Kunal Kant Saxena vs Sangeeta Saxena

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(MP) 366

IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul and Prakash Chandra Gupta, JJ.
Kunal Kant Saxena v. Smt. Sangeeta Saxena & Another
First Appeal No. 16 of 2010 (Jabalpur): against the judgment and decree dated 10.12.2009 passed by the II Additional
Principal Judge, Family Court, Bhopal in RCS No. 433A/2004; Decided on 20.12.2022

Advocates:
P. S. Gaharwar for appellant; Amit Verma for respondents.

Headnote:
(1) Civil P. C., 1908 -- O. 41 R. 27 -- judgment of acquittal sought to be brought on record by wife -- she clearly pleaded in written statement that she was acquitted -- husband did not dispute factum of acquittal -- said judgment passed three years before impugned judgment -- wife did not file it before trial Court -- documents neither sine qua non for removal of clouds of doubt, nor have direct and important bearing on main issue in suit -- application rejected. 2022 Live Law (SC) 268 followed. [Paras 19 & 20
(2) Hindu Marriage Act, 1955 -- S. 13 (1) (ia) -- cruelty -- alleged cruelty by wife -- statements of husband not fully supported by his brother -- material witnesses not examined -- alleged report lodged at police station only handwritten statement without sign and seal of receipt by police -- statement of wife denying to attend birthday function of daughter contradictory to pleadings -- suicide attempt by wife not proved -- statements of husband and his witnesses not reliable about wife forcefully taking son with her -- also, being mother of child, if she had taken children with her, it cannot be assumed that she forcefully took them -- does not appear that wife denied to make relation with husband and stopped taking care of children -- wife government servant and already had 2 children, therefore, sterilization surgery does not come within ambit of cruelty -- wife’s threat to kill husband not mentioned in husband’s complaint to police, which does not bear seal of concerned police station -- though husband acquitted in criminal case lodged by wife, it appears that husband had beaten her -- wife acquitted in criminal case instituted on complaint of husband -- husband admitted that he demanded and took Rs. 45,000/- from his father-in-law but has not filed any document to show that he returned that money -- husband failed to prove that wife committed cruelty. Civil Appeal No. 3253 of 2008 decided on 6.10.2016, Civil Appeal No. 8871 of 2019 decided on 19.11.2019, (2004) 7 SCC 747 and (2002) 2 SCC 73 followed. 2005 (1) Supreme 626, First Appeal No. 60 of 2002 decided on 21.11.2013, AIR 1966 All. 570, 1991 (2) DMC 615, 1990 (1) DMC 327, 2011 (1) DMC 18 (Guwhati) and 1984 (1) DMC 150 (MP) relied on. 2011 (3) JLJ 299 referred to. [Paras 35 to 51
(3) Hindu Marriage Act, 1955 -- S. 13 (1) (ib) -- alleged desertion by wife -- husband himself left his house and started living in different place -- cruelty by wife not proved -- no evidence that wife compelled husband to live separately -- not proved that wife deserted husband. [Paras 53 & 54
(4) Hindu Marriage Act, 1955 -- S. 13 (1) (i) -- adultery -- as per R. 2 (7) (e) (ii) of M. P. High Court Rules under Hindu Marriage Act (M. P. Rajpatra Part 4(G) dated 17 May, 1957), in petition of divorce on ground of adultery, rape or sodomy, date and place of act/acts and name and address of person/persons with whom these acts were committed by respondent required to be mentioned -- husband mentioned names of two persons -- did not make them party -- did not give their complete address, date and place of act -- petition not acceptable in respect of these two persons. 2011 (2) MPLJ 680 relied on. [Para 56
(5) Hindu Marriage Act, 1955 -- S. 13 (1) (i) -- adultery -- husband stated that wife has strong relationship with two people -- did not state that wife had sexual intercourse with them -- no suggestion given to wife in cross-examination that she had sexual intercourse with them -- adultery not proved. [Para 58
(6) Hindu Marriage Act, 1955 -- S. 13 (1) (i) -- adultery -- husband direct witness to only few incidents -- wife and respondent No. 2 used to sit on sofa and talk -- they used to shake hands -- he is hearsay witness to all other averments -- children supported statement of husband but gave general statement and did not give specific dates of incidents -- husband did not ask wife in cross examination that she had sexual intercourse with respondent No. 2 -- did not examine guard and those patrolling police personnel who caught respondent No. 2 -- besides, husband had forgiven her -- failed to prove that wife had sexual intercourse with respondent No. 2.
[Paras 62, 63, 66 to 68
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¼3½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼[k½ && iRuh }kjk vfHkdfFkr vfHkR;tu && ifr us Lo;a viuk ?kj NksM+k vkSj fHkUu LFkku ij jgus yxk && iRuh }kjk Øwjrk lkfcr ugha && dksbZ lk{; ugha fd iRuh us ifr dks i`Fkd~ jgus ds fy, foo'k fd;k && lkfcr ugha fd iRuh us ifr dk vfHkR;tu fd;kA ¼iSjk 53 ,oa 54
¼4½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼i½ && tkjdeZ && e-iz- mPp U;k;ky; fu;eksa ds fu-2 ¼7½¼M+½ ¼ii½¼e-iz- jkti= Hkkx ¼N½ fnukad 17 ebZ] 1957½ ds vuqlkj] fganw fookg vf/kfu;e ds v/khu tkjdeZ] cykRlax vFkok xqnk eSFkqu ds vk/kkj ij fookg foPNsn ds fy, ;kfpdk esa ÑR;@ÑR;ksa ds fnukad vkSj LFkku] rFkk ftl O;fDr@ftu O;fDr;ksa ds lkFk izR;FkhZ us ;g ÑR; fd, mldk@muds uke vkSj irs dk mYys[k vko';d && ifr us nks O;fDR;ksa ds uke fy, && mUgsa i{kdkj ugha cuk;k && mudk iw.kZ irk] ÑR; dk fnukad vkSj LFkku ugha crk;k && bu nks O;fDr;ksa ds laca/k esa ;kfpdk xzká ughaA 2011 ¼2½ ,e ih ,y ts 680 voyafcrA ¼iSjk 56
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¼6½ fganw fookg vf/kfu;e] 1955 && /kkjk 13¼1½¼i½ && tkjdeZ && ifr dsoy dqN ?kVukvksa dk izR;{k lk{kh && iRuh vkSj izR;FkhZ Ø-2 lksQs ij cSB dj ckrsa djrs Fks && gkFk feykrs Fks && vU; leLr izdFkuksa dk og vuqJqr lk{kh && larkuksa us ifr ds dFku dk leFkZu fd;k ijarq O;kid dFku fd, vkSj ?kVukvksa ds fofufnZ"V fnukad ugha crk, && ifr us iRuh ls izfrijh{kk esa ugha iwNk fd mlus izR;FkhZ Ø-2 ds lkFk eSFkqu fd;k && pkSdhnkj vkSj x'r djus okys mu iqfyl dfeZ;ksa dh ijh{kk ugha dh ftUgksaus izR;FkhZ Ø-2 dks idM+k && blds vfrfjDr] ifr us {kek dj fn;k Fkk && lkfcr djus esa vlQy fd iRuh us izR;FkhZ Ø-2 ds lkFk eSFkqu fd;kA ¼iSjk 62] 63] 66 ls 68

JUDGMENT

1. Appellant/ husband filed this appeal u/s 19 of the family Courts act, 1984 r/w section 28 of the Hindu marriage act, 1955, against the judgment and decree dated 10.12.2009 passed by the IInd additional principal judge, family Court, Bhopal in RCS no. 433A/2004, whereby the learned trial Court has dismissed the petition u/s 13(1) of the Hindu Marriage Act, 1955, filed by the appellant.

2. It is an admitted fact that marriage of appellant/ husband and Respondent No.1/ wife was solemnized on 27.6.1985, as per Hindu rites and customs in Jhansi, Uttar Pradesh. From wedlock of both the parties, son, Sandal Saxena (PW/ 2) and daughter, Sargam Saxena (PW/ 1) were born on 1.6.1986 and 28.1.1991 respectively. Husband was transferred on 20.8.2001 from Bhopal to Indore, thereafter, he used to live in Indore with his children. Husband was posted at Shivpuri from 1985 to 1992, at Gopalganj (Bihar) from 1992 to 1995, at Sagar from 1995 to 1996, at Khurai from 1996 to 1997, at Bina from 1997 to 1999 and at Bhopal from 1999 to 2001. It is also an admitted fact that the wife was appointed as a teacher in 1988 in Government Girls School Mangrauni, distt.- Shivpuri. She used to updown from Shivpuri to Magrauni. An intimation was given by wife that on 29.9.2000, husband had physically assaulted Sandal Saxena (PW/ 2), an FIR was lodged against the husband and after investigation a charge-sheet was filed u/s 323 and 294 of the Indian Penal Code against the appellant/ husband.

3. The appellant/ husband filed a petition u/s 13 of the Hindu Marriage Act, 1955, stating that after solemnization of marriage, wife came to husband’s home at Shivpuri and after 2-3 days, she went to her parental home and she lived there for approximately 2 months. When husband was transferred to Ringnod, distt- Ratlam, wife had denied to go with him. During posting of husband at Shivpuri (1985-1992), relation between the parties had become strained and she repeatedly used to go to her parental home. She used to leave home without informing about the same to anyone in the house. She used to misbehave with her husband and his parents. After 5 months from the birth of Sandal (PW/2), she left the home without informing to her husband. Then her husband on 1.11.1986 had reported at P/S Shivpuri. Thereafter, she was found in the house of Anant Trivedi at Jhansi. She told on being asked, that she likes Anant Trivedi, she wanted to marry him but her parents solemnized the marriage with the appellant without her will. During posting of Mangrauni, she had relation with Irshad. In year 1989, she was transferred to Masoori, Distt.- Bhind on the post of lecturer. Alongwith Irshad she used roam in street and go to hotel and rest-house on his motorcycle and used to come late at night.

4. During posting of Gopalganj, Bihar of husband, wife used to go to him but her behaviour was not good. She always used to quarrel and intimidate. Wife and children used to live in Bhopal while the husband was posted at Sagar, Khurai, Bina and Bhopal (1995-2001), the wife was posted as a lecturer as Kasturba Girls School North TT Nagar, Bhopal. At that time responded No.2 was also posted as an assistant teacher in that school, during which wife/ respondent No. 1 and respondent No. 2 developed a strong bond which resulted into love affair. Husband stopped wife to meet respondent No. 2 and taught her but she did not agree. In the month of February 1992, the wife fought with the husband and torn her clothes herself, broke and threw the articles of house, resultingly she attempted suicide, past 2 days of the incident, husband got her admitted in a Akshay hospital in Bhopal and intimated about the incident at P/S Habibganj, but a cousin of wife, Upmanyu Saxena (DW/ 2) was posted as SI at P/S Habibganj, who suppressed the matter.

5. On the occasion of birthday of Sargam Saxena (PW/ 1) on 28.1.2000, the wife had left the house before several invited guests had come and came back after 2 days on 30.1.2000,