HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 30

Case :- FIRST APPEAL No. – 51 of 2012

Appellant :- Bhavna Shamra

Respondent :- Sri Sanjeev Sharma

Counsel for Appellant :- Ajay Kumar Singh,A.K.S. Bais,Ashish Kumar Singh,Ashok Kumar Singh,Dhiraj Kumar Pandey,Narendra Kumar,Pratik J. Nagar

Counsel for Respondent :- Anurag Pathak

Connected with

Case :- FIRST APPEAL No. – 178 of 2012

Appellant :- Sanjeev Sharma

Respondent :- Smt. Bhawana Sharma

Counsel for Appellant :- Anurag Pathak

Counsel for Respondent :- A.K.S. Bais,Ajay Kumar Singh,Ashish Kumar,Pratik J. Nagar

Hon’ble Vivek Kumar Birla, J.

1. Heard Sri Pratik Nagar, learned counsel appearing for the appellant in First Appeal No. 51 of 2012 (SectionSmt. Bhavna Sharma vs. Sri Sanjeev Sharma) arising out of Original Suit No. 1168 of 2008 filed under Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred as the Act), for declaring the marriage as void on the ground of impotency of the defendant-respondent, who also appears for the defendant-respondent in the connected appeal and Sri Anurag Pathak, learned counsel for the appellant-plaintiff in the connected First Appeal No. 178 of 2012 (Sri Sanjeev Sharma Vs Smt. Bhavna Sharma) arising out of the Original Suit No. 88 of 2009 filed under Section 9 of the Act for restitution of conjugal rights, who also appears for the defendant-respondent in the leading appeal.

2. Both the original suits were consolidated and were dismissed by the lower court by a common judgment.

3. With the consent of parties First Appeal No. 51 of 2012 is taken as the leading appeal.

4. The marriage between the parties had taken place on 30.11.2007. An Original Suit No. 1168 of 2008 under Section 12 of the Act was filed by the wife on 22.11.2008, i.e. within one year of the marriage. The other suit being Original Suit No. 88 of 2009 under Section 9 of the Act was filed by the husband on 9.1.2009.

5. The trial Court framed six issues in O.S. No. 1168 of 2008 (SectionSmt. Bhavna Sharma vs. Sri Sanjeev Sharma). The first issue was regarding impotency of the husband and its impact; second issue related to consummation of marriage between the parties; third issue was as to whether the marriage is liable to be declared as null and void, fourth issue was regarding relief to which the wife is entitled; fifth issue was as to whether the behaviour of opposite party (husband) was cruel towards the plaintiff (wife) and sixth issue was as to whether the opposite party has fraudulently represented himself as manager of a firm to marry the plaintiff (wife).

6. In evidence copy of affidavits and oral statements of Smt. Bhavna Sharma as P.W.-1, Sri Rajeev Kumar as P.W.-2, Sri Sanjeev Sharma as D.W.-1 and Smt. Sarita Sharma as D.W.-2 have been filed.

7. In O.S. No. 88 of 2009 (SectionSri Sanjeev Sharma vs. Smt. Bhavna Sharma) filed under Section 9 of the Hindu Marriage Act, 1955, five issues were framed. First, whether the defendant is legally wedded wife of plaintiff; second, whether they are living separately without any reasonable cause, third, whether the proceedings of the case are liable to be stayed under Section 10 of C.P.C.; fourth, whether the sole plaintiff is entitled for restitution of conjugal rights; and fifth was regarding any other relief.

8. In evidence statements of witness produced on behalf of the plaintiff as P.W.-1 and statements of witness produced on behalf of defendant as D.W.-1 have been filed.

9. The issue nos. 1 and 2 of both the original suits were decided together.

10. The Trial Court recorded a categorical finding that the plaintiff-wife had failed to prove the impotency of the defendant-husband and in this regard only oral statement was made by her. Similarly, it was also recorded that she has also failed to prove the ground of cruelty. In O.S. No. 88 of 2009 it was found that the husband has also failed to prove his case and there is no cogent evidence on record to substantiate his case claiming restitution of conjugal rights as he has failed to prove his case.

11. At the very outset, Sri Pratik Nagar submits that he does not want to press the ground of impotency. However, he is pressing his alternative prayer for divorce under Section 13 (1) (i-a) of the Act and submits that the same is liable to be allowed. In other words, learned counsel for the appellant did not press his relief for declaring marriage null and void on the ground of impotency under Section 12 of the Act.

12. At this stage, Sri Harshit Pathak, learned counsel holding brief of Sri Anurag Pathak, learned counsel for the respondent-defendant in the leading case submitted that since the issue of impotency is no longer in dispute and therefore, the suit under Section 9 of the Act is liable to be allowed. He, further opposed the prayer for divorce on the ground that the wife has failed to prove her case of cruelty.

13. I have considered the rival submissions and perused the record.

14. In view of the statement made by Sri Pratik Nagar, the issue regarding impotency need not be gone into by this Court and thus, challenge to the impugned judgment to the extent of Section 12 of the Act stands rejected. Now, only alternative prayer for grant of divorce under Section 13 (1) (i-a) of the Act falls for consideration before this Court and the question before this Court is as to whether the same can be granted or not.

15. Admittedly, an agreement dated 19.8.2008 between the parties, paper no. 42C1, Annexure-1 to the affidavit, whereby the parties have agreed to take divorce and some amount was to be paid, was filed before the court below. I have perused the agreement as available on record of the lower court and I find that the same has been duly signed by both the parties as well as by five other witnesses. The affidavit and the agreement (paper no. 42C1) is quoted as under:-

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16. Insofar as the relief regarding restitution of conjugal rights is concerned, on perusal of the document at page 146 of the appellants’ paper book and annexure 1 thereof, which is an agreement entered into between the parties, and of the finding that has been returned at page 135 of the paper book by the trial Court that in their statement both the parties have admitted execution of the said agreement and they have agreed to divorce, I do not find any good ground to allow the OS No. 88 of 2004 and consider the prayer for restitution of conjugal rights. The agreement entered into between the parties outside the court clearly indicates that the defendant-respondent in the leading appeal has, in fact, agreed for divorce between the parties. Even otherwise, the court below on the said issue has also recorded a finding against the husband. On perusal of the evidence, I do not find any cogent reason to disagree with the findings recorded by the trial court.

17. Now the sole question remains before this Court is regarding the claim of divorce under Section 13 (1) (i-a) of the Act on the ground of cruelty. The same has been rejected on the ground that since the petition was filed by the wife within a period of one year from the date of marriage, therefore, the petition under Section 13 was not maintainable. Hence, no relief was granted to the wife.

18. It is not in dispute that both husband and wife are living separately for about 12 years. On the last date, on 17.7.2019 both the learned counsel agreed that the appeals be decided on merits. In this view of the matter, I am not inclined to relegate the parties to the court below for filing fresh petition under Section 13 of the Act. Moreso, in view of the settled law I find that it is a case where ground of irretrievable breakdown between the parties is liable to be considered and thus, prayer for the relief of divorce can be considered by this Court.

19. Learned counsel for the petitioner has placed reliance on judgments of the Hon’ble Apex Court in the case of Vinita Saxena Vs. Pankaj Pandit, (2006) 3 SCC 778; SectionSukhendu Das vs. Rita Mukherjee, (2017) 9 SCC 632; and SectionK. Srinivas Rao vs. D.A. Deepa, (2013) 5 SCC 226 to contend that it is a case of mental cruelty and the appellant cannot be forced to stay in a dead marriage. He, thus, submits that no purpose would be served by compelling the parties to live together in the matrimony.

20. Paragraphs 41 and 49 of Vinita Saxena (supra) are quoted as under:

“41. The Division Bench in SectionRita Nijhawan v. Balkishan Nijhawan AIR 1973 Del 200 in AIR at p. 209, para 22 observed as follows:

“Marriage without sex in an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman’s mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse.”

“49. The observation made by this Court in SectionShobha Rani vs. Madhukar Reddi (1988) 1 SCC 105: 1988 SCC (Cri) 60: AIR 1988 SC 121 can be reproduced to appreciate the facts and circumstances of the case on hand. It reads as follows:

“There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a generation gap between the judges and the parties. It would better be if the judges keep aside their customs and manners. It would also be better if judges less depend upon precedents.”

(Emphasis supplied)

21. Paragraphs 7 and 8 of Sukhendu Das (supra) are quoted 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 (SectionSamar Ghosh v. Jaya Ghosh (2007) 4 SCC 511). 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 SectionArticle 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 (SectionManish Goel v. Rohini Goel (2010) 4 SCC 393). 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 1 (2007) 4 SCC 511 [para101 (xiv)] 2 (2010) 4 SCC 393 [para 11] matrimony (SectionRishikesh Sharma v. Saruoj Sharma (2007) 2 SCC 263). 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 SectionArticle 142 of the Constitution of India, 1950.”

(Emphasis supplied)

22. Paragraphs 30, 31 and 32 of K. Srinivas Rao (supra) are also quoted as under:

“30. 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 SectionSamar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, if we refuse to sever the tie, it may lead to mental cruelty.”

“31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the SectionHindu 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 other 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.

“32. SectionIn V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed that:

“21. … Irretrievable breakdown of the marriage is not a ground by itself. But, while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.”

(Emphasis supplied)

23. To consider the prayer for grant of divorce I also would like to make a reference to the judgements rendered in the case of SectionNaveen Kohli vs. Neelu Kohli, (2006) SCC 558 and SectionSmt. Mamta Dubey vs. Rajesh Dubey, AIR 2009 Allahabad 141.

24. Paragraphs 57, 58, 59, 60, 66, 67, 72, 74, 75, 83, 84, 85, 86, 87, 88, 89 and 91 of Naveen Kohli (supra) are quoted as under:

“57. SectionIn Sandhya Rani v. Kalyanram Narayanan 1994 Supp (2) SCC 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 minds 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.

58. In the case of SectionChandrakala Menon v. Vipin Menon, reported in (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.

59. In the case of SectionKanchan Devi v. Promod Kumar Mittal, reported in (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.

60. SectionIn Swati Verma v. Rajan Verma (2004), reported in (2004) 1 SCC 123, a large number of criminal cases had been filed by the petitioner against the respondent. This Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under SectionArticle 142 of the Constitution of India, the Court allowed the application for divorce by mutual consent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted decree of divorce by mutual consent.

66. Irretrievable breakdown of marriage is not a ground for divorce under the SectionHindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the SectionHindu Marriage Act, 1955.

67.The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.

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 are bound to be a source of greater misery for the parties.

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 do 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.

83. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.

84. The High Court ought to have appreciated that there is no acceptable way in which the parties 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.

85. Undoubtedly, it is 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 in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.

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.

87.The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties.

88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.

89. In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties.

91. Before we part with this case, on the consideration of the totality of facts, this Court would like to recommend the Union of India to seriously consider bringing an amendment in the SectionHindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law Justice, Department of Legal Affairs, Government of India for taking appropriate steps.”

(Emphasis supplied)

25. Paragraphs 36 and 39 of Smt. Mamta Dubey (supra) are quoted as under:

“36. Upon an overall assessment of the facts and circumstances of the case and the perusal of record, we are of the opinion that the marriage between the plaintiff and the defendant has broken down irretrievably. The defendant-appellant is not willing to withdraw the criminal prosecution which is pending against the plaintiff and his family members. On account of the filing of the case under Section 498-A IPC by the defendant against the plaintiff and his family members, the plaintiff and his father were sent to jail and they had to remain there for a considerably long period of time before they were enlarged on bail. There has been no interaction between the parties after 1999. The parties admittedly have not cohabited for the last 13 years. The defendant has accused the plaintiff of having adulterous relationship with his female colleagues and Ms. Deepti Rawal and also made these allegations public thereby seriously damaging the plaintiff’s reputation and undermining his character. A husband cannot be expected to live with his wife under the same roof who distrusts him, holds him responsible for the death of her daughters and who is prosecuting a criminal case against him and his entire family. Admittedly, there has been a long period of continuous separation in the present case and it may fairly be concluded that the matrimonial bond is beyond repair. Thus we are of the view that the marriage between the plaintiff and the defendant is dead in all respects and has broken down irretrievably.

39. The judgment and decree passed by the trial court does not call for any interference.”

(Emphasis supplied)

26. Learned counsel for the respondent though sought to support the case of the husband, however, could not dispute the fact that admittedly, both the parties are living separately for last about 12 years. On the last date husband, namely, Sri Sanjeev Sharma was present in the Court and on pointed query, this Court also found that the marriage has virtually become a dead marriage and there is a clear case of irretrievable breakdown. Apart from that, the agreement entered into between the parties, which is on record bearing the signature of the parties and is also not in dispute, clearly reflects the intention of the parties to go in for divorce. Apart from that admittedly, the plaintiff wife had filed cases against the defendant under Section 498-A IPC and SectionDomestic Violence Act and under Section 125 Cr.P.C. and undisputedly, the defendant had also undergone about two years of incarceration.

27. Under such circumstances, I do not find any good ground to set aside the judgments passed by the court below impugned in the leading appeal filed under Section 12 of the Act, as well as in the connected appeal passed filed under Section 19 of the Act. However, in view of the law as discussed above, I find that it is a case of irretrievable breakdown of marriage, where marriage between the parties is beyond repair and is dead, and no fruitful purpose would be served by relegating the parties to the court below to file fresh petition for divorce under Section 13 of the Act, as more than 12 years has already passed and the alternative relief of divorce under Section 13 of the Act claimed before the Court is liable to be granted.

28. Accordingly, the relief claimed by the wife in alternative in O.S. No. 1168 of 2008 is granted and a decree of divorce between the parties is passed.

29. However, before parting with the appeal I would like to put this on record that on the last date, on 17.7.2019, in order to settle the dispute between the parties, when learned counsel for the appellant (wife) in leading appeal was pressing hard for grant of divorce, he was pointedly asked to seek instructions from his client (wife) if she is agreeable to forgo any kind of permanent alimony/compensation, as the defendant-respondent (husband) present in the court has narrated the pain of undergoing imprisonment for about 2 years in a case under Section 498-A IPC and stated that the plaintiff (wife) is well of, today learned counsel for the appellant Sri Pratik Nagar on instructions from his client (wife) stated that she is willing to forgo the same. I also find that, in fact, there is no such prayer also. There is yet another reason for the same i.e., a compromise had already taken place between the parties outside the court as mentioned above.

30. No other point was pressed.

31. For the discussions made hereinabove, the leading appeal being First Appeal No. 51 of 2012 (SectionSmt. Bhavna Sharma vs. Sanjeev Sharma) stands partly allowed and a decree of divorce is granted under Section 13 of the Hindu Marriage Act, 1955 and the connected appeal being First Appeal No. 178 of 2012 stands dismissed.

32. Ordered accordingly.

Order Date :- 31.7.2019

Aditya