made by wife against husband have not been established by adducing reliable evidence so also we do not find sufficient evidence on record in the present divorce petition to prove such facts asserted by wife. 15. Mere statement on the part of respondent-wife to resume cohabitation is not enough unless and until some evidence is produced by her to show her bonafide intention and serious efforts made by her in this regard. From perusal of the evidence of wife, we do not find that any efforts were ever made by her to resume the matrimonial relationship. Thus, in the facts of case, it is established that wife has segregated her ties with husband for a period of about more than 32 years without any just and reasonable cause, more so, had no inference to resume marital relations, rather has brought such relationship to an end, hence, an inference can be drawn that there has been an Animus deserendi on the part of respondent-wife. 16. The concept of desertion was dealt with by the Hon’ble Supreme Court in case of Savitri Pandey Vs. Prem Chandra Pandey [2002 (2) SCC 73]. For ready reference the relevant paragraph no.8 of the judgment is reproduced hereunder:- “8. ‘Desertion’, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is (11 of 14) [CMA-400/2008] not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion.” (emphasis supplied) 17. Following the ratio decidendi, expounded the Hon’ble Supreme Court of Savitri Pandey (supra) in a subsequent judgment passed in the case of Dr. (Mrs.) Malathi Ravi Vs. Dr. B.V. Ravi reported in [(2014) 7 SCC 640], in para 20 following observations were made:- “20. In the said Savitri Pandey’s case (supra), reference was also made to Lachman Utamchand Kirpalani case [AIR 1964 SC 40] wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. 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) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved 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.” (12 of 14) [CMA-400/2008] (emphasis supplied) 18. In an another case of Debananda Tamuli Vs. Smti Kakumoni Kataky reported in [(2022) 5 SCC 459] Hon’ble Supreme Court affirmed and reiterated the decision delivered in Lachman Utamchand Kirpalani v. Meena, [AIR 1964 SC 40] held that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. 19. In view of above discussion, we find that the trial Court committed error of fact and law in not considering the ground of desertion in true perspective and in accordance with the requirement of law whereas husband has been able to prove this ground successfully by his evidence, hence, the finding in respect of issue No.2 are hereby set aside and the ground of desertion also stands proved in favour of husband. 20. Having discussed the evidence of parties extensively and taking into consideration the proposition of law, as referred hereinabove, we are of the opinion that the married couple before us, are staying away from each other since 1994 i.e. for about 32 years, and their marriage was solemnized prior to year 1982, though, the exact date of marriage has not been disclosed by (13 of 14) [CMA-400/2008] either of the parties. Parties have no living child out of their marriage, as their sole son born in the year 1982 had died in the year 1983. 21. Wife levelled allegation against husband to have entered into marriage with one another woman, but has not established such a serious allegation. The criminal case, initiated on behalf of wife for offences under Sections 498-A, 406 and 494 IPC, husband has been acquitted vide judgment dated 13.06.2007. According to husband, wife left his matrimonial home and his company by her own and went away to her parental home and never returned back. In the light of allegations levelled by wife against husband and initiation of criminal proceedings by her against husband, there cannot be any effort from the side of husband to bring back his wife. Shockingly, we find that wife too never made any serious efforts in this regard nor submitted any application for restitution of her marital relationship with appellant, even after his acquittal from charges, levelled by her against him, vide judgment dated 13.06.2007. Therefore, it is not a case where husband is trying to get benefit of any of his wrong, rather he has established the commission of cruelty and desertion by his wife, hence, he is entitled for a decree of divorce. 22. Counsel for respondent submits that the husband was directed to pay maintenance to wife under Section 125 Cr.P.C. and he has not paid the entire maintenance. He additionally makes a prayer to award some permanent alimony to wife. We find that no application under Section 24 or 25 of the Act of 1955, has ever been filed by and on behalf of wife. If any maintenance, payable by the husband to wife as ordered under Section 125 Cr.P.C. and (14 of 14) [CMA-400/2008] has not been paid, wife is at liberty to proceed for recovery of same. In addition, wife is at liberty to claim permanent alimony. In the present proceedings, no material is available on record to determine the quantum of permanent alimony, hence, we leave this issue open for adjudication in other proceedings, if so claimed by the respondent-wife. 23. As a result, instant appeal succeeds and is hereby allowed. 24. The impugned judgment dated 04.12.2007 is quashed and the marriage between parties is hereby dissolved on the ground of cruelty and desertion. 25. Decree be framed accordingly. 26. Record of the trial Court be sent back forthwith. (SANDEEP TANEJA),J (SUDESH BANSAL),J NITIN /28