Act of repeated attempts to commit
suicide by the appellant amounts to mental cruelty. He placed
reliance in the matter of Pankaj Mahajan v. Dimple alias Kajal(2011) 12 SCC 1
in which the Supreme Court has held that giving repeated
threats to commit suicide and even tried to commit suicide,
causing insult & injury to husband is cruelty sufficient for grant of dissolution of marriage by a decree of divorce .
HIGH COURT OF CHHATTISGARH AT BILASPUR
DIVISION BENCH:
Hon’ble Shri T.P. Sharma &
Hon’ble Shri C.B. Bajpai, JJ
First Appeal (M) No.80/2012
Shruti Deshpande Vs Shriram Deshpande
O R D E R
(06.03.2014)
Citation; AIR 2014 (NOC) 450 chhatisgarh
1.
F.A. (M) Nos.80/12 & 81/12 filed under Section 19 (1) of the
Family Courts Act, 1984 on behalf of the both the parties
against the judgment and decree dated 11.05.2012 passed by the
Judge, Family Court, Bilaspur in Civil Suit No.14-A/2011 are being
disposed of by this common order. By the aforesaid judgment
and decree dated 11.5.2012 the Judge, Family Court, Bilaspur has
decreed the suit filed by respondent-Sriram Deshpande for
dissolution of marriage by a decree of divorce and also directed
to pay Rs.5,00,000/- lump sum permanent alimony to the wife i.e.
Smt. Shruti Deshpande.
2.
By filing F.A. (M) No.80/12 the appellant wife has challenged the
legality and propriety of the dissolution of marriage by a decree
of divorce and quantum of permanent alimony, inter alia by filing
F.A. (M) No.81/12 the husband-Sriram Deshpande has challenged
the quantum of permanent alimony.
3.
As per plaint allegations, the respondent was married to the
appellant on 23.1.2007. The appellant gave birth to one female
child on 25.12.2007. Prior to marriage of the appellant with the
respondent, she was married to one Shashank Chicholkar in the
year 1997 at Pune and after divorce by her previous husband, she
solemnized marriage with the respondent. Within two days of
her marriage, the appellant changed her behaviour. She is cruel
in nature and was in the habit of quarrelling & giving threats that
she would leave the house. She also used to misbehave with the
respondent.
On 25.1.2007 i.e. on the third day of marriage, she
cut her vein of hand and also assaulted her husband.
She
continued her misbehave. On 6.4.2007 all of a sudden she left
her matrimonial house and went to the railway track for
committing suicide. Somehow she was brought back to the house
of the respondent where she badly misbehaved with the
respondent.
The appellant is not mentally sound and on the
ground of insanity, her pervious husband had obtained decree of
divorce. On 07.09.2009, the appellant again left her matrimonial
home.
The
respondent-husband
tried
his
level
restitution of relations but he could not succeed.
best
for
Finally, on
07.11.2011 he filed the suit for dissolution of marriage by a
decree of divorce i.e. within ten months of marriage.
4.
By filing written statement, the appellant-wife has denied the
adverse allegations and leveled charge of cruelty against him, his
brother & other family members. She has also denied that she
had cut her vein but admitted that while working with knife in
the kitchen she received trivial cut injury. She has denied the
fact that she had gone to the railway track for committing
suicide and she had left her matrimonial house.
5.
After providing opportunity of hearing to the parties, learned
Judge,
Family
Court,
Bilaspur
decreed
the
suit
of
the
respondent-husband for divorce on the ground of cruelty
committed by her and also directed him to pay lump sum
permanent alimony of Rs.5,00,000/-.
6.
We have heard learned counsel for the parties and perused the
impugned judgment & decree and record of the Court below.
7.
Mr. Bhaduri, learned counsel for the appellant-wife vehemently
argued that this is the petition for divorce within one year of
marriage on the ground of cruelty. As per evidence of the
parties, husband has filed the suit for dissolution of marriage
within one year of marriage on the ground of few instances but
even after alleged aforesaid instances the husband has not
deserted his wife which shows that the husband has condoned
the act of wife and therefore in the light of clause (b) of sub-
section (1) of Section 23 of the Hindu Marriage Act, 1955 (for
short ‘the Act of 1955’), dissolution of marriage by decree of
divorce was not legally possible and by granting such decree, the
Court below has completely ignored the mandatory provisions of
the Act of 1955.
He further submits that heavy burden was
upon the respondent to prove that the appellant has committed
cruelty that too within six months of the marriage. Both the
parties have led evidence and leveled charge of cruelty against
each other, therefore, evidence of any of the party cannot be
considered
as
true.
Except
the
aforesaid
evidence
the
respondent has not adduced any evidence to establish the fact
that the appellant-wife has committed cruelty and her cruelty
has not been condoned.
He further submits that age of the
appellant is only 37 years and only a meager/token amount has
been awarded by the Court below, therefore, lump-sum amount
of permanent alimony is also inadequate.
Reliance is placed in the matter of Kamla Dev vs. Balbir
Singh1 in which the High Court of Jammu & Kashmir has held
that in case of cruelty by wife of general nature without
specifying date, time & incident and subsequent cohabitation by
the husband amounts to condonation of cruelty, therefore, on
the ground of cruelty, which has been condoned by the conduct
of husband, divorce cannot be granted.
Reliance is also placed in the matter of Ramesh Kumar v.
Smt. Kalpana2 in which the High Court of Madhya Pradesh has
held that petty quarrels and troubles are not the ground for
dissolution of marriage by a decree of divorce. Visit to parents’
house and use of force to save from assaults cannot be treated
as cruelty.
Reliance is also placed in the order dated 20.6.2012 passed
in First Appeal (M) No.30/2012 (Dinesh Kumar Rathore v. Smt.
Swarnalata Rathore) in which the Division Bench of this Court
has held that in order to determine the permanent alimony the
parties are required to plead and prove the income of the spouse .
Reliance is further placed in the matter of Smt. Mamta Namdeo
v. Ghanshyam Bihari Namdeo3 in which this Court has held that
AIR 1979 (J&K) 4
MPWN (4) 1993 (1)
3
2013 (1) C.G.L.J. 236
1
2
condoned cruelty is not a ground for divorce.
Reliance is also
placed in the matter of Dr. N.G. Dastane v. Mrs. S. Dastane 4
in which the Supreme Court has held that condonation of cruelty
is a defence, therefore, it must be pleaded and cohabitation
after alleged incident of cruelty amounts to condonation of
cruelty.
Reliance is also placed in the matter of Prakash Rao
vs. Jyoti5 in which the Supreme Court has held that merely
because at some occasions some disputes had taken place
between the parties or in-laws relating to day-to-day work, which
are not unusual in the joint families, no inference of cruelty can
be drawn on that basis.
8.
On the other hand, Mr. Ali Asgar, learned counsel for the
respondent-husband submits that in the present case the
appellant has failed to plead and prove that the respondent has
condoned the cruelty.
As per evidence and pleadings of the
respondent, the appellant has started committing cruelty with
him within two days of the marriage. The respondent has given
specific instances, date & time of commission of cruelty, which
has not been condoned. Even otherwise the appellant has failed
to prove that after such cruelty there was cohabitation. Cruelty
is not the simple cruelty. Act of repeated attempts to commit
suicide by the appellant amounts to mental cruelty. He placed
reliance in the matter of Pankaj Mahajan v. Dimple alias Kajal6
in which the Supreme Court has held that giving repeated
threats to commit suicide and even tried to commit suicide,
causing insult & injury to husband is cruelty sufficient for grant
(1975) 2 SCC 326
2012 (2) MPLJ 522
6
(2011) 12 SCC 1
4
5
of dissolution of marriage by a decree of divorce .
placed
reliance
in
the
matter
of
Smt.
Sudha
He also
Suhas
Nandanvankar v. Suhas Ramrao Nandanvankar7 in which the
Supreme Court has held that the wife taking advantage of a
wrong or fraud is not entitled for permanent alimony under
Section 25 of the Act of 1955.
9.
As per pleadings of the parties, any of the party has not pleaded
that cruelty has been condoned or not, but in case of grant of
dissolution of marriage by decree of divorce under clause (ia) of
sub-section (1) of Section 13 of the Act of 1955, the Court is
required to examine the pleadings and evidence irrespective of
the case defended by the opposite party or not that whether the
party has condoned the act of opposite party in terms of Section
23 (1) (b) of the Act of 1955 or not?
10. Section 13 (1) (ia) of the Act of 1955 reads thus;-
“13. Divorce. (1) Any marriage solemnized, whether before
or after the commencement of this Act, may, on a
petition presented by either the husband or the wife,
be dissolved by a decree of divorce on the ground that
the other party-
(i)
has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other
than his or her spouse; or
(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period
of not less than two years immediately preceding
the presentation of the petition; or
11. Section 23 (1) (a) & (b) of the Act of 1955 reads thus;-
7
AIR 2005 Bombay 62
“23. Decree in proceedings.- (1) In any proceeding under
this Act, whether defended or not, if the court is
satisfied that-
(a) any of the grounds for granting relief exists and
the petitioner [except in cases where the relief is
sought by him on the ground specified in sub-
clause (a), sub-clause (b) or sub-clause (c) of
clause (ii) of section 5 is not in any way taking
advantage of his or her own wrong or disability
for the purpose of such relief, and
(b)where the ground of the petition is the ground
specified in clause (i) of sub-section (1) of section
13, the petitioner has not in any manner been
accessory to or connived at or condoned the act
or acts complained of, or where the ground of the
petition is cruelty the petitioner has not in any
manner condoned the cruelty, and”
12. Opening words of Section 23 (1) (b) is unambiguous and cast duty
upon the Court to satisfy itself in case of petition for decree of
divorce on the ground of cruelty, whether defended or not, that
whether petitioner has succeeded in proving the fact that he has
not condoned the act of cruelty. In the present case both the
parties led evidence.
Divorce of the appellant by her first
husband is not in dispute.
The respondent has specifically
deposed two instances of attempting to commit suicide by the
appellant i.e one by cutting the vein and second by roaming in the
railway track.
Virtually, the aforesaid facts have not been
denied by the appellant inter alia she has suggested that there
was small injury in her hand and she had gone to railway track for
peace when she was badly disturbed by the behaviour of the
respondent’s mother.
The respondent has filed another
document i.e. medical record of the appellant as Ex.A-5 which
shows that the appellant was admitted in the hospital, she had
consumed poison and that was the case of attempt to commit
suicide on 21.1.2009.
The appellant has examined herself and
deposed that the respondent has committed cruelty upon her.
She has deposed in detail that the respondent was in the habit
of committing cruelty upon her and has committed cruelty. In
Para-33 she has admitted the injury over her hand on 25.1.2007
i.e. just after two days of her marriage.
She has further
deposed that she did not know how she had received injury but
as per her memory at the time of cutting vegetables she
received injury by knife. She denied the suggestion that with
intent to commit suicide she had cut her veins of hand. In Para-
35 she has further admitted that on 6.4.2007 she was very
perturbed and had gone to Tarbahar Railway Crossing and was
sitting in the platform. She has further deposed that she used
to go there along with her husband. In Para-38 she has further
admitted that being asked, she has admitted that it was her
mistake. She has further deposed that the respondent was in
the habit of committing cruelty upon her. In Para-46 she has
admitted that on 22.1.2009 she had gone to CIMS, Bilaspur for
treatment and prior to that day, she was taken to the clinic of
Dr. Y.S. Dubey. She has further admitted that she has written
in her diary that after her death, her daughter be given to her
husband i.e. respondent herein.
13. The appellant has also examined her father Shri S.N. Konher who
has supported the evidence of the appellant. In Para-32 he has
admitted that on 6.4.2007 when his daughter had gone towards
the railway station, he sent his son. In para-36 he has admitted
that on 21.1.2009 he has taken her daughter to the clinic of Dr.
Y.S. Dubey. He has denied that she had consumed poison but
admitted that Dr. Dubey has referred her to CIMS, Bilaspur. He
has further denied that on account of consuming pesticide, she
was referred to CIMS. He has further deposed that he did not
know that on examination by the doctors of CIMS, it is
unearthed that his daughter had consumed poison. In Para-37 he
has admitted that her daughter was hospitalized for two days.
He has further admitted that her daughter was also referred to
the Psychiatric.
14. As per pleadings and evidence of the parties, the appellant
received cut injury in her vein on 25.1.2009 i.e. just after two
days of marriage of the appellant.
She left her matrimonial
home on 6.4.2007, went to Tarbahar Railway Crossing and was
roaming on the railway track. On 21.1.2009 during the pendency
of divorce petition when she was in the house of her father, she
was brought to the clinic of Dr. Y.S. Dubey, who referred her to
CIMS, Bilaspur for further treatment and as per document
Ex.P-5, she had attempted to commit suicide and it was a case of
consumption of unknown poison.
Factum of treatment and
admission in the CIMS Hospital, Bilaspur have not been denied by
the appellant.
Specific suggesetion has been made by the
respondent that the appellant had consumed poison but it has not
been specifically denied by the appellant or her father inter alia
they tried to avoid the answer. Virtually, Ex.P-5 is a document of
the appellant containing the fact that it was a case of attempt to
commit suicide by consuming some unknown poison by the
appellant.
15. The above three instances are sufficient to prove that on
25.1.2007 the appellant cut her vein of hand, on 6.4.2007 she
left her matrimonial home, went more than 2-3 kms away from
her house to railway track, which was not the railway station but
Tarbahar Railway Crossing, and was roaming on the railway track,
which shows that it was second attempt on her part to commit
suicide, and lastly, on 25.1.2009 when she was in her parental
home, she again attempted to commit suicide by consuming
poison.
She has left her matrimonial house on 7.9.2007 i.e.
within eight months of her marriage. Regular cruelty committed
by the appellant has been pleaded & proved by the respondent.
The appellant has also pleaded and deposed that the respondent
has committed cruelty and torture but specific instances have
not been pleaded and proved by her inter alia the respondent has
pleaded and proved atleast three instances of attempt to commit
suicide, which have not been substantially denied by the
appellant. Aforesaid act that too within three months of her
marriage is substantial threat on the respondent and the same
amounts to mental cruelty which further finds corroboration
from the third attempt of suicide made by the appellant after
two years of marriage and during the pendency of divorce
petition that too in the house of her parents.
16. In Ramesh Kumar2 it has been held that petty quarrels and
troubles & use of force to save from assaults cannot be
considered as cruelty, but in the present case instances pleaded
and proved by the respondent are serious in nature, especially
relating to attempts by the appellant to commit suicide.
17. In Pankaj Mahajan5 the Supreme Court has held that attempt to
commit suicide is a mental cruelty and observed in Para-34, 35 &
36 as follows;-
“34.In addition to the evidence, the appellant husband had cate-
gorically pleaded in his petition for divorce about the cruelty
meted out to him. He narrated the incidents when she used
to give threats to commit suicide and had even tried to com-
mit suicide by jumping from the terrace and also pushed him
from the staircase resulting in fracture in his right forearm.
Due to her mental disorder, on various occasions, she even
slapped him. She was also most disrespectful to his parents
and she even forced him to live separately from them. His
evidence in the form of an affidavit filed before the trial
court is available in the paper book wherein he narrated all
the sufferings meted out by her. It is useful to refer to the
relevant portion from the same:
“My wife Dimple used to become annoyed and angry on
petty issues. She used to abuse and fight with me.
She used to flaunt her father’s status and influence.
She used to comb her hair throughout the day. She
used to cry like children. She used to apply brakes of
a moving vehicle. She used to call strangers in the
house and offer them tea. Once she even called a
washerman in the house and gave him Rs 200 unneces-
sarily and when he said thanks she immediately
snatched Rs 200 from his hands and slapped him for
no rhyme or reason and thereafter she abused him
and pushed him out of the house. In fact, such things
had become her everyday chores. She used to tell me
everything about sex lives and relationship of her ma-
ternal uncle and aunt. She was in the habit of not
sleeping throughout night and also used to keep me
awake throughout night and whenever I tried to sleep,
she used to insist me to talk to her and whenever I
told her to allow me to sleep, she used to press my
neck. She used to wake up the child from deep slum-
ber and start slapping her for no reason. She was in
the habit of wrapping the child in wrapper throughout
continuously and due to which the child used to weep
continuously. She used to say that she is obsessed and
hears outer world’s voices and barking of dogs. She
used to tell me that she is regularly seeing evil spirits.
She used to go out for roaming at 2-3 a.m. in the
night.
Whenever I refused to listen or agree to her de-
mands, she used to throw dirty clothes upon me. She
was in the bad habit of keeping the door of toilet open
throughout the day even while she was bathing or re-
freshing herself. She used to doubt everything when-
ever she started eating her food. She also used to
doubt her mother and sister and used to say that
both of them have immoral character. She was in the
habit of opening and closing the central locking system
of the car. She was in the habit of increasing the vol-
ume of TV to the maximum unnecessarily. Whenever I
used to go to office, she used to stop me from going
and when I told her that I have to go to office, she
used to say that she will commit suicide. In fact, she
was in the habit of pressing and coaxing me for all her
needs and desires. She used to say that I want to live
with Happy and also used to say that she has no inter-
est in living with me. She stressed that she will leave
me and starts living with Happy. (Happy is the son of
my wife’s elder paternal uncle.)
She was in the habit of unnecessarily arguing
with my parents and used to abuse them and whenever
I stopped her from doing so, she used to threaten me
that she will commit suicide. However, I used to re-
quest my parents to look after her in my absence. But
she used to misbehave and insult them. She used to
say that she will buy her own house and will start liv-
ing in that house because this house is very small for
her needs and she feels suffocated in this house. Al-
though my house is in a very posh colony and it is a
very spacious, airy, open and large house. I noticed
that the condition of Dimple was becoming worse ev-
eryday. I became sure that she was actually mad and
she was concealing her madness from me. I noticed
that she used to keep some medicine in her purse and
used to take that medicine often. She was actually
sex-hungry and was not interested in doing any house-
hold works. She never showed any interest in keeping
her bedroom and drawing room clean and tidy. She was
in the habit of wearing the clothes of 3-4 days regu-
larly. She used to wake up very late in the morning.
Whenever my mother and sister called her to join
them, she was abusing and insulting them. She used to
call my mother stupid and my sister as wretched.
However, I controlled myself and kept on tolerating
her conduct, because all of us were in the fervent
hope that one day God will cure her....
... One day, my friend Sumit came to my house.
Earlier also he used to come to my house as he is
also working with me in LIC. He wished Dimple and
enquired about her and instead of welcoming him,
Dimple insulted him by saying why are you coming to
our house uncalled everyday. He felt very insulted
and sat in the drawing room on the ground floor and
when I was also coming down to join him, Dimple
pushed me from the stairs and started laughing un-
necessarily. As a result of the aforesaid pushing, I
fell down and the bones of my right arm and wrist
got fractured. Perchance, Ashok Kumar too had
come to my house on that day and he was repeatedly
asking for meals. But when he saw my condition, he
immediately took me to the hospital of Dr. Hardas
where plaster was applied on my arm and wrist.
When we came back, to my utter shock and surprise,
Dimple did not even notice any change in me and did
not remotely feel that I have received fractures in
my arm and wrist and plaster has been applied on my
arm.
One day when we were sitting in the drawing
room, I called Dimple and asked her to bring tea for
me. At that time she was wearing very dirty clothes.
So, I asked her to immediately go and change her
dirty clothes and wear some good clothes. But in-
stead of changing her clothes, she started abusing
me and even slapped me on my face. Thereupon my
mother asked her why she is behaving like this, upon
which she rose her hands to slap my mother too, but
my sister stopped her from doing so. We narrated
all the above incidents of Dimple to her father. He
expressed his shock and apologised on her behalf
and advised us to start living separately and said
that she will start behaving properly and nicely.”
All the above details in the form of assertion in
the affidavit clearly show that the appellant hus-
band faced cruelty at the hands of the respondent
on several occasions.
35. It is well settled that giving repeated threats to
commit suicide amounts to cruelty. When such a thing
is repeated in the form of sign or gesture, no spouse
can live peacefully. In the case on hand, the appellant
husband has placed adequate materials to show that
the respondent wife used to give repeated threats to
commit suicide and once even tried to commit suicide
by jumping from the terrace. Cruelty postulates a
treatment of a spouse with such cruelty as to create
reasonable apprehension in his mind that it would be
harmful or injurious for him to live with the other
party. The acts of the respondent wife are of such
quality or magnitude and consequence as to cause pain,
agony and suffering to the appellant husband which
amounted to cruelty in matrimonial law.
36. From the pleadings and evidence, the following in-
stances of cruelty are specifically pleaded and
stated. They are:
(i) Giving repeated threats to commit suicide and even
trying to commit suicide on one occasion by jumping
from the terrace.
(ii) Pushing the appellant from the staircase resulting
into fracture of his right forearm.
(iii) Slapping the appellant and assaulting him.
(iv) Misbehaving with the colleagues and relatives of the
appellant causing humiliation and embarrassment to
him.
(v) Not attending to household chores and not even mak-
ing food for the appellant, leaving him to fend for
himself.
(vi) Not taking care of the baby.
(vii) Insulting the parents of the appellant and misbe-
having with them.
(viii) Forcing the appellant to live separately from his
parents.
(ix) Causing nuisance to the landlord’s family of the ap-
pellant, causing the said landlord to force the ap-
pellant to vacate the premises.
(x) Repeated fits of insanity, abnormal behaviour caus-
ing great mental tension to the appellant.
(xi) Always quarrelling with the appellant and abusing
him.
(xii) Always behaving in an abnormal manner and doing
weird acts causing great mental cruelty to the ap-
pellant.”
18. In the present case the respondent has succeeded in proving
three instances of attempt to commit suicide by the appellant,
two attempts were made when she was residing with the
respondent and one was made when she was residing with her
parents. Pleadings and evidence of the respondent and also of
the appellant reveal that the relations were strained between
the parties, both the parties have leveled charge of cruelty upon
each other which also shows that any of the parties has not
condoned the act of other party.
Even the appellant has not
pleaded the factum of condonation.
19. As held in Dr. N.G. Dastane4, the Court is required to satisfy
that whether the party has forgiven the previous cruelty of the
opposite party and has restored matrimonial life. Cruelty does
not consist of a single, isolated act but consists in most cases of
a series of acts spread over a period of time.
The Supreme
Court has held in Para-55 & 56 as under:-
55.Condonation means forgiveness of the matrimonial of-
fence and the restoration of offending spouse to the
same position as he or she occupied before the offence
was committed. To constitute condonation there must be,
therefore, two things: forgiveness and restoration. The
evidence of condonation in this case is, in our opinion, as
strong and satisfactory as the evidence of cruelty. But
that evidence does not consist in the mere fact that the
spouses continued to share a common home during or for
some time after the spell of cruelty. Cruelty, generally,
does not consist of a single, isolated act but consists in
most cases of a series of acts spread over a period of
time. Law does not require that at the first appearance
of a cruel act, the other spouse must leave the matrimo-
nial home lest the continued cohabitation be construed as
condonation. Such a construction will hinder reconciliation
and thereby frustrate the benign purpose of marriage
laws.
56. The evidence of condonation consists here in the fact
that the spouses led a normal sexual life despite the re-
spondent’s acts of cruelty. This is not a case where the
spouses, after separation, indulged in a stray act of sex-
ual intercourse, in which case the necessary intent to
forgive and restore may be said to be lacking. Such stray
acts may bear more than one explanation. But if during
cohabitation the spouses, uninfluenced by the conduct of
the offending spouse, lead a life of intimacy which char-
acterises normal matrimonial relationship, the intent to
forgive and restore the offending spouse to the original
status may reasonably be inferred. There is then no
scope for imagining that the conception of the child could
be the result of a single act of sexual intercourse and
that such an act could be a stark animal act unaccompa-
nied by the nobler graces of marital life. One might then
as well imagine that the sexual act was undertaken just in
order to kill boredom or even in a spirit of revenge. Such
speculation is impermissible. Sex plays an important role
in marital life and cannot be separated from other fac-
tors which lend to matrimony a sense of fruition and ful-
filment. Therefore, evidence showing that the spouses
led a normal sexual life even after a series of acts of
cruelty by one spouse is proof that the other spouse con-
doned that cruelty. Intercourse, of course, is not a nec-
essary ingredient of condonation because there may be
evidence otherwise to show that the offending spouse
has been forgiven and has been received back into the
position previously occupied in the home. But intercourse
in circumstances as obtain here would raise a strong in-
ference of condonation with its dual requirement, for-
giveness and restoration. That inference stands un-con-
tradicted, the appellant not having explained the circum-
stances in which he came to lead and live a normal sexual
life with the respondent, even after a series of acts of
cruelty on her part.”
20. After the act of cruelty living together and cohabitation by
itself is not sufficient to establish the fact that the party
against whom cruelty has been committed has forgiven the act of
opposite party and has restored the matrimonial relationship but
if it is established that after the act of cruelty, the parties have
cohabitated uninfluenced by the conduct of offending spouse and
lead a life of intimacy which characterizes normal matrimonial
relationship, then it can be considered that the party has
condoned the cruelty of the opposite party and has started living
a marital life with intimacy. In the present case, as per evidence
of both the parties they have lost the intimacy, therefore, if it
is presumed that the respondent has cohabitated then even in
absence of other elements it would be difficult to hold that he
has forgiven the act of appellant and has restored the
matrimonial relationship without influenced by previous conduct
of cruelty committed by the appellant. Therefore, as has been
held in the case of Dr. N.G. Dastane4, we do not find any case for
condonation of act of cruelty committed by the appellant with
the respondent.
21. After considering the proved case of cruelty committed by the
appellant within short span of marriage, the Court below has
decreed the suit for dissolution of marriage by decree of divorce
and we do not find any illegality or irregularity in the said finding
of the Court below requiring any interference.
22. As regards the quantum of alimony, the Court below while
granting decree of divorce has awarded lump-sum amount of
Rs.5,00,000/- as permanent alimony to the appellant and also
Rs.3,500/- per month to the daughter of the appellant on the
basis of application filed by the appellant under Section 26 of
the Act of 1955 on 6.3.2012.
23. Undisputedly, in the present case the appellant has not filed any
application for award of permanent monthly alimony or lump sum
permanent alimony under Section 25 of the Act of 1955.
Even
the appellant has not pleaded the aforesaid fact in her pleadings.
Page 18 of 20
F.A. Nos.80 & 81 of 2012
Section 25 of the Act of 1955 provides that at the time of
passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or the
husband, as the case may be, the Court is required to pass the
order of payment of permanent alimony i.e. gross sum or monthly
or periodical sum, but in the present case the appellant has not
filed any application under Section 25 of the Act of 1955, even
she has not pleaded in her written statement, but has filed an
application under Section 26 of the Act of 1955 for grant of
maintenance to her daughter which was awarded by the Court
below. In absence of any pleading or application under Section
25 of the Act of 1955, the Court below was not justified in
granting lump-sum permanent alimony to the appellant-wife.
Although while calculating the requirement, the Court below has
acted in a just and fair manner, but in absence of any application
on behalf of the appellant, the aforesaid part of the judgment
impugned is not sustainable under the law.
24. For the foregoing reasons, we uphold the judgment and decree
for dissolution of marriage by decree of divorce and also uphold
the order granting maintenance of Rs.3,500/- per month to the
child. However, the order passed under Section 25 of the Act of
1955 regarding lump-sum permanent alimony of Rs.5,00,000/-,
without there being any application and pleading on behalf of the
appellant, is liable to be quashed.
25. In the result;
•
F.A. (M) No.80/2012 filed on behalf of the appellant-wife is
hereby dismissed.
F.A. (M) No.81/2012 filed on behalf of the husband is hereby
allowed and decree of lump sum permanent alimony of
Rs.5,00,000/- is hereby quashed, reserving liberty to the wife
to take appropriate steps in terms of Section 25 of the Act of
1955.
26. Certified copy as per rules.
HIGH COURT OF CHHATTISGARH AT BILASPUR
DIVISION BENCH:
Hon’ble Shri T.P. Sharma &
Hon’ble Shri C.B. Bajpai, JJ
First Appeal (M) No.80/2012
APPELLANT
RESPONDENT
Shruti Deshpande
Vs
Shriram Deshpande
&
First Appeal (M) No.81/2012
APPELLANT
RESPONDENT
Shriram Deshpande
Vs
Shruti Deshpande
HEAD NOTE
1. Only living together and cohabitation are not sufficient to prove con-
donation of cruelty under the Hindu Marriage Act, 1955.
2. Forgiveness and restoration of matrimonial relationship without be-
ing influenced by previous conduct of cruelty and leading a life of in-
timacy can be considered the condonation of cruelty.
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