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2024 DIGILAW 1354 (PNJ)

Deepika Sharma v. Deepak Dixit

2024-11-21

JASJIT SINGH BEDI, SUDHIR SINGH

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JUDGMENT : Mr. Sudhir Singh, J. CM-15290-CII-2019 The present application has been filed under Section 5 of the Limitation Act for condoning the delay of 56 days in filing the appeal. Keeping in view the averments made in the application, the same is allowed and delay of 56 days is condoned. FAO-4560-2019 Challenge in the present appeal is to the judgment and decree dated 11.04.2019 passed by the learned Principal Judge, Family Court, Rewari (for short ‘the Family Court’), whereby the petition under Section 13(1) of the Hindu Marriage Act, 1955 (for short ‘the Act’) filed by the appellant-wife, was dismissed. 2. The aforesaid petition had been filed by the appellant-wife, inter-alia, pleading therein that her marriage with the respondent-husband was solemnised on 06.05.2011 as per Hindu rites. Out of the said wedlock, no child was born. It was further asserted that from the beginning of the marriage, the respondent-husband and his family members were not satisfied with the dowry given by her parents. Despite trying to maintain peace, the appellant continued facing cruelty at the hands of the respondent-husband and his family members. It was further alleged that the respondent-husband and his family members had exhibited cruel behaviour even outside the matrimonial home forcing the appellant-wife to leave the matrimonial home. It has been further pleaded that the respondent-husband used to force her for unnatural sex against her wishes and used to beat her up whenever she refused. Also the respondent-husband concealed his actual age at the time of the marriage and there was a difference of almost 12 years between the parties. Further, the appellant-wife suffered a miscarriage because of merciless beatings given by the husband-respondent. The respondent-husband failed to fulfill his marital duties and did not provide her with the basic needs. On 21.05.2013 the appellant-wife was thrown out of her matrimonial home without any just and reasonable cause. 3. Upon notice, the respondent-husband appeared and filed his written statement alleging therein that the appellant-wife was given love and respect in the matrimonial home, but she chose to leave the respondent-husband without any reasonable cause. The appellant used to frequently quarrel, insult and threaten him. Her behaviour was aggressive and she had termed the marriage as a poor match. 3. Upon notice, the respondent-husband appeared and filed his written statement alleging therein that the appellant-wife was given love and respect in the matrimonial home, but she chose to leave the respondent-husband without any reasonable cause. The appellant used to frequently quarrel, insult and threaten him. Her behaviour was aggressive and she had termed the marriage as a poor match. The respondent-husband further pleaded that he had paid Rs.8,00,000/- for the BDS study of the appellant-wife and had also purchased her a car by getting a loan from Bank of Baroda to which he paid monthly instalments from 26.04.2011 to 4.08.2016. The respondent-husband had issued a legal notice and had also filed a petition under Section 9 of the Hindu Marriage Act, which was subjudice at PJFC, Delhi. 4. On the basis of the pleadings of the parties, the following issues were framed by the Family Court:- i) Whether the petitioner is entitled to a decree of divorce on the grounds as mentioned in the petition? OPP ii) Whether the petitioner has not come to the court with clean hands? OPR iii) Relief. 5. In evidence, the appellant-wife examined herself as PW-1; Asha Devi as PW-2 (Mother) and Vijay Kumar as PW-3 (Father), besides tendering documentary evidence as Ex.P1 and Mark P2 to P5. On the other hand, the respondent examined himself as RW1, besides tendering documentary evidence Ex.R1 to R8 and Ex.R9 to Mark Y. 6. The learned Family Court after taking into consideration rival contentions of the parties and evidence on record, dismissed the petition filed by the appellant-wife, as noticed above. 7. Learned counsel for the appellant has vehemently argued that the acts of cruelty had specifically been pleaded by the appellant-wife, but the learned Family Court has totally ignored the same. It is further argued that the finding of the learned Family Court that the appellant-wife did not make any complaint regarding the harassment and torture either to the police authorities or any department, suffers from patent illegality as it was specifically pleaded that she had been thrown out of the matrimonial home by the respondent-husband. It is further argued that the abortion was conducted with the approval of the respondent-husband, and, therefore, the finding of the learned Family Court that by getting such abortion done, the appellant-wife had caused cruelty to the respondent-husband is not tenable in the eyes of law. 8. It is further argued that the abortion was conducted with the approval of the respondent-husband, and, therefore, the finding of the learned Family Court that by getting such abortion done, the appellant-wife had caused cruelty to the respondent-husband is not tenable in the eyes of law. 8. On the other hand learned counsel for the respondent- husband while defending the judgment and decree passed by the learned Family Court has argued that the appellant-wife was not able to substantiate her allegations regarding cruelty or desertion by leading any cogent or convincing evidence and the learned Family Court had rightly found that she had contradicted herself in many respects. Accordingly, a prayer has been made for dismissal of the appeal. 9. We have heard learned counsel for the parties and have also gone through the impugned judgment and decree. In our opinion, the following questions would arise for adjudication in the present appeal:- “1. Whether a long separation between the parties, rendering the marital bond as unworkable and its having been ruptured beyond repair, amounts to mental cruelty? 2. Whether the impugned judgment and decree passed by the learned Family Court, requires any interference? 10. The learned Family Court has found that the allegations levelled against the respondent-husband were vague and general in nature and no specific instances or dates were mentioned regarding the alleged cruelty committed upon her. No substance was found in the allegations regarding demand of dowry. It was further found that the appellant-wife did not move any application or complaint to the police regarding the alleged harassment or mental torture caused by the respondent-husband. It was yet further found that the appellant-wife had failed to prove that the respondent-husband had withdrawn from her company without any justified reason. 11. Although the wife was unable to provide evidence of physical cruelty or desertion before the Family Court, we must examine whether the marital relationship between the husband and wife has ruptured beyond repair, especially when the parties have been living separately for more than ten years and during this period, there has been no resumption of their relationship and rather on account of protracted litigation, the same has got worsened day by day. 12. 12. In the present case, efforts have been made firstly to resolve the matrimonial dispute through the process of mediation, which is one of the effective modes of alternative mechanism in resolving the personal dispute but the mediation between the parties failed. The parties were directed to be present before the Mediator vide order dated 23.11.2022 passed by a Co-ordinate Bench of this Court. The report dated 12.12.2022 of the Mediator, reads as under:- “Present: None. Let notices be issued to both the parties as well as their counsel for 24.01.2023.” 13. Further, subsequent mediation took place between the parties and the Mediation reports were received dated 24.01.2023, 10.02.2023 and 03.03.2023. The case was then called fifth time for mediation between the parties on 18.04.2023 and the report of the Mediator reads as under:- “Present:- Petitioner in person. None for the respondent. In the absence of the respondent, mediation could not be held. The aforesaid case is fixed for 24.04.2023 before the Hon’ble Court. Hence the case file is being sent back to the Hon’ble Court.” 14. It is also pertinent to note here that as indicated in the order dated 24.04.2023 passed by a Co-ordinate Bench of this Court, the appellant-wife had explicitly stated that she would forego all her claims-maintenance, permanent alimony etc. the said order reads as under:- “Mediation between the parties has failed. Learned counsel for the appellant, on instructions from the appellants submits that the respondent has refused to come to any kind of settlement and only sought resumption of matrimonial tries even though appellant had stated that she would forego all her claims-maintenance, permanent alimony etc. At request of learned counsel for the parties, adjourned to 28.08.2023 for arguments.” 15. Indisputably, the parties have been living separately since 2014. In the absence of any resumption of matrimonial obligation and cohabitation between the parties for a long period, there is no possibility of their reunion. The mediation proceedings before this Court, for an amicable settlement of the dispute between the parties, remained unsuccessful. This further speaks of the bitterness of their relationship. Undoubtedly, it is an obligation on the part of the Court that matrimonial bond should as far as possible, be maintained, but when the marriage has become unworkable and it has become totally dead, no purpose would be served by ordering the reunion of the parties. 16. This further speaks of the bitterness of their relationship. Undoubtedly, it is an obligation on the part of the Court that matrimonial bond should as far as possible, be maintained, but when the marriage has become unworkable and it has become totally dead, no purpose would be served by ordering the reunion of the parties. 16. It is well settled that in order to constitute cruelty, the party alleging the same must prove on record that the behaviour of the party complained against, is or has been as such that it has made it impossible for the said party to live in the company of the party complained against. The acts of cruelty must be such from which it can be reasonably and logically concluded that there cannot be any re-union between the parties due to the said acts. The cruelty can either be physical or mental or both. Though there is no mathematical formula to devise the extent of cruelty alleged against, yet the facts and circumstances of each and every case must be examined in the light of the gravity contained in them. 17. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 , it was held by the Hon’ble Supreme court that no uniform standard can be laid down as regards the cruelty, but certain instances of human behaviour, relevant in dealing with the cases of ‘mental cruelty’, were formulated. It was held by the Hon’ble Apex Court as under:- “101. 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) 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. (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, 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 sterilisation 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. (xi) If a husband submits himself for an operation of sterilisation 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 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.” In Naveen Kohli v. Neetu Kohli, 2006 (4) SCC 558 , the Hon’ble Apex Court was considering a case of irretrievable breakdown of marriage. In the said case, the wife had been living separately for a long time, but did not want divorce by mutual consent only to make life of her husband miserable. The Hon’ble Apex Court, while holding the acts and conduct of the wife as cruelty, has held as under:- “62. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties. xxx xxx xxx 67. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties. xxx xxx xxx 67. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life. 68. In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties.” Still further, in K. Srinivas Rao v. D.A. Deepa, 2013 (5) SCC 226 has observed that when a marriage is dead for all purposes, it cannot be revived by Court’s verdict, if the parties are not willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by the Court’s decree. A Coordinate Bench of this Court in Amandeep Goyal Vs. Yogesh Rani, 2022(1) PLR 479, while considering the long separation of 10 years between the parties and the factum of wife not ready and willing to give mutual divorce, held that the marriage was dead and it amounts to cruelty towards the husband. The relevant extract from the said judgment would read as under:- “20. In the present case, it is not in dispute that both the appellant and respondent are working as teachers on regular basis in Government departments. Further they are living separately since 27.07.2011. The elder son (Manav Goyal), who is suffering from cancer, is living with appellant- husband and the younger son (Rooham) is staying with the mother. After living separately from her husband for more than 10 years, the respondent- wife is still not ready to give divorce to him. 21. Further they are living separately since 27.07.2011. The elder son (Manav Goyal), who is suffering from cancer, is living with appellant- husband and the younger son (Rooham) is staying with the mother. After living separately from her husband for more than 10 years, the respondent- wife is still not ready to give divorce to him. 21. The issue for consideration in the present appeal would be whether the relationship of the husband and wife has come to an end and if the respondent-wife is not ready to give mutual divorce to the appellant- husband, whether this act of her, would amount to cruelty towards husband, keeping in view the fact that she is not staying with her husband for the last 10 years and there is no scope that they can cohabit as husband and wife again. xx xx xx 32. In the present case, the appellant-husband is looking after his son Manav Goyal since 27.07.2011 and has borne all the expenses incurred upon his son, who is suffering from Cancer. Thus, if the appeal filed by the appellant-husband is dismissed, he will face mental agony with his son, who is ill and requires repeated check ups and treatments from various hospitals. The appellant and the respondent are very sure that they cannot live together as husband and wife. The appellant-husband has shown that he also loves his second son i.e Rooham, as he brought gifts for him on 18.08.2021 and even respondent-wife also brought gifts for Manav Goyal. Both the appellant and the respondent are regular government teachers and are getting good salary and they are bringing up one child each. If the parents are not granted divorce, then both the children namely Manav Goyal and Rooham Goyal will not be able to meet each other in a positive environment. This will further result in cruelty because of the rigid attitude in giving divorce. Further when the appellant and the respondent came to this Court on 18.08.2021, they expressed their love and affection to child, who is not staying with them. The element of marriage which has become dead will result in further loss to both the children. It is a right time if both the children meet with each other in a positive environment as the parents are finally independent. The element of marriage which has become dead will result in further loss to both the children. It is a right time if both the children meet with each other in a positive environment as the parents are finally independent. The element of silence between the parties will result into mental cruelty to the children, as both the siblings cannot meet with each other. Mental cruelty will blend with irretrievable and dead marriage is a good ground to grant divorce to the parties.” A Division Bench of the Chhattisgarh High Court in Duleshwari Sahu Vs. Ramesh Kumar Sahu, 2023 AIR (Chhattishgarh) 95, has held that where the wife had been residing separately from the husband for a long period without any justifiable cause, the same would amount to cruelty. It was held as under:- “15, In the present matter, on perusal of the pleadings of the respective parties and the evidence adduced by them in support thereof, as also the admission of the parties and their witnesses, it is found that the respondent wife is living separately from her husband at her parental home without any just and reasonable cause since May, 2014. She lodged a report on 17/09/2014 against the husband under Sections 498-A, 323, 294, 506 of IPC and after trial, he was acquitted of all the charges. This apart, the wife also made a report against the husband and his parents under Protection of Women from Domestic Violence Act. It is also admitted position that the wife filed divorce petition under section 13 of the Hindu Marriage Act which was dismissed for want of prosecution. It is also admitted by the wife that no application under section 9 of the Hindu Marriage Act for restitution of conjugal rights was filed by her. It is not disputed that the wife is working as Panchayat Secretary and is also getting Rs. 7,000/- per month as maintenance. Therefore, in the given facts and circumstances of the case, the conduct of the wife, in light of the judgments of Hon’ble Supreme Court as mentioned above, the act committed by the wife against the husband amounts to cruelty and it stands proved that she is living separately from the husband since 2014 without any just and reasonable cause. They are seems to be no possibility of their re-union. They are seems to be no possibility of their re-union. In these circumstances, this Court finds no illegality or perversity in the impugned judgement of the Family Court granting decree of divorce in favour of the husband.” 18. If the facts of the present case are examined in the light of the law laid down by the Hon’ble Supreme Court in the aforesaid judgments, it would come out that the parties, who have been living separately since 2014, if compelled to live together, would become a fiction supported by a legal tie and it would show scant regard for the feelings and emotions of the parties. This, in itself would amount to mental cruelty to both the parties. 19. The learned counsel for the appellant-wife has submitted in the Court that the wife did not want any permanent alimony. He has further submitted that all the litigations between the parties shall be withdrawn, accordingly. It may further be noticed that on the one hand, the respondent-husband is defending the judgment and decree passed by the learned Family Court, but on the other hand, his behaviour during mediation proceedings remained adamant and even during the course of hearing of the appeal, he has flatly refused to agree for a mutual divorce. Even the appellant-wife also stated before this Court that she did not want any permanent alimony from the respondent-husband. It does not, thus, appeal to the common prudence, as to what would be gain to the respondent-husband by keeping this dead relationship alive. 20. Still further, there is nothing on record to indicate that since the date of filing of the divorce petition by the appellant-wife, the respondent-husband had made any effort to join her company or bring her back to the matrimonial home and/or had filed any petition under Section 9 of the Act for restitution of conjugal rights. This clearly speaks volumes of the conduct of the respondent-husband that he is not bothered about the well being and maintenance of the appellant-wife. The only aim of the respondent-husband appears to be to frustrate the appellant-wife’s claim and further keep her engaged in the protracted litigation. 21. This clearly speaks volumes of the conduct of the respondent-husband that he is not bothered about the well being and maintenance of the appellant-wife. The only aim of the respondent-husband appears to be to frustrate the appellant-wife’s claim and further keep her engaged in the protracted litigation. 21. In view of the above, considering the totality of the facts and circumstances of the case, we hold that the marriage between the parties has become unworkable and has reached the stage of beyond repair and if the parties are called upon to stay together, it may lead to mental cruelty to both of them. Question No.1 is answered in affirmative. 22. Consequently, the present appeal is allowed. The impugned judgment and decree passed by the learned Family Court, is set aside and the marriage between the parties is dissolved by a decree of divorce. Question No.2 is answered, accordingly. 23. Decree sheet be prepared accordingly. 24. Pending application(s), if any, shall also stand disposed of.