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N V vs A V on 3 May, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 20.03.2019
Judgment pronounced on: 03 .05.2019

+ MAT.APP(F.C.) 12/2018
NV ….. Appellant
Through: Ms. Deepali Gupta, Advocate

versus
AV ….. Respondent
Through: In person

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

JYOTI SINGH, J.

1. The present appeal has been filed challenging the judgment dated
5.10.2017 passed by the Family Court in HMA No. 950/2014 whereby
the petition under Section 13(1)(ia), (ib) of the SectionHindu Marriage Act,
1955 (hereinafter referred to as „HMA‟) filed by the appellant/wife for
dissolution of marriage has been dismissed.

2. The relevant facts necessary for the present appeal are that the parties
got married on 02.07.2003 as per Hindu rites and ceremonies at Delhi.
After the marriage both the parties resided together at Delhi. Marriage
was consummated and one son named Harshit was born from the
wedlock on 05.04.2004.

MAT.APP(F.C.)12/2018 Page 1 of 19

3. Disputes and differences having arisen between the parties, the
appellant/wife filed a petition under Section 13(1)(ia), (ib) of the
HMA seeking dissolution of the marriage by passing a decree of
divorce on the grounds of „cruelty‟ and „desertion‟. One of the
grounds alleged in the divorce petition was that at the time of
solemnization of marriage, dowry was given by the parents of the
appellant which included household articles, one motorcycle, gold and
silver ornaments besides several other articles. Along with this, cash
amounting to Rs. 51,000/- was given at the time of Kanyadan and
Rs.50,000/- was given on different functions of the marriage. Her
parents had thus spent far more than their financial capacity on the
wedding ceremonies itself. Despite so much having been given at the
time of marriage, the respondent and his family members were not
happy and when the appellant joined the matrimonial home, they
expressed their disappointment over the quantum of articles received.
It was pleaded by the appellant that the respondent and his family
members demanded a car and a further sum of Rs. 1 lakh and
pressurized the appellant to meet such demands. She was never given
any love, affection and respect by the respondent or his family
members. It was also alleged that the parents of the respondent taunted
the appellant that good proposals with handsome dowry were
available for their son and that the marriage with the appellant caused
a loss to them, in every way.

4. It was alleged that after a few days of marriage, the brother of the
appellant visited her matrimonial home to take her back. She narrated
her suffering to him, and when he tried to talk to the respondent

MAT.APP(F.C.)12/2018 Page 2 of 19
regarding this, he was insulted and asked to leave. Appellant‟s brother
brought her back to the parental home. After one month, the
respondent and his father visited her parental home and assured the
appellant that they will not misbehave with her. However, after she
returned to the matrimonial home, she found no change in the
behaviour of the respondent or his family members. She alleged that
the respondent would often rebuke her, that she was not beautiful and
was a “fatty lady”. The parents of the respondent would fight with her
on petty issues and the respondent would often beat her up and even
threatened to kill her, on many occasions. In fact, he even tried to
actually press her neck on one occasion, with an intent to kill. She
filed a number of complaints before the concerned authorities, but no
action was taken.

5. As per further pleadings, in the year 2010, the appellant‟s father-in-

law retired and the government quarter at Minto Road was to be
vacated. The father-in-law refused to take her with them and
respondent took a separate quarter, without any kitchen, for her at
Minto Road. It was alleged that the husband did not stay with her and
their child. He only had food with her and stayed in the night at his
parents‟ house. The appellant claims that she was looking after the
small child and did not find time to do any tailoring work. She claims
that the respondent did not provide her with maintenance and when
she was on the verge of starvation, the respondent started beating her
and asked her to bring money from her parents. On 18.06.2012, she
was thrown out of the rented accommodation, along with her minor

MAT.APP(F.C.)12/2018 Page 3 of 19
son. She returned to her parents‟ house, while all her istridhan and
jewellery items were retained by the respondent.

6. The respondent/husband had contested the petition, and in his written
statement, he made preliminary objections that pleadings in the
proceedings before the Family Court were contradictory to the
pleadings in the case filed under the SectionDomestic Violence Act as well as
in the Guardianship Petition.

7. On merits, the respondent/husband denied all allegations in the
petition against him and his family members. It was stated that no
harassment was caused to the appellant. He instead alleged that the
appellant used to beat up the respondent and his old grandmother and
would then lodge false police complaints. It was pleaded that on
16.12.2009, she was the one who had beaten the respondent, but
lodged a false complaint against him, with the police. He referred to
two MLCs dated 26.03.2008 and 16.12.2009 in order to indicate that
he had suffered injuries on 2 occasions on account of the beating given
by the appellant. In the written statement, it was further pleaded that
the appellant and her family members continuously threatened,
harassed and terrorized the respondent so as to implicate him in false
criminal cases. He denied that he had thrown the appellant out of the
matrimonial home and stated that she lived separately as per her own
wish. He denied that the appellant was thrown out of the rented
accommodation and stated that in fact on 20.06.2012, the sister of the
appellant had visited the matrimonial home and the appellant left on
her own accord along with her sister and the child, with all her
jewellery, valuables and other istridhan articles. He pleaded that he

MAT.APP(F.C.)12/2018 Page 4 of 19
was always interested in saving the marriage and tried his best to bring
her back and in fact did not even file any litigation against the
appellant.

8. It was stated in the written statement that the respondent had been
falsely implicated in a case under Section 107/Section151 Cr.P.C. He was
arrested on 26.03.2008 and kept in police custody for 13 hours. The
proceedings continued before the SEM for 5 months and yet another
complaint was filed by the appellant on 16.12.2009 at PS Kamla
Market, which was totally false. It was alleged that the appellant had
got her son admitted to Navjivan Adarsh Public School, without the
consent of the respondent and the school was neither recognized by
the Directorate of Education nor affiliated with the CBSE. The
written statement refers to about 25 dates, on which dates, it was
alleged by the respondent that the appellant had been leaving the
matrimonial home on her own accord and thus it was the appellant
who was guilty of desertion.

9. The appellant had examined herself as PW-1. She filed her evidence
by way of affidavit which was Exhibit PW-1/1. In the affidavit, she
deposed on the lines of the averments in the Divorce Petition. The
respondent after filing the written statement stopped appearing and
was proceeded ex-parte on 14.01.2016. The Family Court passed an
ex-parte judgment on 30.08.2017, dismissing the divorce petition on
both grounds i.e. cruelty and desertion.

10.The Family Court dismissed the petition on the ground of desertion by
holding that for seeking divorce on the ground of desertion, there must
be a separation for a period of two years on the date of presentation of

MAT.APP(F.C.)12/2018 Page 5 of 19
the petition, as per the requirement of Section 13(1)(i-b) of the HMA.
The Family Court relied on the averment in the petition that the
appellant was thrown out from the matrimonial home on 18.06.2012
and since the Divorce Petition was filed on 28.05.2014, the period of
two years was short by 20 days.

11.Insofar as the ground of cruelty was concerned, the Family Court did
not find favour with the grounds set out by the appellant and dismissed
the petition. The respondent had, along with his written statement
filed copies of the pleadings in the earlier litigations between the
parties i.e. a Guardianship Petition by the husband and a petition under
the SectionDomestic Violence Act by the appellant. After comparing the said
pleadings, the Family Court observed that there were material
contradictions in the pleadings of the divorce petition vis a vis the
stand taken by the appellant in the pleadings in the earlier litigations,
more particularly, on the point of the financial status of the parties.
The Family Court also did not give credence to the testimony of the
appellant regarding the demand of a car and Rs. 1 Lakh on the ground
that the allegations were too general and no date, time, month or year
of the demand was mentioned. Likewise, the allegations of taunting
by the respondent and his family members was also found to be
unsubstantiated and without any specific details. As regards the
allegations of throwing her out of the rental accommodation in 2010,
the Family Court observed that if the parents in law of the appellant
refused to keep her in their home, this would not amount to cruelty by
the respondent. The allegations of physical beating and not providing
financial support were also found to be general, vague and without any

MAT.APP(F.C.)12/2018 Page 6 of 19
specific details. On the issue of the orders passed in proceedings
under Sections 107/Section151 Code of Criminal Procedure, 1976, the Family
Court found that at best this could only prove that the marital relations
between the parties were not cordial, but could not be taken as a proof
to show that the appellant was a sufferer in the matrimonial home.

12.Having gone through the evidence, the Family Court was of the view
that under Section 101 of the Indian Evidence Act, 1872, the appellant
had to prove her case and though the testimony of the appellant in the
affidavit was unrebutted, in the absence of a cross-examination, yet
the same was not reliable and could not be the basis to grant a decree
of divorce.

13.We have heard the learned counsel for the appellant and the
respondent in person, who expressed his desire to argue his case
himself and not hire a counsel. We have also examined the rival
contentions of the parties and perused the pleadings as well as the
Trial Court record.

14.Learned counsel for the appellant contends that the Family Court
failed to appreciate that the action of the respondent as pleaded in the
Divorce Petition and testified in the affidavit, amounted to physical
and mental cruelty towards the wife. Demand and receipt of dowry,
constant beatings, threats to kill and repeated taunting qua the physical
appearance of the wife, did cause a lot of mental and physical
harassment to the appellant. Despite a small child, the respondent
refused to lend any financial support to her and the child. The
respondent was happy living with his parents and took no steps to
retrieve the matrimonial bonds. It was argued that it is not necessary

MAT.APP(F.C.)12/2018 Page 7 of 19
that every minute incident in the matrimonial home should be narrated
as it was not possible to memorize all the details. It was enough if the
general conduct of the parties was shown to reflect cruelty inflicted by
one spouse on the other. Learned counsel further argued that the
complaints filed by the appellant were not false and only when the
cruel acts of the respondent surpassed all boundaries, the appellant
resorted to taking police help for her safety and protection. It was
further contended that apart from the „cruelty‟ alleged, in any case, the
marriage had broken down irretrievably and there was no chance that
the differences would be resolved. It was further argued that the
Family Court erred in holding that the appellant had not been able to
prove the allegations. She submitted that an affidavit was filed by the
appellant to lead evidence and the respondent had chosen not to cross-
examine the appellant and even failed to file an affidavit leading his
evidence. In the absence of the cross-examination, the testimony of
the appellant in the affidavit was unimpeached and the appellant had
thereby discharged her onus by proving the averments in the Divorce
Petition. She further submitted that the Family Court had no reason to
hold that it was not safe to rely on the sole testimony of the appellant
as more often than not in marital disputes, facts are known to the
husband and wife alone. Learned counsel for the appellant further
argued that the Family Court has erred in holding that there were
material contradictions in the pleadings of the Divorce Petition and the
pleadings in the earlier litigations. Even assuming that there were
some minor contradictions on the financial status of the parties, this
could not be reason enough to dismiss the Divorce Petition.

MAT.APP(F.C.)12/2018 Page 8 of 19

15. Per contra the respondent has argued that he had never treated the
appellant with cruelty and vehemently denied all allegations levelled
by the appellant against him. He argued that it was the appellant who
never behaved like a good wife and did not even take proper care of
the child, who is in the custody of the respondent. He submitted that
he was presently taking good care of the child and the child was doing
well at school under his guardianship. He submitted that although he
had not cross-examined the appellant before the Family Court but in
his written statement, he had denied the allegations of the Divorce
Petition. He submitted that he wanted to rely on the averments in the
written statement in order to show that it was the appellant who
always ill-treated him and his family members and would often beat
his grandmother. He also submitted that the appellant was also guilty
of deserting him and depriving him of the love and the care that was
expected of her as a wife. According to him, the appellant was neither
a good wife nor a good mother and least of all a dutiful daughter-in-
law. He vehemently submitted that insofar as he was concerned, it
was a dead marriage and the differences between the parties were
beyond resolution.

16. We have carefully examined the rival submissions of the parties. As
regards the ground of demand of dowry, we find that in the present
case, in the petition as well as in the affidavit filed, there are repeated
assertions by the appellant that dowry was taken at the time of
marriage and post marriage, there were further demands. Details of
articles given and those further demanded were spelt out. The
pleadings of the Divorce Petition filed by the appellant indicate that

MAT.APP(F.C.)12/2018 Page 9 of 19
she had averred that at the time of solemnization of marriage, her
parents had given dowry far in excess of their financial capacity.
Despite this, there were repeated demands of various articles including
a car and cash of Rs. 1 Lakh. This testimony of the appellant is
unimpeached as the respondent had chosen not to cross-examine her
on this aspect. In our view, this by itself is a ground to dissolve the
marriage on the ground of cruelty.

17.In the case of SectionShobha Rani vs. Madhukar Reddy reported as 1988 (1)
SCC 105, the Hon‟ble Apex Court has while dealing with a petition
under Section 13(1)(i-a) of the HMA on grounds of cruelty, has held
that repeated and continuous demands of dowry made from the wife in
the matrimonial home, with the connivance of the husband constitutes
cruelty. Demand of dowry is prohibited under law and its mere asking
is bad enough, entitling the wife to a decree of divorce. The evidence
of harassment to the wife to meet an unlawful demand of dowry is
necessary to constitute cruelty in criminal law but not under Section
13(1)(i-a) of the HMA. The evidence of the wife that her in-laws
demanded money cannot be brushed aside merely because the in-laws
had not been examined. The Apex Court further held that it was not
proper to discredit the wife only because there could be some
exaggeration on the quantum of the demand. The proof required
under the matrimonial law is on the threshold of preponderance of
probability and not beyond reasonable doubt as in the criminal case.

18. Appellant had further pleaded and testified that she was taunted for
being fat and not beautiful in her appearance. Her brother was insulted
by her in-laws and the respondent when he visited the matrimonial

MAT.APP(F.C.)12/2018 Page 10 of 19
home. Her father-in-law after retirement took a house on rent but she
was left to fend for herself in a rental accommodation, without a
kitchen. No financial support was given by the respondent for her or
the child. She was often beaten and threatened and had to therefore
resort to filing police complaint. The respondent did not give any love
affection or respect to her, as per the averments in the petition. The
appellant filed her evidence by way of an affidavit and testified on the
lines of the pleadings in the Divorce Petition. Whilst it is a matter of
record that the respondent had filed a written statement not only
denying the allegations against him but also levelling various
allegations against the appellant, but he chose to remain absent
thereafter. The consequence was that neither was the appellant cross-
examined, so as to demolish her testimony and nor was any evidence
led by the respondent to prove his stand in the written statement. In
the absence of cross-examination, the testimony of the appellant
remains unimpeached and unrebutted. We may also point out that the
appellant had also exhibited the complaints filed by her, the notice
issued by the SEM as well as the ordersheet of the said proceedings,
the copy of the Kalandra as well as the statement of the concerned
ASI. None of this has been impeached by the respondent.

19.In the case of SectionGannon Dunkerlay Co. Ltd. vs. Their Workmen
1972 (3) SCC 443, the Hon‟ble Apex Court has held that the
credibility and authenticity of the evidence produced by one party can
be challenged by the other party by cross-examining the party.
However, if a witness deposes a particular fact and no suggestion is
given to the contrary during the cross-examination, the party against

MAT.APP(F.C.)12/2018 Page 11 of 19
whom the deposition is made is deemed to have admitted that part of
the deposition, which thereby remains unimpeached. As we have
mentioned above, the entire testimony of the appellant remained
unimpeached and hence all the allegations would be deemed to be
admitted by the respondent. In our view, therefore, the Family Court
has erred in coming to a conclusion that the testimony was unreliable
or that the appellant had not proved cruelty. In fact, from the perusal
of the impugned judgment, we find that the Family Court has not even
given its reasoning to conclude that the sole testimony of the appellant
was not worthy of credence. There is no doubt that beating,
threatening, attempt to kill which remains unrebutted, would be a
conduct that would amount to both mental and physical cruelty and
even on this score, the appellant is entitled to a decree of divorce.

20.The Family Court has emphasized on the material contradictions in the
pleadings in the different litigations between the parties so as to doubt
the credibility of the version of the appellant. A perusal of the
pleadings indicates that there were some contradictions on the
financial capacity of the appellant inasmuch as while in the
guardianship petition, she had mentioned that she was earning and
taking care of her child, while in the divorce petition she had denied
that she was working. It is not uncommon that parties take different
stands in different litigations depending on the context and the relief
sought. Undoubtedly, this practice needs to be seriously deprecated
but, in our view, the financial capacity of the parties is not a factor
which is very material while dealing with the divorce petition. While
the appellant had urged that her husband did not support her and this

MAT.APP(F.C.)12/2018 Page 12 of 19
was one of the grounds of cruelty in the present petition, but there
were several other grounds to seek divorce in the same petition. Thus,
in our view this contradiction in the pleadings is not a reason enough
which would disentitle the appellant to a decree of divorce, in view of
our findings given above.

21. In so far as observations of the Family Court of lack of details is
concerned, it is a matter of record that the Divorce Petition did not
have very miniscule details about all the incidences averred therein,
but the fact of the matter is that several incidences had been pointed
out and the years were also mentioned. During a long span of
marriage, it can hardly be expected that the spouse would keep a
written record of the date, time or month of each of the incidences
illustrated to show cruelty with mathematical precision. The law
requires that the petition should not have „vague‟ and „too general‟
allegations, but it does not require that every incident should be
narrated with the minutest detail possible. We find that the appellant
had given sufficient details of the incidents alleged.

22. The law of cruelty was well summarized by the Apex Court in the
case of Shobha Rani (supra). It was held that cruelty is a course of
conduct of one party which adversely effects the other. If it is
physical it is a question fact and degree. If it is mental the enquiry
must begin as to the nature of the treatment and then its impact on the
mind of the spouse. If the conduct is per se unlawful then the impact
on the other spouse need not be seen and the cruelty is established if
the conduct itself is proved. The Court further observed that there has
been a sea change in the life style over the years and the cruelty

MAT.APP(F.C.)12/2018 Page 13 of 19
alleged may largely depend on the type of life the parties are
accustomed to and their economic and social conditions as well as
their cultural and human values. We quote a relevant para of the said
judgment hereunder:

“5. It will be necessary to bear in mind that there has been
marked change in the life around us. In matrimonial duties and
responsibilities in particular, we find 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. We, the judges and lawyers, therefore,
should not import our own notions of life. We may not go in
parallel with them. There may be a generation gap between us
and the parties. It would be better if we keep aside our customs
and manners. It would be also better if we less depend upon
precedents.”

23.In the case of SectionV. Bhagat vs. D. Bhagat reported as (1994) 1 SCC 337,
the Apex Court held that the cruelty complained of must be of such a
nature that parties cannot reasonably be expected to live together. To
prove mental cruelty, regard must be had to the social status,
educational level and the society of the parties apart from the
possibility of the parties coming together in case they have been living
apart for a long time. We quote the relevant para as under:

“16. Mental cruelty in Section 13(1)(i-a) can broadly be defined
as that conduct which inflicts upon the other party such mental
pain and suffering as would make it not possible for that party
to live with the other. In other words, mental cruelty must be of
such a nature that the parties cannot reasonably be expected to

MAT.APP(F.C.)12/2018 Page 14 of 19
live together. The situation must be such that the wronged party
cannot reasonably be asked to put up with such conduct and
continue to live with the other party. It is not necessary to prove
that the mental cruelty is such as to cause injury to the health of
the petitioner. While arriving at such conclusion, regard must
be had to the social status, educational level of the parties, the
society they move in, the possibility or otherwise of the parties
ever living together in case they are already living apart and all
other relevant facts and circumstances which it is neither
possible nor desirable to set out exhaustively. What is cruelty in
one case may not amount to cruelty in another case. It is a
matter to be determined in each case having regard to the facts
and circumstances of that case. If it is a case of accusations and
allegations, regard must also be had to the context in which
they were made.”

24. As regards the grounds of desertion, the Family Court in our view,
rightly dismissed the petition on that count, as the statutory period of
separation was not complete at the time of filing the petition. In fact,
the learned counsel for the appellant had submitted at the outset that
she did not want to press the ground of desertion.

25. The counsel for the appellant has also rightly pointed out that apart
from cruelty, even otherwise nothing remained in this marriage and
therefore, in view of the judgments of the Apex Court in V. Bhagat
(supra) and SectionNaveen Kohli vs. Neelu Kohli reported as (2006) 4 SCC
558, followed by the judgment in MAT. APP. (F.C.) 36/214 titled as
SectionSandhya Kumari vs. Manish Kumar and SectionRajiv Chhikara vs.
Sandhya Mathur reported as 2017 (161) DRJ 80 [DB] by a
coordinate Bench of this Court, the marriage should be dissolved on
grounds of irretrievable breakdown.

26.The marriage between the parties was solemnized in the year 2003 and
the parties have been living separately since 2012. As per the

MAT.APP(F.C.)12/2018 Page 15 of 19
unrebutted assertion of the appellant, there were marital discords
between the parties right from the day of the marriage. It seems that
the parties never enjoyed the bliss of a marital life. The foundation of
a sound marriage is love and affection, tolerance, adjustments and
respect for each other. While petty quibbles and disagreements on
small issues are a normal wear and tear of every marriage, but if there
is continuous ill-treatment of one spouse by the other and it is a dead
marriage, the victimized party can be well justified in seeking
dissolution of such a marriage.

27. In fact, in this case of Naveen Kohli (supra), the Apex Court had
examined the aspect of irretrievable breakdown of marriage, though it
is not a ground of divorce under the HMA. The Apex Court held that
while scrutinizing the evidence on other grounds of divorce pleaded,
the circumstance of irretrievable breakdown of marriage can certainly
be borne in mind. This unusual step can be taken where the courts
find when the parties are in insoluble mess. The Apex Court looked
into the 71st report of the Law Commission of India wherein a
recommendation was made to include irretrievable breakdown of
marriage as a ground for divorce as it was felt that in case the marital
bond has broken then it is in the best interest of the parties that they go
apart. The Apex Court observed that once the marriage had broken
down beyond repair it would be unrealistic for the law not to take
notice of that fact and it would be rather harmful to the society and
injurious to the parties to keep the marriage going. By refusing to
severe that tie, the law would be showing scanned regard for the
feelings of the parties. Public interest demands not only that the

MAT.APP(F.C.)12/2018 Page 16 of 19
married status should as far as possible be maintained, but where the
marriage has wrecked beyond the hope of salvage, public interest lies
in recognition of that fact. We quote the relevant paras of Naveen
Kohli (supra) hereinunder:

“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.

28. Even in the case of V. Bhagat (supra), the Apex Court held as under:-

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

MAT.APP(F.C.)12/2018 Page 17 of 19
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.”

29. We thus find that while irretrievable breakdown of marriage is not a
ground for divorce in the Statute, but the courts have been taking this
as an important circumstance and blending the same with the statutory
grounds of divorce such as „cruelty‟ and have been dissolving the
marriage. We also find that this view has also been taken by the Apex
Court in several other cases such as Durga P Tripathi vs. Arundhati
Tripathi 2005 (7) SCC 353 and Lalitha vs. Manikswamy 2001 DMC
679 SC.

30. Having traversed the law on the subject and analysed the facts of this
case, we are in agreement with the learned counsel for the appellant
that the marriage has broken down irretrievably. The parties have
been living apart since 2012. There does not seem to be any possibility
of the parties resolving their differences. Through her examination-in-
chief, the appellant has made serious allegations of cruelty against the
respondent, which are unrebutted. As mentioned above, the
respondent had submitted that the marriage held no value for him
anymore. Thus, blending the fact of the marriage having broken

MAT.APP(F.C.)12/2018 Page 18 of 19
down irretrievably with the ground of cruelty, we feel this is a fit case
where the marriage between the parties deserves to be dissolved.

31.The appeal is accordingly allowed and the judgment dated 30.08.2017
of the Family Court is set aside. The marriage between the parties is
hereby dissolved. Let a decree of divorce be drawn up accordingly.

JYOTI SINGH, J.

G.S.SISTANI, J.

MAY 3rd , 2019
//rd

MAT.APP(F.C.)12/2018 Page 19 of 19

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