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2018 DIGILAW 1772 (ALL)

Pankaj Sharma v. Neelu Sharma

2018-08-10

ABHAI KUMAR, DEVENDRA KUMAR ARORA

body2018
JUDGMENT : Devendra Kumar Arora, J. Supplementary affidavit filed on behalf of the respondent is taken on record. 2. Heard Sri Anand Pal Singh, learned Counsel for the appellant and Sri Sanjai Srivastava, learned Counsel for the respondent. 3. Pankaj Sharma - appellant herein has filed the instant appeal against the judgment and order dated 09.04.2018 passed by the learned Additional Principal Judge, Family Court, Lucknow, in Regular Suit No.1979 of 2014, whereby his suit has been rejected on the ground that since both the parties are interested to dissolve the marriage, they are at liberty to file suit for dissolution of marriage under Section 13-B of the Hindu Marriage Act. 4. Submission of learned Counsel for the appellant is that in the year 2011, the marriage of the appellant was solemnized with the respondent according to Hindu rites and rituals but after lapse of one year relations became very strained and the wife left the matrimonial house to live in her paternal house. The appellant made every possibility to bring her back but she refused to come and live with the appellant. 5. When all the efforts of conciliation went in vain, the appellant had filed a suit under Section-9 of the Hindu Marriage Act for restitution of conjugal rights but during the pendency of the said suit, both the parties decided to live separately and consequently, the appellant had filed a suit bearing Suit No.503 of 2013 (Pankaj Sharma Vs. Smt. Neelu Sharma) for dissolution of marriage with mutual consent under Section 13-B of the Hindu Marriage Act before the learned Principal Judge, Family Court, Lucknow, but the same was dismissed vide order dated 05.05.2014 on account of non-appearance of the respondent before the court concerned. 6. Consequent to dismissal of the aforesaid suit, the appellant preferred Suit No.1979 of 2014 (Pankaj Sharma Vs. Neelu Sharma), for grant of decree of divorce under Section 13 of the Hindu Marriage Act before the Principal Judge, Family Court, Lucknow, with a specific plea that the respondent had left her in-laws house on 14.01.2012 along with her brother without informing him and since then she is living at her parental house. 7. Neelu Sharma), for grant of decree of divorce under Section 13 of the Hindu Marriage Act before the Principal Judge, Family Court, Lucknow, with a specific plea that the respondent had left her in-laws house on 14.01.2012 along with her brother without informing him and since then she is living at her parental house. 7. It has also been submitted that the respondent has put her appearance in the said suit and filed her written statement stating specifically that due to strained relations, she is not interested to continue married life with the appellant and requested for dissolution of the marriage but the learned Principal Judge, Family Court without appreciating the said fact rejected the suit of the appellant on the ground that since parties want divorce with mutual consent, they may file suit under Section 13-B of the Hindu Marriage Act. The learned Principal Judge, Family Court has further observed that the suit filed by the appellant under Section 13 of the Hindu Marriage Act appears to be a collusive suit. 8. It has been vehemently argued that the learned Principal Judge, Family Court has failed to appreciate the vital fact that the respondent herself has admitted in her oral testimony that she had left her in-laws house on 14.01.2012 and since then she is living separately and the earlier suit filed under Section 13-B has already been rejected. It has been contended by the Counsel for the appellant that the learned Court below has misconstrued the provisions of Section 13 of the Hindu Marriage Act, 1955 and also failed to consider the fact that the marriage of the appellant with opposite party has broken down and the parties can no longer live together as husband and wife. 9. Interestingly, learned Counsel for the respondent during the course of arguments made a statement that it is true that the respondent had left her matrimonial house in the month of January, 2012 and she wants to break it off with the appellant and prayed that the appeal may be allowed. 10. In the instant case, undoubtedly, the desertion of appellant by the respondent from 14.01.2012 is established from the pleadings and statements of the parties. The respondent in her statement before the learned Principal Judge, Family Court, Lucknow has stated in explicit words that she does not want to live with the appellant. 10. In the instant case, undoubtedly, the desertion of appellant by the respondent from 14.01.2012 is established from the pleadings and statements of the parties. The respondent in her statement before the learned Principal Judge, Family Court, Lucknow has stated in explicit words that she does not want to live with the appellant. While rejecting the suit under Section 13 of the Hindu Marriage Act, learned Principal Judge has come to a wrong conclusion that the appellant failed to prove his case regarding desertion by the respondent. From the pleadings and statements, the desertion was proved beyond doubt. Therefore, there was no occasion for the Court below to reject the suit on a wrong premise. The court below also erred in not considering the fact that the suit filed under Section 13-B has already been rejected by the court concerned. 11. Here, it is important to mention that matrimonial disputes have to be decided by Courts in a pragmatic manner keeping in view the ground realities and knowing well that the end of a marriage can entail a painful process for everyone involved. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. 12. Where there has been a long period of continuous separation, it may fairly be summarized 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. 13. In these circumstances, we are of the view that when the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are abound to be a source of greater misery for the parties. 14. 13. In these circumstances, we are of the view that when the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are abound to be a source of greater misery for the parties. 14. Following the principle of 'live and let live' and the precedent laid down by the Apex Court in number of cases, it is desirable and expedient in the interest of justice to grant a decree of divorce and allow the appeal so as to enable both of them to enjoy their life in their own fashion. Accordingly, the impugned judgment and order dated 09.04.2018 is set aside. In the facts and circumstances of the case, the parties shall bear their own costs. Consequently, the Regular Suit No.1979 of 2014 stands allowed. 15. Let a copy of this order be sent to the learned Additional Principal Judge, Family Court, Lucknow.