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2024 DIGILAW 193 (UTT)

Pramod Kumar v. Seema Sharma

2024-03-14

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : Ritu Bahri, C.J. The appellant Pramod Kumar has come up in appeal against the judgment of the Family Court dated 11.04.2023, whereby his petition under Section 13A of the Hindu Marriage Act, 1955, has been dismissed. 2. Brief facts of the case are that marriage of the plaintiff / appellant was solemnized with defendant / respondent Seema Sharma on 19.01.2012, as per Hindu rites and customs. As per plaint averments, after the marriage behaviour of defendant towards the plaintiff and his family members was not good, and she started pressurizing the plaintiff to live separately from his family at Kashipur by selling his part of property situated at Bazpur. Plaintiff was reluctant to this proposal and tried to persuade the defendant, but she was adamant to her demand. Thereafter, defendant started to treat the plaintiff and his family members with cruelty, and even threatened to implicate them in false dowry case. The defendant even did not take interest towards the matrimonial obligations and due to this physical and mental cruelty, no child was born after two years of marriage. It was alleged that on 23.12.2014, Sanjay Sharma, brother of defendant along with 3-4 persons, came to the house of plaintiff and misbehaved and committed maar peet with plaintiff and his family members. Thereafter, defendant deserted the plaintiff, and on her own volition started living at her parental house at Kashipur. On 11.02.2015, defendant lodged FIR No. 51 of 2015, under Section 498-A, 504, 506 IPC, and one under Section ¾ of Dowry Prohibition Act, at police station Bazpur, levelling false allegations against plaintiff and his relatives and family members. According to appellant, after investigation, the matter was disposed of as the allegations against the plaintiff and his family members were found false. 3. Subsequently, the plaintiff got instituted petition under Section 13-A of the Hindu Marriage Act, for dissolution of marriage between the parties before the Family Court, Kashipur. On 10.12.2019, the Family Court framed the following issues : i) As to whether the plaintiff is entitled for grant of decree for dissolution of marriage on the basis of the grounds taken in his petition? ii) To which relief the plaintiff is entitled for? 4. On 10.12.2019, the Family Court framed the following issues : i) As to whether the plaintiff is entitled for grant of decree for dissolution of marriage on the basis of the grounds taken in his petition? ii) To which relief the plaintiff is entitled for? 4. The plaintiff by List Paper No. 6C/1 has submitted the copy of the report given to the Sub Divisional Magistrate, Bazpur; Paper No. 6C/2 the notice; Paper No. 6C/3 of Primary Education Dehradun; the copy of report Paper No. 6C/4 to 6C/7, and the charge-sheet dated 27.07.2015 Paper No. 6C/8 to 6C/9, and by Paper No. 6C/10 copy of the order passed by the District Education Officer, medical prescriptions and copy of medical report of Mrs. Seema Sharma Paper Nos. 6C/11 to 6C/15, and by List Paper No. 27C/1, the order dated 20.02.2016 issued by the District Education Officer, Primary Education Udham Singh Nagar, Paper No. 27C/2, the prescription slip regarding the treatment of defendant; Paper No. 27C/3 to 27C/4 along with medicine bill Paper No. 27C/5, and by List Paper No. 32C, the plaintiff produced Paper No. 32C/2 to 32C/10, chik report, charge-sheet, order dated 12.10.2021 under Section 406 IPC were filed as documentary evidence on record. The defendant did not produce any document on record. 5. The Family Court after going through the evidence brought on record in paragraph 19 of the judgment observed that on the FIR No. 51 of 2015, registered under Section 498-A, 504, 506 IPC, and one under Section ¾ of the Dowry Prohibition Act, charge-sheet was submitted only against the appellant-husband, which was pending, and on 12.10.2021 the appellant produced summoning order under Section 406 IPC, which fact was admitted by PW1 appellant Pramod Kumar and PW2 Kuldeep Sharma. Point No. 1 6. The plaintiff / appellant by List Paper No. 27C/2 to 27C/2 had produced the order dated 20.02.2016 issued by the District Education Officer, Udham Singh Nagar to the effect that defendant had been suspended due to irregularities, and was not performing her duties, and beating students in the school, and the Family Court held that only on the basis of said order passed by the District Education Officer, the defendant / respondent could not be held suffering from non-curable mental unsoundness. Point No. 2 7. Point No. 2 7. The appellant produced on record List Paper No. 27C/1, the original prescriptions with regard to the treatment of the defendant; Paper No. 27C/3 to 27C/5 along with medicine bill. The Family Court held that all these medical records nowhere establish that the defendant / respondent was suffering from incurable mental disease. With respect to the ground of desertion, the Family Court held that the appellant had failed to prove that the defendant deserted the appellant from 23.12.2014, without any reasonable cause, and on this backdrop, the petition filed by the appellant was dismissed. 8. Counsel for the appellant submits that there is irretrievable breakdown of marriage between the parties, and there is no chance of resumption of matrimonial ties between them, as such, nothing is to be gained by trying to keep the parties tied to a marriage which in fact has ceased to exist. He has drawn attention of this Court towards three Supreme Court judgments on said proposition of law, viz., Naveen Kohli Vs Neelu Kohli, (2006) 4 SCC 558 ; Sanghamitra Ghosh Vs Kajal Kumar Ghosh, (2007) 2 SCC 220 ; and Manju Kumari Singh alias Manju Singh Vs Avnash Kumar Singh, (2018) 17 SCC 378 . 9. In Naveen Kohli Vs Neelu Kohli, (2006) 4 SCC 558 , Hon’ble Supreme Court in paragraphs 72 and 73 of said judgment has observed as under: “Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that 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 bound to be a source of greater misery for the parties. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute.” 10. In Sanghamitra Ghosh Vs Kajal Kumar Ghosh, (2007) 2 SCC 220 , Hon’ble Supreme Court has held as under : “18. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute.” 10. In Sanghamitra Ghosh Vs Kajal Kumar Ghosh, (2007) 2 SCC 220 , Hon’ble Supreme Court has held as under : “18. In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli case (supra). 19. In view of peculiar facts and circumstances of this case, we consider it appropriate to exercise the jurisdiction of this Court under Article 142 of the Constitution. 20. In order to ensure that the parties may live peacefully in future, it has become imperative that all the cases pending between the parties are directed to be disposed of. According to our considered view, unless all the pending cases are disposed of and we put a quietus to litigation between the parties, it is unlikely that they would live happily and peacefully in future. In our view, this will not only help the parties, but it would be conducive in the interest of the minor son of the parties. 21. In our view, this will not only help the parties, but it would be conducive in the interest of the minor son of the parties. 21. On consideration of the totality of the facts and circumstances of the case, we deem it appropriate to pass the order in the following terms: (a) the parties are directed to strictly adhere to the terms of compromise filed before this Court and also the orders and directions passed by this Court; (b) we direct that the cases pending between the parties, as enumerated in the preceding paragraphs, are disposed of in view of the settlement between the parties; and (c) all pending cases arising out of the matrimonial proceedings including the case of restitution of conjugal rights and guardianship case between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement.” 11. All the judgments of the Hon’ble Supreme Court as enumerated in the preceding paragraphs have been followed thereafter in Manju Kumari Singh alias Manju Singh Vs Avnash Kumar Singh, (2018) 17 SCC 378 . 12. In the case in hand, there is no child born out of the marriage between the parties, which took place on 19.01.2012, and as on today in the year 2024, almost 12 years have gone by. It is a dead marriage, and in all the Supreme Court judgments referred hereinabove, constantly it has been held that in such circumstances where the marriage between the parties is only in name, and the same has been wrecked beyond the hope of salvage, it would be in public interest to declare such a marriage as defunct. The long period of continuous separation has resulted in the matrimonial bond wrecked beyond repair. The marriage has become a fiction. It is only supported by a legal tie. 13. Respondent-wife in the instant case is an educated lady, and is working as Principal in an educational institution. The long period of continuous separation has resulted in the matrimonial bond wrecked beyond repair. The marriage has become a fiction. It is only supported by a legal tie. 13. Respondent-wife in the instant case is an educated lady, and is working as Principal in an educational institution. Another fact which could be taken into consideration is that after registration of FIR by the defendant-wife under Section 498-A, 504, 506 IPC, and one under Section ¾ of the Dowry Prohibition Act, charge-sheet was submitted only against the appellant-husband under Section 406 IPC, and for rest of the offences, no evidence has been found against the appellant, and even in this backdrop, the appeal of the appellant should be allowed. 14. In view of the foregoing discussion, the appeal deserves to be allowed. The same is, accordingly, allowed. However, keeping in view the fact that the respondent-wife has not claimed any maintenance from the appellant-husband, no direction in respect of permanent alimony is being passed.