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2024 DIGILAW 405 (UTT)

Sandeep Tyag v. v

2024-06-12

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : RAKESH THAPLIYAL, J. 1. Upon hearing the learned Counsel, the Court made the following Judgment: (Per: Sri Rakesh Thapliyal,J.) 1. The present appeal is preferred by the appellant Sandeep Tyagi under Section 19 of the Family Court Act, 1984 against the judgment and decree dated 23.06.2018 passed by the Principal Judge, Family Court, Dehradun in Original Case No. 1017 of 2015 Sandeep Tyagi vs. Manisha Tyagi, whereby the suit preferred by the appellant Sandeep Tyagi under Section 13(1)(ia) and (ib) of the Hindu Marriage Act was dismissed. 2. The brief facts of the case are that the appellant married with the respondent on 02.10.2006 according to Hindu Rites and Customs and this marriage was solemnized in District Muzaffarnagar, Uttar Pradesh and it was the second marriage of both the parties. Both the appellant and the respondent are living separately since 13.10.2013 due to some matrimonial discord. Thereafter, the present appellant preferred a suit for divorce on 21.12.2015 under Section 13(1)(ia)(ib) of the Hindu Marriage Act on the ground of mental cruelty and desertion. In the divorce petition, it was submitted that the respondent was never interested in staying with the appellant and his family members and never fulfilled her matrimonial obligations and even she failed to fulfil the conjugal rights, which are the very basis of matrimonial life and the respondent always call him as “sala kanjus master” and “do kauri ka master”, due to which the appellant suffered through mental agony. It is also submitted that the respondent wife never took interest in any household chores and always used to watch television. 3. It is further submitted in the petition that in April, 2008, the appellant was transferred from Assam to Kendriya Vidyalaya (I.M.A.) Dehradun. The respondent wife bluntly refused to stay with the parents and sister of the appellant and even after utmost efforts, the appellant could not persuade the respondent to stay with his family and to drop the respondent to her maternal home at Muzaffarnagar. Apart from this, the other stand has taken is that the father of the respondent also used to misbehave on phone with the appellant and threatened the appellant that he shall be prosecuted by the respondent. In October 2009, the appellant was transferred to Guwahati, Assam and he requested the respondent wife to accompany him but the respondent clearly refused and the appellant had to go alone. In October 2009, the appellant was transferred to Guwahati, Assam and he requested the respondent wife to accompany him but the respondent clearly refused and the appellant had to go alone. In December 2009, after utmost efforts, the respondent came to Assam but there was no change in her behaviour and she always pressurized the appellant not to keep any relation with his family members. In February, 2013, the appellant received the official transfer information regarding transfer of his job as a school Teacher from Assam to Dehradun but the respondent flatly refused to stay in Dehradun with the appellant and in October 2013, the respondent made it clear to the appellant that the respondent cannot live with the appellant anymore and on 13.10.2013 at 5 A.M., the respondent went to her maternal home at Muzaffarnagar by Jan Shatabdi Express and took away ornaments given by her in-laws and Rs.62,000/- without informing the appellant. Thereafter, the appellant tried to settle the dispute but all turned futile and due to which, he suffered severe mental torture and humiliation and even at job place of the appellant. Ultimately, the appellant was constrained to file a petition for divorce on the ground of crudely and desertion. Apart from this, the respondent wife also filed a Criminal Case No. 1755/9 of 2016 under Section 452, 323, 307, 498 A, 506 IPC and 3/4 of the Dowry Prohibition Act Police Station Civil Lines, Muzaffarnagar, U.P. on 07.06.2016 before the learned Court of Additional Chief Judicial Magistrate Court No. 2, Muzaffarnagar, Smt. Manisha Tyagi vs. Sandeep Tyagi and others, Criminal Case No. 276/9 of 2016 under Section 406 IPC, Section 9 of the Hindu Marriage Act, a Case under Sections 12,18,19,20,22 and 23 of the DV Act. The Principal Judge Family Court Dehradun vide judgment and order dated 23.06.2018 dismissed the suit filed by the present appellant. Being aggrieved with the same, the present appeal has been preferred. 4. Learned counsel for the appellant further submits that the judgment and order passed by the Principal Judge Family Court dated 23.06.2018 is based on mere unfounded assumptions, presumptions, surmises, conjectures and failed to appreciate the controversy in true perspective. 5. Being aggrieved with the same, the present appeal has been preferred. 4. Learned counsel for the appellant further submits that the judgment and order passed by the Principal Judge Family Court dated 23.06.2018 is based on mere unfounded assumptions, presumptions, surmises, conjectures and failed to appreciate the controversy in true perspective. 5. Learned counsel for the appellant also submits that in fact the Family Court after presumption took a very sympathetic view towards the wife, ignoring the factum of absence of counter-claim in written statement showing her readiness and willingness to fulfil her marital obligations. 6. Learned counsel for the appellant further submits that in fact the Family Court failed to consider this aspect that in one side, the respondent wife implicating the appellant and his family members in various criminal cases and another side, she showing her readiness and willingness to fulfil her marital obligations and not only this even the respondent had filed a case under Section 406 IPC in the Court of Additional Chief Judicial Magistrate, Muzafarnagar claiming her entire stridhan and on the other hand filed a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act on 09.05.2016, which reveals that the respondent is taking contrary stands. Apart from this, so many grounds have been taken in the present appeal. 7. Undisputedly, this is an admitted fact that the appellant married with respondent on 02.10.2006, which was the second marriage of both the parties and they are living separately since 13.10.2013.However, the Principal Judge dismissed the suit filed by the appellant under Section 13 of the Hindu Marriage Act by observing that the allegations as alleged by the husband are not enough to make out the ground of cruelty. The respondent also filed a counter-affidavit in the present appeal and denied all the allegations as alleged by the husband in the divorce petition, in support which has been rendered by the Principal Judge, Family Court, a further reference has been made to the counter-affidavit that the respondent/wife filed a petition under Section 9 of the Hindu Marriage Act for the purpose of restitution of conjugal rights which was registered as OS No. 577 of 2016 in the Family Court, Muzaffarnagar and the present appellant filed written statement and the Additional Principal Judge Family Court, Muzaffarnagar vide judgment and decree dated 31.03.2022 decreed the suit for restitution of conjugal rights filed by the respondent. The copy of which is also annexed as CA-1 counter-affidavit. 8. A further reference has been made in the counter affidavit that the respondent/wife has also filed a complainant Domestic Violence Act, which was registered as Misc. Case No. 294 of 2018, in the court of Additional Chief Judicial Magistrate, First, Muzaffar Nagar, Uttar Pradesh, and vide judgment and order dated 28.01.2021, the complaint of the respondent/wife was allowed by directing the appellant to pay a sum of Rs. 5,000/- per month to the respondent/wife and to pay Rs. 1 Lakhs for mental and physical torture and also directed not to create any domestic violence against the respondent/wife. 9. On perusal of the order sheet, it reveals that this Court, by order dated 28.05.2019, directed both the parties to remain present in person on 13.06.2019, so that they may be sent for mediation. On 13.06.2019, though the husband was present, but the respondent/wife was not present. However, Mr. Ramji Srivastava, the counsel for the respondent/wife put his appearance on her behalf. Further, on 02.07.2019, it was informed to this Court that there is no chance of amicable settlement between the parties. Consequently, the matter was posted for final hearing. On 01.03.2021, the matter was again listed and on that the counsel for the respondent/wife informed that there is a possibility of the parties settling their dispute outside the Court. Again the matter was referred before this Court on 19.07.2022 and on that date, the parties were also directed to appear personally before this Court to explore the possibility of settlement considering the fact that they have been living separately for the last 9 days. Again the matter was referred before this Court on 19.07.2022 and on that date, the parties were also directed to appear personally before this Court to explore the possibility of settlement considering the fact that they have been living separately for the last 9 days. The counsel for the appellant, on instructions, states that the appellant is willing to negotiate with terms and conditions for divorce by mutual consent and the appellant is also willing to meet the reasonable needs of the respondent/wife towards alimony. This Court further directed that the parties shall remain present personally before this Court on the next date. 10. On 13.09.2022, both the parties were present before this Court and the Court had also interacted with both of them. The matter was posted for hearing on 11.10.2022. In the meantime, the parties, who were present before the Court, were directed to be sent to mediation centre of this Court to explore the possibility of amicable settlement. Consequently, the parties were also directed to go to the mediation centre of the High Court. 11. Both the parties made their appearance before the mediator and the mediator submitted its report on 13.09.2022. The extract of the mediation report is being reproduced as hereunder: “Attempts were made to settle the dispute between the parties at mediation. Joint and individual sessions were held between the parties. It seems that the parties are not in position to settle their dispute in mediation. The parties could not reach to an amicable settlement. Hence, the mediation proceedings are closed as unsuccessful.” 12. Since all the attempts for their amicable settlement were unsuccessful, as is evident from the report of the mediator, consequently, this Court has no option except to hear the matter on the merits and on 09.05.2024, the matter was heard at length and the judgment was reserved. 13. Admittedly, both the parties are living separately since 13.10.2013, and now, as on today, more than 10 years have been passed. 14. Learned counsel for the appellant Ms. Divya Jain, Advocate submits that since both the parties are living separately for the last more than 10 years, it appears to be a dead marriage, and in reference to it, she relies upon the judgment rendered by the Hon’ble Supreme Court in the case of Rakesh Raman Vs. Kavita, 2023 SCC Online SC 497, particularly, she refers to Para Nos. Kavita, 2023 SCC Online SC 497, particularly, she refers to Para Nos. 10, 12, 13, 15, 20, 21 and 22, which read as hereunder: “10. The husband and wife, who are before us have been living separately since the last 25 years. There is no child out of the wedlock. There are bitter allegations of cruelty and desertion from both the sides and multiple litigations between the two in the last more than 25 years. This embittered relationship between the appellant and the respondent which has not witnessed any moment of peace for the last 25 years is a marital relationship only on paper. The fact is that this relationship has broken down irretrievably long back. 11. The High Court has taken a view that mere filing of criminal cases against the appellant-husband would not constitute cruelty. All the same, the number of criminal cases filed by the respondent-wife against the appellant-husband are far too many which have been discussed above. All these cases have either resulted in discharge or acquittal of the appellant-husband, if not before the pronouncement of the Judgment of the Delhi High Court but definitely after the pronouncement of the Judgment of the Delhi High Court. Moreover, a three Judge Bench of this Court in Naveen Kohli v. Neelu Kohli held that repeatedly filing of criminal cases by one party against the other in a matrimonial matter would amount to cruelty and the same was reiterated by a Division Bench of this Court in K. Srinivas Rao v. D.A. Deepa. 12. Other aspect which we must consider is the fact that for the last 25 years the appellant and respondent, are living separately, and have not cohabitated. There is absolutely no scope of reconciliation between the parties. There is in fact no bond between the two and as the Law Commission in its 71st report said about such a marriage, which is a marriage which has de facto broken down, and only needs a de jure recognition by the law. The same was reiterated by the Law Commission in its 217th report. 13. There is in fact no bond between the two and as the Law Commission in its 71st report said about such a marriage, which is a marriage which has de facto broken down, and only needs a de jure recognition by the law. The same was reiterated by the Law Commission in its 217th report. 13. Under similar circumstances, this Court in R. Srinivas Kumar v. R. Shametha, Munish Kakkar v. Nidhi Kakkar and Neha Tyagi v. Lieutenant Colonel Deepak Tyagi has held that an irretrievable marriage is a marriage where husband and wife have been living separately for a considerable period and there is absolutely no chance of their living together again. In all the above cited three cases, this Court in exercise of its power under Article 142 of the Constitution of India has dissolved the marriage on the ground of irretrievable breakdown as a ground, which otherwise does not exist under the Hindu Marriage Act. 15. The multiple Court battles between them and the repeated failures in mediation and conciliation is at least testimony of this fact that no bond now survive between the couple, it is indeed a marriage which has broken down irretrievably. 20. This Court though did ultimately give certain illustrations of mental cruelty. Some of these are as follows: (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. (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. (Emphasis supplied) 21. 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. (Emphasis supplied) 21. We have a married couple before us who have barely stayed together as a couple for four years and who have now been living separately for the last 25 years. There is no child out of the wedlock. The matrimonial bond is completely broken and is beyond repair. We have no doubt that this relationship must end as its continuation is causing cruelty on both the sides. The long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1)(ia) of the 1955 Act. We therefore hold that in a given case, such as the one at hand, where the marital relationship has broken down irretrievably, where there is a long separation and absence of cohabitation (as in the present case for the last 25 years), with multiple Court cases between the parties; then continuation of such a ‘marriage’ would only mean giving sanction to cruelty which each is inflicting on the other. We are also conscious of the fact that a dissolution of this marriage would affect only the two parties as there is no child out of the wedlock. 22. Under these circumstances, we uphold the Order of the Trial Court, though for different grounds given by us in our order, and we set aside the Order of the High Court and grant a decree of divorce to the appellant/husband. Their marriage shall stand dissolved.” 15. The other judgment, which she has relied upon, is in the case of Munish Kakkar Vs. Nidhi Kakkar, (2020) 14 SCC 657 , particularly, paragraph nos. 11, 12, 13, 15, 19 and 22, which read as hereunder: “11. It is relevant to note that at various times there were efforts made to mediate the dispute, which failed. Multiple efforts have been made even by this Court, but to no avail. Nidhi Kakkar, (2020) 14 SCC 657 , particularly, paragraph nos. 11, 12, 13, 15, 19 and 22, which read as hereunder: “11. It is relevant to note that at various times there were efforts made to mediate the dispute, which failed. Multiple efforts have been made even by this Court, but to no avail. In a last ditch effort, the parties were referred to a counsellor after one of us, with the consent of the parties, had taken the matter in chambers. The counsellor/psychologist, however, opined that the separation of sixteen (16) years since 2003 had made both the parties bitter and cynical about the relationship and there was no sign of any affection or bonding on either side. The parties apparently had no history of pleasant time and only feelings of resentment arising from the several court cases. There was also no family support from either side. This would also be apparent, in our view, from the fact that there are stated to be multiple cases filed by both set of family members against the opposite party. 12. We had, thus, no option but to hear the parties at some length. Despite our query of whether the respondent would like to be assisted by a counsel, she refused the same and wanted to address the Court personally, having acquired a law degree herself. 13. We have given our deep thought to the matter and to the discussions in the trial court judgment and the High Court judgment [Nidhi Kakkar v. Munish Kakkar, 2011 SCC Online P&H 2599 : (2011) 1 HLR 533]. The learned Single Judge appears to have brushed aside the allegations of extramarital affairs as also of a child out of the wedlock as part of the wear and tear of marriage and as “inflamed passions.” The fact, however, remains that the relationship appears to have deteriorated to such an extent that both parties see little good in each other, an aspect supported by the counsellor's report; though the respondent insists that she wants to stay with the appellant. In our view, this insistence is only to somehow not let a decree of divorce be passed against the respondent. This is only to frustrate the endeavour of the appellant to get a decree of divorce, completely losing sight of the fact that matrimonial relationships require adjustments from both sides, and a willingness to stay together. In our view, this insistence is only to somehow not let a decree of divorce be passed against the respondent. This is only to frustrate the endeavour of the appellant to get a decree of divorce, completely losing sight of the fact that matrimonial relationships require adjustments from both sides, and a willingness to stay together. The mere say of such willingness would not suffice. 15. We, however, find that there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise. There is, thus, recognition of the futility of a completely failed marriage being continued only on paper. 19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409 : (2019) 4 SCC (Civ) 522, to which one of us (Sanjay Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably. That was a case where parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it. 22. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it. 22. We are of the view that an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately. We, thus, exercising our jurisdiction under Article 142 of the Constitution of India, grant a decree of divorce and dissolve the marriage inter se the parties forthwith.” 16. The another judgment, which has been relied upon by the learned counsel for the appellant is in the case of Rajesh Kumar Singh Vs. Suman Yadav, Arising out of SLP (C) No. 5268 of 2020, decided on 01.12.2022. In this judgment, the Hon’ble Supreme Court made the reference in the case of Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC Online SC 544 and held that in exercise of power under Article 142(1) of the Constitution of India, marriage can be dissolved on the ground of its irretrievable breakdown. In the case of Shilpa Sailesh (supra), the Hon’ble Supreme Court laid down the factors to be considered in determining irretrievable breakdown of marriage: 1. The period of time the parties had cohabited after marriage. 2. When the parties had last cohabited. 3. The nature of allegations made by parties against each other and their family members. 4. The orders passed in the legal proceedings from time to time. 5. The cumulative impact on the personal relationship. 6. Whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. 7. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. The different factors, as laid down by the Hon’ble Supreme Court, one of the factors is that the period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. 7. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. The different factors, as laid down by the Hon’ble Supreme Court, one of the factors is that the period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. Here in the present case, both the parties are living separately since 2013 and more than 10 years have passed. Therefore, in view of the factors, as laid down by the Hon’ble Supreme Court, this marriage appears to be a dead marriage, since both the parties are living separately for more than 10 years. 17. Admittedly, in the present case, the divorce petition was filed by the appellant on the ground of mental cruelty. The Hon’ble Supreme Court, in the case of Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511 , the aspect of mental cruelty was taken and held that no uniform standard can ever be laid down, however, the Hon’ble Supreme Court, in Para 101 of the said judgment enumerated some instances of human behavior, which may be relevant in dealing in the cases of “mental cruelty.” The instances indicated, though are illustrative, though not exhaustive. Para 101 of the judgment is as follows: 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. (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. (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. (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. (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. One of the illustrations is given in (xiv) of Para 101 of the said judgment and it talks about a long period of continuous separation. If we examine the factual aspect of the present matter, and the grounds, as taken in the divorce petition, and further taking into consideration the fact that both the parties are living separately since 2013, it amounts to mental cruelty against the petitioner and furthermore, this appears to be a dead marriage. No doubt, application under Section 9 filed by the respondent/wife under the Hindu Marriage Act was decreed. But, simultaneously, this fact has not been denied that both the parties are living separately since 2013. 18. So far as the arguments of learned counsel for the respondent/wife that though both the parties are living separately since 2013, but no efforts were made by the present appellant, whereas the respondent/wife was agreeable to live with him, but, this fact cannot be ignored that the respondent/wife initiated defence proceedings including favour against her and furthermore, this Court also made efforts to settle their dispute. For that purpose, both the parties were directed to appear, and they appeared and sent for mediation, but the mediation report indicates that no settlement could be arrived at. For that purpose, both the parties were directed to appear, and they appeared and sent for mediation, but the mediation report indicates that no settlement could be arrived at. Therefore, after taking into consideration all these aspects, particularly, when all attempts were made for their amicable settlement and both the parties are admittedly living separately, since for long back i.e. since 2013 therefore, in view of the illustrations, as laid down by the Hon’ble Supreme Court in the case of Sumar Gosh (supra) and further in view of the judgments relied upon by the learned counsel for the appellant, admittedly this is a dead marriage. Accordingly, we allow the appeal and set aside the impugned judgment and order passed by the Principal Judge Family Court, Dehradun dated 23.06.2018 and allow the present appeal; grant a decree of divorce by dissolving the marriage.