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2023 DIGILAW 403 (JK)

Anupam Koul v. Tina Dhar Koul

2023-08-16

RAHUL BHARTI

body2023
JUDGMENT : RAHUL BHARTI, J. 1. Heard learned counsel for the parties and perused the record. 1.1 A factual preface which self introduces itself in this appeal is that as against hardly three years of company in matrimony, the spouses i.e. the appellant and the respondent are in acrimony of litigation for the last more than seventeen years in running none relenting to end it in a cordiality of their consent. 2. The denial of divorce by the court below has brought the appellant-husband in the present appeal which has been pending final adjudication for the last more than seven years in this Court and before that it has taken more than nine years for the court below to wind up the matrimonial litigation between the two. This is a high time for the courts dealing the matrimonial litigation, be it on trial side or appellate side, to awaken and act upon a realization that when the time is essence of life then a matrimonial litigation is not supposed to run prime life time of the spouses in litigation. Bond in matrimony shall not lead to long bondage in litigation. 3. Both the appellant and the respondent are the educated persons who entered marital relationship on 26.11.2001 solemnized under the Hindu customs and rituals in Jammu. Respective parental side residences of the appellant and the respondent are also in Jammu and were so even at the time of solemnization of marriage between the appellant and the respondent. 4. Out of this marital wedlock, the appellant and the respondent came to have a daughter born to them on 03.09.2002 who is named as Tanaya Koul. The place of birth of Tanaya Koul was in USA when both the appellant and the respondent were on their visit to attend a social function on the side of the respondent’s brother settled in USA. 5. The marital living between the appellant and the respondent came to suffer split and separation in October, 2003 distancing the two in terms of bed and bread as the appellant remained in his parental household whereas the respondent went back to her parental household never to get redrawn in matrimonial company and care of each other but only to find themselves in presence of each other in the litigation. 6. 6. In the background of missing conjugal company lasting for more than three years reckoning from October, 2003, the appellant had come to file on 06.10.2006 a petition under section 9 of the Jammu & Kashmir Hindu Marriage Act, 1980 seeking restitution of conjugal rights. This petition, later on, came to be withdrawn on 25.07.2007 by the appellant purportedly acting upon a self drawn opinion that the respondent was not earnestly inclined to restore the conjugal company and case filed by him would be wastage of time and effort. Thus, on 25.07.2007 when said section 9 petition for restitution of conjugal rights came to be withdrawn by the appellant a petition under section 13 of the Jammu & Kashmir Hindu Marriage Act, 1980 for a decree of divorce came to be filed on 25.07.2007 against the respondent on the purported grounds of mental cruelty and desertion. 7. It is the appellant’s said petition for divorce before the Court of learned Additional Judge (Matrimonial Cases), Jammu on its file no. 540/HMA which has failed so as to give rise to the present appeal. 8. In his divorce petition, the appellant came to aver and allege that the respondent came to leave the matrimonial household of the appellant without any rhyme or reason in the month of October, 2003 to station up herself in her parental household and despite repeated requests from the appellant as well as from his parents’ end for restoring the matrimonial relationship, the respondent negated the said requests and, therefore, a state of desertion came to be set in lasting for more than four years from the respondent’s end uptil the time of filing of the divorce petition. 9. In his said petition, the appellant came to plead that even during brief period of marital cohabitation, the respondent was making stray stay in the matrimonial household with the appellant and relishing more time in her parental household at Karan Nagar, Jammu without even bothering for any assent of the appellant and/or of his parents. It was in this state of respondent’s bent of preference to be rooted in stay in her parental household more rather than in the matrimonial household that the appellant came to allege in his divorce petition that he came to sense and suffer even an avoidance on the part of the respondent to share and maintain physical and sexual relationship. It was in this state of respondent’s bent of preference to be rooted in stay in her parental household more rather than in the matrimonial household that the appellant came to allege in his divorce petition that he came to sense and suffer even an avoidance on the part of the respondent to share and maintain physical and sexual relationship. The appellant in his petition has made a categoric assertion to this aspect as amounting to causing great mental harassment to him because of the respondent’s said cruel conduct. 10. In addition, the appellant came to plead and project that despite him being sole child of his parents, the respondent detested his parents and their company during the course of her intermittent sojourn in the matrimonial household thereby polluting and disturbing the atmosphere and peace of the appellant’s family causing mental harassment to the appellant and his parents. 11. The appellant even pleaded infliction of mental cruelty upon him and his parents in the matter attending the birth of his daughter in the manner in which the timing of visit to USA came to take place when the respondent was in sixth month of pregnancy and whereat the delivery of the child had come to take place. It is pleaded that the appellant had felt being coerced mentally to accompany the respondent and her parents on their visit to USA whereat their stay came to last for more than six months which originally was meant to be for one month. 12. The appellant came to plead that even upon return from USA, the appellant was applied pressure by the respondent to come and stay with his In-laws at Sarla Bhavan, Karan Nagar, Jammu instead of residing in his parental household at Trikuta Nagar, Jammu which came to be overruled by the appellant without suffering any second thought to said pressure tactics. 13. As per the appellant, it is in this state of relationship that accusation started coming from the respondent and her parents’ end that the appellant and his parents would be got booked in false cases in exhibit of which on 15.12.2003 his parental residence came to be visited by some gunda elements in mid night hours leaving him and his parents threatened which led the appellant to lodge a report with the Sr. Superintendent of Police (SSP), Jammu on 18.12.2003. 14. Superintendent of Police (SSP), Jammu on 18.12.2003. 14. The appellant has alleged in his petition that he and his parents were got implicated in a complaint by the respondent before the Police Station, Women Cell, Canal Road, Jammu on the accusation that the respondent was being harassed by them on account of dowry demands and attempt to strangulate her whereas the respondent had already taken gold ornaments, clothing, FDR, postal cash certificate and others items by the intervention of the Women Cell, Canal Road, Jammu. 15. The genesis of the allegations from the appellant’s end in his petition for divorce is that the respondent and her parents wished to have the appellant switch side from his parents “side to his In-laws” side and towards that end the entire course of conduct and misconduct at the end of the respondent was aimed at which amounted to cruelty and desertion from the respondent’s end against the appellant. 16. In response to the appellant’s petition, the respondent came forward with a reply alleging that the appellant has approached the court with unclean mind and hands indulging in misrepresentation of facts particularly in the face of the fact when the respondent had volunteered, in the course of proceedings in the appellant’s petition under section 9 for restitution of conjugal rights, her willingness to accompany the appellant but only to be rejected by the appellant by withdrawing the said petition under section 9 of the Jammu & Kashmir Hindu Marriage Act, 1980. 17. It is in this backdrop that the respondent came to answer through her reply-cum-objections the narrative set up by the appellant in his divorce petition with a corresponding narrative from her end thereby saying that from the date the marriage was solemnized the respondent and his family members started torturing her, treating her with cruelty, harassment and even strangulating her. The respondent projected in her reply-cum-objections her plight that the appellant had beaten and kicked her in the matrimonial house several times, torturing and taunting her for not bringing sufficient dowry even when just fifteen days of marriage had lasted which came to be tolerated by her with a hope that the appellant and his parents would come to good sense. By responding with the projection of facts in her reply-cum-objections that within 15-16 days of marriage the appellant and his parents had come to her parental house in Karan Nagar, Jammu for the purpose of defaming the respondent before her family members to the extent that the mother of the appellant kicked her and used abusive language right in presence of her parents and her other family members the respondent meant to expose the appellant and his parents as the villain. As per the respondent’s stand point, it is the appellant and his family members who suffocated the respondent so as to force an exit from the matrimonial household and gave a cold shoulder to the reconciliation efforts from her parents’ end. 18. It is meant to be believed through her reply-cum-objections by the respondent that it was the appellant and his parents who made her to feel unwelcome in the matrimonial household sometimes by being thrown out of the matrimonial house, by giving a severe beating and on occasions by strangulating her, thereby, making her life a hell but still sustaining a hope in her about good sense prevailing to the appellant and his parents in treating her with respect and acceptance. Against all this mal-treatment to her, the respondent has pleaded to mean that still she had the intent to come back to her matrimonial household. 19. The respondent came up with a version that it is the appellant who was pressurizing her to somehow manage his visit to USA through her brother as the appellant was desperately willing to leave India but was failing to manage a trip to USA on his own initiative. It was only when the marriage of the respondent’s brother, who is living in USA, came to be fixed on 03.07.2002 that the appellant insisted the respondent to take him for attending the marriage ceremony at the expense of the respondent’s parents and thus it is in the month of June, 2002 that the appellant, the respondent and her parents made a trip to USA in the month of June, 2002 whereat the appellant tried to stay there in an attempt to get job and stayed there only at the expense of the respondent’s brother. 20. 20. Infact, the respondent has gone to the extent of saying that it is the appellant who wished the delivery of the first child to take place in USA for which all the expenses relating to child birth in USA were borne by the respondent’s brother because the appellant had only 200$ as his pocket money which left no scope from his end to spare any money for attending the delivery of child by the respondent in USA and thereby making her brother to suffer payment of all the expenses. 21. The respondent has denied the fact that she had ever lodged a report in the Women Cell, Canal Road, Jammu although the appellant and his parents were in demand for dowry from her. By pleading that she was left destitute without any access to her gold ornaments, FDR, postal cash certificate, all lying with the appellant and his family members, the respondent stated that she was forced to resort to maintenance proceedings under section 488 of the Jammu & Kashmir Code of Criminal Procedure, Svt. 1977. 22. It is with this narrative that the respondent came to spare general denials to the allegations of alleged cruelty and desertion against her from the appellant’s end. The respondent had submitted her reply-cum-objections to the divorce petition on 14.01.2009 in between which the respondent had sought maintenance pendente lite and litigation expenses which came to be granted by virtue of an order dated 11.11.2008 by the Court of learned Additional Judge (Matrimonial Cases), Jammu on the agreed rate of amount of maintenance pendent lite. 23. The issues came to be framed in the petition by the Court of learned Additional Judge (Matrimonial Cases), Jammu in terms of an order dated 10.10.2009 and the issues so framed are reproduced as under: 1. Whether the respondent has treated the petitioner with cruelty? (OPP) 2. Whether the respondent has deserted the petitioner continuously for a period of more than two years preceding the presentation of instant petition? (OPP) 3. Whether the petition is not maintainable in view of the earlier petition filed by the petitioner-husband against the respondent u/s 9 of the Hindu Marriage Act, which was subsequently withdrawn? (OPR) 4. Relief. (O.P. Parties) 24. Whether the respondent has deserted the petitioner continuously for a period of more than two years preceding the presentation of instant petition? (OPP) 3. Whether the petition is not maintainable in view of the earlier petition filed by the petitioner-husband against the respondent u/s 9 of the Hindu Marriage Act, which was subsequently withdrawn? (OPR) 4. Relief. (O.P. Parties) 24. The appellant and the respondent from their end came to examine themselves as their own witnesses and witnesses namely Bihari Lal Koul (father), Kusum Koul (mother), Sunil Thussoo, (relative), Ashok Raina (relative), Vijay Kumar Koul (relative) as the appellant’s side witnesses and Tej Krishan Koul (known person), Ratni Dhar (mother) and Vijay Kumar Zutshi (known person) as respondent’s side witnesses. 25. The Court of learned Additional Judge (Matrimonial Cases), Jammu came up with finding with respect to the Issue no. 1 as to whether the respondent has treated the petitioner, i.e. the appellant with cruelty, as being “not proved” and with respect to the Issue no. 2 with respect to desertion also “not proved” thereby resulting in dismissal of the divorce petition filed by the appellant against the respondent by virtue of a judgment and decree dated 28.03.2016. 26. In its judgment and decree dated 28.03.2016 the Court of learned Additional Judge (Matrimonial Cases), Jammu came to press in to service the following case law: (a) Bipinchandra Jaisinghbhai Shah vs. Prabhavati, 1957 SC 176 (b) Lachman Utamchand Kirpalani vs. Meena alias Mota, 1964 SC 40 (c) Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi, 2002 SC 88 (d) Samar Ghosh vs. Jaya Ghosh, 2007 (3) SC 26 (e) Naveen Kohli vs. Neelu Kohli, 2006 SC 1675 27. It is against this judgment and decree amounting to denial of divorce with respect to his marriage with the respondent that the appellant has come in appeal under section 34 of the Jammu & Kashmir Hindu Marriage Act, 1980 maintainable before this Court. 28. In his memo of appeal, the appellant has assailed the impugned judgment by terming it against the facts and law of the case, a failure of appreciation of evidence in a right perspective by the Court of learned Additional Judge (Matrimonial Cases), Jammu. 29. 28. In his memo of appeal, the appellant has assailed the impugned judgment by terming it against the facts and law of the case, a failure of appreciation of evidence in a right perspective by the Court of learned Additional Judge (Matrimonial Cases), Jammu. 29. This Court, before and in the course of hearing in the matter, as a matter of last resort, had come to seek personal appearance of the appellant and the respondent so as to rope in any lurking possibility of an amicable and mutual settlement between the two on their own terms and conditions be it in restoring their marital relationship or terminating it, rather than leaving it to the judgment of this Court. However, this Court found that both the sides were hard positioned in their respective mindset closing down any window of opportunity for their good sense to come into play on their own volition leaving this Court to carry forward the appellate jurisdiction towards its responsibility of adjudication by hearing and delivering a judgment on the merits of the case. 30. A factual perspective like a canvas, without filling of evidentiary details of the case, hungs out clearly and which is that the actual tenure of marital relationship and conjugal association between the appellant and the respondent lasted only from 26.11.2001 to October, 2003, and onwards from October, 2003 till filing of the divorce petition by the appellant on 25.07.2007 the appellant and the respondent were in a state of split of marital cohabitation. It is in the brief tenure of their said conjugal cohabitation from the date of marriage i.e. 26.11.2001 to October, 2003 that the state of affairs between the two instead of cementing the marital bond between them eroded to the extent of disuniting them and from that the appellant drew his cause of action to petition for divorce. 31. Thus, the moot factual issue before the trial Court, on the basis of the pleading in the case and the evidence led and also the intervening ancillary applications and the counter applications, was to find out from whose end i.e. the appellant or the respondent, the fault factor came into play thereby setting into effect acrimonious tearing and tussle in the relationship. The marital state of relationship between the appellant and the respondent was bad and bitter is a stark fact admitting of no denial and dispute from either side and this is a fact which introduces itself in the case without any evidence being required to prove and establish it. 32. The Court of learned Additional Judge (Matrimonial Cases), Jammu, by making a reproduction of the evidence of both the sides, has made a very pedantic understanding and appraisal of the same to come to a conclusion that the appellant was in failure to prove both the issues i.e. of cruelty and desertion and has thus failed in his case. 33. This Court hastens to register its observation at the very outset that the Court of learned Additional Judge (Matrimonial Cases), Jammu has not come to hold that the sour state of relationship between the appellant and the respondent had come to set in because of the appellant or his parents being the wrong doers or guilty party, as alleged by the respondent in her response to the divorce petition, and that they were trying to exploit wrong from their end to claim divorce against the respondent. This aspect has a very direct bearing on the angle of appreciation and appraisal of the evidence in the case read with the pleadings in the case on the part of the Court of learned Additional Judge (Matrimonial Cases), Jammu. 34. The Court of learned Additional Judge (Matrimonial Cases), Jammu, while coming to hold that the appellant has come failing to prove the alleged cruelty from the respondent’s end against him, has omitted to ponder as to whether the appellant was the one who had indulged in inflicting wrong against the respondent in the manner in which the respondent in her reply had alleged against the appellant. By avoiding this reference, the Court of learned Additional Judge (Matrimonial Cases), Jammu fell in error to make correct evaluation of the evidence in the case and thus resorted to superficiality of case reading to hurry to the impugned conclusion in its judgment. 35. The appellant in his petition has set up a case that the respondent was least inclined to be in the matrimonial household and more drawn to be in her parental household. 35. The appellant in his petition has set up a case that the respondent was least inclined to be in the matrimonial household and more drawn to be in her parental household. Now when read between the lines, the respondent in her reply/objections is admitting the fact that she was staying in her parental household but for her said stay she alleged the misconduct from the appellant as well as his parents’ end and that too from the very first month of her joining the matrimonial fold of the appellant. 36. This allegation of the respondent in the event of being not substantiated by her is a hinter and pointer to the fact that she was opting her stay at her parental household on her own volition and not on the excuse of being forced out by the alleged misconduct of the appellant and his parents. There is, thus, an evidentiary basis by inference in the case to hold that the respondent used to remove and withdraw herself at her own whims from the matrimonial household so as to be in her parental household and that was the desertion in making from her end. 37. The respondent in her reply-cum-objections, has made without bothering an iota of re-check, a very serious allegation that she was subjected to strangulation in the very first month of her stay in the matrimonial household. If that be so, it is improbable to conceive and believe that the respondent and her parents would very happily come to condone such a life threatening act and mindset nursed against the respondent on the part of the appellant, and then willingly and happily allow or accede to the appellant going along with them for a six months stay in USA in the year 2002 itself. Thus, it is an evident inference there to be noticed that there was no such act or attempt of strangulation or physical beating of the respondent at the hands of the appellant in the matrimonial household within so called very first month of start of marital life of the appellant and the respondent and that the allegation was made just to scandalize the appellant and his parents so as to offset the charge made by the appellant in his petition with respect to misconduct on the part of the respondent. 38. 38. These allegations were left unsubstantiated by the respondent and that itself establishes a repulsive state of the mental attitude on the part of the respondent towards the appellant and his parents. As against the averments made by the appellant in his petition that on one pretext or the other the respondent would desert the appellant, his parents and the matrimonial household so as to enjoy her long stay at her parental household without any reasonable justification, the respondent came forward with a counter narration that because she was being beaten to the extent of strangulation, she had to leave the matrimonial household in the safe company of her parents. However, in her reply-cum-objections to the divorce petition, the respondent is found missing to mention any specific incident of so-called strangulation, the circumstances in which the same came to take place and how it came to result in failure and the post-event response of the respondent and her parents. It is just a bald allegation coming from the respondent’s end on the basis of which she tried to justify her absence from the matrimonial household and that is where the fact is evidently noticeable that the respondent was not cherishing her stay in the matrimonial household and that for the purpose of withdrawing herself from the matrimonial household so as to remain in the company of her parents at their residence, the respondent crafted the pretext, which the appellant in his petition has referred to be one without justification, with respect to the respondent’s going and staying in her parental household. 39. In her reply-cum-objections to the appellant’s petition, the respondent had come forward with a very assertive narrative that it is she who came to suffer mental and physical cruelty not only at the hands of the appellant but his parents as well to the extent of even strangulation attempted upon her, but when it comes to her examination as her own witness, the respondent, in her examination-in-chief come forward with a complete silence to the extent of not even whispering a word about the very said narrative as set up by her in her reply-cum-objections so much so not even making a remote reference to alleged beatings to her. 40. 40. This variance between what the respondent came to plead and put up as per defence in writing and what she came to state as a witness in the case invites an inference as a finding of fact that the respondent had in fact not suffered any such maltreatment at the hands of the appellant and his parents while in the course of her stay in the matrimonial household but still the respondent had withdrawn herself from the marital company of the appellant to enjoy her stay in her parental household and that is the genesis of the desertion which got proved in the case which ought not to have been missed in being noted by the Court of learned Additional Judge (Matrimonial Cases), Jammu. This withdrawal mindset of the respondent from the marital company of the appellant is so apparent that even the respondent has admitted that she was in her parental household from the month of October, 2003 onwards and by the time the appellant had come to file the divorce petition in July, 2007 the desertion on the part of the respondent was continuing in effect. 41. The respondent, being self conscious of the fact that her withdrawal from the marital company is not because of any act of commission or omission on the part of the appellant and/or his parents, has led a vehement reliance upon the exploit of the fact that the appellant had withdrawn his petition for restitution of conjugal rights filed under section 9 of the Jammu & Kashmir Hindu Marriage Act, 1980 after she, through her advocate in the said case, had made an offer to accompany the appellant. By this event the respondent means to prove that the appellant was not earnest in his mindset to restore his marital relationship with the respondent. 42. The petition for restitution of conjugal rights under section 9 was filed on 06.10.2006 which came to be withdrawn on 25.07.2007 in which regard the appellant in his divorce petition has cited the reasons that during the pendency of the said petition the respondent had not exhibited any bona fide intent to resume the estranged marital relationship to its normalcy and on that account the appellant had made the decision to withdraw the petition. This act of the appellant in filing and withdrawing the petition for restitution of conjugal rights under section 9 cannot lend any escape to the respondent from the fact that she was nursing an adverse mindset against the appellant and his parents which came into open when she came to make reckless allegations in her reply-cum-objections to the divorce petition to the extent of attributing criminal intent against the appellant and his parents in making an attempt to end the life of the respondent. 43. It seems without any fear of contradiction that to said petition of the appellant for restitution of conjugal rights the respondent had not filed any response and it is through her counsel that she was meaning to convey to the Court of learned Additional Judge (Matrimonial Cases), Jammu that she is ready to accompany the petitioner but still sought time to file objections/reply to the said section 9 petition of the appellant for restitution of conjugal rights. Thus, her alleged willingness allegedly registered by her counsel to accompany the appellant and simultaneously availing time to file objections/reply to the petition do not hold together for the reason being that if in the month of March, 2007 when the respondent was purportedly willing to accompany the appellant then by that time alleged incident of strangulation and beating against her are supposed to have been carried out and delivered its effect upon the mindset of the respondent but despite that she was showing herself to be readily willing to accompany the petitioner without first fetching a remorse and assurance from the appellant is a very unnatural aspect of the case which does not project the respondent in good light in terms of her mindset towards her conjugal relationship with the appellant. 44. The appellant’s allegation in his petition that he was the recipient of cruelty at the hands of the respondent even in the context of physical relationship between the two because of disinclination on the part of the respondent to share matrimonial bed with the appellant for unknown reasons gets factual support and footing from the very fact route in which that the respondent had resorted to abstain from the matrimonial household on the pretext which she has alleged in her reply/objections but not referred even by an iota in her statement as a witness. This aspect when seen from the angle with the allegation of the appellant to this effect is in Para 5 of the divorce petition in reply whereto the respondent has very apparently avoided to respond to very said allegation of the appellant except by averring that the averments made in Para 5 are not correct and hence denied vehemently. In her reply to Para 5 of the appellant’s petition, the respondent in Para 5 of her reply-cum-objections has reiterated that it is she who was compelled to leave the matrimonial household and sometimes even thrown out after getting severe beating and strangulations, but has chosen to overlook for reply the appellant’s allegations that the respondent was not inclined to share the matrimonial bed with him for unknown reasons. 45. Thus by pleading-wise and evidence-wise what comes out in clear light is that it was the respondent who was in a wilful state of withdrawal from the conjugal company of the appellant and it is for and by that mode of withdrawal from conjugal company that she had carried out acts of mental cruelty upon the appellant. 46. When this Court examines the pleadings and the evidence in the form of statements of the appellant and the respondent in particular, leaving out the statement of the rest of the witnesses who came to be cited from both sides more for the sake of witness count than anything else, this Court is led to refer to definition of “Fact” as given in the Evidence Act, 1872 in its section 3 wherein “Fact” has been defined as meaning and including anything, state of things or relation of things capable of being perceived by the senses and any mental condition of which any person is conscious. This definition of “Fact” is to be appreciated in the context of being “Relevant” or “Fact in issue” so as to understand what is meant to be “Evidence” led in a given case before a court of law. Section 3 defines “Evidence” meaning and including statements made by witnesses in relation to the matter of fact under enquiry and the documents produced for the inspection of the Court. Section 3 defines “Evidence” meaning and including statements made by witnesses in relation to the matter of fact under enquiry and the documents produced for the inspection of the Court. A Court of law is supposed to find out the facts in a state of being proved, disapproved or not proved so as to define the legal state of relationship to find mention in a decree as defined under section 2(2) of the Code of Civil Procedure, 1908. 47. Thus, by keeping in mind the definition of “Fact” which enables the Court to see even the relation and state of things capable of being perceived by the senses, this Court, from the matter obtaining on the file of the case, is led towards finding of fact by strong inferential link that the respondent had withdrawn herself from the marital company of the appellant on false pretexts acting on her own whims and fancies and in doing so she came to inflict mental cruelty upon the appellant, aggrieved of which the appellant had come to file a divorce petition for seeking an end to his marriage with the respondent. 48. It is very clear that the respondent entered marital life on an allegation mood and mode aimed against the appellant and his parents which aspect gathers strength from the fact that despite her application made under section 33 of the Jammu & Kashmir Hindu Marriage Act, 1980 seeking return of her alleged property and valuables from the appellant suffering dismissal for default in terms of an order dated 28.03.2016 taking place simultaneously with passing of the judgment dated 28.03.2016 with respect to the dismissal of divorce petition of the appellant left the respondent without any botheration to insist for adjudication of her said claim on merits. So much so, the respondent suffered not even an iota of concern in seeing her application under section 33 being dismissed without any direction being made in the impugned judgment dated 28.03.2016 by the Court of learned Additional Judge (Matrimonial Cases), Jammu and the respondent not interested maintaining any appeal with respect to that omission in the judgment before this Court. This fact is a patent exhibit of allegation prone mindset of the respondent towards the appellant and his parents with which she desired to tend and extend her marital relationship with the appellant by opposing his claim for divorce. 49. This fact is a patent exhibit of allegation prone mindset of the respondent towards the appellant and his parents with which she desired to tend and extend her marital relationship with the appellant by opposing his claim for divorce. 49. The Court of learned Additional Judge (Matrimonial Cases), Jammu has seriously erred in not seeing beyond the optics of frontline facts of the case and thus led itself to a wrong conclusion by holding that the appellant had failed to prove the issues no. 1 & 2 in the case. This reading of the evidence and finding on the issues on the part of court below are held to be wrong and misconceived which deserve to be set aside and resultantly the judgment and decree dated 28.03.2016 on file no. 540/HMA of 2007 passed by the Court of learned Additional Judge (Matrimonial Cases), Jammu are set aside. The appellant is held to have proved both the issues i.e. issues no. 1 and 2 in the case against the respondent as a result whereof the appellant is entitled to seek and earn a decree of divorce thereby dissolving his marriage with the respondent and the same is, accordingly, granted. 50. In coming to the aforementioned conclusion of facts and law, this Court is keeping in perspective the position of law as settled by the Hon’ble Supreme Court of India with respect to desertion as well as mental cruelty, mode of proof of facts in such like cases, attending the matter of grant or non-grant of decree of divorce for ending relationship of husband and wife under Hindu Law. Said cases are: (a) Parveen Mehta vs. Inderjit Mehta, (2002) 5 SCC 706 (b) Suman Kapur vs. Sudhir Kapur, (2009) 1 SCC 422 (c) Vishwanath Agrawal S/o Sitaram Agrawal vs. Sarla Vishwanath Agrawal, (2012) 7 SCC 288 (d) U. Sree vs. U. Srinivas, (2013) 2 SCC 114 (e) Malathi Ravi, M.D. vs. B.V. Ravi, M.D. (2014) 7 SCC 640 (f) Ramchander vs. Ananta, (2015) 11 SCC 539 (g) Sivasankaran vs. Santhimeenal, (2021) 10 Scale 477 51. Before parting with this judgment, the Court needs to consider the aspect of entitlement and grant of permanent alimony to the respondent, in view of the marriage being dissolved by a decree of divorce, by following the mandate of Section 31 of the Jammu & Kashmir Hindu Marriage Act, 1980. 52. Before parting with this judgment, the Court needs to consider the aspect of entitlement and grant of permanent alimony to the respondent, in view of the marriage being dissolved by a decree of divorce, by following the mandate of Section 31 of the Jammu & Kashmir Hindu Marriage Act, 1980. 52. Considering the fact that the appellant is a Govt. employee in the middle hierarchy in the Jammu & Kashmir State Pollution Control Board and that the respondent is not in any Govt. service, as such, the respondent is held entitled to an amount of Rs. Ten(10) lacs as permanent alimony payable by the appellant to her. This amount of Rs. Ten(10) lacs be paid by the appellant to the respondent within a period of three months from the date of passing of this judgment. 53. A decree of divorce in terms of the judgment be passed, thereby declaring the marriage of the appellant and the respondent being dissolved by a decree of divorce, and the respondent being entitled to receive an amount of Rs. Ten(10) lacs as permanent alimony from the appellant payable within a period of three months. 54. Disposed of accordingly.