The main legal point established in the judgment is the application of the concept of mental cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, and the consideration of irretrievable breakdown of the marriage as a weighty circumstance necessitating the severance of the marital tie.

JUDGMENT : – This appeal has been presented by the appellant-wife against her being aggrieved by the decree of divorce granted on August 31, 2019 by the First Additional Principal Judge, Family Court, Bhopal, in RCS HM No. 166/2015.

2. The relevant facts are that the appellant and the respondent married on 31-1-2009 at Alwar as per the customs prevalent in their society. On 12-4-2011, they blessed with a son. Their marriage could not work. As per averments of the wife, behaviour of the respondent-husband towards her was very cruel, rude, disrespectful and disgraceful. Perturbed and distressed by his behaviour, she along with her minor son left his house situated in Mumbai on 13-8-2013 and came to her father’s place in Bhopal. The matrimonial litigations then flared up between both of them. On 6-2-2014, as per the customs prevailing in their society, the respondent/husband presented an application for divorce before the Pachas (arbitrators) of the society. He made several allegations against her, but the ‘Panch’ of the society refused to give any order in his favour. He then filed a petition seeking divorce at Jaipur; which was subsequently transferred to Bhopal by the Supreme Court. The appellant/wife also filed a complaint under section 498-A of the Indian Penal Code and section 4 of the Dowry Prohibition Act against the respondent/husband, and his family members in the Mahila Police Station, Bhopal, but the police did not take any action on it. Aggrieved by this, she filed a complaint before the Court of Judicial Magistrate First Class, Bhopal under section 200 of the Code of Criminal Procedure.

3. The appellant also filed a domestic violence petition against the respondent and his family members. She also filed a petition under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights, which was subsequently withdrawn. The respondent filed a petition for declaring him guardian of their son and seeking his custody. On 28-2-2015, after hearing of this petition, the respondent got agitated and started abusing her. He along with his two associates assaulted her and caused severe injuries. He also threatened her to kill. The appellant immediately filed an FIR No. 143/2015 under sections 294, 323, 506, 34 of the Indian Penal Code complaining about the aforesaid incident and the injury caused to her. The respondent also lodged cross FIR bearing number 144/2015 against the appellant under section 363 of the Indian Penal Code alleging that she had kidnapped her own son. The appellant preferred a petition being CRR No. 3794/2017 against this FIR before the High Court; which was allowed vide order dated 16-5-2018 holding that the appellant is a natural guardian and mother of the child, therefore, the charge of kidnapping cannot be framed against her. On challenge by the respondent, the Supreme Court upheld the order of the High Court vide order dated 3-12-2018.

4. The divorce was sought on the ground of cruelty and desertion. The learned Family Court found both the grounds proved but holding that statutory period of 2 years of desertion is not completed by the time of filing of the petition by the husband and, therefore, decree cannot be granted on that ground of desertion, allowed the petition on the ground of ‘cruelty’ and dissolved their marriage by a decree of divorce. This decree is the subject matter of the present appeal.

5. The appellant has assailed the decree of divorce on the grounds that while passing the decree of divorce, the learned Court below has only considered the aspects and contentions of the respondent. Despite contradictions, the trial Court wrongly believed the evidence produced by the respondent-husband. The learned Family Court misjudged the conduct of the respondent. It completely ignored that he was denied divorce by the ‘Panchas’ of the society and that it were only the actions of the respondent; which led to the separation of the parties. The conduct of the husband was not just and fair