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Judgments of Supreme Court of India and High Courts

M S vs S D on 23 April, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 20.02.2019
Judgment pronounced on: 23 .04.2019

+ MAT. APP (F.C.) 213/2017 CM APPL. 45034/2017

MS ….. Appellant
Through: Mr.Ashok Gurnani, Advocate along
with Appellant in person.

versus

SD ….. Respondent
Through: Ms.A.Banerji, Advocate (DHCLSC)
along with Respondent in person.

CORAM:
HON’BLE MR. JUSTICE G.S. SISTANI
HON’BLE MS. JUSTICE JYOTI SINGH

JYOTI SINGH, J.

1. The appellant by way of the present appeal challenges the judgment
and decree dated 19.08.2017 passed by the Family Court in HMA No.
5861389/2016 whereby on a petition under Section 13 (1) (ia) and (iii) of the
Hindu Marriage Act, 1955 (hereinafter referred to as „HMA‟) filed by the
appellant/husband, the Family Court has passed a decree of judicial
separation between the parties U/s 10 of the Act, which was an alternate
prayer by the appellant.

MAT.APP(F.C.) No. 213/2017 Page 1 of 25

2. The relevant facts necessary for the present appeal are that the parties
got married on 21.06.1999 as per Hindu rites and ceremonies at Sahib Ganj,
Bihar. After the marriage, both the parties cohabitated as husband and wife
at Kotiyan, Bihar. Although the marriage was consummated but there is no
issue from the said wedlock.

3. The case of the appellant as pleaded was that he was appointed as Air
Men in the Indian Force at the age of 18 in November, 1995. As the mother
of the appellant was seriously ill and was eager to see the marriage of her
son, the appellant married the respondent at a very early age. It is claimed
that the marriage was a simple marriage without any dowry. The respondent
joined the matrimonial house but stayed there for 14 days only and returned
to her parental house and came back only after one year. The appellant
found that respondent was a lady of unusual temperament and was very
harsh and cruel towards him and his family members. Most of the time she
would live at her parental house and would join the matrimonial home only
when the appellant came on leave. It is claimed that in the month of
November, 2002 when the appellant was at his native village, on annual
leave, both brothers of the respondent and her father along with several other
people came to house of the appellant on 24.11.2002 and created a lot of
scene at his house and even manhandled the appellant and his family
members in public, causing acute agony and insult to them.

4. It is also claimed that during the month of January 2003 the
respondent mixed glass powder from a bulb in the food of the appellant‟s
mother and sister. Fortunately, this was detected on time and a dangerous
accident was averted. Again on 15.04.2003 the respondent committed an act
which caused immense humiliation to the appellant and his family. At about

MAT.APP(F.C.) No. 213/2017 Page 2 of 25
09:30 AM when the appellant and his father were coming back from the saw
mill, they saw the respondent running in the street, totally naked. With great
difficulty, she was taken back home. However, a few hours later, in a fit of
anger, the respondent broke the colour TV in the house, to pieces. The
appellant claims that respondent was even taken to a neuro psychiatric for
treatment on 15.04.2003 and then left at her parental home. While at her
parental home, the respondent wrote a letter dated 16.04.2003 to the Air
Force Authority and leveled false allegations of harassment for dowry
against the appellant. In fact, on 17.04.2003 a panchayat was held and the
issues were amicably resolved. From 07.07.2003 it is stated that the parties
started living at Sirsa, outside the Air Force campus area. The respondent
was treated at the Air Force Hospital at Sirsa and even referred to Army
Hospital Jalandhar and Delhi for psychiatric treatment. On 07.07.2003,
according to the appellant, the respondent had written a letter to the father of
the appellant confessing her mistake and sought pardon and guidance. A
letter was also written on 14.08.2003 to the Commanding Officer, Air Force
Station with copy to Chief of Air Staff, undertaking that the respondent was
withdrawing all her allegations leveled in the earlier letter dated 16.04.2003.
However, the respondent had no remorse for her action and again made a
complaint on 16.09.2003 to the Air Force Authority and on account of which
charges were framed against the appellant and he was placed under “close
arrest” for one day. This, is stated to have affected his promotion and future
career, apart from defaming him amongst his friends and colleagues. The
appellant also claimed that the respondent never performed her domestic
duties such as cooking, washing and cleaning and very often on the slightest
pretext would threaten to kill herself or the appellant.

MAT.APP(F.C.) No. 213/2017 Page 3 of 25

5. The appellant claims that the respondent went to the extent of lodging
a criminal complaint against him, spear headed by her brothers, particularly
Ramji Prasad, who is a practicing advocate in Bihar. The criminal complaint
was under Sections 323/342/354/307/504/498A/34 IPC read with Sections 3
4 of the Dowry Prohibition Act. The appellant was arrested and remained
in judicial custody between 18.01.2006 to 08.05.2006 and finally was
released on bail on 08.05.2006 on the orders of the High Court of Patna. The
criminal case was decided by the court of Learned MM Delhi on 15.10.2014
and the appellant was acquitted. This according to the appellant has led to
extreme agony and humiliation and his entire career has been jeopardized as
he did not even get extension in his service in the Air Force. It is also the
case of the appellant that this criminal complaint was a counter blast by the
respondent on receipt of summons in the divorce petition filed by the
appellant in the court of learned ADJ at Sirsa. He submits that this divorce
petition filed by him was transferred from Sirsa to the Family Court at
Muzaffar Pur vide order dated 18.11.2005 on a transfer petition filed by the
respondent. He also states that the respondent left no stone unturned to ruin
his career as even his household articles were attached and confiscated by
the police on 11.01.2006 pursuant to the warrant of attachment U/s 83
Cr.P.C.

6. On a Transfer Petition moved by the appellant the Supreme Court vide
order dated 28.01.2008 had transferred the divorce petition as well as
petition u/s 498-A to Delhi. It is this divorce petition which is the subject
matter of appeal in the present case.

7. The respondent had filed her written statement wherein she denied that
the marriage was dowry less and stated that her parents had spent money

MAT.APP(F.C.) No. 213/2017 Page 4 of 25
beyond their means to perform the marriage as clothes worth Rs.40,000/-,
jewellery worth Rs.90,000/- and furniture worth 50,000/- were given,
besides a sum of Rs.1,00,000/- in the nature of two FDRs in the sum of
Rs.50,000/- each. It was stated that on insistence of the appellant, the fixed
deposits were made in the joint names, instead of her name only. It is the
case of the respondent that she went to her parental home only after seeking
permission from the appellant and never misbehaved with him or his family
members. It was denied in the written statement that on 15.04.2003 she ran
in the street in a naked condition or broke the television. It is alleged that on
13.04.2003 she was beaten up by her in-laws and they attempted to burn her
by pouring kerosene. When she raised her voice for help, the neighbours
gathered and rescued her. She was taken to her parental home and treated
for injuries. The panchayat got involved and finally resolved the matter. It
is her further case in the written statement that she was not taken back to her
matrimonial home and which is why she lodged a complaint with the
department and on their intervention the appellant took her to his place of
posting at Sirsa. She claims that she was medically treated at the Army
Hospital and the Chairperson of the Air Force Wives Welfare Association
herself monitored the medical treatment. She denied that she had any
aversion to sexual intimacy. She also denied that there was any psychiatric
problem with her and averred that even the medical documents did not
support this allegation of the appellant. The case of the respondent was that
she never wanted the appellant to go to jail. She always wanted to live with
the appellant. However, in the society to which she belonged the men were
dominant and she was forced to listen to her brothers in this patriarchal set
up. Thus, she had no option but to go by their wishes as she was beaten up

MAT.APP(F.C.) No. 213/2017 Page 5 of 25
when she wanted to pardon the appellant. It is claimed that she deliberately
kept away and did not appear as the witness for prosecution in the criminal
case and it is only on account of this, that the prosecution case remained
unsubstantiated and the appellant was acquitted.

8. After the pleadings of the parties, the following issues were framed by
the trial court on 20.05.2010 as under:

“i) Whether after the solemnization of marriage the
respondent has treated the petitioner with cruelty ?OPP

ii) Whether the respondent has been suffering
continuously or intermittently from mental disorder of
such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the
respondent?OPP

iii) Whether the petitioner is entitled to the decree of
Divorce as prayed for? OPP

iv) Whether the petitioner is entitled to alternate
decree of judicial separation U/s 13A? OPP”

9. The appellant examined himself as a witness PW1 and filed his
evidence by way of affidavit Ex.PW1/A. The appellant was initially cross
examined by the advocate of respondent but the same remained inconclusive
as the respondent stopped appearing and was proceeded ex-parte w.e.f.
09.10.2013. The respondent did not lead any evidence.

10. The learned Family Court after perusing the evidence and pleadings
found that the appellant had retired in November, 2015 was gainfully
employed and living a life of contentment. The respondent has been full of
remorse and that both were cordial to each other during the conciliation
proceedings. It came to a finding that the appellant had failed to prove and

MAT.APP(F.C.) No. 213/2017 Page 6 of 25
substantiate the grounds for divorce u/s 13 (1) (ia) and (iii) of Act. The
Family Court thus passed a decree of judicial separation by observing that
the period of judicial separation would afford further opportunity to the
parties to salvage something positive out of their wrecked relationship. It is
this judgment and decree which is impugned by the appellant herein and he
prays that decree of divorce be passed between the parties and impugned
judgment be set aside. No appeal has been filed by the respondent. She is
represented by a Legal Aid Counsel and also made some submissions in
person.

11. Learned counsel for the appellant has urged before us that the
marriage between the parties has irretrievable broken down and therefore,
the Family Court ought to have passed decree of divorce instead of a decree
of judicial separation. The argument is that the courts have recognized
irretrievable break down of marriage as a ground of divorce although it is not
a ground under the Hindu Marriage Act. In support of this submission,
reliance is placed on the judgment of the Apex Court in the case of Naveen
Kohli vs. Neelu Kohli (2006) 3 Scale 252 and the judgment of a coordinate
bench of this court in the case of Rajiv Chikara vs. Sandhya Mathur 2017
161 DRJ 8080 (DB). It is submitted that the law as laid down in these
judgments is that irretrievable break down of marriage can be blended with
cruelty and a decree of divorce can be passed. It is further contended that the
Family Court has erred in holding that the appellant has not substantiated the
cruelty alleged. It is submitted that the respondent had filed a criminal case
against the appellant under Sections 323/342/354/504/307 and 498-A of the
Indian Penal Code, 1860 („IPC‟) and on account of this the appellant had
remained in jail for 111 days. This had caused immense mental and physical

MAT.APP(F.C.) No. 213/2017 Page 7 of 25
trauma to the appellant, apart from suffering humiliation amongst his family
and colleagues in the Armed Forces. The incarceration also led to his non-
promotion and consequent non-extension of his service in the Indian Air
Force. This according to the learned counsel for the appellant was a matter
of record and undisputed by the respondent and was sufficient to show that
respondent had meted out cruelty to him and therefore, blending this with the
fact that the parties were living separately from 2004 and the marriage had
broken down, a decree of divorce ought to have been passed.

12. Without prejudice to above contentions, learned Counsel further
argued that the respondent is a lady of unusual temperament, was harsh and
cruel towards him and his family. He drew the attention of the court to some
of the incidences which were averred in the petition and reiterated in the
affidavit leading evidence, such as, attempting to kill his mother and sister
by mixing glass powder in their food; complaining to the Air Force
Authorities, resulting in humiliation amongst the Air Force personnel as well
as undergoing a „close arrest‟ on one occasion; found roaming around in a
street naked on 15.04.2003, accusing him and his family members for
demanding dowry. He, thus, submitted that despite testifying on these
aspects and the testimony remaining unchallenged and unimpeached the
Family Court should have granted a decree of divorce.

13. Learned Counsel for the respondent made a limited submission that
the respondent belonged to a conservative family in Bihar and was a victim
of patriarchal set up. Respondent always wanted to reside with the appellant
and had consistently requested the appellant to take her back. Her
complaints to the Air Force Authorities were only to seek help to resolve her
conjugal life. It was contended that it was never the intent of the respondent

MAT.APP(F.C.) No. 213/2017 Page 8 of 25
to implicate the appellant in any criminal case and that is the reason why she
did not even appear as a prosecution witness and it was on account of this
that the prosecution case remained unsubstantiated and the appellant was
acquitted. Learned Counsel has denied that marriage had broken down
irretrievably. She submitted that the respondent has always been ready and
willing to go back to the matrimonial home and even at this stage she wants
to join the company of the appellant. Respondent who is present in person,
also expressed her desire to join the matrimonial home. No other grounds
were urged before us.

14. We have heard the learned counsels for the parties and examined their
rival submissions.

15. The appellant had filed his evidence by way of affidavit and the
contents of the same are a verbatim copy of divorce petition. The respondent
had begun to cross-examine the appellant, but the same was not completed.
Family Court, after the perusal of evidence and pleadings found that the
appellant had almost abandoned the respondent and was never interested in
keeping her with him at the place of his postings. Even the short period for
which the respondent stayed with him at Sirsa Air Force Station was after
the respondent had complained to the Air Force Authority and with their
intervention the parties were brought together. The Family Court has also
observed that respondent belongs to a traditional Hindu conservative society
with a patriarchal set up and her continuous neglect by the husband had
actually driven her to a stage where she was suffering from depression and
was fearful of everything. As regards certain incidences which were averred
and testified by the appellant the Family Court has found that neither of
those instances have been substantiated by any evidence by the appellant.

MAT.APP(F.C.) No. 213/2017 Page 9 of 25

The incident of mixing glass powder in the food of the mother and sister has
not been proved and neither could the appellant prove that the respondent
was roaming around on the street naked. It is relevant to point out, that at
the fag end of the trial, the appellant brought on record certain documents,
which though were objected to by the respondent, but were allowed to be
exhibited by the Family Court. The Family Court has looked into these
documents and in fact, came to a conclusion that these were only pointer to
the fact that the respondent was an innocent lady from a conservative
background and in fact her endeavor was to join the company of her husband
and to keep him happy. Some of the contents of the letter have been referred
to in the judgment by the Family Court and all that they reveal is that the
respondent did apologize for some mistakes which she may have done but
she wanted to keep the family together, help in the marriage of her sister-in-
law and serve her in-laws. The Family Court found that these documents did
not in any manner help the appellant to substantiate the allegations of
cruelty.

16. Having gone through the pleadings and the documents, we are in
agreement with the findings of the learned Family Court. The appellant had
led his evidence by way of an affidavit, which was a repetition of the
contents of the divorce petition. Insofar as the period from the date of
solemnization of marriage to October 2002 is concerned, the appellant has
stated in his examination-in-chief that the respondent was of unusual
temperament and harsh and cruel towards him and his parents. However, no
details, time or incidences have been narrated or proved to substantiate this.
The petition for divorce also lacks any material particulars on this account.
Rule 7 of Hindu Marriage Rules, 1979 prescribes as to what should be the

MAT.APP(F.C.) No. 213/2017 Page 10 of 25
contents of a petition filed under the Act. Rule 7 is extracted hereunder for
ready reference:

“In addition to the particulars required to be given under
Order VII, Rule 1 of the Code of Civil Procedure and
Section 20(1) of the Act, all petitions under Section 9 to
13 of the Act shall state:

(a to f) XXX XXX

(g) the matrimonial offence or offences alleged or other
grounds, upon which the relief is sought, setting out with
sufficient particularly the time and places of the acts
alleged, and other facts relief upon, but not the evidence
by which they are intended to be proved e.g.;
XXX XXX (i to iii)

(iv) ….. in the case of cruelty, the specific acts of cruelty
with the occasion when the place where such acts were
committed.”

17. The above provision has been referred to recently by this Court in
O.V.S. vs. R.S. 2019 SCC Online Del 7447. The relevant paragraph of this
case is produced below:

“18. …… The Family Court, while considering various
facts, had rightly rejected the petition seeking grant of
divorce as the same lacks material particulars. Besides,
no dates of the incidents, sought to be relied upon for
cruelty, have been detailed in the petition seeking
divorce. The appellant has also failed to provide
necessary particulars in terms of Rule 7 of the Hindu
Marriage Rules, 1979…..”

18. When the pleadings coupled with the evidence lead by the appellant is
examined, we find no specific incidents, dates or particulars of cruelty,
harshness or unusual temperament have been detailed in the petition seeking

MAT.APP(F.C.) No. 213/2017 Page 11 of 25
divorce. The appellant has failed to provide necessary particulars in terms of
Rule 7 as extracted above. Mere sweeping allegations are made in the
pleadings and in the affidavit leading evidence. Thus, on this aspect, the
appellant has been unsuccessful in proving cruelty. In the case of Dharam
Kaur vs. Narender, reported as (2016) 230 DLT 539 (DB), the Division
Bench of this Court observed as follows:

“13. It is also well settled that a party can lead evidence
only with regard to allegations of fact clearly set out in
the pleadings. In the present case, completely vague and
general allegations have been made in the pleadings in
his petition by the respondent-husband without any
reference of date, time or place. The husband has used
expression as “whenever” and “often” without giving
any dates, place or time. It is noteworthy that in the entire
petition, there is not a single specification of the date and
time with regard to either the statements attributed to the
appellant-wife or her father or with regard to any of the
alleged incidents.”

19. The appellant has testified that on 24.11.2002, that the respondent had
left the matrimonial home and went to her parental home and on the same
day, her brothers with several other persons, came to his house and created a
scene. Again, this testimony lacks particulars as to what time the respondent
left the matrimonial home and what time the brothers came to his house;
who were the other persons accompanying the brothers and what exactly
transpired. The deposition also seems unbelievable inasmuch as if so many
people had entered his house and created a scene as alleged, surely the
appellant who was an Airmen would have made some complaint to the
police and taken some action. It is deposed that in January 2003, an attempt
was made by the respondent to finish his mother and sister by mixing glass

MAT.APP(F.C.) No. 213/2017 Page 12 of 25
powder of the bulb in their food. However, the same was detected in time
and the incident was brought to the notice of the parents of the respondent.
While this is sought to be portrayed as one of the major incidences of
cruelty, we find that the same has not been proved by the appellant as rightly
found by the Family Court. It is not testified as to how the mother detected
that any powder was mixed in the food. It is not stated whether the powder
was such that it was visible with the naked eye or someone tasted the food or
any test was done which led to the detection of the powder. More
importantly, neither the mother nor the sister were brought into the witness
box to prove the alleged incident, especially when the respondent had clearly
denied the said incident in her written statement.

20. Another incident, which was sought to be emphasized by the learned
counsel for the appellant was that the respondent on 15.04.2003 was found
running in the street in a naked position when the appellant along with his
father was coming back from the saw mill. The incident was completely
denied by the respondent in her written statement. The appellant has not
brought any evidence to prove the said incident. Surely, an incident of this
nature and that too in a village environment would have been witnessed by a
few people, if not many, but the appellant took no trouble to examine any
witness on this aspect to support the alleged incident. Similarly, even the
incident of the respondent breaking the colour TV has not been proved by
any evidence.

21. We thus agree with the Family Court that in the absence of any cogent
and independent evidence by the appellant, the allegations levelled by him
cannot be held to have been proved and therefore, the appellant has not been
able to make out his case that the respondent had treated him with cruelty on

MAT.APP(F.C.) No. 213/2017 Page 13 of 25
account of these allegations. It has been held in several judgments that even
if the respondent in its cross-examination has not been able to impeach the
testimony that it by itself would not lead to a conclusion that the cruelty
stands proved. Having filed the petition for divorce, the onus to prove the
same was on the appellant by cogent evidence. In the case of Subinoy Dey
vs. Rina Hawalder, reported as 2019 SCC Online Cal 297, the Division
Bench of Calcutta High Court observed as follows:

“9. It is elementary law that the plaintiff/petitioner has
to establish his case to be entitled to the reliefs prayed for
in a suit. The plaintiff must allege with sufficient clarity
and details his cause of action and must adduce cogent
evidence, oral and/or documentary, to establish his cause
of action. The plaintiff cannot get a decree only on the
basis of weakness or loopholes in the defendant’s case.
Even if the suit is not contested by the defendant, the
plaintiff’s claim is liable to be rejected if the same cannot
be proved with proper evidence. In the present case, the
learned Judge found that the petitioner has not been able
to prove his case of desertion or mental cruelty. Apart
from a bald statement in the divorce petition that the
respondent has caused much mental agony and pain to
the petitioner, no other particulars of mental cruelty has
been pleaded. Hence, the question of establishing the
factum of mental cruelty by adducing evidence did not
arise. No evidence can be looked into in support of a case
which has not been pleaded. As observed by the Hon’ble
Apex Court in the case of Savitri Pandey, (supra), mental
cruelty is conduct of the other spouse which causes
mental suffering or fear to the matrimonial life of the
other. “Cruelty” postulates a treatment of the petitioner
with such cruelty as to cause a reasonable apprehension
in his or her mind that it would be harmful or injurious
for the petitioner to live with the other party. Cruelty has
to be distinguished from the ordinary wear and tear of
family life.”

MAT.APP(F.C.) No. 213/2017 Page 14 of 25

22. As regards the contention that even assuming that these incidents are
not substantiated, yet the filing of criminal complaint on account of which
the appellant had suffered incarceration for 111 days was an undisputed fact
and this was sufficient to constitute „cruelty‟, the Family Court has noticed
this ground but has not agreed with the appellant on this aspect. Family
Court has observed that for long years the respondent was abandoned by the
appellant. She had married at a young age and all her dreams of good
marital life had been crushed and she was left in an unsavory condition. In
her parental home also, she had no say. Her brothers were completely
dominant and she had no option but to go by what they advised her to do.
The filing of the complaint was at the behest of her brothers more
particularly Sh. Ram Ji Prasad, who was a practicing advocate in
Muzaffarpur, Bihar. However, the respondent never wanted to take any
action against the appellant, and thus she did not appear during trial,
resulting in the acquittal of the appellant. In this background the Family
Court was of the view that mere lodging of the complaint did not amount to
„cruelty‟ so as to grant a decree of divorce.

23. Having traversed the law on the subject and looking at the facts of this
case, we do not endorse the view of the Family Court on this aspect. It is
undisputed that on account of the criminal complaint filed by the respondent,
the appellant underwent incarceration for a period of 111 days. It cannot be
doubted that this would have resulted in immense humiliation and mental
agony not only to the appellant but to his entire family. Spending 111 days
in judicial custody can be a matter of great agony to any individual and this
becomes a more serious issue, when we are dealing with a class of people
who are employed in the Armed Forces. It goes without saying that for a

MAT.APP(F.C.) No. 213/2017 Page 15 of 25
person employed in the Armed Forces, his performance and his reputation
are of great importance. This episode, as rightly argued by the appellant,
would have definitely adversely affected the reputation of the appellant in
the Air Force apart from the fact that his career was also jeopardized since he
did not get further extension in the service due to the criminal case. The plea
of the respondent that she had no intent to implicate the appellant and so she
did not appear in the criminal case as a prosecution witness, can be of no
avail to the respondent and can hardly give any solace to the appellant. Once
he has been incarcerated and his reputation and career have been damaged
the acquittal cannot undo the harm caused.

24. We thus have no doubt in our mind that the action of the respondent in
filing the criminal complaint, resulting in the appellant undergoing judicial
custody has caused mental cruelty to him and this in itself is a sufficient
reason to dissolve the marriage between the parties on the ground of cruelty.
We are fortified, in our view, by a judgment of this Court in Shakuntala
Kumari vs. Om Prakash Ghai 19) 1981 DLT 64 wherein it was held that a
false complaint by the wife to the husband‟s employer would amount to
mental cruelty as this would bring down the employee in the eyes of his
employer and would reflect on his career and promotional opportunities. We
quote the relevant paragraph hereinunder:

“A false complaint of this nature to an employer would
certainly amount to mental cruelty. It would bring down
the employee, in the eyes of his employer, and would
reflect on his career and promotional opportunities. This
would certainly play on his mind and affect his mental
peace.

A Government servant is expected to maintain a
reasonable and decent standard of conduct in his private

MAT.APP(F.C.) No. 213/2017 Page 16 of 25
life and not bring discredit to his service by his
misdemeanours…..”

25. The Hon‟ble Supreme Court in the case of K. Srinivas Rao vs. D.A.
Deepa (2013) 5 SCC 226 has held that making unfounded allegations against
the spouse or his relatives in the pleadings, filing of complaints etc. which
may have adverse impact on the job of the spouse in the facts of a case
amounts to causing mental cruelty to the other spouse. The same view was
expressed by the Hon‟ble Supreme Court in the case of K. Srinivas vs. K.
Suneetha (2014) 16 SCC 34. This was a case where the criminal complaint
filed by the wife against the husband and his family members had resulted in
their acquittal, although at the initial stages, they were arrested and
incarcerated. The Family Court had granted a divorce to the husband on the
ground of cruelty, however, the High Court had set aside the said order. The
Apex Court set aside the order of the High Court holding that since the wife
had filed a false criminal complaint, even one such complaint was sufficient
to constitute matrimonial cruelty and accordingly passed an order dissolving
the marriage between the parties under Section 13(1)(ia) of the Hindu
Marriage Act. It observed that once the High Court had been informed of the
acquittal of the husband and its family members, it ought to have concluded
that the wife knowingly and intentionally filed a false complaint, calculated
to embarrass and incarcerate the appellant and his family members, and that
such conduct unquestionably constitutes cruelty.

26. We cannot also lose sight of the fact that even on earlier occasions the
respondent had filed complaints against the appellant before the Air Force
authorities and in fact one of them had culminated into “close arrest” of the
appellant, for a day. Needless to say that this too had the effect of lowering

MAT.APP(F.C.) No. 213/2017 Page 17 of 25
down his reputation in the eyes of the Air Force authorities. Being a
member of the Indian Air Force, the appellant was expected to maintain a
decent conduct even in his personal life so as not to discredit the elite Force
of which he is a member. Surely, these complaints and his undergoing the
close arrest would have affected his peace of mind and caused mental agony
to a large extent. In the case of Avinash Maan vs. Sanjana Maan 234
(2016) DLT 130, a coordinate Bench of this Court, while dealing with a
situation where the husband was in the Air Force and his wife made
complaints against him, had treated the filing of such complaints to be an act
of cruelty and had granted a decree of divorce in favour of the husband.

27. We also note that the appellant husband and the respondent wife are
staying apart from June 2004, which means that they are living separately for
15 years. This separation has created a distance between the two which
cannot be bridged. In the case of Samar Ghosh vs. Jaya Ghosh 2007 (4)
SCC 511, the Apex Court had set out an illustrative list of cases which would
constitute cruelty. One of the illustrative cases was where there has been a
long period of continuous separation. In such a case, it could well be
concluded that the matrimonial bond was beyond repair and the marriage
became a fiction, though supported by a legal tie. The Apex Court held that
by refusing to severe that tie, the law will not be serving the sanctity of
marriage but showing scant regard for the feelings of the parties leading to
mental cruelty. In our view, in the present case, the marriage has
irretrievably broken down. While this may not be a ground for divorce
under the Hindu Marriage Act, 1955 but in cases where the marriage is seen
to be beyond repair, the Courts have taken this as an important circumstance
amongst other grounds including cruelty to severe the marital tie. Marriage

MAT.APP(F.C.) No. 213/2017 Page 18 of 25
is an institution which is based on love, faith and trust and sentiments and
emotions for each other. But if the parties have lost these virtues for each
other, an artificial reunion is of no consequence. The Apex Court in the case
of V. Bhagat vs. D. Bhagat 1994 (1) SCC 337 and Naveen Kohli (supra),
has dissolved the marriage between the parties where they had lived apart for
several years and the marriage had been wrecked beyond the hope of
salvage.

28. Due to the criminal cases, the appellant was not granted extension in
the Air Force and he now stands employed in some private institution and
has apparently moved on in life. The respondent has been living apart from
the appellant for over 15 years and although suffers from a remorse and
regret for her follies but seems undecided on what she wants in life. Even
though, she might want to go back, the husband is not willing to take her
back at all. After having interacted with the parties at great length, we find
that there is no common ground between the two even today. They do not
want to come to a settlement of any kind. The appellant feels very strongly
against the respondent for having spoilt his life and career. Even if we
dismiss the appeal, there are hardly any chances that the parties will lead a
happy life as there is lot of bitterness in the mind of the husband due to the
conduct of the wife. Maybe that the respondent/wife took certain actions in
her desperation to save the marriage, out of frustration or under the dictates
of her brother, but the fact of the matter is that her approach to the whole
problem was incorrect. By her conduct of making complaints against the
husband, she has brought the marriage to a stage, where it is beyond salvage.

29. The Family Court in its wisdom granted a decree of judicial separation
with a view to give time to the parties to salvage their relationship. In our

MAT.APP(F.C.) No. 213/2017 Page 19 of 25
view, this was not the correct approach in the facts and circumstances of this
case. Thus, following the law laid down by various judicial pronouncements
(supra), we feel that the appellant has proved mental cruelty on account of
his incarceration. Blended with the irretrievable breakdown of marriage
between the parties, as mentioned above, we find that the marriage between
the parties should be dissolved.

30. In order to come to this conclusion, we have drawn strength from
certain judicial pronouncements, as referred to above, wherein the Courts
have held that marriages which are dead and there has been long separation
with no chance of retrieving the bonds between the parties, could be
dissolved on grounds of irretrievable breakdown of marriage. In this
context, it is relevant to quote certain paragraphs from the judgments of the
Apex Court and this Court.

31. In the case of V. Bhagat (supra) the Apex Court had dissolved the
marriage between the parties on the ground that the marriage had broken
down irretrievably and was dead for all purposes. There was no chance of
the parties coming together and while irretrievable breakdown of marriage
was not a ground by itself for divorce under Section 13(1) of the HMA, yet
the unusual step was being taken to clear the insoluble mess between the
parties. The relevant paragraph is as under:

“20. ….The husband in the position of the petitioner herein
would be justified in saying that it is not possible for him to
live with the wife in view of the said allegations. Even
otherwise the peculiar facts of this case show that the
respondent is deliberately feigning a posture which is wholly
unnatural and beyond the comprehension of a reasonable
person. She has been dubbed as an incorrigible adulteress.
She is fully aware that the marriage is long dead and over. It

MAT.APP(F.C.) No. 213/2017 Page 20 of 25
is her case that the petitioner is genetically insane. Despite all
that, she says that she wants to live with the petitioner. The
obvious conclusion is that she has resolved to live in agony
only to make life a miserable hell for the petitioner as well.
This type of 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 petitioner with mental
cruelty. It is abundantly clear that the marriage between the
parties has broken down irretrievably and there is no chance
of their coming together, or living together again. Having
regard to the peculiar features of this case, we are of the
opinion that the marriage between the parties should be
dissolved under Section 13(1)(i-a) of Hindu Marriage Act and
we do so accordingly. Having regard to the peculiar facts and
circumstances of this case and its progress over the last eight
years — detailed hereinbefore — we are of the opinion that it
is a fit case for cutting across the procedural objections to
give a quietus to the matter.

21. Before parting with this case, we think it necessary to
append a clarification. Merely because there are allegations
and counter-allegations, a decree of divorce cannot follow.
Nor is mere delay in disposal of the divorce proceedings by
itself a ground. There must be really some extraordinary
features to warrant grant of divorce on the basis of pleadings
(and other admitted material) without a full trial. 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. The unusual step as the one taken by us herein
can be resorted to only to clear up an insoluble mess, when the
court finds it in the interest of both the parties.

MAT.APP(F.C.) No. 213/2017 Page 21 of 25

32. In the case of Naveen Kohli vs. Neeru Kohli (2006) 4 SCC 558 the
Apex Court had set aside the order of the High Court which had reversed the
judgment of the Trial Court, dissolving the marriage between the parties.
The Apex Court, relying on the judgment of V. Bhagat (supra) and certain
other judgments, directed that the marriage between the parties should be
dissolved. It observed that from the entire evidence it was clear that the wife
had resolved to live in agony only to make life a miserable hell for the
husband as well. The marriage had broken down irretrievably and there was
no way in which the parties could be compelled to resume life with the
consort. The Apex Court further observed that it was the obligation of the
court and all concerned, that marriage status should as far as possible be
maintained, but when the marriage is totally dead, nothing would be gained
by trying to keep the parties tied forever to such a marriage. The court found
that there was a total disappearance of emotional substratum in the marriage.
The parties had lived separately for more than 10 years with large number of
litigations against each other and the matrimonial bond was beyond repair.
The marriage was only for name sake and was beyond salvage. The relevant
portions of the judgment are as under:

“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 minds
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.

MAT.APP(F.C.) No. 213/2017 Page 22 of 25

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 visualised 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.

MAT.APP(F.C.) No. 213/2017 Page 23 of 25

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.

90. Consequently, we set aside the impugned judgment of the
High Court and direct that the marriage between the parties
should be dissolved according to the provisions of the Hindu
Marriage Act, 1955.”

33. In yet another case, a coordinate Bench of this Court has upheld the
judgment of the Family Court granting divorce, by observing that the parties
were living separately since the year 2009 and considering their conduct
there was no possibility of their joining together. To insist on retaining the
matrimonial bond would be putting the party under intensed mental cruelty.
The Division Bench in this case titled Rajiv Chikara (supra) placed reliance
on the judgments in the case of Ramesh Dudani vs. Ramesh K. Dudani and
Shrikumar V. Unnithan vs. Manju Nair to hold that the concept of cruelty
can be blended with irretrievable breakdown of marriage and the marriage
can be dissolved. Reliance was also placed on another Division Bench
judgment of this Court in MAT. APP.(FC) 36/2014 titled Sandhya Kumari
vs. Manish Kumar, wherein it was held that if it is not possible for the
husband and wife to live together, except by indulgence in mutual bickering,

MAT.APP(F.C.) No. 213/2017 Page 24 of 25
targeting each other mentally, insistence by one to retain the matrimonial
bond would be a relevant factor to decide the issue of cruelty, for the reason
that the obvious intention of the said spouse to continue with the marriage is
not to enjoy the bliss thereof, but to torment and traumatize each other.

34. We thus find merit in the present appeal, which is hereby allowed.
The impugned judgment of the Family Court is set aside. Marriage between
the appellant and the respondent is dissolved by a decree of divorce. Let a
decree sheet be drawn up accordingly.

35. While reserving the judgment on 20.02.2019, we had recorded that
certified copy of the judgment will be sent by the Delhi High Court Legal
Services Committee to the respondent through post as she had expressed her
inability to obtain a copy being a resident of Bihar and not acquainted with
the procedures of this Court. Let a certified copy of the judgment be sent by
the Delhi High Court Legal Services Committee to the respondent by post at
her address mentioned in the Memo of Parties.

36. Pending application also stands disposed of accordingly.

JYOTI SINGH, J.

G.S. SISTANI, J.

APRIL 23, 2019
ssc/rd

MAT.APP(F.C.) No. 213/2017 Page 25 of 25

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