—
Uttarakhand High Court
Pramod Kumar vs Smt. Seema Sharma on 14 March, 2024
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON’BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON’BLE MR. JUSTICE RAKESH THAPLIYAL
Reserved on : 06.03.2024
Delivered on : 14.03.2024
FIRST APPEAL NO. 72 OF 2023
Pramod Kumar …… Appellant
Versus
Smt. Seema Sharma …… Respondent
Counsel for the appellant : Ms. Nipush Mola Joshi, learned
counsel holding brief of Ms. Chetna
Latwal, learned counsel
Counsel for the respondent : Mr. Bharat Tiwari, learned counsel
The Court made the following:
JUDGMENT:
(per Hon’ble the Chief Justice Ms. Ritu Bahri)
The appellant Pramod Kumar has come up in
appeal against the judgment of the Family Court dated
11.04.2023, whereby his petition under Section 13A of
the Hindu Marriage Act, 1955, has been dismissed.
2) Brief facts of the case are that marriage of the
plaintiff / appellant was solemnized with defendant /
respondent Seema Sharma on 19.01.2012, as per Hindu
rites and customs. As per plaint averments, after the
2
marriage behaviour of defendant towards the plaintiff
and his family members was not good, and she started
pressurizing the plaintiff to live separately from his
family at Kashipur by selling his part of property situated
at Bazpur. Plaintiff was reluctant to this proposal and
tried to persuade the defendant, but she was adamant to
her demand. Thereafter, defendant started to treat the
plaintiff and his family members with cruelty, and even
threatened to implicate them in false dowry case. The
defendant even did not take interest towards the
matrimonial obligations and due to this physical and
mental cruelty, no child was born after two years of
marriage. It was alleged that on 23.12.2014, Sanjay
Sharma, brother of defendant along with 3-4 persons,
came to the house of plaintiff and misbehaved and
committed maar peet with plaintiff and his family
members. Thereafter, defendant deserted the plaintiff,
and on her own volition started living at her parental
house at Kashipur. On 11.02.2015, defendant lodged
FIR No. 51 of 2015, under Section 498-A, 504, 506 IPC,
and one under Section ¾ of Dowry Prohibition Act, at
police station Bazpur, levelling false allegations against
plaintiff and his relatives and family members.
According to appellant, after investigation, the matter
3
was disposed of as the allegations against the plaintiff
and his family members were found false.
3) Subsequently, the plaintiff got instituted
petition under Section 13-A of the Hindu Marriage Act,
for dissolution of marriage between the parties before
the Family Court, Kashipur. On 10.12.2019, the Family
Court framed the following issues :
i) As to whether the plaintiff is entitled for grant of
decree for dissolution of marriage on the basis of
the grounds taken in his petition?
ii) To which relief the plaintiff is entitled for?
4) The plaintiff by List Paper No. 6C/1 has
submitted the copy of the report given to the Sub
Divisional Magistrate, Bazpur; Paper No. 6C/2 the
notice; Paper No. 6C/3 of Primary Education Dehradun;
the copy of report Paper No. 6C/4 to 6C/7, and the
charge-sheet dated 27.07.2015 Paper No. 6C/8 to 6C/9,
and by Paper No. 6C/10 copy of the order passed by the
District Education Officer, medical prescriptions and copy
of medical report of Mrs. Seema Sharma Paper Nos.
6C/11 to 6C/15, and by List Paper No. 27C/1, the order
dated 20.02.2016 issued by the District Education
Officer, Primary Education Udham Singh Nagar, Paper
No. 27C/2, the prescription slip regarding the treatment
4
of defendant; Paper No. 27C/3 to 27C/4 along with
medicine bill Paper No. 27C/5, and by List Paper No.
32C, the plaintiff produced Paper No. 32C/2 to 32C/10,
chik report, charge-sheet, order dated 12.10.2021 under
Section 406 IPC were filed as documentary evidence on
record. The defendant did not produce any document on
record.
5) The Family Court after going through the
evidence brought on record in paragraph 19 of the
judgment observed that on the FIR No. 51 of 2015,
registered under Section 498-A, 504, 506 IPC, and one
under Section ¾ of the Dowry Prohibition Act, charge-
sheet was submitted only against the appellant-husband,
which was pending, and on 12.10.2021 the appellant
produced summoning order under Section 406 IPC,
which fact was admitted by PW1 appellant Pramod
Kumar and PW2 Kuldeep Sharma.
Point No. 1
6) The plaintiff / appellant by List Paper No.
27C/2 to 27C/2 had produced the order dated
20.02.2016 issued by the District Education Officer,
Udham Singh Nagar to the effect that defendant had
been suspended due to irregularities, and was not
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performing her duties, and beating students in the
school, and the Family Court held that only on the basis
of said order passed by the District Education Officer,
the defendant / respondent could not be held suffering
from non-curable mental unsoundness.
Point No. 2
7) The appellant produced on record List Paper
No. 27C/1, the original prescriptions with regard to the
treatment of the defendant; Paper No. 27C/3 to 27C/5
along with medicine bill. The Family Court held that all
these medical records nowhere establish that the
defendant / respondent was suffering from incurable
mental disease. With respect to the ground of desertion,
the Family Court held that the appellant had failed to
prove that the defendant deserted the appellant from
23.12.2014, without any reasonable cause, and on this
backdrop, the petition filed by the appellant was
dismissed.
8) Counsel for the appellant submits that there is
irretrievable breakdown of marriage between the parties,
and there is no chance of resumption of matrimonial ties
between them, as such, nothing is to be gained by trying
to keep the parties tied to a marriage which in fact has
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ceased to exist. He has drawn attention of this Court
towards three Supreme Court judgments on said
proposition of law, viz., Naveen Kohli Vs Neelu Kohli,
(2006) 4 SCC 558; Sanghamitra Ghosh Vs Kajal Kumar
Ghosh, (2007) 2 SCC 220; and Manju Kumari Singh alias
Manju Singh Vs Avnash Kumar Singh, (2018) 17 SCC
378.
9) In Naveen Kohli Vs Neelu Kohli, (2006) 4 SCC
558, Hon’ble Supreme Court in paragraphs 72 and 73 of
said judgment has observed as under:
“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.
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.”
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10) In Sanghamitra Ghosh Vs Kajal Kumar
Ghosh, (2007) 2 SCC 220, Hon’ble Supreme Court has
held as under :
“18. In the instant case, we are fully convinced
that the marriage between the parties has irretrievably
broken down because of incompatibility of
temperament. In fact there has been total
disappearance of emotional substratum in the
marriage. The matrimonial bond between the parties is
beyond repair. A marriage between the parties is only
in name. The marriage has been wrecked beyond the
hope of salvage, therefore, the 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 as observed in Naveen Kohli case
(supra).
19. In view of peculiar facts and circumstances
of this case, we consider it appropriate to exercise the
jurisdiction of this Court under Article 142 of the
Constitution.
20. In order to ensure that the parties may live
peacefully in future, it has become imperative that all
the cases pending between the parties are directed to
be disposed of. According to our considered view,
unless all the pending cases are disposed of and we put
a quietus to litigation between the parties, it is unlikely
8that they would live happily and peacefully in future. In
our view, this will not only help the parties, but it would
be conducive in the interest of the minor son of the
parties.
21. On consideration of the totality of the facts
and circumstances of the case, we deem it appropriate
to pass the order in the following terms:
(a) the parties are directed to strictly adhere to
the terms of compromise filed before this
Court and also the orders and directions
passed by this Court;
(b) we direct that the cases pending between
the parties, as enumerated in the preceding
paragraphs, are disposed of in view of the
settlement between the parties; and
(c) all pending cases arising out of the
matrimonial proceedings including the case
of restitution of conjugal rights and
guardianship case between the parties shall
stand disposed of and consigned to the
records in the respective courts on being
moved by either of the parties by providing a
copy of this order, which has settled all
those disputes in terms of the settlement.”
11) All the judgments of the Hon’ble Supreme
Court as enumerated in the preceding paragraphs have
been followed thereafter in Manju Kumari Singh alias
Manju Singh Vs Avnash Kumar Singh, (2018) 17 SCC
378.
12) In the case in hand, there is no child born out
of the marriage between the parties, which took place on
19.01.2012, and as on today in the year 2024, almost
12 years have gone by. It is a dead marriage, and in all
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the Supreme Court judgments referred hereinabove,
constantly it has been held that in such circumstances
where the marriage between the parties is only in name,
and the same has been wrecked beyond the hope of
salvage, it would be in public interest to declare such a
marriage as defunct. The long period of continuous
separation has resulted in the matrimonial bond wrecked
beyond repair. The marriage has become a fiction. It is
only supported by a legal tie.
13) Respondent-wife in the instant case is an
educated lady, and is working as Principal in an
educational institution. Another fact which could be
taken into consideration is that after registration of FIR
by the defendant-wife under Section 498-A, 504, 506
IPC, and one under Section ¾ of the Dowry Prohibition
Act, charge-sheet was submitted only against the
appellant-husband under Section 406 IPC, and for rest of
the offences, no evidence has been found against the
appellant, and even in this backdrop, the appeal of the
appellant should be allowed.
14) In view of the foregoing discussion, the appeal
deserves to be allowed. The same is, accordingly,
allowed. However, keeping in view the fact that the
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respondent-wife has not claimed any maintenance from
the appellant-husband, no direction in respect of
permanent alimony is being passed.
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RITU BAHRI, C.J.
_
RAKESH THAPLIYAL, J.
Dt: 14TH MARCH, 2024
Negi
