Allahabad High Court
Dr. Prabhat Kumar Singh vs Dr. Sudha Singh on 7 March, 2025
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:13912-DB RESERVED Case :- FIRST APPEAL No. - 32 of 2020 Appellant :- Dr. Prabhat Kumar Singh Respondent :- Dr. Sudha Singh Counsel for Appellant :- Yashovardhan Swarup,Akshay Srivastava,Desh Deepak Singh,Sudeep Kumar,Sushil Kumar,Vurebdra Kumar Pandey Counsel for Respondent :- Akhilesh Pratap Singh,Raghaw Ram Upadhyay Hon'ble Vivek Chaudhary,J.
Hon'ble Om Prakash Shukla,J.
1. Heard Sri Yashovardhan Swarup, learned counsel for the appellant and Sri Raghaw Ram Upadhyay, learned counsel for the respondent and perused the record.
2. Present appeal is filed by the appellant-Dr. Prabhat Kumar Singh challenging the judgment and decree dated 28.02.2020 passed by Principal Judge, Family Court, Lucknow in O.S. No. 1995 of 2013 (Dr. Prabhat Kumar Singh Vs. Dr. Sudha Singh) whereby the Principal Judge, Family Court has dismissed the suit for divorce filed by the plaintiff-appellant under Section 13 of Hindu Marriage Act,1955.
3. As per the plaint, the marriage between the plaintiff-appellant and defendant-respondent took place on 14.12.1985 according to Hindu rites and rituals at Fatehpur. The appellant-plaintiff at the time of marriage was working as Consultant in Iran while the respondent-defendant was pursuing her M.B.B.S. course from Jhansi. After around two months of marriage, the appellant-plaintiff left for Iran while the respondent-defendant returned to Jhansi to complete here M.B.B.S. course. The appellant-plaintiff finally returned to India on 07.07.1987 and joined G.B. Pant Hospital, New Delhi and thereafter in December, 1988 he joined Sanjay Gandhi Post Graduate Institute of Medical Sciences (SGPGI), Lucknow. The respondent-defendant also completed her M.B.B.S. course and joined appellant-plaintiff at Lucknow. The respondent initially started working at Swamy Vivekanand Hospital, Lucknow and after switching certain jobs she opened her own Nursing Home in the year 2003 in the name and style 'Paurush Hospital and Diagnostic Centre' in a rented building. Later, the respondent-defendant got constructed her own Nursing Home and is running the same.
4. Out of the said wedlock, a son and daughter were born on 26.04.1990 and 16.08.1997 respectively. Unfortunately, in a road accident their son expired on 03.08.2002.
5. As per the allegation made in the plaint, the behaviour of respondent became rude and intolerant towards the appellant. The respondent even ignored the basic norms of the matrimonial relationship and did not share any responsibility at the matrimonial home. Since around 2008-09, the respondent started living in a separate room in the same house and, thus, both appellant and respondent started their absolute separate lives. The respondent never let any of the family member to enter in her room and maintained an absolute separate and independent life. She even maintained her separate ingress and egress from the house. It is also alleged that the conduct and behaviour of the respondent with her mother-in-law, aged about 83 years, also was very rude and she even attacked her with a kitchen knife on 15.11.2012. It is also alleged in the plaint that respondent used to practice occult and involves herself with supernatural forces, thus in the said circumstances the suit for divorce was filed by the plaintiff-appellant.
6. The allegations made by the plaintiff-appellant were specifically denied in the written statements by the defendant-respondent and it was claimed that both the parties were living peacefully and happily for the last 32 years. It was further claimed that it was only because the respondent became old and lost her youth and charm, the appellant has filed the false suit for divorce against her. It is also claimed that her husband/appellant was maintaining a distance from the defendant-respondent for the reason that he wanted to marry another young beautiful lady and, thus, he has also filed the suit for divorce. It was further claimed that it was the appellant who had forcefully shifted the defendant-respondent in a separate room since July, 2013 and, hence, the parties are living separately.
7. It was also claimed in the written statements that since 2017 the plaintiff-appellant had left Lucknow and taken up a job in a Hospital in Patna only to leave the defendant-respondent and, thus, since 2017 they are living separately in different cities.
8. After hearing learned counsel for the parties, the learned Principal Judge, Family Court framed the following issues.
"1. Whether the plaintiff is entitled to obtain a decree of divorce against the defendant on the basis of the allegations made in the plaint?
2. Whether the plaintiff is entitled to any other relief?"
9. In support of his case, the appellant produced three witnesses i.e. himself as PW-1, Ram Pratap Rajvanshi, his servant, who lived in the same house as PW-2, and Shrishti Singh, daughter as PW-3.
10. On the other hand, defendant-respondent has produced 09 witnesses including herself as DW-1, her younger brother Pawan Kumar Singh as DW-2, Smt. Maya Singh wife of Pawan Kumar Singh, as DW-3, a cousin niece Smt. Rashmi Sengar as DW-4 and further other known persons as DW-5 to DW-9.
11. The Family Court considered both the issues of cruelty and desertion but did not find favour with the appellant and hence dismissed the divorce petition by the impugned judgment and, hence, the present appeal is before us.
12. Learned counsel for the parties have made submissions before this Court on the following grounds.
1. Whether in the given facts and circumstances of the case the appellant has been able to prove cruelty and desertion against the respondent.
2. Whether in the given facts and circumstances of the case the decree of divorce ought to be granted.
13. Learned counsel for the appellant strongly submits that there were four persons living together in the same houses that is, both the parties herein, their daughter and the servant-Ram Pratap Rajvanshi. In their detailed statements the appellant, his servant as PW-2-Ram Pratap Rajvanshi and also his daughter PW-3-Shrishti Singh, have stated with regard to the cruel behaviour of the respondent. PW-2-Ram Pratap Rajvanshi has described in detail the cruel behaviour of the respondent not merely with the appellant but also with other persons. He has stated that the respondent was rude towards her children and used to beat them without any rhyme or reason. The behaviour of respondent was also rude with her in-laws. She not only use to scuffle with the appellant but also raised hand upon the appellant. He also used to run to beat the PW-2. He further stated in detail that the defendant was on her own choice sleeping separately and used to do witchcraft activities in her room. Despite the family opposing the same, she would not listen to anyone and would fight if checked. It is also stated by the PW-2 that the respondent had close relationship with a Tantrik from District Barabanki against whom even the Police found some criminal cases and also visited the clinic of the respondent for investigation in the said matter. The children of the parties would normally sleep with their grand-mother and it was the grand-mother who was looking after the children. In the cross-examination also PW-2-Ram Pratap Rajvanshi has maintained his statement.
14. Similarly, PW-3-Shrishti Singh, daughter of the appellant has also stated with regard to behaviour of her mother towards her. She has stated that she does not have any good memory of her mother's behaviour. She was regularly scolded and beaten by her mother. She further stated about the ill-treatment of her mother with her grand mother and with her father. She also stated with regard to newspaper and TV reports from where she came to know about a Tantrik of District Barabanki whom her mother used to visit frequently. In the cross-examination, she has also maintained her statement.
15. The defendant in her statement as DW-1 has stated with regard to her good conduct with her husband/appellant and family members. She claimed that it is the appellant who is having relationship with one Geeta Vashist, a lady working in S.G.P.G.I., Lucknow and it was in collusion with her that her husband/appellant has shifted her to a separate room and filed the suit for divorce. The respondent always tried to maintain good relationship with her husband and always tried to stay with other family members. In the cross-examination the respondent has stated that it was in the year 2008 that the appellant started having relationship with Geeta Vashist and as the appellant wanted to marry her he filed the present suit for divorce. It was during this period that respondent several times found appellant and Geeta Vashist in compromising position. In the cross-examination, she has stated that Geeta Vashist was the only reason for the differences between the parties. She admitted in her cross- examination that in March, 2017, the house in S.G.P.G.I. where they were living together, was vacated and since then they are living in a separate house. She has further stated that Geeta Vashist was working on the post of Technician and J.E. and her age is about 60-61 years and she is no more working in S.G.P.G.I., Lucknow. In further cross-examination, she accepted that since 2013 relationship between appellant and her is not good.
16. The other defence witnesses have also supported the case of respondent. Though they were not living along with the parties, but claim that they used to visit them as their relatives and are aware of the facts and circumstances of the case. They have supported the case of the defendant with regard to relationship with Geeta Vashist, however the respondent-defendant has not filed any document whatsoever or any Police report or departmental inquiry to prove the said relationship, and have made only oral statements. No specific dates, incidents or details are provided by respondent-defendant with regard to Geeta Vashist except for vague allegations of her relationship with appellant.
17. Cruelty, as defined under Section 13(1)(ia) of the Hindu Marriage Act, 1955, includes acts that cause mental or physical harm to the spouse, and such conduct makes it unreasonable for the other spouse to live with them. In the present case, the appellant has proven that the respondent's behavior caused mental cruelty, as evidenced by the testimonies of the appellant, his servant, and his daughter. As far as the issue of cruelty is concerned, it is appropriate to state how the said concept has been viewed by Apex Court. In Vinit Saxena v. Pankaj Pandit, (2006) 3 SCC 778 , wherein while dealing with the issue of mental cruelty, the Court held as follows:
"31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
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35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered."
18. First we consider the allegations made by the respondent-wife of appellant having relationship with Geeta Vashist. The written statement is bereft of any such allegation or name of Geeta Vashist. The respondent-wife has not stated at all in her entire statement that she found anything wrong in the character of her husband-appellant and only very vague pleadings are made, that, since the respondent-wife has lost her beauty, charm and youth and is no more beautiful, hence the appellant-husband has lost interest in her and wants to divorce her to marry another young beautiful lady. The allegations with respect to Geeta Vashist are made only in the examination-in-chief affidavit of the respondent-wife dated 19.01.2019. In the said statement she has stated that "In or about year 2008 a lady Geeta Vashist came in the life of petitioner, who was working in P.G.I. very soon both in-volve themselves in love affairs including illicit connection." Paragraph-34,35,36 & 37 of the affidavit of Examination-in-chief of respondent-wife are quoted hereinbelow.
"34. That respondent was passing her lief in great sorrow when in or about year 2008 a lady Geeta Vashist came in the life of petitioner, who was also working P.G.I. very soon both in-volve themselves in love affairs including illicit connection.
35. That later on both decided to get marry so as first step petitioner got filed divorce case by Geeta Vashist against her husband Vijay Kumar against his wishes.
36. That after filing divorce suit Vijay Kumar had been compelled to compromise the case to dissolve marriage. For that purpose he had been harassed by the petitioner by himself and by Gundas element. Consequently Vijay Kumar compromised the case by dissolving marriage on 2.3.15 so as second step in the meantime this divorce case has been filed to take divorce thereafter so that petitioner and Geeta Vashist may marry.
37. That during this period both were enjoying their life, several times respondent caught them in compromising condition objections had been raised. But there was no effect instead this false suit has been filed."
19. When the respondent-wife was having knowledge with regard to a lady Geeta Vashist in the life of appellant since the year 2008, it was incumbent upon her to have specifically pleaded the same in her written statements also. In the cross-examination, she admitted that Geeta Vashist is aged about 60-61 years and is no more in job. While making this statement respondent-wife herself has given her age as 57 years. Thus, in fact, the allegation in the written statement, that appellant-husband wanted to marry a young lady is false and incorrect. Both the respondent-wife as well as Geeta Vashist were nearly of the same age, rather Geeta Vashist was a few year elder. Thus, this Court does not believe the story set up by the respondent-wife that the appellant-husband was having illicit relationship with Geeta Vashist and finds the same to be false and taken up only for the purposes of this case. There is no specific instance provided or material placed by the respondent-wife or any complaint at all made to any authority in S.G.P.G.I or to the Police with regard to the said relationship, to prove the said fact.
20. The Supreme Court, in Vijay Kumar Ramchandra Bhate v. Neela Vijaykumar Bhate; (2003) 6 SCC 334, recognized such false accusations as grave assaults on the character, honor, reputation, and health of the spouse, amounting to the worst form of cruelty. The Supreme Court has settled the proposition of law by holding as under:--
"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that disgusting levelling accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."
21. In Rakesh Raman v. Kavita, 2023 SCC OnLine SC 497, the Supreme Court reiterated that cruelty, whether physical or mental, is a ground for divorce, focusing on its impact on the spouse's well-being. The Court concluded that after 25 years of separation and irretrievable breakdown of the marriage, its continuation would only perpetuate cruelty, justifying the dissolution of the marriage. In paragraph 18, 19, 20 and 21 has held, as under:-
"18. Cruelty has not been defined under the Act. All the same, the context where it has been used, which is as a ground for dissolution of a marriage would show that it has to be seen as a 'human conduct' and 'behavior" in a matrimonial relationship. While dealing in the case of Samar Ghosh (supra) this Court opined that cruelty can be physical as well as mental:--
"46...If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse.
19. Cruelty can be even unintentional:--
...The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment."
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. 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. The Supreme Court, in V. Bhagat v. D. Bhagat (1994) 1 SCC 337, held that cruelty is not limited to physical violence but also includes mental cruelty, which can render the marriage intolerable. In paragraph 16 has observed, as under:-
"16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
23. In view of the aforesaid law settled by the Supreme Court raising false allegation upon the character of a person is also a mental cruelty and can be a ground for divorce.
24. In the present case, as already found above, this Court finds that the respondent-wife has caused cruelty by making false and frivolous allegation upon the character of husband-appellant. The Family Court has failed to take into consideration this important aspect of the matter and thus we do not find favour with its judgment.
25. We also do not find any reason to disbelieve the statement made by the servant-PW-2 and the daughter-PW-3, the only two other persons living in the same house. Both of them were having same relationship with both the parties and there is no reason for them to make false statement in favour of any one of them. Both the appellant-husband and respondent-wife are working independently and, hence, it also cannot be presumed that they could have impacted witnesses because of financial support or benefits by any of the parties. The appellant-husband has specifically detailed the cruel behaviour of the respondent-wife and on the said ground also we find that the respondent-wife has committed cruelty upon the appellant-husband in the day-to-day living also. The Family Curt has not provided any reason for disbelieving the statements of PW-1 & PW-2. Rather it has tried to find minor contradictions and tried to emphasize on them. We are unable to agree with the approach of the Family Court in dealing with the statements of PW-1 and PW-2. Thus, on both the grounds cruelty upon the appellant-husband is proved.
26. The term 'Desertion', as defined under Section 13(1)(ib) of the Hindu marriage Act, 1955, is established when one spouse has willfully abandoned the other for a continuous period of at least two or more years. Relevant portion of Section 13(1)(ib) read as under:-
"has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;.."
27. The Family Court while deciding the issue of desertion on the elements of Factum of Separation and Animus Deserendi (intention to desert) has wrongly read the Lachman Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40, in which the Supreme Court held that desertion requires proof of willful abandonment of one spouse by the other, without reasonable cause and without the consent of the deserted spouse.
In the said case, reference was also made to Lachman Utamchand Kirpalani v. Meena alias Mota, AIR 1964 SC 40, wherein it has been held that;
"desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
28. After the appellant left for Patna and the respondent also left the S.G.P.G.I. house and started living in a separate house in Lucknow, no attempt since has been made by either of the parties to live together. It is also not the case of anyone that they have ever visited each other. Thus, they both are living separately in their own houses, doing their own independent work and having no concern with each other.
29. From the admitted facts and circumstances, it is clear that the parties are living and maintaining absolute separate life with separate earning and living. No attempt is ever made by either parties to live together or even visit each other. Such situation if not from 2007, at least exists since 2013, when both the parties started living separately in the same house and, thereafter, from 2017, since when they are living in separate houses with absolutely no contact with each other. This is admitted by the respondent-wife during cross-examination which satisfies the element of Factum of Separation.
30. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Supreme Court held that prolonged separation and irreparable breakdown of a marriage can lead to divorce. It outlined various forms of mental cruelty, including emotional harm, neglect, and abuse, that justify dissolution of the marriage when the bond is beyond repair. In paragraph 95, 101 and 102 has observed, as under:-
"95. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
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. 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.
(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.
102. When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen-and-a-half years (since 27-8-1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent."
31. In Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263, the Supreme Court observed that after prolonged separation since 1981 and ongoing litigation, the marriage had irretrievably broken down. The Court held that it was in the best interest of both parties to dissolve the marriage by granting a divorce, allowing them to live peacefully after years of legal disputes. In paragraph 4 and 5 observed, as under:-
"4. We heard Mr A.K.Chitale, learned Senior Counsel and Mr S.S. Dahiya, learned counsel for the respondent and perused the judgment passed by both the trial court and also of the High Court. It is not in dispute that the respondent is living separately from the year 1981. Though the finding has been rendered by the High Court that the wife last resided with her husband up to 25-3-1989, the said finding according to the learned counsel for the appellant is not correct. In view of the several litigations between the parties it is not possible for her to prosecute criminal case against the husband and at the same time continue to reside with her husband. In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. Both the parties have crossed 49 years and living separately and working independently since 1981. There being a history of litigation with the respondent wife repeatedly filing criminal cases against the appellant which could not be substantiated as found by the courts. This apart, only child born in the wedlock in 1975 has already been given in marriage. Under such circumstances the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant. This apart, the wife also has made certain allegations against her husband, that the husband has already remarried and is living with another lady as stated by her in the written statement. The High Court also has not considered the allegations made by the respondent which have been repeatedly made and repeatedly found baseless by the courts.
5. In our opinion it will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live together. Therefore, the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully for remaining part of their life."
32. Under similar circumstances, this Court in Satish Sitole v. Ganga, (2008) 7 SCC 734 Geeta Jagdish Mangtani v. Jagdish Mangtani, (2005) 8 SCC 177 Vikas Kanaujia v. Sarita, 2024 SCC OnLine SC 1699, has held that an irretrievable breakdown of marriage is where husband and wife have been living separately for a considerable period and there is absolutely no chance of their living together again.
33. In the present facts and circumstances of the case, as stated above, since the year 2013, parties started living separately in the same house and thereafter from the year 2017 parties are living in their separate houses, their own financial independent life without any attempt of living together or even visiting each other, and thus there are no chances of living together again. This Court finds that this is a case of irretrievable breakdown of the marriage as settled by the Supreme Court in the aforesaid cases. The Family Court has failed to consider this aspect of the matter. Thus this Court is unable to agree with the judgment of the Family Court.
34. In view of the above facts and circumstances, the appellant has successfully proved the cruelty and irreparable breakdown of marriage. The conduct of the respondent, as per false allegations of illicit relationship demonstrated by the testimony of the appellant, their servant, and daughter, constitutes cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Additionally, the prolonged separation and desertion by the respondent establish a case for divorce under section 13(1)(ib) of the Hindu Marriage Act and also there is a irretrievable breakdown of marriage between the parties.
35. Thus, the appeal is allowed. The judgment and decree dated 28.02.2020 passed by the Learned Principal Judge Family Court, Lucknow, is hereby set aside. A decree of divorce is granted in favor of the appellant, Dr. Prabhat Kumar Singh, dissolving the marriage between the appellant and the respondent, Dr. Sudha Singh, under Section 13 of the Hindu Marriage Act, 1955.
(Om Prakash Shukla,J.) (Vivek Chaudhary,J.)
Order Date :- March 7, 2025
Arjun/-