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2024 Supreme(Raj) 1104
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
ARUN BHANSALI, NARENDRA SINGH DHADDHA, JJ.
Sandeep Jain - Appellant
Versus
Richa Garg (Smt.) - Respondent
D.B. Civil Misc. Appeal No. 1139 of 2018
Decided On : 04-01-2024
For the Appellant : Mr. Reashm Bharagava.
For the Respondent: Mr. Prateek Kasliwal with Ms. Dolly Sharma.
IMPORTANT POINT
To establish condonation of cruelty in divorce proceedings, both forgiveness and restoration must be proven; mere proposals for reconciliation do not suffice.
Headnote:
(A) Hindu Marriage Act, 1955 - Section 13 and Section 23(1)(b) - Dissolution of marriage - Petition dismissed by Family Court on grounds of cruelty and desertion - Court found allegations of cruelty partly established but condoned - Appeal allowed in part, finding on condonation reversed, decree of divorce granted, matter remanded for alimony and custody issues. (Paras 6, 20, 21)
(B) Condonation - Definition and requirements - Condonation requires both forgiveness and restoration; mere proposals during reconciliation do not constitute condonation. (Paras 14, 19)
Facts of the case:
The appellant filed for divorce citing cruelty and desertion after living separately since 2012; the Family Court found some allegations of cruelty established but ruled they were condoned.
Findings of Court:
The Family Court's finding on condonation was perverse; the appellant entitled to a decree of divorce.
Issues: Whether the Family Court erred in finding that cruelty was condoned.
Ratio Decidendi: The court clarified that condonation requires clear evidence of forgiveness and restoration, which was not established in this case.
Result: Appeal partly allowed; decree of divorce granted.
JUDGMENT :
Arun Bhansali, J.
This appeal is directed against the judgment and decree dated 20.1.2018 passed by Family Court No. 3, Kota whereby the petition filed by appellant/husband under section 13 of the Hindu Marriage Act, 1955 (the Act) for dissolution of marriage between the parties, has been dismissed.
2. The appellant and the respondent entered into wedlock on 20.2.2006. They lived together for some time at Mumbai and the couple was blessed with a girl child on 21.4.2008, however due to disputes, they started living separately since 29.10.2012.
3. The petition under Section 13 of the Act was filed seeking dissolution of the marriage on the ground of cruelty and desertion on 10.11.2014. the petition was opposed by the respondent/wife by making counter allegations against the appellant including allegations in relation to his character.
4. Based on the pleadings of the parties, the Family Court framed four issues, pertaining to cruelty, desertion, compliance of provisions of Section 23 of the Act and the relief.
5. On behalf of appellant/husband, he himself and one Satish Jain were examined and on behalf of respondent/wife, she herself was examined.
6. After hearing the parties, the Family Court after analyzing the evidence led by the parties came to the conclusion that the allegations pertaining to cruelty were partly established, inasmuch as the allegations made by the respondent against the appellant qua housemaid, amounted to cruelty. The issue pertaining to desertion was decided against the appellant. However, with regard to issue pertaining to compliance of provision of Section 23(1 )(b) of the Act, the Family Court came to the conclusion that the cruelty stood condoned and consequently dismissed the petition seeking dissolution of the marriage.
7. Learned Counsel for the appellant made vehement submission that the finding of the Family Court on issue No. 3 is ex-facie incorrect and against the settled position of law. Submissions have been made that the finding on issue No. 3 is cursory and the Court without considering the settled law on the aspect of condonation, only on account of the fact that during pendency of the petition, the appellant participated in reconciliation proceedings and gave proposals, which were never accepted by the respondent, jumped to the conclusion that cruelty was condoned, which is factually incorrect and against the settled law and, therefore, the finding deserves to be quashed and set aside.
8. Reliance was placed on Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, Jagdish Prasad Tanwar v. Kasturi Devi, 2017 (2) WLC (Raj.) UC 421 and Saroj Kumari v. Rajesh Kumar, (2013) II DMC 44.
9. It was prayed that the finding on issue No. 3 be set aside and the appeal be allowed and the marriage between the parties be ordered to be dissolved.
10. Learned Counsel for the respondent vehemently opposed the submissions. It was submitted that the Family Court was justified in deciding the issue No. 3 against the appellant/husband, inasmuch as the very fact that the appellant has clearly made efforts and admitted during his statements before the Family Court that the proposals were given to ensure that the matrimony continues, is sufficient to come to a conclusion that cruelty, if any, stood condoned and in view of provisions of Section 23(l)(b) of the Act, decree couldn't have been granted by the Family Court and it has rightly dismissed the petition filed by the appellant. Submission were made that no case for interference in the finding recorded by the Family Court is made out.
11. Reliance was placed on Avadhesh Mani Mema v. Saroj Amita Mema, (1990) I DMC 327.
12. We have considered the submission made by Counsel for the parties and have perused the material available on record.
13. As noticed hereinbefore, the petition was filed seeking dissolution of the marriage on the ground of cruelty and desertion. Although several allegations were made in the petition alleging mental cruelty by the respondent, the
