Delhi High Court
Sunil Kumar vs Gayatri on 17 January, 2022
Author: Jasmeet Singh
Bench: Vipin Sanghi, Jasmeet Singh
NEUTRAL CITATION NO: 2022/DHC/000636
$-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 17.01.2022
% MAT.APP.(F.C.) 28/2018 & CM APPL. 23369/2021
SUNIL KUMAR ..... Appellant
Through: Ms. Zubeda Begum, Adv.
versus
GAYATRI ..... Respondent
Through: Mr. Ashok Kriplani, Adv.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
JASMEET SINGH, J. (ORAL)
1. The present appeal has been filed by the Appellant (husband) against the Respondent (wife) under Section 19(1) of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 for setting aside the impugned order dated 07.12.2017 in HMA Case No. 1086/14, passed by the Principal Judge, Family Courts, Tis Hazari Courts, Delhi wherein the Principal Judge has dismissed the divorce Petition filed by the Appellant- husband.
2. Briefly stating the facts giving rise to filing of the present appeal are as under:
a. The marriage between the Appellant-husband and the Respondent-
wife was solemnized on 30.05.2004. There is one daughter from the wedlock born on 18.02.2006. The parties have been living separately since 28.03.2008.
MAT.APP.(F.C.) 28/2018 Page | 1 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 b. At the time of marriage, the Appellant was working as a Chemistry Teacher in Karnal, and the Respondent was working in a private school in Tonk, Rajasthan as a Physical Education Teacher. As the place of work of both of the parties was at different places, both parties met once every two months depending on holidays, and by taking leave from work.
c. As per the case of the Appellant, the Respondent changed her job in 2005 and moved to Mayo Girls School, Ajmer as a Physical Education teacher. The Appellant continued with his job in Karnal. The Respondent resigned from her job shortly after the birth of the child, and joined the company of the Appellant at Karnal. d. That the Respondent along with the child disappeared one day in August 2006 from Karnal, and were found in Ajmer the next day. Upon being brought back to Karnal, the Respondent expressed her desire to rejoin her job at Ajmer. However, when the school declined to offer the job to her, the Appellant persuaded her to stay with him in Karnal.
e. That after some time, the Respondent again expressed her desire to move to Ajmer. Thus, the Appellant put his job at stake, and applied for a job at various schools in Ajmer and ultimately succeeded in getting a job at Military School, Ajmer. It is alleged by him that once he succeeded in getting the job in Ajmer, the Respondent, instead, took a job in Delhi at Salwan Public School and moved herself and the minor child to Delhi and left the company of the Appellant. Five months later, the Respondent again changed her job and moved to Mody School at Lakshmangarh, Sikar, Rajasthan.
MAT.APP.(F.C.) 28/2018 Page | 2 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 f. The Appellant again decided to apply for a teaching job in the same school where the Respondent was working so he could stay with the Respondent and the child. Consequently, he applied and got a job at Modyi School, Sikar.
g. As per the Appellant, the entire effort of the Respondent-wife at Sikar, was to stay away from the Appellant and the Respondent would have her lunch alone, and spend Sundays with her friends at school etc. etc. h. That the respondent - with the minor child, disappeared from the matrimonial home without any intimation to the Respondent from 28.03.2008 to 19.04.2008. On 19.04.2008, the Appellant and the Respondent's father lodged a missing person report at Sikar, Rajasthan.
i. That the Respondent was located in Bharatpur, Rajasthan by the police subsequently. Since 28.03.2008, the parties have not cohabitated together as husband and wife.
j. It is alleged that the Respondent filed a petition under Section 9 of the Hindu Marriage Act, 1955 at Sikar, Rajasthan on 30.06.2011. The same was dismissed on 27.08.2013.
k. It is also alleged that the Respondent resorted to filing a false case under section 498A/406/423/341/34 IPC in Jaipur on 05.12.2011 bearing FIR No. 168/2011. After thorough investigation, the police found no substance in her complaint. In fact, the police filed a complaint under Section 211 of the Indian Penal Court before the Mahila Court, Jaipur on 09.10.2013 against the Respondent-wife for filing a false case.
MAT.APP.(F.C.) 28/2018 Page | 3 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 l. Eventually, the Appellant-husband filed the petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking dissolution of marriage by decree of divorce on 28.07.2008.
3. The parties led their evidence before the Family Court. The Appellant was examined as PW-1. He also brought his elder brother Sanjeev as PW-2, and an individual, namely Rajinder Rana as PW-3, who was the mediator between the parties, at the time of marriage. On the other hand, the Respondent-wife, examined herself as RW-1 and produced her one-time colleague from Mayo Girls school, namely, Ms. Amita Garg as RW-2, and her father as RW-3.
4. After hearing the arguments on both sides, the Family Court dismissed the petition filed by the appellant.
5. The Appellant had raised various allegations against the Respondent, stating that she refused to do household chores; she ran away with the minor child several times without informing anyone; she made the appellant resign from his job at Karnal; she refused to cohabitate with him; she filed various false cases against him and his family members, amongst others.
6. The Respondent filed her Written Statement on 18.12.2008. It was her case that she was maltreated from the very start of the marriage; the Appellant- husband had only married her under the pressure of his parents; that the Appellant wanted her entire salary; that the Appellant was constantly pressurizing her to leave her job, and that is why she left her job in Tonk, Rajasthan. She alleged that the Appellant-husband used to abuse, assault and threaten her. She claimed that it was only when the Appellant-husband threw her out late at night from their house in Delhi, that she went to Ajmer asking for her job back.
MAT.APP.(F.C.) 28/2018 Page | 4 This is a digitally signed Judgement.
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7. The Family Court in the Impugned Order noted:-
"27. In the light of the said proposition of law, reverting back to the instant case, the postmortem of the evidence lead by the parties on the record about their marital life spanning for three years and about 8- 10 months reveal that both were employed at the time of marriage at two opposite ends of the landscape, the petitioner husband employed as a teacher at Karnal, Haryana while the respondent wife employed as a teacher at Banasthali Vidya Peeth, Nimai, Tonk District, Rajasthan, and at the outset it appears that more than anything else, the said distance during their matrimonial history while pursuing their respective career aspirations proved a nemesis to their sacred marital tie. They were mature adults, entitled to exercise certain individual freedoms and liberties about their career targets, and they knew the roadmap ahead of their marriage, and in the roller coaste ride of their matrimonial relationship they were not able to work out on their priorities and compatibility issues.
30. Needless to state that both were working couple and though the testimony of PW-1 and RW-1 suggests that they had been meeting on and off visiting each other place, the long distance was probably a massive irritant between the two sowing the seeds of mutual mistrust, understanding and discontentment........
36. Much mileage is sought to be taken from the fact that the respondent wife lodged a complaint Ex.RW-i/X-2 with the police which resulted in FIR No.168 dated 5.12.2011 at PS Jaipur City, South u/s 498A/406/423/341/34 IPC, in which she made false and malicious allegations against him, his parents, two brothers and sister, of alleged ill treatment for or in connection with demands of dowry, and inter alia levelling a reckless and unsubstantiated allegation that he was having illicit relation with other women and that she was allegedly thrown out of the house without any cloth on her body at Karnal (vide para no. 3 & 5 of the complaint). It was also vehemently urged that some reckless allegations have been made by her father RW3 about the petitioner having more than commercial relationship with one Ms. Raminder Kaur.
37. It is admitted case that the FIR No.168 dated 5.12.2011at PS Jaipur City, South u/s 498A/406/423/341/34 IPG resulted into MAT.APP.(F.C.) 28/2018 Page | 5 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 investigation and a closure report was filed. There is nothing in the evidence of PW-1 that he or any of members of his family were called for interrogation or faced arrest or incarceration in Jail. Indeed a reckless allegation was levelled by the petitioner having illicit relationship with other women but this allegation is not repeated by RW-1 in her written statement or in her evidence. At the same time, even the petitioner husband has attempted to give a new twist to the tale trying to tarnish the character of the respondent wife as an alcoholic and she having relationship with another person, namely Anand Chaudhary, (such name thrown out of the blue as a suggestion to RW-3 in his cross examination). Evidence was introduced beyond pleadings to the effect that the respondent wife while on a scouts tour with the students of Mody School at Mount Abu, Rajasthan from 18th to 24th May 2008, had beaten up few Nepali business in a drunken state. This misguided missile was derived from an RTI application preferred by the petitioner husband but there is no evidence that any inquiry was conducted against the respondent wife, and if so, what was the fate thereof. In any case, such allegation is irrelevant.
40. To sum up, on an appreciation of evidence on the record and all facts and circumstances considered cumulatively, though the respondent wife has had her share of blemishes making some exaggerated and ill-conceived allegations against the petitioner husband in this matrimonial war, the burden of proof was dominantly on the shoulders of the petitioner husband to prove cruelty within the meaning of section 13(1)(ia) of the Act, who is miserably failing to prove that the respondent wife has been guilty of such sustained unjustifiable conduct and behaviour so as to actually affecting his physical and mental health. The petitioner husband fails to prove that the treatment and conduct attributed to the respondent wife has been very grave, substantial and weighty. The petitioner husband fails to prove that the respondent wife has been guilty of treating him indifferently contrary to marital norms or refusing to cohabit or sustain marital relationship with him or that she has unilaterally withdrawn herself from him without just and reasonable excuse. The petitioner husband fails to prove that the conduct of the respondent wife has been such that he has a reasonable apprehension that it would be harmful and injurious to reside any further with the respondent wife..........
MAT.APP.(F.C.) 28/2018 Page | 6 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636
41. In the said view of the discussion, the issue no. 1 is decided against the petitioner husband and in favour of the respondent wife.
42. Before finally closing the shutters down on this case, while it is apparent that the parties have been residing separately for more than nine years now, and though it is quite discernible that there is left no emotional bond between the two parties and the marriage has been irretrievably broken down, this Court cannot grant divorce merely on the ground of "irretrievable breakdown of marriage" in the absence of the petitioner husband proving cruelty on the part of the respondent wife.........
45. The maintenance was pegged at @ Rs. 3,000/- per month vide order dated 10.11.2009 and it has not been increased during the pendency of the case. Needless to state there has been a steady rise on the cost of education and other expenses borne on the child by the respondent wife since such date, and therefore, it is directed that maintenance shall stand increased to a moderate scale of 25 % every three years, over and above Rs, 3000/- p.m. reckoned w.e.f., the date of this judgment. In other words, it shall be Rs. 3,750/- from the date of this judgment and liable to enhancement @25% every three years from now i.e., 7th December 2020, and onwards accordingly, and payable to their daughter. This shall be without prejudice to the rights and contentions of the daughter to seek further enhancement as per the law." (emphasis supplied)
8. The Appellant argued that the complaint filed by the Respondent-wife under section 498A/406/323/341 of the Indian Penal Code, four years after they had separated, which was eventually found to be false by the police, was a ground for divorce, in itself, as it caused immense mental cruelty and suffering to the Appellant and his family members, as they were summoned by the police on several dates. It is also contended that this FIR was intentionally filed in Jaipur, even though the parties never worked or resided in Jaipur, just to harass the Appellant and his family members. Reliance was placed on K. Srinivas v. K. Sunita (2014) 16 SCC 34, to support the MAT.APP.(F.C.) 28/2018 Page | 7 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 argument of the Appellant for the false complaints and allegations to constitute mental cruelty.
9. Further it was alleged, to harass the Appellant, the Respondent had filed the petition for restitution for conjugal rights in 2011 in Rajasthan, rather than in Delhi, and the Appellant had to undertake constant trips to appear and engage a counsel there, which was eventually dismissed in 2013.
10. Learned counsel for the Appellant argued that the behavior of the Respondent-wife over the course of the marriage was such that the Appellant could not be reasonably expected to live with the Respondent. He argued that the Respondent left the company of the Appellant without any intimation in 2008, and was found by the police only after 35 days, which caused a lot of mental anguish to the Appellant, to have his wife and child missing for so long.
11. Lastly, it was argued that the Respondent-wife refuses to stay with the Appellant, and after all these years the marital bond between the parties has irretrievably broken down, which has also been noted by the learned Family Court judge in the Impugned Order.
12. Learned counsel for the Respondent-wife, Mr. Kriplani, per contra, argued that the Respondent faced gross domestic violence at the hands of the Appellant, and that was the reason why she left with the minor child. It was stated that when the principal of Mody School found out about these repeated acts of violence, the Respondent was made a Member Resident in the school hostel, and the Appellant-husband was made to resign from his post.
13. Learned counsel also elaborated that, admittedly, the Respondent-wife did indeed file the criminal case against the Appellant, and his family members, however, it was on ill advice, and she did not pursue the same nor did she MAT.APP.(F.C.) 28/2018 Page | 8 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 repeat the contents of it in her Written Statement, or Evidence by way of Affidavit, and that the filing of the FIR cannot be construed as cruelty. It was contended that in the case relied upon by the Appellant in K. Srinivas (supra), to construe frivolous or false complaints as cruelty, the husband and 7 of his family members had to undergo incarceration, none of which happened in this case and, thus, that judgment could not be relied upon.
14. Lastly, it was argued that the Respondent wife has not claimed any of her Stridhan, marriage expenses, property etc. all these years in the hope of reuniting with the Appellant-husband and, thus, this appeal should be dismissed.
15. At the outset, we must note that this court had on several occasions i.e 24.09.2019, 02.08.2021, 16.08.2021 tried to get the parties to agree to an amicable settlement, however, it was of no avail. It must also be noted that this court referred the parties for mediation to the Delhi High Court Mediation & Conciliation Centre, which also failed.
16. We have heard learned counsel for the parties and have gone through the record and judgments relied upon. It is an admitted fact that the parties have not lived together since 28.03.2008 i.e., a period of 14 years.
17. Thus, two questions arise for determination in the present appeal:
Whether the Family Court in its impugned order: -
i. Has correctly concluded the conduct of the Respondent before and after the separation of the parties, has been such as to not cause mental cruelty to the Appellant within the contours of the Hindu Marriage Act, 1955; and ii. Has the long period of continuous separation between the parties led to irreparable damage of the matrimonial bond, which would tantamount to mental cruelty.
MAT.APP.(F.C.) 28/2018 Page | 9 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 ISSUE NO. 1
18. We must note that the case set up by the Respondent seems to be one of smoke and mirrors, at best. The Respondent-wife in her written synopsis has stated that she has hopes for reconciliation with the Appellant. However, upon interaction in this court on 24.09.2019, she herself had stated that 'she was not interested as of now in working out a settlement'. Admittedly, mediation between the parties has also failed.
19. Secondly, it seems to be a contra-position to state that she, till today, is seeking to reunite with the Appellant after 14 years of separation; years and years of litigation and bitterness; and; having filed a false criminal case against the Appellant and his family members. It also seems irrational to us, that after accusing the Appellant of "gross domestic violence", why the Respondent-wife would like to reunite with such a person and, moreover, expose her minor child to him.
20. We have no hesitation in holding that, after the Police filed a complaint against the Respondent under Section 211 of the Indian Penal Code, the Respondent is seeking to create a bogey of making an "ill-advised" criminal complaint. The respondent is an educated and mature person, who has throughout served as a Teacher. She is worldly wise, and should have been aware of the consequences of her actions and conduct on her matrimonial bond and life. She consciously made a false complaint, obviously, to harass the appellant and his family members. Section 211 of the Indian Penal Code reads as under: -
"False charge of offence made with intent to injure Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, MAT.APP.(F.C.) 28/2018 Page | 10 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
and if such criminal proceeding be instituted on a false charge of an offence punishable with death, 1 [imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
21. As per the police investigation, the Respondent was guilty of making a false complaint, and recommended that the Respondent be punished for the same. The police found that the Respondent had fabricated a concocted story and harassed the Appellant. There is nothing before us to show that the Respondent had filed any protest petition, or has had the said proceedings under Section 211 IPC set aside. Filing a false complaint, according to us, itself constitutes an act of cruelty by the respondent.
22. We cannot accept the claim of the Respondent-wife that just because the Appellant and his family members were not arrested or incarcerated, the criminal complaint should not be considered to have caused cruelty to the Appellant. What emerges at the end of the day, is that it was a false complaint, which is not even denied by the Respondent.
23. It has already been held by the Supreme Court in Raj Talreja v. Kavita Talreja (2017) 14 SCC 194 that:
"8. As noted above, these findings of the police have attained finality and as on date there is no criminal case pending against the husband. It is more than obvious that the allegations levelled by the wife are false. It may be true that these allegations were levelled after the divorce petition had been filed and the wife may have been in an agitated state of mind. However, that did not give her a right to make defamatory statements against the husband. The falseness of the allegations is borne out from the fact that the police did not MAT.APP.(F.C.) 28/2018 Page | 11 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 even find it a fit case to be tried. After the police filed its cancellation report, the wife kept silent and after 11 years she filed a protest petition.
9. This Court in Para 16 of K. Srinivas Rao v. D.A. Deepa has held as follows:
"16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh v. Jaya Ghosh, 2007 (4) SCC 511, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."..........
10. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 (for short 'the Act'). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false.
(emphasis supplied)
24. It has been held by the Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3 SCC 786:
"14. It cannot be in doubt that in an appropriate case the unsubstantiated allegation of dowry demand or such other allegation has been made and the husband and his family members are exposed MAT.APP.(F.C.) 28/2018 Page | 12 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 to criminal litigation and ultimately if it is found that such allegation is unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege that mental cruelty has been inflicted on him, certainly, in such circumstance, if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original court to allege mental cruelty it could well be appreciated for the purpose of dissolving the marriage on that ground...."
25. In Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Supreme Court observed:
"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. 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.
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(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.
(xiv) When there has been a long period of continuous separation, it may be fairly concluded that the matrimonial bond is beyond MAT.APP.(F.C.) 28/2018 Page | 14 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 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 the marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties, it may lead to mental cruelty" (emphasis supplied)
26. Thus, this court cannot accept the ipse dixit of the Respondent that she was the one subject to cruelty and domestic violence, which remains completely unsubstantiated. Further, the filing of the false criminal complaint against the Appellant and his family members by the Respondent is taken to cause the Appellant 'mental cruelty' in light of the judgment of Raj Talreja(supra) and is a ground for divorce in context of the judgment of Mangayakarasi v. M Yuvaraj (supra).
27. In this view of the matter, we find that the Family Court in its impugned judgment has ignored this substantial aspect of cruelty. The Family Court has wrongly concluded that since the Appellant or his family members were not called for interrogation, nor faced arrest, nor were incarcerated in jail, the acts of cruelty were not made out.
28. The respondent also alleged that the appellant maintained illicit relationship with other women. Even this allegation went unsubstantiated and the respondent would have to take the consequences for such scandalous allegations which amounts to the appellant's character assassination.
ISSUE NO. 229. The Family Court in its impugned judgment in paragraph 42 has clearly concluded that the parties have been staying separately for 9 years and no emotional bond is left between the parties. However, it did not grant decree of divorce, stating that in its opinion "Irretrievable Breakdown of Marriage"
is not a ground for divorce.
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30. Admittedly the parties have stayed separately and have not lived together or cohabitated since 28.03.2008. In the case of Samar Ghosh (supra), the Supreme Court has held that a long period of continuous separation can be a conclusion that the matrimonial bond is beyond repair. The marriage then becomes a fiction which is simply supported by a legal tie.
31. We have also held in Laxmi v. Kanhaiya Lal in MAT. APP. (F.C) 5/2020 decided on 07.10.2021 that:
"24. In today's day and age, with education, knowledge and awareness, the capacity of both-men and women, to adjust, accommodate, tolerate has gone down. Materialism has increased. The capacity to forget and forgive and move on is less. Stresses of life have increased with increased competition and faster pace of life. These factors are leading to matrimonial breakdowns. The conduct of the parties to a marriage cannot be described in black and white. There is a lot of grey, and it is not always possible to pin-pointedly say that one spouse is the villain, while the other is the victim. Both may be villains and victims at the same time. In such situations, the mere continuation of the relationship between the warring spouses causes immense emotional and psychological trauma to the parties which would, in itself, tantamount to cruelty by both parties, upon the other.
25. In the facts of the present case; there is no point of keeping the marriage alive, keeping in view the period of separation and the multitude of proceedings initiated by the appellant against the respondent, wherein the appellant has been successful in prima facie proving the allegations of domestic violence against the respondent. Additionally, there was no contest on behalf of the Respondent against any of the allegations made, and he did not oppose the judgment of the Dwarka Court establishing the case of domestic violence against the Respondent. As a fresh cause of action arose against the Respondent, the same has to be taken into account. After living separately for almost 16 years, we do not wish to relegate the Appellant to another round of litigation, by asking the appellant to file a fresh petition for divorce on the grounds of cruelty basing it upon the judgment and order dated 26.06.2013 passed by the MM MAT.APP.(F.C.) 28/2018 Page | 16 This is a digitally signed Judgement.
NEUTRAL CITATION NO: 2022/DHC/000636 Mahila Court, Dwarka. That course will only prolong the agony of the parties, or at least the Appellant, as the marriage between the Appellant and the Respondent is beyond repair, and at best is only a legal tie. By refusing to severe the tie, we would not be preserving the sanctity of the marriage, but would be showing scant regard for the feelings and the emotions of the parties, or at least the Appellant, and only prolong her mental agony."
(emphasis supplied)
32. Hence, the continuation of this marriage would not only cause harm to the Appellant-husband, but also the Respondent-wife. It is clear from a bare perusal of the matter at hand that the marriage is beyond repair and the continuity of it will be fruitless.
33. In this view of this matter, we allow this Appeal, set aside the impugned judgment and decree, and dissolve the marriage between the parties by a decree of divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act,1955. This shall not prejudice the Respondent-wife from pursuing her remedies under the law for alimony for herself and the minor child.
JASMEET SINGH, J
VIPIN SANGHI, J
JANUARY 17, 2022/ 'ms'
MAT.APP.(F.C.) 28/2018 Page | 17
This is a digitally signed Judgement.