Punjab-Haryana High Court
Seema Singh vs Sanjay Kumar on 14 October, 2022
Author: Ritu Bahri
Bench: Ritu Bahri
FAO 1369/2017(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO 1369/2017 (O&M)
Date of decision: October 14,2022.
Seema Singh
...........Appellant
Vs.
Sanjay Kumar
...........Respondent
CORAM: HON'BLE JUSTICE MS. RITU BAHRI
HON'BLE JUSTICE MS. NIDHI GUPTA
Present:- Mr. Lalit Mohan Chanana, Advocate with
Mr.Stephan Masih,Advocate for the appellant.
Mr.Kunal Dawar, Advocate for the respondent
Nidhi Gupta,J.
This is an appeal filed on behalf of the appellant- wife against the order dated 23.11.2016 passed by District Judge, Family Court-III, Faridabad whereby respondent-husband's petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') has been allowed.
Briefly stated facts of the case are that parties were married on 6.11.1992 at Agra, Uttar Pradesh according to Hindu rites and ceremonies. At the time of marriage, the appellant-wife was working as Statistical Assistant in Haryana Harijan Kalyan RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 2 Nigam, Faridabad and was drawing a salary of Rs.30,000/- per month. The respondent-husband is an IIT graduate and at the time of marriage was working as an Electrical Engineer in Faridabad in a private firm. It is stated that the marriage ceremony was simple and without dowry. Out of this wedlock a daughter was born on 6.10.1993. It was respondent's case before the Family Court that from the very beginning of the marriage the appellant was very rude and cruel towards respondent and used to taunt him for having less income and would pick up quarrel on petty issues. It is also stated that the appellant used to tell her daughter that the respondent-father was useless and incapable of looking after them. On 16.11.1995 the appellant is stated to have left the house of respondent of her own accord and deserted the respondent without any reasonable or sufficient cause whereafter he was not even allowed to meet his daughter. On 29.5.1995, the appellant lodged FIR No.443 under Sections 498-A, 406, 506 IPC against the respondent, his father Ram Kishore, his mother Kusum Lata, his sister Shalu @ Seema and his maternal uncle Pinku. Shalu @ Seema and Pinku were discharged by the trial court on 25.4.1998 against which the appellant preferred a revision which was dismissed vide order dated 3.8.1999. After that an application dated 19.11.1999 was moved by the appellant before the Deputy Commissioner, Faridabad for production of some documents/letters, on the basis of which a supplementary challan RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 3 was filed in the aforesaid FIR No. 443 dated 29.9.1995 whereupon Ram Kishore, Kusum Lata, Shalu @ Seema and Pinku were ordered to be charge sheeted under Section 498-A IPC. Said persons preferred a revision which was accepted by the Additional Sessions Judge, Faridabad vide order dated 6.8.2003 upon which parents, sister and uncle of the respondent were discharged. Against this order dated 6.8.2003 appellant filed revision petition before this Court which was dismissed vide order dated 2.8.2006. Then the case was fixed for prosecution evidence upon which appellant filed an application under Section 319 Cr.PC which was dismissed vide order dated 7.4.2007. Accordingly, only the respondent faced trial under Section 498-A IPC and he was convicted vide judgment of conviction dated 9.1.2008 and order of sentence dated 10.1.2008. Against his conviction and sentence, respondent filed an appeal before the Additional Sessions Judge, who vide judgment dated 20.1.2010 set aside the conviction and sentence of the respondent. It was accordingly, stated by the respondent that in view of the above said long-drawn, acrimonious legal history between the parties the appellant had caused him great mental agony and cruelty. Moreover, they had been living separately since 1995.
Before the Family Court, the appellant controverted the above said allegations made by the respondent and stated that sufficient dowry had been given at the time of marriage RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 4 and the respondent was short-tempered and respondent and his family never respected her and always insulted her. She had to do all the domestic duties and despite that respondent had thrown her out of matrimonial home along with their infant daughter. The appellant had further stated before the Family Court that respondent never showed any affection towards his own daughter and therefore, she was constrained to lodge the aforesaid FIR against the respondent and his family members because she was treated with great cruelty and had been deserted by the respondent.
From the pleadings of the parties, the learned Family Court framed the following issues on 30.5.2015:
"1. Whether the petitioner is entitled for a decree of divorce on the grounds of cruelty: OPP
2. Whether the petition is not maintainable? OPR
3. Relief.
In support of their respective pleas, the parties led the following evidence, as recorded by the ld. Family Court in the impugned order:
"The petitioner examined himself as PW1. He tendered his affidavit Ex.PW1/A in evidence along with documents Ex.P1 and Ex.P2, which are as under:-
Ex.P1 Certified copy of judgment in criminal appeal-RBT No.47 of 9.12.2009/21.1.2008 decided on 20.1.2010 titled Sanjay Kumar vs. State of Haryana.
Ex.P2 Certified copy of order dated 3.3.2016 passed by Hon'ble High Court of Punjab and Haryana in CRR No.2641 of 2010 (O&M) decided on 3.3.2016 titled Seema Singh v RAJINDER PARSHAD JOSHI State of Haryana and another.2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 5
The respondent examined her daughter Bulbul as RW1 and herself as RW2. Their affidavits Ex.RW1/A and Ex.RW2/A were placed on record along with documents Ex.R1 to Ex.R3 and documents Ex.RA to Ex.RC were tendered in evidence by Ld. Counsel for the respondent which are as under:-
Ex.R1 Certified copy of affidavit of Indersarup in petition No.345/05 titled Sanjay v Smt. Seema.
Ex.R2 Certified copy of affidavit of Ram Sarup in petition No.345/05 titled Sanjay v Smt. Seema.
Ex.R3 Certified copy of order dated 23.12.2010 in petition No.345/05 titled Sanjay v Smt. Seema passed by Principal Judge, Family Court, Dehradun.
Ex.RA Cross examination of Sanjay Kumar in petition under Section 127(1) Cr.PC filed by Miss Bulbul v Sanjay Kumar.
Ex.RB Certified copy of resignation letter of Sanjay Kumar in petition under Section 127(1) Cr.PC filed by Ms. Bulbul v Sanjay Kumar.
Ex.RC Certified copy of rent deed in petition under Section 127(1) Cr.PC filed by Miss Bulbul v Sanjay Kumar."
On the basis of the above-mentioned pleadings and evidence led by the parties, learned Family Court allowed the petition under Section 13 of the Act filed by the present respondent-husband, on the ground of cruelty, vide impugned order dated 23.11.2016. Hence, the present appeal.
Learned counsel for the appellant has inter alia stated before us that from the very beginning the respondent and his family members harassed and humiliated her despite the fact that she fulfilled all her domestic duties. It was further stated that the respondent never wanted to keep the appellant and their daughter with him in his company and had never shown them any love and RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 6 affection and had subsequently thrown them out of the matrimonial home. It was in view of this ill treatment that the appellant had been constrained to file the aforementioned FIR No. 443 dated 29.5.1995 against the respondent and his family as she had been treated with great cruelty and had been deserted by the respondent and left alone to fend for herself and her young daughter. It is further stated before us that respondent had failed to take care of the appellant and had not spent any money in the marriage of their daughter which was solemnized by the appellant without any assistance from the respondent. No other argument was raised on behalf of the appellant by counsel for the appellant.
In response, counsel for the respondent has stated that respondent had faced tremendous mental and physical cruelty during his marriage and had been embroiled in false litigation initiated by the appellant throughout. It was further stated that the appellant and her family had written certain letters which are Mark 'B' to Mark 'D'. These letters were written by father and sister of the appellant and sent to the Department where the respondent was working, because of which the respondent had been forced to resign. As such, career of the respondent had been irrevocably damaged by the appellant and her family. It has further been stated by the counsel for the respondent that appellant had left the matrimonial home without any reasonable cause of RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 7 her own accord on 16.11.1995. Even reconciliation proceedings were carried out by this Court in 1996 where in the Order at Mark 'A' in the LCR, the appellant has clearly stated that she was not ready or willing to live with the respondent, without assigning any reason for her decision. Accordingly, counsel argued that the parties have been living separately since 1995, for almost 30 years; and the appellant was only interested in extracting money from the respondent. In support, Counsel for the respondent relied upon K. Srinivas v K. Sunita 2014 (16) SCC 34; Harjit Kaur v Jaspal Singh 2017(4) PLR 163; Rakesh Kumar v Monika 2017(1) RCR (Civil) 378; and Pushpinder Kaur v Thakur Dass 2015 (7) RCR (Civil) 893. No other argument was raised before us by counsel for the respondent.
We have heard learned counsel for the parties and perused the LCR in great detail. Perusal of the record of the case evidences a long-drawnout and harrowing legal battle inflicted upon the respondent and his extended family by the appellant. In this regard, it will be helpful to notice a few undisputed facts and dates as borne out from the extensive record:
6.11.1992 - Marriage is solemnised between the parties at Agra, UP. The appellant is a Government Employee; and the respondent is an IIT graduate/Electrical Engineer.RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 8
6.10.1993 - out of this wedlock, a daughter namely Bulbul is born (who is now married on 16.7.2017).
12.5.1995 - the appellant, while still living in the matrimonial home, lodged a complaint against the respondent and his family.
29.5.1995 - On the basis of this complaint, FIR 443 is registered u/s 498-A, 406, 506 IPC against the respondent, his father Ram Kishore, his mother Kusum Lata, his sister Shalu @ Seema and his maternal uncle Pinku. In pursuance to this FIR, the respondent was arrested and released on regular bail.
16.11.1995 - The appellant is stated to have deserted the respondent-husband and left the matrimonial home with the daughter without reasonable cause.
6.3.1996 - CRM-M-19368 of 1996 is filed by the parents of the respondent before this Court for grant of anticipatory bail in the above case FIR 443/1995. In this proceeding, mediation is conducted by this Court where both the parties are called and the appellant categorically states that she did not wish to stay with the respondent - husband.
25.4.1998 - In the above said FIR, Shalu @ Seema and Pinku are discharged.
3.8.1999 - Subsequently vide another order dated 3.8.1999, the parents of the respondent are also discharged.RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 9
19.11.1999 - The appellant moves an application before the Deputy Commissioner, Faridabad for producing some documents, the same being letters dated 12.7.1993, 5.6.1994, 5.2.1995, and 7.3.1995. These letters are duly forwarded by the office of Deputy Commissioner, Faridabad to the Superintendent of Police, Faridabad.
11.7.2002 - In pursuance to the above application/documents/letters, supplementary challan is filed whereupon the respondent, his father Ram Kishore, his mother Kusum Lata, his sister Shalu @ Seema and his maternal uncle Pinku are charge sheeted u/s 498A IPC.
6.8.2003 - In revision filed against the order dated 11.7.2002, learned ASJ, Faridabad discharged the above said persons namely Ram Kishore, Kusum Lata, Shalu @ Seema and maternal uncle Pinku.
2.8.2006 - appellant challenged this order of discharge before this Court by way of revision petition which is dismissed by this Court vide order dated 2.8.2006.
7.4.2007 - Thereafter, trial commences against the respondent and when the case is fixed for prosecution evidence, the appellant again moved an application under section 319 of the CRPC for summoning the above said persons respondent's father Ram Kishore, mother Kusum Lata, sister Shalu @ Seema and maternal RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 10 uncle Pinku, as additional accused. This application is dismissed vide order dated 7.4.2007 by the ld. Trial Court.
11.12.2007 - the above said order is challenged in revision, which is also dismissed by the Revisional Court.
9.1.2008/10.1.2008 - respondent is convicted and sentenced under section 498AIPC by the learned ACJM, Faridabad.
20.1.2010 - Appeal filed by the respondent-husband is allowed by the ld. ASJ, Faridabad and he is acquitted of the charge under section 498A (Ex. P1 in the LCR).
...2010 - Appellant files CRR 2641 of 2010 before this Court, challenging above order acquitting the respondent. 17.5.2012 - The respondent-husband filed the present divorce petition under section 13 of the Hindu Marriage Act. 3.3.2016 - The above said judgement dated 20.1.2010, acquitting the respondent of offence under section 498A passed by the ld. ASJ, Faridabad is upheld by this Court in CRR- 2641 of 2010 (Ex. P2 in the LCR).
A perusal of the above sequence of events shows that since 1995 till date, the appellant has relentlessly pursued false and baseless litigation against the respondent and his family. Facts further establish that it has been brought on record that the appellant has even sought to manufacture evidence (in form of RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 11 letters dated 12.7.1993, 5.6.1994, 5.2.1995, and 7.3.1995, on the basis of which supplementary challan was filed against the family of the respondent), in order to implicate the respondent and his family. In this regard, the observations and findings of the learned Additional Sessions Judge, Faridabad against the appellant in his order dated 20.1.2010 (at Ex. P1 - whereby the respondent was acquitted of the charges u/s 498A and S. 406 IPC, to the effect that "The assertions in fact goes to show that an effort was being made to create evidence" and again that "...evidence of prosecution is contradictory, discrepant and result of material improvements" are clinching. In our view, these are serious observations and cannot be overlooked. It is clear from the above that the appellant has resorted to reprehensible means with the sole motive of implicating the respondent and his family in false cases, and to harass and humiliate them, and this conduct cannot be construed as anything but cruelty.
There is sufficient case law on the issue that if the wife files frivolous and un-true complaint against her spouse of which he is ultimately acquitted, it amounts to cruelty and is sufficient ground for divorce. In this regard reference may be made to one such judgment passed by Hon'ble the Supreme Court in the case of 'Rani Narsimha Sastry v Rani Suneela Rani' in SLP(Civil) RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 12 1981 of 2019, decided on 19.11.2019 wherein, in para 13 Hon'ble Supreme Court held as follows:-
"13. In the present case the prosecution is launched by the respondent against the appellant under Section 498A of IPC making serious allegations in which the appellant had to undergo trial which ultimately resulted in his acquittal. In the prosecution under Section 498A of IPC not only acquittal has been recorded but observations have been made that the allegations of serious nature are levelled against each other. The case set up by the appellant seeking decree of divorce on the ground of cruelty has been established..........
14...........But when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.8.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now.
15. In view of forgoing discussion, we conclude that appellant has made a ground for grant of decree of dissolution of marriage on the ground as mentioned in Section 13(1)(i-a) of the Hindu Marriage Act,1955."
Even this Court in the case of Sushma Taya v Arvind 2015(2) RCR 888 (P&H) held that filing of false criminal complaint by a spouse invariably and inevitably amounts to matrimonial cruelty and entitles the other to claim divorce.
Hon'ble Supreme Court in the case of A. Jayachandra v Aneel Kaur 2005 (2) SCC 22 has held that allegation of cruelty is of such nature that resumption of marriage is not possible.
Further, perusal of the record shows that the appellant and her family have at various times, vide letters at Mark 'B' to 'D', written to the employers of the respondent, asking them to RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 13 'take strict action against the respondent' and to 'terminate his services'. It has come on record that in pursuance to the above letters, the respondent was constrained to resign from his job, and is unemployed. In this regard, the observations of the learned Family Court in the impugned order are telling : "These letters establish that the dispute between the parties, which was simply a matrimonial dispute, has assumed dangerous proportions where one of the parties has taken upon herself to damage the other person professionally." Thus, it is clear that the appellant has tried to damage the respondent not just personally, but also professionally.
In the above-noted facts and circumstances of the present case, the following observations of the Hon'ble Supreme Court in case of 'K. Srinivas Rao vs. D.A. Deepa' (2013) 5 SCC 226, are important and apposite:
"24. In our opinion, the High Court wrongly held that because the appellant-husband and the respondent-wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse's life miserable. This is what has happened in this case."RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 14
In 'Raj Talreja v. Kavita Talreja', (2017) 14 SCC 194, the Hon'ble Supreme Court held as follows:
"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."
Furthermore, it is an undisputed fact that Reconciliation proceedings before this Court did not bear result.
In the case FIR 443/1995 u/s 498A and 406 IPC, the parents of the respondent had filed CRM-M-19368 of 1996 before this Court for grant of anticipatory bail. While allowing said CRM vide order dated 6.3.1996 (order is available at Mark 'A' in LCR), this Court recorded that "Sanjay and Seema, Husband and Wife are present in Court. Seema states that it is not possible for her to live with Sanjay." So, it is noted that even as far back as in 1996 the appellant was adamant in her refusal to cohabit with the respondent. Even no reasons have been given by her for her RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 15 determined refusal. It is also necessary to note that no such assertion has been recorded on part of the respondent-husband.
Even thereafter, in her cross-examination dated 14.10.2016 (at page 217 of the LCR), the appellant as RW2 has categorically stated as follows:
"I had only registered the aforesaid FIR against my husband in the year 1995 and thereafter I made no efforts to seek restitution of conjugal rights with my husband either through mediation or through the court. On 3.10.2016 there was mediation proceedings before the Hon'ble High Court. Volunteered the petitioner offered to live with me where I stated that he is only saying as to avoid paying maintenance to my daughter and since he does not want to pay money for the marriage of my daughter. Since there are no conditions conducive therefore, I cannot live with him. Further stated that I had stated in the mediation that if the petitioner is willing to pay money for the marriage of our daughter and pay monthly expenses then I would think about the same.".
In our view the above fact lends credence to the respondent's allegation of desertion against the appellant, inasmuch as it has been stated by the respondent that the appellant had deserted the matrimonial home on 16.11.1995 without any reasonable cause, and the animus deserendi on part of the appellant is borne out from her flat, unequivocal and unswerving refusal on 6.3.1996, as well as on 14.10.2016 to return to the matrimonial home. In our view, this conduct/ blatant refusal of the appellant to cohabit, establishes the appellant's intentional abandonment of her spouse.
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Accordingly, we find that this conduct of the appellant constitutes 'desertion' and meets the requirements for grant of divorce as mandated under the law. The following observations of the Hon'ble Supreme Court in case of 'Debananda Tamuli v. Kakumoni Kataky' (SC) : Law Finder Doc Id # 1944585, are apposite in the facts and circumstances of the present case:
"The law consistently laid down by this Court is that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end. In other words, there should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The view taken by this Court has been incorporated in the Explanation added to sub-section (1) of Section 13 by Act No.68 of 1976. The said Explanation reads thus:
"13. Divorce.- (1) ............
[Explanation.-In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]""
In our view, animus deserendi on part of appellant is clearly made out by her conduct and from the facts enumerated above.
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From the above discussion the following undisputed facts emerge: (a) respondent has been acquitted in the false criminal complaints lodged by the appellant against him under Section 498-A and 406 IPC; (b) order of acquittal has attained finality; and (c) parties have been living separately for almost 30 years. In Samar Ghosh v. Jaya Ghosh, 2007(2) RCR (Civil) 595: 2007(2) Recent Apex Judgments (R.A.J.) 177: 2007 (2) RCR (Criminal) 515, the Hon'ble Supreme Court had culled out illustrative cases where inference of 'mental cruelty' can be drawn. One of the illustrations drawn out was in the following words:
"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 situation, it may lead to mental cruelty."
In these facts and circumstances, this Court is constrained to observe that, no doubt, though the ground of irretrievable breakdown of marriage is not available in the statute; and the power to grant divorce on ground of irretrievable breakdown of marriage is only with the Hon'ble Supreme Court under Article
142. Nonetheless, for the purposes of the present case, observations of the Hon'ble Supreme Court in the case of 'Naveen Kohli v. Neelu Kohli', (2006) 4 SCC 558 where the Hon'ble Supreme Court RAJINDER PARSHAD JOSHI 2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 18 considered the concept of irretrievable breakdown of marriage are relevant. In that case too the parties had been living separately since ten years. However, notwithstanding this factual position, Hon'ble Supreme Court was pleased to grant divorce in said matter and further noticed as follows:
"32. In 'Sandhya Rani v. Kalyanram Narayanan', (1994) Supp. 2SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce.
33. In the case of 'Chandrakala Menon v. Vipin Menon', (1993)2 SCC 6, the parties had been living separately for so many years. This Court came to the conclusion that there is no scope of settlement between them because, according to the observation of this Court, the marriage has irretrievably broken down and there is no chance of their coming together. This Court granted decree of divorce.
34. In the case of Kanchan Devi v. Promod Kumar Mittal, 1996(2) RCR (Criminal) 614 : (1996)8 SCC 90, the parties were living separately for more than 10 years and the Court came to the conclusion that the marriage between the parties had to be irretrievably broken down and there was no possibility of reconciliation and therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce."
In these circumstances the following observations of the Hon'ble Supreme Court in case of 'K. Srinivas Rao vs. D.A. Deepa' (2013) 5 SCC 226, cover the current controversy:
"25. It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar RAJINDER PARSHAD JOSHI Ghosh, if we refuse to sever the tie, it may lead to mental cruelty.2022.10.17 10:25 I attest to the accuracy and authenticity of this document FAO 1369/2017(O&M) 19
26. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act,1955. But where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree. ...
28. In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court has respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant- husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent- wife."
Accordingly, in view of the factual and legal position as noted above, this appeal is dismissed. The judgment and decree dated 23.11.2016 passed by the learned Family Court-III, Faridabad is upheld. Pending application(s), if any, stand(s) disposed of.
(Nidhi Gupta) (Ritu Bahri)
Judge Judge
October 14,2022.
Joshi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
RAJINDER PARSHAD JOSHI
2022.10.17 10:25
I attest to the accuracy and
authenticity of this document