# Dr. Bagish Kumar Mishra v. Rinki Mishra

- **Citation:** (2024) 11 ILRA 251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-14
- **Case number:** First Appeal No. 55 of 2021
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-bagish-kumar-mishra-v-rinki-mishra-51003
- **Pages:** 7

## Headnote

Civil Law-The Hindu Marriage Act, 1955Section 13 -The Family Court Act, 1984Sections 19 & 28 - The allegations with
regard to cruelty as set out by the appellant/
husband are nothing but the normal wear and
tear in married life. The couple lived together
for around six years and the appellant-husband
could not bring on record specific instances of
mental harassment to enable the Court to
adjudicate the case of mental cruelty in favour
of the appellant/husband--- Allegations leveled
by the husband are general and omnibus in
nature which alone is not sufficient to grant a
decree of divorce--- The instances of physical
and mental harassment, as pleaded and
asserted by the respondent/wife in her written
St.ment, are on the better footing than those
alleged by the appellant/husband. Petition for
Domestic Violence has been allowed in favour of
the respondent/wife, wherein she has even
been awarded compensation and a monthly
maintenance. This all goes on to show the
contrary implication of the allegations made by
the
Appellant---
Pleadings
of
the
appellant/husband are not so grave and weighty
so as to dissolve the marriage.

Appeal dismissed. (E-15)

List of Cases cited:

Samar Ghosh Vs Jaya Ghosh : (2007) 4 SCC 511

## Text

11 All. Dr. Bagish Kumar Mishra Vs. Rinki Mishra
251
56. कायायलय को कनिेश किया जाता है कक कवचारण
न्यायालय का अकभलेख वापस भेज किया जाय तथा इस आिेश की
एक प्रकतकलकप संबंकधत कवचारण न्यायालय को अनुपालन हेतु तुरंत
भेजना सुकनकश्चत ककया जाय।
----------
(2024) 11 ILRA 251
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.11.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 55 of 2021

Dr. Bagish Kumar Mishra ...Appellant
Versus
Rinki Mishra ...Respondent

Counsel for the Appellant:
Alok Tripathi, Anju Agarwal, Hari Om Pandey,
Meena Bajpai, Nisha Srivastava, Shailesh Kumar
Srivastava

Counsel for the Respondents:
C.S.C., Rajneesh Kumar Verma, Surya Prakash
Singh

Civil Law-The Hindu Marriage Act, 1955Section 13 -The Family Court Act, 1984Sections 19 & 28 - The allegations with
regard to cruelty as set out by the appellant/
husband are nothing but the normal wear and
tear in married life. The couple lived together
for around six years and the appellant-husband
could not bring on record specific instances of
mental harassment to enable the Court to
adjudicate the case of mental cruelty in favour
of the appellant/husband--- Allegations leveled
by the husband are general and omnibus in
nature which alone is not sufficient to grant a
decree of divorce--- The instances of physical
and mental harassment, as pleaded and
asserted by the respondent/wife in her written
St.ment, are on the better footing than those
alleged by the appellant/husband. Petition for
Domestic Violence has been allowed in favour of
the respondent/wife, wherein she has even
been awarded compensation and a monthly
maintenance. This all goes on to show the
contrary implication of the allegations made by
the
Appellant---
Pleadings
of
the
appellant/husband are not so grave and weighty
so as to dissolve the marriage.

Appeal dismissed. (E-15)

List of Cases cited:

Samar Ghosh Vs Jaya Ghosh : (2007) 4 SCC 511

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Mrs. Nisha Srivastava,
learned Counsel representing the appellant
and Mr. Surya Prakash Singh, learned
Counsel representing the respondent.

(2) This appeal under Section 19
read with Section 28 of the Family Courts
Act, 1984 has been filed by the appellant/
husband, assailing the judgment and order
dated 06.11.2020 passed by the Additional
Principal Judge, Family Court, Faizabad,
whereby
Petition No.
773 of
2016
(Computer Registration No. 854 of 2019)
filed by the appellant/ husband under
Section 13 of the Hindu Marriage Act,
1955 seeking grant of a decree of divorce
has been dismissed.

(3) The facts, in nutshell, are that
appellant-Dr. Bagesh Kumar Mishra is the
husband and respondent-Rinki Mishra is
the wife. The matrimonial alliance was
entered into between the parties as per
Hindu rites and rituals in Devkali Temple
Ayodhya on November 11, 2015.

(4) Appellant, Dr. Bagesh Kumar
Mishra, had filed Petition No.773 of 2016
(Computer Registration No. 854 of 2019)
under Section 13 of the Hindu Marriage
Act, 1955 (hereinafter referred to as 'Act,
1955') before the Family Court, Ayodhya,
alleging therein that he was subjected to
252 INDIAN LAW REPORTS ALLAHABAD SERIES
mental and physical cruelty by the
respondent/wife with whom he married
under coercion. It was the case of the
appellant that while posted as Government
Doctor at Community Health Centre, Pura
Bazaar, Faizabad, he met the respondent in
2010. As he was new to Faizabad and was
living alone, he engaged the respondent as
a home Helper with the consent of her
father, whereupon she confided to him
about her family situation, narrating that
her father was a chronic drinker; her
mother was of bad character; and as such
her education as well as that of her brother
got disrupted. It has been further stated by
the appellant that in the said peculiar family
situation
of
the
respondent/wife,
he
financially supported the education of
respondent and her brother. The appellant
and respondent were having a live-inrelationship. Appellant had also borne
expenditure
of
her
father's
medical
treatment, who eventually executed a 'Will'
in favour of the respondent before his death
on 15.10.2015.

(5) It was also the case of the
appellant that after demise of respondent's
father,
dispute
arose
between
the
respondent
and
her
mother
over
employment and financial benefits. On
08.11.2015, the respondent and her mother
called the appellant at Devkali Temple and
got him married with the respondent under
pressure. This marriage got notorized in
Civil Court, Faizabad on 09.05.2016 and
was also got registered in the office of
Registrar on 18.10.2016. It was the case of
the appellant that after marriage, the
respondent
began
imposing
severe
restrictions, forbidding him from visiting or
supporting his parents and brothers and
further humiliated him in front of hospital
staff and patients by making baseless
allegations about his relationships with
colleagues
and
lodging
false
police
complaints about he having gone missing
whenever he was away from home.

(6) It was also the case of the
appellant that the respondent had captured
obscene images and videos of him, which
were given to her brother, who then
blackmailed
the
appellant
with
the
manipulated materials, demanding money
and threatening to publicly defame him.
According to the appellant, the respondent
had also physically assaulted him, dragged
him by his hair, pushed him off the bed,
and instigated her brother to attack him.
Furthermore, the respondent and her family
attempted to forcibly occupy a house under
construction, which was being built by him
with a loan. The respondent and her family
had also pressurized the appellant to
transfer ownership of the house in the
respondent's name and obstructed the
workers from continuing the construction.
On 29th May 2016, at around 10:00 PM, an
incident
occurred,
and
the
appellant
reported it to the In-charge Officer of
Devkali Outpost. On 12th June 2016, the
respondent filed a false report at Kotwali
Nagar Police Station, claiming that her
husband (the appellant) was missing.

(7) It was also the case of the
appellant that on 13th June 2016, at around
10:30 PM, the respondent fabricated a false
incident, claiming that the appellant, along
with two associates, forcefully opened her
door and tried to establish physical
relations with her. This allegation was
reported to the Superintendent of Police
(City), Faizabad, and was also published in
various newspapers to defame the appellant
publicly. Further, in the intervening night of
29/30th June 2016, at around 1:30 AM, the
respondent made another false report
through
Dial
No.100,
accusing
the
11 All. Dr. Bagish Kumar Mishra Vs. Rinki Mishra
253
appellant of planning to murder her.
Furthermore, a complaint was submitted by
the respondent on 14th July 2016 to the
Principal Secretary of Medical and Health
Services,
Uttar
Pradesh,
Lucknow,
reiterating
the
false
allegations.
The
respondent also submitted a complaint
against the appellant to the Chief Medical
Superintendent,
Divisional
Hospital,
Darshan Nagar, on 22nd July 2016,
branding him as a corrupt and immoral
doctor, but the investigation revealed these
claims to be baseless. On 2nd August 2016,
respondent filed another complaint with the
Women's Commission, Lucknow. The
Respondent created a web of complaints
against
the Appellant,
which
caused
immense mental harassment & cruelty.
During this time, the appellant applied for
his transfer to Lucknow due to his father
suffering from paralysis and his brother
being
diagnosed
with
blood
cancer.
However, the respondent objected to his
transfer request on 16th August 2016,
though her objection was later dismissed.

(8) It is the further case of the
appellant that on 2nd September 2016, the
respondent falsely accused him by lodging
an FIR (Crime No. 595/2016) under
Sections 498A, 323, 504, 506, 377, 467,
468, and 313 of the Indian Penal Code at
Kotwali Ayodhya, Faizabad. On 18th
October 2016 and 2nd November 2016, the
respondent filed applications with the
Senior Superintendent of Police, stating
that the police had taken no action in these
cases. Facing these continued allegations
and harassment, the appellant claims to
have developed hypertension and heart
disease. Appellant also asserted that on 9th
November 2016, the respondent caused a
disturbance at his house in Darshan Nagar
and
threatened
him
with
severe
consequences.
(9) Notice was issued in the
aforesaid Divorce petition and in response,
the respondent had put in appearance and
filed a written statement, denying the
allegations made in the petition. She stated
that she got married with the appellant out
of her own free will on 8th November 2015
at Devkali Temple, Faizabad, as per Hindu
rituals. She refuted the appellant claims
about conflicting marriage dates (8th
November 2015 and 8th November 2016),
accusing him of trying to mislead the
Court. According to her, the couple had
lived together as husband and wife for
several years in Government quarters and
rented houses. She also claimed that the
appellant
had
repeatedly
established
physical relations with her by promising
marriage and that, in the course of time, he
had developed an illicit relationship with
another woman, Aradhana Mishra, from
Lucknow. The respondent alleged that the
appellant tried to manipulate her into a
divorce and even executed a marriage
agreement on 9th May 2016 through an
Advocate in Faizabad, deceitfully obtaining
her signature on a separation agreement at
the same time. Despite this, the appellant
continued to harass and abuse her,
including coercing her into unnatural
sexual activities and engaging in other
forms of exploitation. As a result, she filed
FIR No. 595 of 2016 under Sections 498A,
323, 504, 506, 377, 467, 468, and 313 IPC.
She also alleged that fearing arrest, the
appellant registered their marriage on 18th
October 2016 at the Sub-Registrar's office
to pacify her and secured a compromise in
the
case.
Following
the
marriage
registration, the respondent withdrew her
earlier
complaint,
but
the
appellant
resumed his abusive behavior. Appellant
filed a frivolous police complaint on 3rd
March 2017, attempting to implicate her in
a fake case. Upon discovering the truth, the
254 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent submitted a request to the
District Magistrate, Faizabad, seeking reexamination by a Medical Board, which the
appellant
allegedly
tried
to
avoid.
Respondent further alleged that on 20th
February 2017, around 7 PM, the appellant
forcibly evicted her from their house in
Saketpuri, after which she called the police
emergency number. The police detained the
appellant, and a reconciliation attempt was
made, during which the appellant issued a
cheque for Rs. 5,000 (Cheque No. 010236,
dated 22nd February 2017, drawn on
Allahabad Bank, Devkali), however, the
said cheque later bounced. The respondent
also filed a case under Section 12 of the
Domestic Violence Act, wherein during
cross-examination, the appellant denied the
validity of their marriage on 8th November
2015, but the respondent testified that they
had lived together as husband and wife
throughout. Respondent had accused the
appellant of misleading the Court by falsely
claiming that she resided in her parental
home, while in fact, she had lived with him
in rented accommodation and currently
resides in his house i.e. House No. 344, at
Saketpuri, Ayodhya. The respondent also
filed Domestic Violence Case No. 2420/16
(Rinki Mishra vs. Dr. Bagesh Kumar
Mishra), which was decided on 8th
November 2017, wherein the Court found
that the appellant had subjected the
respondent to physical and mental abuse,
constituting domestic violence. The trial
Court
awarded
the
respondent
Rs.
1,00,000/- as lump-sum compensation,
Rs.25,000/- per month as maintenance, and
directed that she be allowed to reside
without obstruction in the shared household
at House No. 344, Saketpuri, Ayodhya.
Additionally, the trial Court ordered the
appellant to furnish a personal bond of
Rs.50,000/- with an undertaking before the
District Probation Officer, ensuring that he
would not harass the respondent in future.
The respondent stated that under no
circumstances, she is willing to grant a
divorce.

(10) Based upon the pleadings led
by the parties, the issues framed by the trial
Court are as under :-

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}kjk ;kph MkDVj ckxh'k dqekj feJk ds
lkFk dzwjrk dk O;ogkj fd;k x;k gS \
2- ;kph MkDVj ckxh'k dqekj
feJk fdl vuqrks'k dks izkIr djus dk
vf/kdkjh gS \

(11) Parties led evidence before
the trial Court. The appellant examined
himself as P.W.1 by filing his affidavit as
his examination-in-chief (marked as Paper
No. 27Ka1), wherein he reiterated the
plaint averments. Appellant also examined
his friend, namely, Rajendra Kumar Gupta,
as P.W.2, who filed affidavit as his
examination-in-chief (marked as Paper No.
28Ka2), wherein he stated that he is a
Doctor
by
profession
and
the
plaintiff/appellant is also a Doctor, because
of which, he used to visit the house of the
appellant and also knew the conduct of the
respondent with the appellant. According to
the said witness, after marriage, when he
went to house of the appellant, the
respondent used to trouble the appellant on
a number of times in front of him, saying
that the appellant would not go to meet his
father nor his father will come to meet him
and the respondent restrained the appellant
to meet him also. P.W.2 has also stated that
the respondent also used abusive languages
against the appellant on a number of times
and also misbehaved with him.

(12) The respondent examined
herself as O.P.W.1 by filing her affidavit as
11 All. Dr. Bagish Kumar Mishra Vs. Rinki Mishra
255
her examination-in-chief (marked as Paper
No. 44Ka2), wherein she reiterated the
averments of the written statement. The
respondent has also examined her mother,
namely, Kamini Mishra, as O.P.W.2, who
also filed her affidavit as her examinationin-chief (marked as Paper No. 51Ka2).

(13) The Family Court, after
appraising the pleadings and evidence on
record, has returned a finding that the
parties had cordial relationship between
2010 to 2016 and the appellant filed the
suit for divorce on 16.11.2016, therefore, in
such a circumstances, it was difficult to
understand as to when the respondent had
inflicted mental, financial and physical
cruelty against the appellant. In these
backdrops, issue nos. 1 and 2 were decided
against the appellant and the suit filed by
him was also dismissed vide judgment and
decree dated 06.11.2020, which is under
challenge in the present appeal.

(14) Learned Counsel for the
appellant
has
submitted
that
the
respondent-wife has committed physical
and mental cruelty by filing various
complaints including false and frivolous
criminal complaints against the appellant.
According to the learned Counsel, though
appellant has raised plea of cruelty at the
hands of respondent by oral as well as by
documentary evidence, but the learned
Family Court has not considered the
pleadings and the evidence on record, in its
correct perspective. According to him, the
Family Court has failed to consider the ill-
treatment which was subjected to him by
the respondent/wife. According to him, the
very lodging of false allegations against the
appellant/husband
amounts
to
mental
cruelty. He further submitted that the
learned Family Court has ignored the bad
habits of the respondent/wife, and also not
considered that she used to quarrel with the
appellant/husband in front of his friend and
hospital staff. Lastly, he urged to allow the
appeal in the interest of justice.

(15) Per contra, learned counsel
for the respondent/wife, while supporting
the judgment and decree of the trial Court,
has submitted that the learned trial Court,
while dismissing the petition, has properly
appreciated the evidence on record and that
the appellant/husband could not make out a
case to interfere with the well-reasoned
judgment of the trial Court.

(16)
 Having
regard
to
the
submission
of
the
learned
Counsel
representing the appellant/husband and
going through the record available before
this Court in this appeal as well as the
impugned judgment and decree and the
record of the trial Court, the points of
determination arise in consideration before
us in the present appeal are as under :-

"Whether the findings of
the Family Court regarding issues
no. 1 and 2 with respect to the plea
of cruelty as a ground for divorce,
is
perverse
and
unsustainable
thereby rendering the impugned
judgment unsustainable ?"

(17) At the outset, it is readily
available
from
records
that
the
appellant/husband has sought divorce on
the ground of mental and physical cruelty.
Before adverting to examine the evidence
on record to assess as to whether the
appellant/husband could make out a case of
mental, financial and physical cruelty, it
would be advantageous to refer to one of
the landmark judgments of the Hon'ble
Supreme Court in the case of Samar
Ghosh vs. Jaya Ghosh : (2007) 4 SCC 511
256 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein the Apex Court have enumerated
some instances of mental cruelty. The
relevant portion in para no. 101 in the said
judgment is reproduced below :-

"101. No uniform standard
can
ever
be
laid
down
for
guidance,
yet
we
deem
it
appropriate to enumerate some
instances of human behavior which
may be relevant in dealing with the
cases of "mental cruelty". The
instances
indicated
in
the
succeeding paragraphs are only
illustrative and not exhaustive:
(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 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.
(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.
(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."

(18) A careful perusal of the
pleadings and the evidence in support as
adduced by the appellant/husband, would at
once reveal that the allegations with regard
to
cruelty
as
set
out
by
the
appellant/husband, are nothing but the
normal wear and tear in married life. The
couple lived together for around six years
and the appellant-husband could not bring
on record specific instances of mental
harassment
to
enable
this Court
to
adjudicate the case of mental cruelty in
favour of the appellant/husband. The
allegations that she was quarreling with
him without any reason, in the considered
view of this Court, are not sufficient to
form
any
opinion
that
the
appellant/husband is undergoing acute
mental
pain,
agony,
suffering,
disappointment
and
frustration
and
therefore it is not possible for him to live in
the company of the respondent/wife.

(19) All the allegations levelled by
the appellant/husband are general and
omnibus in nature. The major allegation
amongst them is with regard to her not
permitting him to meet his parents and
friends and regarding misbehaviour with
11 All. Rama Kant & Ors. Vs. Smt. Prema Devi & Ors.
257
him in front of his friend and hospital staff
and
also
having
lodged
frivolous
complaints against the appellant, which
alone is not sufficient to grant a decree of
divorce. The complaints lodged by the
respondent/wife had to be proved false and
malicious by the Appellant, so as to meet
the threshold of cruelty. On the contrary,
the
appellant/husband
in
his
crossexamination has admitted that they had
physical relations between 2013 to 2016. At
this stage, it would be relevant to add that
the suit for divorce was filed by the
appellant
only
on
14.11.2016.
The
instances
of
physical
and
mental
harassment, as pleaded and asserted by the
respondent/wife in her written statement,
are on the better footing than those alleged
by the appellant/husband. This Court also
finds that the petition for Domestic
Violence has been allowed in favour of the
respondent/wife, wherein she has even
been awarded a compensation and a
monthly maintenance. This all goes on to
show the contrary implication of the
allegations made by the Appellant.

(20) Further, it is the specific
allegations of appellant/husband that on
29.05.2016 at about 10:00 p.m., the
appellant
was
beaten
by
the
respondent/wife and he sustained injuries.
However, the learned trial Court has rightly
observed that though number of cases have
been lodged by the appellant/husband
against his wife but the appellant/husband
has not lodged any complaint/F.I.R. in
regard to the incident alleged to have been
occurred on 29.05.2016, which shows that
the
allegations
made
by
the
appellant/husband are doubtful.

(21) Apart from the aforesaid, it
has rightly been held by the learned trial
Court
that
the
pleadings
of
the
appellant/husband are not so grave and
weighty so as to dissolve the marriage. The
learned trial Court has rightly observed that
the appellant has failed to prove his
allegations of mental and physical cruelty.

(22) In view of the aforesaid, we
are of the opinion that no case is made out
by the appellant/husband to interfere with
the well reasoned findings of the learned
trial Court. The point of determination is
answered accordingly.

(23) The appeal thus being devoid
of merit deserves to be dismissed and is,
accordingly, dismissed. The parties to bear
their own costs.
----------
(2024) 11 ILRA 257
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.11.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 112 of 2023

Rama Kant & Ors. ...Appellants
Versus
Smt. Prema Devi & Ors. ...Respondents

Counsel for the Appellants:
Ashok Kumar Srivastava, Atul Kumar Srivastava

Counsel for the Respondents:
Sharad Pathak, Piyush Pathak, Vipul Tripathi

Civil Law-The Specific Relief Act-1963Section
16(c)-Second
appeal
against
concurrent judgment---Trial court in a suit for
specific performance failed to frame the specific
issue regarding readiness and willingness---It
was incumbent upon the plaintiff-respondents to
specifically St. in the plaint that they have
arranged
the
remaining
money
of
sale
consideration and ready to pay the same and
prove it---In a suit for specific performance, the