Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 519 (UTT)

Shakuntala Umrao v. Ram Sharan Umrao

2023-09-12

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : Sri Rakesh Thapliyal, J. By the instant First Appeal, the appellant is challenging the judgment and decree dated 18.12.2021 passed by the Judge, Family Court, Pauri Garhwal in Family Court Case No. 60 of 2018 titled as “Smt. Shakuntala Umrao vs. Shri Ram Sharan Umrao”, whereby the suit filed by the appellant-plaintiff under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955 for divorce against the respondent-defendant has been dismissed. 2. The facts of the case, which are not in dispute, are as follows: The marriage of the appellant/plaintiff and the respondent/defendant had been solemnized on 05.02.2016 as per the Hindu rites and customs at Vishwanath Temple, Uttarkashi, District-Uttarkashi. Out of their wedlock, no child was born. In the plaint, it is alleged by the appellant (wife) that the respondent (husband) was not interested in establishing marital relationship and was evading to have marital relationship, which caused mental agony to the appellant and, according to her, the marital life of the appellant got ruined; she had to go to her maternal house third day of her marriage because of this behavior; the respondent (husband) married her only for money, and her life was in danger because his demand was not met. The last time the parties lived together was on 11.06.2016, at Srinagar, and since then, there is no husband-wife relationship in between the appellant and the respondent. Since then, the appellant and the respondent are living separately; and she apprehends that any time the respondent may cause harm to the lives of the appellant and her family members, as also, the property. On the aforesaid grounds, the appellant filed Family Court Case No. 60/2018 under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of cruelty. 3. The respondent filed his Written Statement Paper No.27Ka denying all the allegations made by the appellant in the plaint against him, particularly the allegation that he did not take interest in establishing marital relationship. Therein, he admitted the fact of his marriage with the appellant on 05.02.2016, and there being no issue out of their wedlock. He further stated that he still wants to live with the appellant, and cannot imagine his life without the appellant. The respondent prayed that the suit of the plaintiff be rejected. 4. The appellant filed her own affidavit Paper Nos. He further stated that he still wants to live with the appellant, and cannot imagine his life without the appellant. The respondent prayed that the suit of the plaintiff be rejected. 4. The appellant filed her own affidavit Paper Nos. 45Ka/1 to 45Ka/3 as PW-1, the affidavit of Vishambhar Dayal Paper Nos. 49Ka/1 to 49Ka/2 as PW2, affidavit of Mayaram Paper Nos. 50 Ka to 50Ka/2 as PW-3, and the said witnesses were cross-examined on behalf of the respondent. 5. The respondent filed his own affidavit Paper Nos.52Ka/1 to 52Ka/4 as DW-1. The respondent was cross-examined on behalf of the appellant. In oral evidence, through List Paper No. 23GA, the original copy of the notice received by the respondent from his School Paper No. 23Ga/1 and through List No.38Ga, copy of the Original Residence Certificate Paper No.38Ga/1 and copy of the Voter Identity Card Paper No.38Ga/2 were filed. 6. The Judge, Family Court, Pauri Garhwal, Uttarakhand, vide its impugned judgment and order dated 18.12.2021, dismissed the petition for divorce filed by the appellant. 7. The learned Judge, Family Court, Pauri Garhwal, Uttarakhand, on the basis of the contentions of the parties, framed the following three issues:- (1) Whether cruel behaviour was done by the defendant with the plaintiff, if yes, its effect? (2) Whether the defendant has deserted the plaintiff without any reason, if yes, then its effect? (3) Whether the plaintiff is entitled to get the relief sought in the plaint? 8. Issue No. 1, which is to the effect “whether cruel behaviour was done by the defendant with the plaintiff, if yes, its effect?”, was decided by the Judge, Family Court, Pauri Garhwal, against the appellant (defendant). The Judge, Family Court, Pauri Garhwal, while deciding the said issue against the appellant recorded a finding that from the contentions of the parties and the evidence on record, it is clear that the marriage of the appellant and the respondent had been solemnized with the consent of the parties and their family members; there were healthy marital relationship between the parties; they used to visit their work-places/residence, but now the appellant does not want to live with the respondent, because of which-by leveling the allegation of cruelty, she wants divorce from him. But on the file, the allegation of cruelty by the respondent has not been proved by the appellant. But on the file, the allegation of cruelty by the respondent has not been proved by the appellant. The appellant had sufficient opportunity to prove her contentions with ample evidence, but no such evidence is available on the file to prove that cruelty has been caused to the appellant by the respondent. While arriving at this finding, the Judge, Family Court, Pauri Garhwal took into consideration the statements made by the appellant in her cross-examination, the statement made by Vishambar Dayal-PW-2 in his cross-examination, and the statement made by Mayaram-PW-3 in his cross examination. 9. Issue No. 2, which is to the effect “whether the defendant has deserted the plaintiff without any reason, if yes, then its effect?”, was also decided against the appellant. While deciding this issue against the appellant, the Judge, Family Court, Pauri Garhwal took into consideration the statements made by the appellant in her cross-examination, the statements made by Vishambar Dayal-PW-2 in his cross examination, as also the statement made by Mayaram-PW-3 in his cross-examination and recorded a finding that from the evidence available on the record, it is evident that at present, the appellant has not been able to prove the fact of desertion being done by the respondent without any reason by substantial evidence. In such a situation, on the basis of desertion under Section 13(1)(i-b) of the Hindu Marriage Act, 1955, the relief of divorce cannot be granted to the appellant. 10. Issue No. 3, which is to the effect “whether the plaintiff is entitled to get the relief sought in the plaint?”, has also been decided against the appellant. While deciding this issue against the appellant, the Judge, Family Court, Pauri Garhwal recorded a finding that in the light of disposal of Issue Nos. 1 and 2, it is evident that the appellant has not been able to prove that cruelty has been caused to the appellant by the respondent, or the respondent has deserted the appellant. In such a situation, it is not justifiable to give the relief sought for in the plaint to the appellant. From the evidence available on the record, it is the clear view of the Court that the marriage of the parties is not like on deathbed and there is no such situation, on the basis of which their marriage be dissolved. 11. From the evidence available on the record, it is the clear view of the Court that the marriage of the parties is not like on deathbed and there is no such situation, on the basis of which their marriage be dissolved. 11. Heard learned counsel for both the parties, examined the lower court and evidence adduced by the parties and perused the impugned judgment. 12. After hearing the parties, the issue, which arises for consideration by this Court, is to the effect:- “Whether desertion by the respondent since 11.06.2016 amounts to cruelty against the appellant, as no attempt whatsoever was made by the respondent for reconciliation or to take the appellant back?” 13. We have gone through the divorce petition, wherein the appellant / plaintiff specifically pleaded in Paragraph-9 as under:- ^^9- ;g fd okfnuh o izfroknh ds fnukad 11-06-2016 ds ckn fdlh rjg ls Hkh ifr&iRuh ds lEcU/k ugha gSa vkSj uk gh LFkkfir gq;s rFkk i{kdkj fnukad 11-06-2016 ds ckn ls vyx&vyx fuokl djrs gSaA^^ Ram Sharan Umrao-the respondent-husband (defendant) was examined as DW-1 and in his cross-examination, he admitted that since June, 2016, they are living separately. Relevant extract of the affidavit of the respondent-husband, which contains his admission that they are living separately since June, 2016, reads as under:- ^^esjk fookg okfnuh 'kdqUryk ds lkFk 05 Qjojh 2016 dks gqvk FkkA eSa o okfnuh twu 2016 ls vyx&vyx jg jgs gSaA gekjs fookg ds ikWap ekg ckn ls gh ge vyx&vyx jgus yxs FksA^^ 14. Now the facts, as stated above, reveals that the marriage of the parties took place on 05.02.2016 and since 11.06.2016 both are living separately and furthermore, there are no issues from the said marriage. 15. It is evident that the respondent (husband herein) never made any attempt to restore the marriage either by way of conciliation or by filing a suit under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. This, itself, reveals that at no point of time since the appellant and the respondent got separated and are living separately, i.e. since 11.06.2016, the husband made any attempt to take-back the wife. This is completely a failure on the part of the husband, and this also amounts to cruelty by the husband against the wife, who filed a suit seeking divorce on the ground of cruelty. This is completely a failure on the part of the husband, and this also amounts to cruelty by the husband against the wife, who filed a suit seeking divorce on the ground of cruelty. The respondent showed no concern for the appellant; he exhibited no desire to have her back in his matrimonial life, and on the contrary, his utter indifference, and cold approach towards the appellant, would have caused immense mental cruelty to her. Pertinently, the parties had been married only for four months when they separated. So early in their marriage, the respondent became disinterested in the appellant. This shows his mental state to forsake and desert the appellant. A woman, upon her marriage, goes to live with her husband and his family members. The surroundings and environment are new for her. To be able to adjust in the new surroundings and environment, she heavily relies upon her husband’s love and affection, moral support and guidance. A woman, who does not receive love and affection, moral support and guidance from her husband, is bound to feel miserable and helpless, and that would be subjection to serious cruelty. There may be temporary misunderstandings and quarrels between the newly married couple, but normally they would overcome them, and sustain their bond, as there is inherent attraction, love and affection in the normal course, between a newly married couple. However, if that does not happen, then the situation is not normal, and one or both the spouses are bound to feel grave agony and pain. In the present case, the respondent did not take any steps to exhibit his love and affection for the appellant, and did not reach out to her to take her back with him to her matrimonial home. Such conduct of the husband clearly establishes that he, firstly, deserted the wife for a period, which is obviously of more than two years, as since 2016, they are living separately, and, secondly, he subjected the appellant wife to immense cruelty. Hence, the ground of desertion and cruelty, as taken by the wife for seeking dissolution of marriage, stood established. 16. The Family Court, while dismissing the suit seeking divorce filed by the wife, failed to consider all these aspects, as it nowhere dealt with the conduct of the husband in separating and living separately from his wife-the appellant, and not making any endeavour to restore his marriage. 17. 16. The Family Court, while dismissing the suit seeking divorce filed by the wife, failed to consider all these aspects, as it nowhere dealt with the conduct of the husband in separating and living separately from his wife-the appellant, and not making any endeavour to restore his marriage. 17. For ready reference, Section 13(1)(ib) of the Hindu Marriage Act 1955, which is related to divorce on the ground of desertion, reads as under:- “13 Divorce. — (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— (i) ….. (ia) …. (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]” 18. The Supreme Court in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has laid down certain guiding factors giving some illustrations / instances of human behavior, though they are not exhaustive, which may be relevant in dealing with the cases of “mental cruelty”, including the “mental cruelty” based on ‘desertion’. The extract of the aforesaid judgment, which is relevant for deciding the instant case, reads as follows:- “No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour 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) … (ii) … (iii) … (iv) … (v) … (vi) … (vii) … (viii) … (ix) …. (x) …. (xi) … (xii) … (xiii) …. (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.” 19. 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.” 19. Section 13(1)(ib) of the Act states that any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. 20. Here in this case, admittedly the appellant and the respondent have been living separately since 11.06.2016. 21. Since there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond between the appellant and the respondent is beyond repair. Both are living separately since 11.06.2016 and no attempts have been made by the respondent-husband at any point of time for restoration of his marriage-either by moving a petition for restoration of conjugal rights under Section 9 of the Hindu Marriage Act, or by way of conciliation, or by asking her to resume cohabitation, or by going to bring her back to her matrimonial home. Therefore, in view of the observations, as above, the judgment passed by the Judge, Family Court, Pauri Garhwal cannot sustain and is liable to be set aside. 22. In view of the observations as made above, the present is a fit case for grant of a decree of divorce to the appellant-wife. 23. Consequently, the instant Appeal is allowed and the judgment and order dated 18.12.2021 passed by the Judge, Family Court, Pauri Garhwal, Uttarakhand in Family Court Case No. 60 of 2018 Smt. Shakuntala Umrao vs. Shri Ram Sharan Umrao is set aside, and the marriage solemnized between the appellant and the respondent on 05.02.2016 is dissolved. 24. No order as to costs.