Jagdish Prasad Tanwar vs Kasturi Devi on 4 August, 2017

Rajasthan High Court

Jagdish Prasad Tanwar vs Kasturi Devi on 4 August, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR

D.B. Civil Miscellaneous Appeal No.1438/2008

Jagdish Prasad Tanwar son of Shri Laxman Singh Tanwar, aged 51

years, residen tof Tanwar bhawan, Bhagwanganj, Ajhmer. ( Raj.)

----Appellant-
Versus
Kasturi Devi Wife of Jagdish Prasad Tanwar, resident of House
No.744, Ward No.26 (Old), Near Railway Boundary in the lane
adjoining V.M.General Store, Bhagwanganj, Ajmer..

----Respondent
_____________________________________________________
For Appellant(s) : Mr.Sudhanshu Joshi, Advocate
For Respondent(s) : Mr.Sunil Awasthi, Advocate
_____________________________________________________
HON'BLE MR. JUSTICE AJAY RASTOGI

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Judgment

Judgment reserved on : 13.07.2017

Judgment pronounced on : 04.08.2017

By the Court : Per Hon'ble Mr. Justice Ashok Kumar Gaur] :

<><><><> The present appeal is directed against the judgment and decree dated 19.02.2008
passed by the Family Court, Ajmer wherein divorce petition filed by the appellant-husband has been
dismissed.

Briefly stated facts of the case are that the appellant got married to respondent-Kasturi Devi as per
Hindu rites on (2 of 14) [CMA-1438/2008] 10.12.1993. The appellant filed an application under
Section 13 of the Hindu Marriage Act seeking a decree of divorce against his wife-respondent on
19.01.2004. The appellant pleaded in his application that after his marriage on 10.12.1993, the
respondent- wife stayed with him for two years of their marriage and she was working as Nurse in
Jahawarlal Nehru Hospital, Ajmer and she used to go to her parents house very frequently. It was
alleged that the respondent-wife had left the matrimonial home on 22.05.1998 and she was living
separately from last 5 years on her own. It was pleaded in the application that the respondent filed a
criminal case against the appellant and his three sisters for offence under Section 498-A IPC
registered at P.S. Mahila Thana, Ajmer by lodging FIR No.120/1998.

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 Jagdish Prasad Tanwar vs Kasturi Devi on 4 August, 2017

The police had filed charge-sheet against the appellant and his three sisters and the court of Judicial
Magistrate No.2, Ajmer tried the criminal case against all of them and one of the sister of the
appellant, Smt. Nathi, could not bear the shock of being arrested and prosecuted fell sick and
ultimately died on 11.05.2001 and her husband also died on 14.05.2001. In the criminal case, all the
three sisters of the appellant were acquitted vide judgment dated 30.10.2002 but the appellant was
convicted and sentenced for 2 years' simple imprisonment and fine of Rs.1000/-. It was alleged that
on conviction of the appellant, the respondent-wife distributed sweets and celebrated like an
occasion. The appellant filed appeal against his conviction order dated 30.10.2002 before the
Sessions Judge, Ajmer and appeal was accepted and he was acquitted of the criminal offence vide (3
of 14) [CMA-1438/2008] judgment dated 24.02.003. The appellant pleaded that had his criminal
appeal not been accepted, he would have been terminated being an employee of Indian Railways.
The appellant pleaded that he suffered mental agony and pain on account of the rude behaviour of
the respondent and it was not possible to live with the respondent-wife any more. The appellant also
pleaded that she has deserted him without cause and is entitled to seek a decree of divorce.

The respondent-wife filed reply and denied the allegations levelled in the divorce application. The
respondent pleaded that it was appellant who had kept her in her father's house and used to come to
meet her and also used to cohabit with her. The respondent pleaded that since she was not able to
give birth to any child, as such, the appellant-husband used to beat her. It was pleaded in reply that
sister of the appellant used to give beating to her and as such, she had to lodged a report with police
station. In additional plea, the respondent pleaded that she had not deserted her husband and the
appellant from time to time was having physical relation with her. The respondent pleaded that on
different dates, she went out with the appellant to different places in the year 2000, 2001, 2003 and
stayed with him and had sexual intercourse with him. The respondent also pleaded that she had
participated in the social functions organized at the residence of the appellant.

On the basis of the pleadings of the parties, the Family Court framed following 5 issues:-

(4 of 14) [CMA-1438/2008]

1. "vk;k vizkFkhZ;k dk O;ogkj izkFkhZ ds lkFk ;kfpdk esa of.kZrkuqlkj vk/kkjksa ij

Øwjrkiw.kZ jgk gS\ 2- vk;k vizkFkhZ;k us fcuk fdlh ;qfDr ;qDr dkj.k ds nks o'kZ ls
vf/kd vof/k ls izkFkhZ dk ifjR;kx dj j[kk gS\ 3- vk;k tokcnkos esa vfrfjDr dFku esa
vafdrkuqlkj izkFkhZ vkt Hkh le;

le; ij vizkFkhZ;k ds lkFk jgdj oSokfgd lEcU/k LFkkfir djrk jgk gS ;fn ,slk gS rks mldk
;kfpdk ij izHkko\ 4- vk;k izkFkhZ vizkFkhZ;k ds fo:) fookg foPNsn dh fM+fØ ikus dk
vf/kdkjh gS\ 5- vuqrks'kA"

The appellant in support of his case produced 3 witnesses:

AW-1 Jagdish Tanwar (appellant), AW-2 Sohan Lal and AW-3 Bhanwar Lal. The respondent-wife in
support of her case also produced 4 witnesses: NAW-1 respondent-Kasturi Devi herself, NAW-2
Yashoda, NAW-3 Heera Singh and NAW-4 Shanti Devi.

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The Family Court after considering the entire evidence decided issue no.1 in favour of the appellant
and found that lodging of false criminal case of demand of dowry, amounted to cruelty. The issue
no.2 with regard to desertion was found not proved and was decided against the appellant-husband.
The issues No.3, 4 & 5 relating to condonation of acts of cruelty and entitlement of decree of divorce
and relief part were decided against the appellant-husband.

The learned counsel for the appellant has urged that the ground of cruelty once having been found
proved, there was no condonation of such acts of cruelty of respondent and as such, the decree of
divorce has wrongly been denied by the Family Court.

(5 of 14) [CMA-1438/2008] The learned counsel for the appellant has further argued that the
ground of desertion- issue no.2 was also amply proved by evidence before the Family Court and that
has been misread and the finding recorded is perverse and contrary to record, needs interference of
this Court.

Learned counsel for the appellant has further argued that the issues no. 3, 4 & 5 have wrongly been
decided by the Family Court and on the basis of settled legal principles and facts available on record,
the finding of the Family Court needs to be set aside being contrary to facts on record and law on the
subject.

Per contra, the learned counsel for the respondent has supported the judgment and decree passed
by the Family Court and has emphasized that the issue relating to condonation of cruelty was well
established. The fact of desertion by the respondent was also not proved due to staying of wife
together with the husband. The learned counsel for the respondent has also urged that the Family
Court has rightly refused decree of divorce while considering all the relevant facts and law on the
subject.

We have heard learned counsel for the parties and carefully scanned the record.

Firstly, we will deal with the issue of condoning the act of cruelty by the husband as has been
decided by the Family Court against the appellant. In Hindu Marriage Act, 1955, decree of divorce
may be refused on the ground of cruelty, if the same has been condoned by the person who alleges
the cruelty being committed against him/her. Section 23 of the Hindu Marriage Act is produced
hereunder:-

(6 of 14) [CMA-1438/2008] "23.Decree in proceedings.- (1) In any proceeding under

this Act, whether defended or not, if the court is satisfied that-

(a) xxx xxx xxx

(b) where the ground of the petition is the ground specified in clause (f) of
sub-section (1) of section 10, or 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

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has not in any manner condoned the cruelty, and"

The Apex Court has dealt with Section 23(1)(b) relating to condonation of act of cruelty in the case of
Dr.N.G.Dastane Vs. Mrs. S.Dastane, (1975) 2 Supreme Court Cases 326. The relevant paras of the
said judgment reads as under:-

"52. The next question for consideration is whether the appellant had at any time
condoned the respondent's cruelty. Under Section 23(1)(b) of the Act, in any
proceeding under the Act whether defended or not, the relief prayed for can be
decreed only and only if "where the ground of the petition is cruelty the petitioner has
not in any manner condoned the cruelty"

55. Condonation means forgiveness of the matrimonial offence 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 accrual act, the
other spouse must leave the matrimonial home lest the continued co- habitation be
construed as condonation. Such a construction will hinder reconciliation and there by
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 respondent's acts of cruelty. This is not a case where the spouses, after separation,
indulged in a stray act of sexual intercourse, in which case the necessary (7 of 14) [CMA-1438/2008]
intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one
explanation. But if during co-habitation the spouses, uninfluenced by the conduct of the offending
spouse, lead a life of intimacy which characterises 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 unaccompanied 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 factors which lend to matrimony a
sense of fruition and fulfilment. 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 condoned that
cruelty. Intercourse, of course, is not a necessary 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 inference of condonation with its dual requirement, forgiveness and
restoration. That inference stands uncontradicted, the appellant not having explained the

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circumstances 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.

57. But condonation of a matrimonial offence is not to be likened to a full Presidential Pardon under
Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of
revival. Condonation is always subject to the implied condition that the offending spouse will not
commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other
variety. "No matrimonial offence is erased by condonation. It is obscured but not obliterated". Since
the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary
that the fresh offence should be ejusdem generis with the original offence. Condoned cruelty can
therefore be revived, say, by desertion or adultery.

58. Section 23(1)(b) of the Act, it may be urged, speaks of condonation but not of its revival and
therefore the English doctrine of revival should not be imported into matters arising under the Act.
Apparently, this argument may seem to receive some (8 of 14) [CMA-1438/2008] support from the
circumstances that under the English law, until the passing of the Divorce Reform Act, 1969 which
while abolishing the traditional bars to relief introduces defences in the nature of bars, at least one
matrimonial offence, namely, adultery could not be revived if once condoned. But a closer
examination of such an argument would reveal its weakness. The doctrine of condonation was
established by the old ecclesiastical courts in Great Britain and was adopted by the English Courts
from the canon law.

'Condonation' is a technical word which means and implies a conditional waiver of the right of the
injured spouse to take matrimonial proceedings. It is not 'forgiveness' as commonly understood. In
England condoned adultery could not be revived because of the express provision contained in
Section 3 of the Matrimonial Causes Act, 1963 which was, later incorporated into Section 42(3) of
the Matrimonial Causes Act, 1965. In the absence of any such provision in the Act governing the
charge of cruelty, the word 'condonation' must receive the meaning which it has borne for centuries
in the world of law. 'Condonation under Section 23(1)(b) therefore means conditional forgiveness,
the implied condition being that no further matrimonial offence shall be committed.

60. These facts, if proved, shall have to be approached and evaluated differently from the facts which
were alleged to constitute cruelty prior to its condonation. The incidents on which the appellant
relied to establish the charge of cruelty had to be grave and weighty. And we found them to be so. In
regard to the respondent's conduct subsequent to condonation, it is necessary to bear in mind that
such conduct may not be enough by itself to found a decree for judicial separation and yet it may be
enough to revive the condoned offence. For example, gross familiarities short of adultery or
desertion for less than the statutory period may be enough to revive a condoned offence."

The Calcutta High Court in the case of Smt. Santana Banerjee Vs. Sri. Sachindra Nath Banerjee,
1990(1) All India Hindu Law Reporter 419 dealt with the issue of condonation of cruelty and has
held that cohabitation at times and/or living together in an attempt to repair the fissures in the
relationship of husband and wife by themselves may not amount (9 of 14) [CMA-1438/2008] to
condonation. The relavant para of the said judgment reads as under:-

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"The law is well settled that cohabitation at times and or living together in an attempt
to repair the fissures in the relationship of husband and wife by themselves may not
amount to condonation. To constitute condonation, the offended spouse must accept
the offending partner with a spirit of forgiveness and by wiping off the unpleasant
memories, start the conjugal life as if on a clean slate. In the instant case, it does not
appear to us that the husband accepted the wife with a spirit of forgiveness and
started the conjugal life as if on a clean state by wiping off all unpleasant memories.
With an offended soul he made attempts of repair of the marital home but to no
effect. That apart, the wife even after the institution of the suit indulged in making
reckless, false and motivated allegations against the husband and his close relations
not only in her written statement but also in her deposition as indicated earlier. Such
facts undoubtedly constitute cruelty of a very grave nature. In our view, the court not
only can take into consideration of the subsequent events after the institution of the
suit but also should lake note of such subsequent events if the same have a bearing on
the lis between the parties and consideration of such facts may lead to proper justice
in the case and shorten the course of litigation."

The finding of condonation of cruelty has been recorded by the Family Court on the basis of
respondent staying together for some days on different occasions with the appellant. The Family
Court has further found that physical relations were established between the appellant and
respondent and as such, it has been held that appellant had condoned the acts of cruelty against the
respondent.

The close scrutiny of evidence would show that the ground of cruelty was well established and
appellant & his sisters were roped in a false criminal case which ultimately resulted into exoneration
of all. The judgment by the criminal appellate court was passed on 24.02.2003. The levelling of false
case comes within ambit of (10 of 14) [CMA-1438/2008] causing mental cruelty and as such, it
cannot be wiped out from the mind of a person if he has been falsely implicated in a criminal case.

The Family Court has committed an illegality and the finding recorded is per se perverse for the
reason that few alleged subsequent events of staying together for few days that too is not supported
by the tangible evidence will not condone the acts of cruelty. The court below has also erred in
holding that due to physical relations being established between the parties, the acts of cruelty were
condoned. It is no gain saying that relation between husband and wife are of intimate nature and by
staying under one roof, necessary presumption cannot be drawn of having physical relations. The
evidence which has come on record lacks credibility of their intimate relation as husband and wife.
The finding of the Family Court on issue of condonation of cruelty is perverse and not sustainable
and liable to be set aside.

The Family Court has decided the issue of desertion against the appellant. The court below has
drawn inferences from some incidents, which prove the fact that wife has not deserted the
appellant-husband.

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In our opinion, the law on the point of desertion is well settled by the Apex Court in catena of cases.
The Apex Court in the case of Malathi Ravi, M.D. Vs. B.V.Ravi, M.D., (2014)7 Supreme Court Cases
640 has laid down the law for proving the desertion. Inferences may be drawn from certain facts of
those acts or by conduct, expression of intention, both anterior and (11 of 14) [CMA-1438/2008]
subsequent to the actual acts of separation. The relevant para is quoted here under:-

"18. To appreciate the rivalised submissions raised at the Bar, we have carefully
perused the petition and the evidence adduced by the parties and the judgment of the
Family Court and that of the High Court. The plea that was raised for grant of divorce
was under Section 13(1)(i-b) of the Act. It provides for grant of divorce on the ground
of desertion for a continuous period of not less than two year immediately preceding
the presentation of the petition. The aforesaid provision stipulates that a husband or
wife would be entitled to a dissolution of marriage by decree of divorce if the other
party has deserted the party seeking the divorce for a continuous period of not less
than two years immediately preceding the presentation of the petition. Desertion, as
a ground for divorce, was inserted to Section 13 by Act 68 of 1976. Prior to the
amendment it was only a ground for judicial separation.

19. Dealing with the concept of desertion, this Court in Savitri Pandey v. Prem
Chandra Pandey has ruled thus:-

"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 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 (12 of 14) [CMA-1438/2008] 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. Prabhavati1 held that if a spouse abandons the
other in a state of temporary passion, for example, anger [pic]or disgust without
intending permanently to cease cohabitation, it will not amount to desertion."

20. In the said Savitri Pandey case, reference was also made to Lachman Utamchand
Kirpalani's case 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

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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."

In the present case, the issue of desertion has been decided by the Family Court
against the appellant by holding that appellant had maintained marital relations with
the respondent and appellant used to stay very frequently with the respondent and he
(13 of 14) [CMA-1438/2008] had also taken her out from time to time and
established physical relations with her. The Family court has observed that the
respondent-wife was prepared to stay with the husband and as per requirement of
law, she had not deserted her husband for more than two years.

In our opinion, the findings recorded by the learned Family Court are not based on proper
evaluation of evidence. The evidence which has come on record in no way establish the fact that
husband and wife were staying together for a long duration or permanently. The statement of
respondent-wife reveals that even after her alleged visits for certain days, she always came to her
parents house and she never stayed continuously with the husband after August, 1998. The
appellant in his statement has deposed that he made all efforts to bring her wife back and even sent
legal notice asking respondent-wife to join the matrimonial home. The excuse taken by the
respondent in reply to notice of not going back to matrimonial home, was to ask the appellant to
stay separately and not with his parents-family. The said attitude of respondent clearly established
that she was not interested in staying with her husband at their matrimonial home and she was in
fact had no desire to stay with the husband at all.

Accordingly, the findings on issue No.2 with regard to desertion and findings on issues no.3, 4 & 5
about condonation of cruelty and relief for refusing the decree of divorce, are set aside.

Consequently, the appeal filed by the appellant is allowed and the judgment & decree dated
19.02.2008 passed by the Family Court, Ajmer is set aside. Their marriage solemnized as on (14 of
14) [CMA-1438/2008] 10.12.1993 stands dissolved and the appellant-husband is held entitled for
the decree of divorce. Registry to do the needful. No costs.

(ASHOK KUMAR GAUR),J. (AJAY RASTOGI),J.

NK

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