Harishankar Kewat vs Smt. Kushbu Machhya D/O Shri Gangaram Machhiya

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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK KUMAR SINGH
&
HON'BLE SHRI JUSTICE AJAY KUMAR NIRANKARI
nd
ON THE 22 OF APRIL, 2026
FIRST APPEAL No. 370 of 2024
HARISHANKAR KEWAT
Versus
SMT. KUSHBU MACHHYA D/O SHRI GANGARAM MACHHIYA
Appearance:
Shri Vijay Kumar Shrivastava - Advocate for the appellant.
Shri Kuldeep Singh Rajpoot - Advocate for the respondent.
ORDER
Per: Justice Vivek Kumar Singh
This first appeal under Section 19(1) of the Family Courts Act, 1984
read with Section 28 of the Hindu Marriage Act, 1955 has been filed by the
appellant/husband being aggrieved by the judgment and decree dated
24.01.2024 passed by the Principal Judge, Family Court, Narmadapuram,
District Narmadapuram (M.P.) in Registration No. RCS HM/100/2022,
whereby application under Section 13(1)(ia) of the Hindu Marriage Act,
1955 (for brevity ‘HM Act, 1955’) filed by the appellant/husband seeking
dissolution of marriage has been dismissed.
2. Factual matrix of the case, in short, are that the appellant marriage
was solemnized with the respondent on 13.06.2020 during pandemic of
Covid-19 according to Hindu rites and rituals. Respondent/wife was having
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affair before marriage and after a month respondent/wife left the matrimonial

house on 28.07.2020 with all the ornaments and cash of Rs.80,000/- leaving
behind a message that she will never come back to appellant's house.
Thereafter, appellant/husband made several effort to search the
respondent/wife but was unable to trace her. Being aggrieved
appellant/husband filed an application under Section 9 of the Hindu Marriage
Act, 1955 for the restitution of conjugal rights before the Principal Judge,
Family Court, Narmadapuram (M.P.) registered as RCS HM No.99A/2020
which was withdrawn by the appellant/husband vide order dated 17.06.2022.
Thereafter, respondent/wife has filed a suit under Section 10 of the Hindu
Marriage Act, 1955 for seeking the decree of judicial separation before the
Principal Judge, Family Court, Narmadapuram (M.P.) registered as RCS HM
No.113/2020 which was dismissed vide judgment dated 17.01.2023. Even
after the aforesaid proceedings, the respondent/wife was not ready to reside
with the appellant/husband and being aggrieved by the same, the
appellant/husband has filed a petition under Section 13(1)(ia) of the Hindu
Marriage Act,1955 seeking dissolution of marriage on the basis of cruelty
and desertion before the Principal Judge, Family Court, Narmadapuram,
District Narmadapuram (M.P.) registered as RCS HM No.100/2022 in which
the learned trial Court has dismissed the petition on the ground that no
cruelty and desertion have been proved.
3. Being aggrieved by the impugned judgment and decree passed by
the learned Family Court, the appellant/husband has preferred the instant first
appeal on the ground that Family Court has erred in rejecting the petition
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under Section 13(1)(ia) of HM Act, 1955 seeking dissolution of marriage on

the ground of cruelty and desertion.
4. Learned counsel for the appellant submits that respondent was not
ready to live with the appellant by her own consent and this fact has not duly
been considered by the learned trial Court while deciding the decree for
divorce. He further submits that respondent ran away from the appellant's
house and was living separately with another person. Respondent/wife
threatened appellant/husband that she will implicate the appellant in a false
case. The respondent has also filed a suit under Section 10 of the HM Act,
1955 for seeking judicial separation which was dismissed by the learned trial
Court. Appellant filed an application under Section 9 of Hindu marriage Act,
1955 for restitution for conjugal right and also tried to convince the
respondent but she did not come back and also denied to live with him in the
mediation proceedings and thereafter appellant withdraw the said application
but such fact was also not considered by the learned trial Court.
5. He further submits that the parties herein have been living apart
since July, 2020 and they have not resumed cohabitation for considerable
long period of time. All attempts for reconciliation have failed. They have
been embroiled in multiple proceedings and there is no realistic possibility of
restoration of matrimonial life between them. He has relied upon the
judgment of the Apex Court in the cases of Debanand Tamuli Vs.
Smt.Kakumoni Kataky reported in (2022) 3 MPLJ 284 SC
and Mangayakarasi Vs. M. Yuvaraj reported in (2020) 2 SCC 786. He has
also relied upon the judgment of this Hon'ble High Court in the cases
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of Ramcharan Raghwanshi Vs. Smt.Ujala reported in (2025) 1 MPLJ 136,

Shruti Deshpande Vs. Shriram Deshpande reported in (2014) 4 MPHT 31
a n d Rajesh Bhoyale Vs. Mahadevi reported in (2022) 4 MPLJ
143. Therefore, it is prayed that judgment and decree dated 24.01.2024
passed by the learned Family Court, Narmadapuram be set aside and instant
appeal be allowed in the interest of justice.
6. Learned counsel for the respondent submits that learned trial Court
while passing the impugned judgment has perused all the relevant piece of
evidences and has rightly dismissed the petition of the appellant/husband.
7. Heard learned counsel for the parties and perused the record.
8. After considering the submission made by the learned counsel for
the parties, the question that came for consideration before this Court is
whether the appellant was subjected to cruelty by the respondent/wife and
whether the action of desertion by the respondent/wife falls within the ambit
of “cruelty” or not ?
9. To answer the aforesaid question, it is apposite to refer to the law
laid down by the Supreme Court in the case of Samar Ghosh vs. Jaya Ghosh,
(2007) 4 SCC 511, in which the Apex Court has illustrated the instances of
human behaviour, relevant for dealing with the cases of ''mental cruelty'' and
has also considered the aspect of ''irretrievable breakdown'' and observed that
the same can be made a ground for divorce, which are as under:-
''(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not make
possible for the parties to live with each other could come within
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the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial
life of the parties, it becomes abundantly clear that situation is
such that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes the
married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by the
conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of the
spouse.
(vi) Sustained unjustifiable conduct and behaviour of one
spouse actually affecting physical and mental health of the other
spouse. The treatment complained of and the resultant danger or
apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
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selfishness, possessiveness, which causes unhappiness and

dissatisfaction and emotional upset may not be a ground for grant
of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear
of the married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a
few isolated instances over a period of years will not amount to
cruelty. The ill conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent that
because of the acts and behaviour of a spouse, the wronged party
finds it extremely difficult to live with the other party any longer,
may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilization without medical reasons and without the consent or
knowledge of his wife and similarly if the wife undergoes
vasectomy or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the spouse
may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity or
valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to
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cruelty.

(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial bond is
beyond repair. The marriage becomes a fiction though supported
by a legal tie. By refusing to sever that tie, the law in such cases,
does not serve the sanctity of marriage; on the contrary, it shows
scant regard for the feelings and emotions of the parties. In such
like situations, it may lead to mental cruelty."
10. Further, in the case of Shri Rakesh Raman Vs. Smt. Kavita;
(2023) SCC Online SC 497, the Hon'ble Apex Court has manifestly observed
that long separation, in absence of cohabitation and complete breakdown of
all meaningful bonds and existing bitterness between husband and wife, has
to be read as ''cruelty'' under Section 13(1)(i-a) of the HM Act.
11. Furthermore, the Hon'ble Apex Court in the case of Shilpa
Sailesh Vs. Varun Sreenivasan (2023) AIR (SC) Civil 2212 has clearly
observed that grant of divorce on the ground of irretrievable breakdown of
marriage by the Court is not a matter of right, but a discretion which is to be
exercised with great care and caution, keeping in mind several factors
ensuring that ‘complete justice’ is done to both the parties. It is obvious that
this Court should be fully convinced and satisfied that the marriage is totally
unworkable, emotionally dead and beyond salvation and, therefore,
dissolution of marriage is the right solution and the only way to look
forward. That the marriage has irretrievably broken-down is to be factually
determined and firmly established. For this, several factors are to be
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considered such as the period of time the parties had cohabited after

marriage; when the parties had last cohabited; the nature of allegations made
by the parties against each other and their family members; the orders passed
in the legal proceedings from time to time, cumulative impact on the
personal relationship; whether, and how many attempts were made to settle
the disputes by intervention of the Court or through mediation, and when the
last attempt was made, etc. The period of separation should be sufficiently
long, and anything which is reasonably long will be a relevant factor.
12. After considering the submissions made by learned counsel for
the parties, it is apparent that the appellant and respondent had lived together
only for a month and thereafter, they are living separately till date. Learned
Family Court has overlooked the fact that the respondent was never
committed towards the marriage with the appellant and refused to cohabit
with the appellant continuously which resulted into mental agony. The
respondent has continuously deserted the appellant for considerable long
period of time, due to which the marriage between them has suffered to the
extent of irretrievable breakdown. Thus, in the conspectus of facts and
circumstances of the case, it is noticeable that the relationship between the
parties has evidently grown sour beyond the point of return and such a period
of separation has turned these differences irreconcilable. It is unfortunate that
the parties have already spent a considerable period of their adult lives
fighting marital battles in the courtrooms. The parties still have a
considerable natural life ahead of them to look forward to. Therefore, we are
inclined to allow the appeal preferred by the appellant/husband and grant
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divorce on the ground of irretrievable breakdown of marriage, which also

falls within the ambit of mental cruelty and desertion in the terms of Section
13(1)(ia) & (ib) of HM Act, 1955. In these circumstances, this Court deems
it fit and proper to dissolve the marriage solemnized between the appellant
and the respondent on 13.06.2020.
13. Resultantly, the first appeal is allowed. The impugned judgment
and decree dated 24.01.2024 passed by the Principal Judge, Family Court,
Narmadapuram (M.P.) in RCS HM No.100/2022 is hereby set aside.
14. Registry is directed to draw a decree accordingly.
15. Parties to bear their own costs.
Appeal allowed.
(VIVEK KUMAR SINGH)
(AJAY KUMAR NIRANKARI)
JUDGE
JUDGE
SSL

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Signing time: 30-04-2026
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