HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

In Chamber

Case :- FIRST APPEAL No. – 106 of 2015

Appellant :- Aayush Rastogi

Respondent :- Principal Judge Family Court Lucknow And Another

Counsel for Appellant :- Sudeep Kumar

Hon’ble Anil Kumar,J.

Hon’ble Saurabh Lavania,J.

(As per Hon’ble Anil Kumar J.)

Heard Sri Sudeep Kumar, learned counsel for the appellant and gone through the record available with this appeal. Despite of service through publication, no one appeared for respondent no.2-Smt. Malvika Rastogi.

By means of the instant appeal under Section 28 of the Hindu Marriage Act, 1955 (in short “Act, 1955”) read with Section 19 of the Family Court Act, 1984 (in short “Act, 1984”), the appellant has challenged the judgment and order dated 07.11.2015, passed by the Principle Judge, Family Court, Lucknow in Regular Suit No. 1268 of 2012 (Aayush Rastogi Vs. Smt. Malvika Rastogi), whereby the divorce petition under Section 12(1) (c) of Act, 1955 moved by the appellant was dismissed.

Facts, in brief, of the present case as submitted by the learned counsel for the appellant are to the effect that the marriage between appellant-Aayush Rastogi and respondent no.2-Smt. Malvika Rastogi was solemnized as per the Hindu Rites and Rituals on 11.12.2011 at Lucknow. After the marriage it was revealed to the appellant that the marriage of respondent no.2- Smt. Malvika Rastogi was solemnized without her free consent and she was not happy with the appellant and she was of the view to go back to Kolkata. Thereafter, the respondent no.2-Smt. Malvika Rastogi went back to Kolkata and returned to Lucknow on 23.12.2011 with appellant.

Thereafter, on 29.02.2012 the respondent no.2- Smt. Malvika Rastogi made an attempt to commit suicide but due to timely intervention of the family of the appellant, the respondent no.2 could not be succeeded and thereafter the parents of the appellant immediately rushed to Kolkata and this time the respondent no.2- Smt. Malvika Rastogi expressed that if her marriage with the appellant is dissolved by any competent court of law, she shall have no objection to it. It is also stated that the respondent no.2 Smt. Malvika Rastogi during her stay with appellant did not perform her matrimonial duties.

Thereafter, the appellant filed a petition on 31.05.2012 under Section-12 of Act, 1955 registered as Regular Suit No.1268 of 2012 (Aayush Rastogi Vs. Smt. Malvika Rastogi) and respondent no.2-Smt. Malvika Rastogi filed her written statement on 04.07.2013 wherein she admitted the averments made in the plaint. Later on, the respondent no.2- Smt. Malvika Rastogi withdrew her written statement and filed another written statement on 18.11.2013.

Thereafter, the matter in issue came up before this Court by means of the Writ Petition No.7025 (M/B) of 2013 which was dismissed vide order dated 11.10.2013 with an observation that in case the parties have consented then the Court below may consider the request for consent decree.

Subsequently, respondent no.2- Smt. Malvika Rastogi approached Hon’ble Supreme court by filing Transfer Petition (Civil) No.461 of 2014 (Smt. Malvika Rastogi Vs. Aayush Rastogi) which was also dismissed vide order dated 15.01.2015.

Thereafter, the Principal Judge, Family Court, Lucknow issued notices to the respondent no.2-Smt. Malvika Rastogi but she did not appear and consequently the Principal Judge, Family Court, Lucknow vide order dated 26.03.2014 has proceeded ex-parte against the respondent no.2-Smt. Malvika Rastogi and dismissed the suit on 07.11.2015 with following observations:-

“izLrqr okn oknh }kjk i{kdkjksa ds e/; gq, fookg dks ‘kwU;dj.kh; fookg mn~?kksf”kr fd;s tkus ds vk’k; ls fgUnw fookg vf/kfu;e 1955 dh /kkjk 12 ds rgr nkf[ky fd;k x;k gSA mDr /kkjk dh mi/kkjk ¼1½¼x½ ds vuqlkj dksbZ fookg bl vk/kkj ij fd ;kfpdknkrk dh lEefr cy ;k deZdk.M dh izd`fr ;k izR;FkhZ ls lEcfU/kr fdlh rkfRod rF; ifjfLFkfr ds ckjs esa diV }kjk vfHkizkIr dh x;h Fkh rks ,slk fookg ‘kwU;dj.kh; gksxk vkSj vd`rk dh vkKkfIr }kjk vd`r fd;k tk ldrk gSA

izLrqr ekeys esa oknh }kjk ;g dgk x;k gS fd izfrokfnuh dh lEefr mldh eka }kjk cyiwoZd rFkk diViwoZd ml ij ncko cukdj izkIr dh x;h gS vkSj blh vk/kkj ij fookg dks ‘kwU;dj.kh; mn~?kksf”kr fd;s tkus dh ;kpuk dh x;h gSA U;k;ky; dh jk; esa fgUnw fookg vf/kfu;e dh mi/kkjk ¼1½¼x½ esa tks v/kkj fookg dks ‘kwU;dj.kh; ?kksf”kr fd;s tkus ds izLrqr fd;s x;s gSa] muls gh ;g Li”V gS fd fookg dk ,slk i{k ftldh lEefr fookg gsrq diViwoZ vFkok cyiwoZd izkIr dh x;h gks] ogha mijksDr /kkjk ds izkfo/kkuksa ds vUrxZr ;kfpdk yk ldsxkA esjh jk; esa bl ekeys esa oknh dh lEefr cyiwoZd vFkok diViwoZd izkIr fd;s tkus dk rF; ugha gSA vr% okn fujLr fd;s tkus ;ksX; izrhr gksrk gSA

vkns’k

nkok oknh vUrxZr /kkjk 12 fgUnw fookg vf/kfu;e ,di{kh; :i ls fujLr fd;k tkrk gSA”

Aggrieved by the order dated 07.11.2015, present appeal has been filed.

It would be appropriate to mention here that on 04.12.2019 this Court directed for summoning of lower court record. However, record was not available when the case was heard and reserved for judgment.

The case was finally heard in absence of lower court record as the learned counsel for the appellant submitted that he would argue only on the basis of the facts narrated in the judgment dated 07.11.2015 and legal issue involved therein as also the averments made in the plaint, letter(s) of respondent dated 10.02.2012 and 29.02.2012 written by the respondent and other documents, which are already on record of this appeal, and also argue on the plea of irretrievable break down of marriage.

In regard to hearing of the case, he further submitted that marriage between the appellant and respondent was solemnized on 11.12.2011 and she left the matrimonial home on 29.02.2012, and since February, 2012 the appellant is suffering from mental agony.

He further submitted that the suit under Section 12 of the Act, 1955 was admitted on 30.05.2012 and after filing her written statements, the respondent no.2- Smt. Malvika Rastogi avoided the proceedings before trial court and thereafter, the trial court proceeded ex-parte and despite of evidence on record the trial court dismissed the suit. Even before this Court, despite of service of notices through publication the respondent no.2- Smt. Malvika Rastogi has not appeared.

Taking into consideration the aforesaid particularly the fact that the relevant documents are already on record as annexures to the affidavit of the appellant filed in support of application for interim relief as also the plight of the appellant, which he suffering since February, 2012, in the interest of substantial justice, we proceeded to hear this appeal finally.

Regarding service of notice upon respondent no.2-Smt. Malvika Rastogi, it would also be appropriate to mention herein that initially notices were sent as per the normal mode of service under the Allahabad High Court Rules, but the services could not be effected on respondent, therefore, the learned counsel for the appellant moved an application under Order V Rule 20 C.P.C. and the same was allowed vide order dated 01.08.2019 and thereafter, as per the office report steps were taken by the appellant in view of the order dated 01.08.2019 and notices were published in “Hindi Daily” and “English Daily” Kolkata Edition of News Paper namely “Business Standard”, copies of the same placed before this Court have been taken on record. Accordingly, we hold that the service of notice regarding present proceedings before this Court upon respondent no.2-Smt. Malvika Rastogi is sufficient.

Learned counsel for the appellant, assailing the judgment under appeal, submitted that the perusal of the judgment and order dated 07.11.2015, it is clearly established that the learned court below has misread the averments of the plaint inasmuch as in paragraph 23 of the plaint. The appellant has categorically stated that according to the provisions of Section 5(ii) (b) of the Hindu Marriage Act, 1955, if at the time of solemnization of marriage, the consent of the party has been obtained, who was suffering from mental disorder of such kind or to such an extent as to be unfit for marriage and the procreation of children, then such marriage would be voidable in accordance with the provisions of Section 12(1) (b) of the Hindu Marriage Act, 1955.

Learned counsel for the appellant further submitted that at the time when the marriage between the appellant and the respondent was solemnized, the mental condition of the respondent was not sound. It is submitted that the respondent no.2- Smt. Malvika Rastogi was constantly living under the threats and pressure created upon her by her mother namely Smt. Mamta Saraf. It was because of this constant duress exercised upon the respondent no.2- Smt. Malvika Rastogi by her mother, that the respondent’s mental condition was unstable.

Further, submitted that in paragraph 8 of the plaint, it has been specifically pointed out as to how the mother of the respondent no.2- Smt. Malvika Rastogi herself has admitted at the time when the marriage was being fixed that the strained relations between the respondent’s parents has gravely affected respondent’s mental condition and therefore she appeared to be extremely unhappy and depressed at the time when the marriage was being fixed.

It is also submitted that the respondent no.2-Smt. Malvika Rastogi has herself admitted that in order to save her mother from agony, the respondent no.2 had consented to this marital arrangement. On the basis of the averments made in paragraphs 13 to 16 read with Annexure Nos.2 and 3 annexed to this appeal, it is submitted that it can be made out as to how this marriage was forced upon the respondent no.2- Smt. Malvika Rastogi by her mother and it only worsened her mental condition, than it already was because of her parents strained relations. The respondent no.2-Smt. Malvika Rastogi herself, on several occasions has admitted to the pressure and threats created upon her by her mother. In fact, her depression and frustration aggravated to such an extent that on 29.02.2012 the respondent no.2-Smt. Malvika Rastogi made an attempt to commit suicide, but was saved by the timely intervention of the appellant and his family.

It has also been stated by the learned counsel for the appellant that the poor mental condition of the respondent no.2-Smt. Malvika Rastogi also reflected in her rude and erratic behavior towards her husband/appellant. In this regard he pointed the averments made in paragraph 13 of the plaint. It is also stated that the respondent no.2-Smt. Malvika Rastogi did not allow the plaintiff to consummate the marriage on the grounds that this marriage was forced upon her and she does not want to stay with the appellant.

It is also submitted that the learned Trial Court failed to appreciate the provisions of Sub-Section 12(1)(c) of the Hindu Marriage Act, 1955 in its correct perspective, Section 12(1)(c) deals with decree of nullity of marriage on the ground where the consent of the petitioner has been obtained by force or fraud as to any material fact or circumstances concerning the respondent no.2-Smt. Malvika Rastogi and the marriage in issue, the consent of the appellant for marriage with the respondent no.2- Smt. Malvika Rastogi was depending upon the free consent of respondent no.2-Smt. Malvika Rastogi, which was not there and thus fraud was played upon the appellant by concealing the fact of related to free consent on part of respondent no.2-Smt. Malvika Rastogi, which amounts concealment of a material fact or circumstances concerning the respondent.

Learned counsel for the appellant further submitted that the basic conditions as prescribed under Section 5(ii)(b) of the Hindu Marriage Act, 1955 for solemnization of a valid marriage stands violated owing to the mental disorder and inability of the respondent no.2-Smt. Malvika Rastogi to procreate children and accordingly this court may be pleased to annual his marriage with respondent under Section 12(1)(b) of the Hindu Marriage Act, 1955.

It is further stated that vide order dated 26.03.2014 the case was proceeded ex-parte and averments were proved by the appellant by way of evidence through affidavit but the trial court failed to consider the duly proved facts and also failed to take note of the provisions i.e. Section 5 (ii) (b) and Section 12 of the Hindu Marriage Act, 1955.

In addition to above, the learned counsel for the appellant Sri Sudeep Kumar also submitted that the marriage between appellant and respondent no.2-Smt. Malvika Rastogi was solemnized in the year 2011 and since February, 2012 they are living separately and about 8 years have been passed, and in view of the said facts of the case there is no possibility of reunion or conciliation and on the ground of irretrievable break down, the divorce decree may be passed.

Learned counsel for the appellant in support of his arguments has placed reliance on the judgments passed in Civil Appeal No.1687 of 2006 (Vinita Saxena Vs. Pankaj Pandit) (2006) 3 SCC 778, (Alka w/o Abhinesh Sharma Vs. Abhinesh Chandra Sharma) AIR 1991 MP 205, in FA.O. No.422 of 2005 (Smt. Urmila Devi Vs. Narinder Singh), AIR 2007 HP 19.

In the case of Alka w/o Abhinesh Sharma Vs. Abhinesh Chandra Sharma, reported in AIR 1991 MP 205, the High Court of Madhya Pradesh has taken a liberal interpretation to Section 5(ii)(b) of the Act of 1955, in paragraph 12 has observed, as under:-

“a clear intention of the legislature that a person who is mentally not sound although he may not be an idiot or lunatic, is disqualified from contracting a valid marriage, a party can not be compelled to suffer marital life with a marriage partner who is not mentally sound and is only fit for procreation of children.”

In paragraph 29 observed, as under:-

“the provision in section 5(ii)(b) thus envisages a situation where the other spouses at the time of marriage may be in lucid interval and hence in a capacity to give a valid consent, but otherwise suffers from such mental disorder as disables her/him from discharging marital obligations towards the other spouse or parental obligation towards the children. In my opinion, therefore the degree of mental illness for grant of a decree of divorce may not be the same for grant of degree of nullity, because of seeking a decree for nullity it is enough for the complaining party to prove that other party due to mental illness was disqualified from taking the marital responsibilities and was not likely to shape into a reasonably good wife or husband with reasonable capacity and capabilities to under the married life.”

The Hon’ble Apex Court, in Vinita Saxena Vs. Pankaj Pandit, reported in (2006) 2 SCC 778, in paragraph 42 of the judgment, has observed as under:-

“where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible, it may furnish a good ground for nullifying the marriage because to beget children from Hindu wedlock is one of the principal aims of Hindu marriage where sanskar of marriage is advised for progeny and offspring.”

The High Court of Himanchal Pradesh in Smt. Urmila Devi Vs. Narinder Singh, reported in AIR 2007 HP 19, in paragraph 15 of the judgment has observed as under:-

“what is fraud within the meaning of Section 12(1)(c) of the Act has been the subject-matter of a number of decisions: The meaning to be given to the Word fraud in this section is different from the interpretation given to this word under the Contract Act. When negotiations of marriage are taking place there is talk between both sides. There may be some minor exaggerations. There may also be some concealment. It is only if the non-disclosure is of a material fact that it will amount to fraud. Concealment or misrepresentation of every small fact may not be fraud sufficient to justify for annulment of marriage. In case any fact or circumstances is concealed which is of such a nature that it shall materially interfere with happy marital life it will definitely be a material fact or circumstances. In my opinion, withholding of any such fact which if disclosed would have resulted in the husband not agreeing to the marriage is a material fact.”

Learned counsel for the appellant has also placed reliance on the judgment passed in First Appeal No.151 of 2012 (Shailendra Kumar Singh Vs. Reeta Singh and Another), 2019 SCC Online AII 5316. The relevant paras, relied upon by the learned counsel for the appellant, are as under:-

“43. In the case of Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, the Hon’ble Supreme Court observed as hereunder:–

“32. Both the parties have levelled allegations against each other for not maintaining the sanctity of marriage and involvement with another person. According to the respondent, the appellant is separately living with another woman “Shiva Nagi”. According to the appellant, the respondent was seen indulging in an indecent manner and was found in a compromising position with one Biswas Rout. According to the findings of the trial court both the parties failed to prove the allegations against each other. The High Court has of course reached the conclusion that the appellant was living with one “Shiva Nagi” for a considerable number of years. The fact of the matter is that both the parties have been living separately for more than 10 years. A number of cases including criminal complaints have been filed by the respondent against the appellant and every effort has been made to harass and torture him and even to put the appellant behind the bars by the respondent. The appellant has also filed cases against the respondent.

38. D. Tolstoy in his celebrated book The Law and Practice of Divorce and Matrimonial Causes, (6th Edn., p. 61) defined cruelty in these words:

“Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.”

“72. 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 and bound to be a source of greater misery for the parties.

73. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented with concrete instances of human behaviour as they bring the institution of marriage into disrepute.

74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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.

75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.

77. Some jurists have also expressed their apprehension for introduction or irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems that are sought to be solved.

78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.

79. When we carefully evaluate the judgment of the High Court and scrutinise its findings in the background of the facts and circumstances of this case, then it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.

80. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in the proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news items is concerned, the status of the husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In next para 69 of the judgment that in one of the news items what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a director along with Mrs. Neelu Kohli who held 94.5% shares of Rs. 100 each in the Company. The news item further indicated that Naveen Kohli was acting against the spirit of the article of association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He had stealthily removed produce of the Company, besides diverted orders of foreign buyers to his proprietorship firm M/s Naveen Elastomers. He had opened the bank account with forged signatures of Mrs. Neelu Kohli and fabricated the resolution of the board of directors of the Company. Statutory authority under the Companies Act had refused to register documents filed by Mr. Naveen Kohli and had issued show-cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the Company nor Mrs. Neelu Kohli shall be liable for the acts of Mr. Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.”

86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.”

44. Hon’ble the Apex Court in the case of Samar Ghosh v. Jaya Ghose, (2007) 4 SCC 511, held as under:–

“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.”

45. Hon’ble the Apex Court in the case of Rishikesh Sharma v. Saroj Sharma,(2007) 2 SCC 263, held 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.

6. During the last hearing both the husband and wife were present in the Court. The husband was ready and willing to pay a lump sum amount by way of permanent alimony to the wife. The wife was not willing to accept the lump sum amount but however expressed her willingness to live with her husband. We are of the opinion that her desire to live with her husband at this stage and at this distance of time is not genuine. Therefore, we are not accepting this suggestion made by the wife and reject the same.”

46. Hon’ble the Apex Court in the case of Geeta Jagdish Mangtani v. Jagdish Mangtani, (2005) 8 SCC 177, held as under:–

“4. The husband has made allegation that after the birth of the son he had gone to the house of the wife at Adipur, Gujarat where he was not allowed to meet her nor was he allowed to see his son. Likewise, the wife has made allegations that her mother-in-law had made dowry-related demands from her. These are mere allegations and counter-allegations on which reliance cannot be placed. Nothing of this kind was stated in the notices or replies thereto. The most important fact which emerges is that from 2-6-1993, the parties have been staying separately and there is total lack of any effort on their part to stay together. Since the wife left the matrimonial home on 2-6-1993 and has, admittedly, not returned to the said home, the absence of any desire on her part to honour the matrimonial obligation is clear. In this connection the observation of the High Court is worth reproducing:

“… Both the husband and wife have renounced the relationship as husband and wife since June 1993 and from the record of the case also presently the questions which I have asked in the chamber, I am satisfied that both the husband and wife had no intention to live together as husband and wife and decided to break off from the relationship of marriage or withdraw that companionship of husband and wife. Desertion means rejection by the party of all the obligations of marriage and permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other.

14.7. I have considered the entire aspect and there is no useful purpose to have kept the parties as husband and wife particularly from 1993 when both the husband and wife have not stayed together. Though I have made efforts to see that the wife can go to her matrimonial home at Mumbai or the husband can stay at Gandhidham but unfortunately this Court’s effort to reunite them as husband and wife failed. This Court has therefore no alternative but to pass the order for divorce to see that both people can be free to have their own houses in this behalf because to keep both the husband and wife together when one stays at Mumbai and another at Gandhidham, without the intention to stay together, would serve no purpose. Therefore, the marriage is completely broken down and no useful purpose would be served by dismissing the second appeal.”

47. Hon’ble the Apex Court in the case of Satish Sitole v. Smt. Ganga, (2008) 7 SCC 734, held as under:–

“11. The prayer made on behalf of the appellant and endorsed by the respondent is neither novel nor new. At the very beginning of this judgment we had referred to the decision of this Court in Romesh Chander [(1995) 2 SCC 7], where it was held that when a marriage is dead emotionally and practically and there is no chance of its being retrieved, the continuance of such a marriage would amount to cruelty. Accordingly, in exercise of powers under Article 142 of the Constitution of India the marriage between the appellant and the respondent was directed to stand dissolved, subject to the condition that the appellant would transfer his house in the name of his wife.

13. Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably.”

48. This Court in the case of Mohit Tandon v. Preeti Tandon, 2010 (2) All CJ 1108, held as under:–

“The essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life. The ground of act of cruelty are to be distinguished from ordinary wear and tear of family. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.

It may be added that cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse, is a necessary element in cruelty.

Taking into consideration the facts in its entirety and the failure of settlement between them either before the lower court and also by us, we are of the view that the marriage has seized to exist in substance and in reality, living apart is a symbol indicating the negation of such sharing. It is indicative of the disruption of the essence of marriage. From the circumstances, we are fully convinced that the marriage between the parties is irretrievably broken down because of incompatibility of temperament. In fact, there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties has been wrecked beyond the hope of salvage and cannot be repaired. The Apex Court in number of cases, namely, Harpit Singh Anand v. State of West Bengal [(2004) 10 SCC 505], Kanchan Devi v. Promod Kkumar Mittal [(1996) 8 SCC 90] and Ashok Hurra v. Rupa Bipin Zaveri [(1997) 4 SCC 226], in order to do complete justice, granted decree of divorce and directed for closer of all sort of proceedings between the parties.

In the instant case, the record is clear that the parties are living separately and are are not discharging their matrimonial obligations continuously for the last over 15 years and there is no possibility of any reconciliation. Thus, the conclusion is inevitable that the marriage has broken down completely and irretrievably and as such there is no point in compelling them to live together and to make their life more miserable.

In Sandhya Rani v. Kalyan Ram Narayan 1994 Supp (2) SCC 588 the Apex Court while reiterating the stand that there is no justification for continuing with the marriage which has broken down irretrievably took the view that since the parties are living separately for last more than three years there is no doubt in taking the stand that the marriage between the parties has broken down irretrievably and, therefore, the Court has no option but to grant decree of divorce.

In the case of Mrs. Chandrakala Memon v. Capt. Vipin Memon JT 1993 (1) SC 229 the Apex Court held that when the parties were living separately for many years and there appear to be no scope of settlement between them with no chance of their coming together, the decree of divorce was justified. Similar view was expressed by the Supreme Court in the case of Smt. Kanchan Devi v.Pramod Kumar Mittal, (1996) 8 SCC 90 : AIR 1996 SC 3192. In the said case, the parties were living separately for more than 12 years and it appeared to the Court that there was no possibility of any reconciliation and as such directed for the dissolution of marriage by a decree of divorce.

It is indeed the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained. But when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which infact has ceased to exist.

In view of the aforesaid decisions, to end the miseries of the parties and to allow them to henceforth live a happy and peaceful life by brining to an end the litigation appear to be a more sound, reasonable and practical decision. The parties are living separately for about 15 years and there is no possibility of their uniting. Thus, for all practical purposes the marriage is completely dead. IN view of the above and the allegations/counter allegations levelled against each other, the element of cruelty on the part of both of them is also inherent. The Apex Court in the case of Naveen Kohli v. Neelu Kohli; (2006) 4 SCC 558 : AIR 2006 SC 1675 suggested that the break down of marriage completely be added as one of the grounds for obtaining divorce. In Satish Sithole v. Ganga; (2008) 7 SCC 734 : AIR 2008 SC 3093 the Supreme Court ruled and laid down that the living of parties to a marriage separately for a long time, making acrimonious allegations against each other amounts to cruelty and continuance of such marriage is a further act of cruelty. Therefore, following the principle of ”live and let live’ and the precedent laid down by the Apex Court, it is desirable and expedient in the interest of justice to set-aside the impugned orders passed by the Family Court and to allow the appeals.”

49. Hon’ble the Apex Court in the case of Sukhendu Das v. Rita Mukherjee,(2017) 9 SCC 632, held as under:–

“7. The respondent, who did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance. In spite of service of notice, the respondent did not show any interest to appear in this Court also. This conduct of the respondent by itself would indicate that she is not interested in living with the appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty (Samar Ghosh v. Jaya Ghosh[Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, p. 547, para 101(xiv)]). The High Court observed that no attempt was made by either of the parties to be posted at the same place. Without entering into the disputed facts of the case, we are of the opinion that there is no likelihood of the appellant and the respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.”

8. This Court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted (Manish Goel v.Rohini Goel [Manish Goel v. Rohini Goel, (2010) 4 SCC 393, p. 398, para 11 : (2010) 2 SCC (Civ) 162]). Admittedly, the appellant and the respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony (Rishikesh Sharma v. Saroj Sharma [Rishikesh Sharma v.Saroj Sharma, (2007) 2 SCC 263, pp. 264-65, paras 4 and 5]). The daughter of the appellant and the respondent is aged about 24 years and her custody is not in issue before us. In the peculiar facts of this case and in order to do complete justice between the parties, we allow the appeal in exercise of our power under Article 142 of the Constitution.”‘

We have heard learned counsel for the appellant and gone through the record.

In order to decide the controversy involved in the present case, we feel it appropriate to quote relevant provisions of Hindu Marriage Act, 1955, i.e. Section 5 and Section 12(1)(b), 12(1)(c), the same held as under:-

Section 5: Conditions for a Hindu marriage.

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:–

(i) neither party has a spouse living at the time of the marriage;

6[(ii) at the time of the marriage, neither party–

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity 7[* * *];]

(iii) the bridegroom has completed the age of 8[twenty-one years] and the bride the age of 9[eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

(vi) 10[* * *]

Section 12-Voidable marriages.–(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:–

17[(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner18[was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)] the consent of such guardian was obtained by force 19[or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage–

(a) on the ground specified in clause (c) of sub-section (1), shall be entertained if–

(i) the petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied–

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 20[the said ground].”

From perusal of the above quoted provisions and judgments, the position which emerges out is to the effect that under Section 12 of the Hindu Marriage Act, 1955 the decree of nullity of marriage can be passed if the consent of the party has been obtained by force or committing fraud or by concealing material facts, which if were disclosed would have resulted in the husband not agreeing to the marriage.

In the instant case, the appellant before the trial court pleaded the facts related to mental status of the respondent no.2-Smt. Malvika Rastogi at the time of marriage and also stated that the consent of marriage of the respondent no.2-Smt. Malvika Rastogi with appellant was obtained by creating pressure and threat upon her by her mother. The averments made in the plaint in regard to mental status of the respondent no.2- Smt. Malvika Rastogi at the time of marriage as also with regard to consent of the respondent for marriage with appellant were proved by filing evidence by way of affidavit in the ex-parte proceedings.

It appears from the judgment dated 07.11.2015 that the trial court ignored the facts pleaded in the plaint duly proved in ex-parte proceedings by filing evidence by way of affidavit while pronouncing the judgment.

In view of the same, we are of view that the trial court erred in law and facts both.

In the facts of the case and taking into consideration the aforesaid reasons as also the judgments relied upon by the learned counsel for the appellant, we are of the view that the appellant is entitled for decree under Section 12 of the Hindu Marriage Act, 1955.

In regard to the issue of irretrievable breakdown of marriage raised by the appellant as also the submissions to the effect that on account of the same, the decree of divorce be granted to the appellant, we have considered the following facts:-

(i) The marriage of appellant with respondent no.2-Smt. Malvika Rastogi was solemnized on 11.12.2011.

(ii) Since 29.02.2012, the respondent no.2-Smt. Malvika Rastogi is not living in her matrimonial house and as stated, is living at Kolkata.

(iii) After few months from the date of marriage the respondent no.2-Smt. Malvika Rastogi left the matrimonial home.

(iv) The petition under Section 12 of the Hindu Marriage Act, 1955 was admitted by the Principal Judge, Family Court, Lucknow on 31.05.2012.

(v) Before the trial court, the respondent no.2-Smt. Malvika Rastogi filed the written statement, wherein she stated that “the marriage between this defendant and the plaintiff was not consummated as since her teens this defendant has aspiration to stand on her own foot and join some service and never had any intention to marry but ultimately on being forced by her mother this defendant married the plaintiff but she never accepted the plaintiff as her husband and this defendant did not hesitate to tell the same to the plaintiff or give writing to the said effect and this defendant repeats and reiterates that this suit is outcome of the said stubborn attitude of this defendant’s mother to give this defendant marriage with plaintiff which according to this defendant is a disaster in her life as a result whereof this defendant to give relief to her mother attempted to commit suicide on 29.02.2012 but unfortunately for this defendant she could not end her life and get rid of this torrid and miserable life.”

(vi) Later on before the trial court she filed another written statement, wherein she denied the allegations made in the plaint.

(vii) Before the trial court, the defendant did not appear and proceedings before the trial court were carried out ex-parte vide order dated 26.03.2014.

(viii) Before this Court, the respondent failed to appear despite of service through publication in the Newspaper.

From the aforesaid, it is evident that:-

(a) Stay of the respondent no.2-Smt. Malvika Rastogi in her matrimonial home is of few months.

(b) Respondent no.2-Smt. Malvika Rastogi is not strict on her stand as she changed her version taken in first written statement, wherein she admitted the version of the pliant, by filing second written statement, wherein she denied the allegations made in the plaint.

(c) Respondent no.2-Smt. Malvika Rastogi did not want to participate in the proceedings for divorce and is forcing the appellant to stay in the dead marriage.

Keeping in view the aforesaid as also the observations made by the Apex Court, quoted hereinabove, for passing the decree of divorce on the ground of irretrievable breakdown of marriage, we are of the opinion that there is no likelihood of the appellant and the respondent living together and for all practical purposes there is an irretrievable breakdown of marriage and matrimonial bond is beyond repair and there is no chance of its being retrieved and the relations between the parties are sufficiently spoiled and therefore, no fruitful purpose would be served in maintaining the matrimonial relations between the parties, accordingly we are of the view that on the ground of irretrievable breakdown of marriage, the appellant is entitled for relief of dissolution of marriage.

For the foregoing reasons, the appeal is allowed and the judgment and order dated 07.11.2015, passed by Principle Judge, Family Court, Lucknow in Regular Suit No. 1268 of 2012 (Aayush Rastogi Vs. Smt. Malvika Rastogi) is set aside. The decree of divorce is hereby granted. No order as to costs.

Order Date:-29.04.2020

Vinay/-