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Puneet Kumar Trivedi vs Smt. Nitika Pathak on 29 April, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

In Chamber

Case :- FIRST APPEAL No. – 76 of 2014

Appellant :- Puneet Kumar Trivedi

Respondent :- Smt. Nitika Pathak

Counsel for Appellant :- Anil K.Tripathi,Avinash Chandra

Counsel for Respondent :- Anurag Narain

Hon’ble Anil Kumar,J.

Hon’ble Saurabh Lavania,J.

(As per Hon’ble Anil Kumar,J.)

Heard Shri Asit Kumar Chaturvedi, learned Senior Advocate assisted by Shri Avinash Chandra, learned counsel for the appellant and Shri Anurag Narain, learned counsel for the respondent.

Under appeal is the judgment and order dated 18.07.2014 passed by Principal Judge, Family Court, Hardoi in Regular Suit No.419 of 014 (Puneet Kumar Trivedi vs. Nitika Pathak), which was filed for dissolution of marriage between the parties solemnized on 22.11.2004.

Facts, in brief, as submitted by Sri Asit Chaturvedi, learned Senior Advocate are that the marriage was solemnized on 22.11.2004 between the appellant/Puneet Kumar Trivedi and respondent/Smt. Nitika Pathak as per Hindu Rites and Rituals. From the very beginning, the respondent/Smt. Nitika Pathak abused the family members of the appellant by using unparliamentary language and incorrectly blamed that family members of the appellant had humiliated her family members.

Time and again, the respondent quarreled with the family members of the appellant, who tried to stop the violence made by the respondent but no fruitful result was achieved. In the meantime, the appellant got a job of Medical Representative, at Meerut and the respondent was living with her father-in-law and mother-in-law at Delhi and she always used to scold them. On 25.05.2005, the marriage of the younger sister of the appellant was solemnized at Lucknow and at that time the respondent made defiant attitude and stopped her family members to attend the marriage. On 30.01.2006 she told her father and brother, who at that time was living at Noida on phone that she would commit suicide by consuming pesticide (poison). Thereafter the father of the respondent called the father of appellant and told about the same, then the father of the appellant immediately took her to the doctor and in the meantime, brother of the respondent reached Delhi from Noida and after medical treatment, the doctor told that the she is out of danger. Thereafter, on 17.02.2006 the father and mother of the respondent came at Delhi and they were embarrassed for the act adopted by the respondent. On the same day i.e. on 17.02.2006, the respondent went her home with her parents.

It is further stated that thereafter the grandmother of the appellant wanted to see her grand daughter-in-law, but the respondent refused and humiliated her. The grandmother could not bear humiliation and due to heart attack, she died on 10.03.2006 and even the respondent did not appear in the last rituals of the grandmother of the appellant.

It is also stated that in spite of the all ill deeds carried out by the respondent, the family members of the appellant tried there level best for conciliation between the parties to save the matrimonial house. In this regard, the mediation also took place but there was no fruitful result. As such the appellant filed a divorce petition under Section 13 of Hindu Marriage Act, which was registered as Regular Suit No.904 of 2008. Later on the same suit was registered as Regular Suit No.419 of 2014 before the Family Court, Hardoi, which was dismissed vide order dated 18.07.2014 passed by Principal Judge, Family Court, Hardoi.

Aggrieved by the said order, the present appeal has been filed.

Shri Asit Chaturvedi, learned Senior Advocate while assailing the impugned judgment submitted that on the basis of the evidence including the documentary evidence led on behalf of the appellant, it is categorically established and proved that there was no possibility of reunion of relationship between the appellant and respondent, long separation and no possibility of reunion amounts to cruelty and in spite of the said facts, the trial Court has dismissed the divorce suit.

In support of his argument, he placed reliance on the following facts/grounds :

(a) From the very beginning of marriage, the behaviour of the respondent was not good and she humiliated the family members of the appellant.

(b) On 25.05.2005, when the marriage of the sister of the appellant was solemnized at Lucknow, she created scene to tarnish the image of the appellant and his family members.

(c) On 30.01.2006, when the respondent herself consumed pesticide (poison), the father of the appellant took her to hospital for medical treatment. The said fact has also been admitted by the respondent in a letter written by her, filed on behalf of the appellant by way of documentary evidence in the divorce suit.

(d) The trial court did not consider in its true spirit, the specific averments, on the issue of cruelty on the part of the respondent against the appellant, made in the pleadings and evidence available on record.

Lastly, it is submitted by learned counsel for the appellant that since 17.02.2006 till the date of delivery of the judgment dated 18.07.2014 by the trial Court, the appellant and respondent were living separately and there was no possibility of reunion of relationship between them, so in view of long separation it was irretreable breakdown of marriage between the parties and accordingly on their ground alone the decree of divorce ought have been passed but the trial Court has not considered the above said facts and dismissed the divorce suit filed by the appellant.

It is also stated that even at this stage there is no hope of settlement or reunion between the parties and no fruitful purpose would be served in maintaining the matrimonial relations between the parties as the matimonial bond is beyond repair and the relations between the parties are sufficiently spoiled and for all practical purpose there is an irretrievable break down of marriage.

In support of his arguments, he has placed reliance on the following judgments :

“(1) Abha Agarwal vs. Sunil Agarwal, AIR 2000 All 377

(2) Shobha Rani vs. Madhukar Reddy, AIR 1988 SC 121

(3) Naveen Kohli vs. Neelu Kohli, AIR 2006 SC 1675

(4) Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511

(5) A. Jayachandra vs. Aneel Kumar, (2005) 2 SCC 22

(6) Narendra vs. K. Meena, (2016) 9 SCC 455

(7) Vishwanath Agarwal vs. Sarla Vishwanath Agarwal, (2012) 7 SCC 288

(8) V. Bhagat vs. D. Bhagat, (1994) 1 SCC 337

(9) Sumeet Kaur vs. Davinder Singh Randhawa, MANU/PH/0198/2018

(10) Navratan Baid vs. Neetu Baid, 2017 SCConline Del 6884.

Accordingly, learned counsel for the appellant submits that the judgment passed by trial Court, thereby dismissed the divorce suit, may be set aside and decree of divorce be granted.

Shri Anurag Narayan, learned counsel for the respondent while supporting the impugned judgment submitted that the appellant neither by way of any material nor by way of any cogent evidence is able to proof or establish that there was cruelty on the part of the respondent for not performing the matrimonial relations.

Learned counsel for the respondent further submitted that no doubt that the letter i.e. paper No.08 Ga/2 was produced from the side of the appellant as evidence but in the cross-examination, respondent had denied that the said letter was written by her and the same was not sent to the hand writing expert for expert opinion. The responsibility and burden lies on the appellant to prove the letter for the purposes of considering it in evidence, however, the appellant failed to do so, as such, the trial Court has correctly disbelieved the said document while dismissing the divorce suit filed by the appellant on the ground of cruelty.

Learned counsel for the respondent further submitted that so far as the argument raised by learned counsel for the appellant that the appellant and the respondent were being living separately for considerable long period of time and divorce decree on their ground ought to have granted is concerned, the same cannot be considered as a ground for divorce. In support of his argument, he has placed reliance on the following judgments :

Hon’ble the Apex Court in the case of Smt. Sudha Devi vs. M. P. Narayanan and others, AIR 1988 SC 1381, held as under :-

“4. The fact that the plaintiff obtained an ex parte decree in the earlier suit against Defendants 1 and 2 is established by the copy of the decree exhibited in the case. The allegation in the plaint so far as the third defendant is concerned, is in para 7 in the following words:

“7. Subsequent to the said decree on a date or dates which the plaintiff is unable to specify until after disclosure by the defendants, the first and/or second defendants wrongfully permitted and allowed the third defendant to occupy the said demised flat. The first and/or second defendants by themselves and/or by the third defendant are still in wrongful possession of the said demised flat.”

The only evidence relevant to this part of the case is to be found in the oral evidence of the plaintiff’s sole witness Nand Kumar Tibrewal. The High Court (in appeal) has declined to rely on his evidence mainly on the ground that the witness has not disclosed his concern with the suit property or his relationship with the plaintiff. He has been rejected as incompetent. The learned counsel for the appellant contended that the witness (now deceased) was the husband of the plaintiff-appellant and thus he was fully conversant with the relevant facts. The criticism by the High Court that the witness did not state anything in his evidence which could connect him with the plaintiff or the property and thus make him competent was attempted to be met before us by relying on an affidavit filed in this Court. We are afraid, the plaintiff cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage. Besides, affidavit are not included in the definition of ”evidence’ in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure. This part of the argument of Mr Tapas Ray must, therefore, be rejected.”

Hon’ble the Apex Court in the case of Chetan Das vs. Kamla Devi, AIR 2001 SC 1709, held as under :

“Para 14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case..”

Hon’ble the Apex Court in the case of Visnu Dutt Sharma vs. Manju Sharma, AIR 2009 SC 2254, held as under :

“Para 11. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

Para 12. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for Parliament to enact or amend the law and not for the courts. Hence, we do not find force in the submission of the learned counsel for the appellant.”

Hon’ble the Apex Court in the case of Hitesh Bhatnagar vs. Deepa Bhatnagar, AIR 2011 SC 1637, held as under :

“In the present case, time and again, the respondent has stated that she wants this marriage to continue, especially in order to secure the future of their minor daughter, though her husband wants it to end. She has stated that from the beginning, she never wanted the marriage to be dissolved. Even now, she states that she is willing to live with her husband putting away all the bitterness that has existed between the parties. In the light of these facts and circumstances, it would be travesty of justice to dissolve this marriage as having broken down. Though there is bitterness amongst the parties and they have not even lived as husband and wife for the past about 11 years, we hope that they will give this union another chance, if not for themselves, for the future of their daughter. We conclude by quoting the great poet George Eliot “What greater thing is there for two human souls than to feel that they are joined for life–to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting.”

Hon’ble the Apex Court in the case of Anil Kumar Jain vs. Maya Jain, (2009) 10 SCC 415, held as under :

“Para 27. In all the subsequent cases, the Supreme Court invoked its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage ties had completely broken and there was no possibility whatsoever of the spouses coming together again. In such a situation, this Court felt that it would be a travesty of justice to continue with the marriage ties.

Para 28. It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree of divorce either under Section 13 or Section 13-B of the Hindu Marriage Act, 1955.

Para 29. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955 for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable breakdown of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955.

Para 30. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other courts can exercise such powers. The other courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties.”

Accordingly, learned counsel for the respondent submitted that the appeal lacks merit and is liable to be dismissed.

We have heard learned counsel for the parties and gone through the records.

Undisputed facts of the case are that the marriage was solemnized on 22.11.2004 between the appellant/Puneet Kumar Trivedi and respondent/Smt. Nitika Pathak as per Hindu Rites and Rituals. The matrimonial relations between the parties became estrange and on 17.02.2006 the respondent left the matrimonial home and since then she is living with her parents.

Thereafter the divorce suit was filed which was initially reserved as Regular Suit No.904 of 2008 and thereafter the same was registered as Regular Suit No.409 of 2014.

The dispute arisen between the parties was referred to the Mediation and Conciliation Centre, however, the same was not settled which took place on 27.08.2012. Thereafter the Trial Judge also tried to settle the dispute between the parties on 20.05.2014 by way of Mediation and Conciliation but failed.

The trial Court, for the purpose of adjudication of petition under Section 13 of Hindu Marriage Act, framed the following two issues :

“(I) क्या प्रत्यर्थिनी का आचरण याची के प्रति क्रूरतापूर्ण रहा है ?

(ii) किस अनुतोष, यदि कोई देय हो, को याची पाने का अधिकारी है ?

The appellant in order to prove the cruelty on the part of the respondent produce a letter. It is stated that letter i.e. paper no.08 Ga/2 was written by her in which respondent has admitted that she herself consumed the pesticide (poison) but the trial Court did not believe the said evidence. In this regard, reliance has been placed on the following finding given by the trial Court :

“;kph dh rjQ ls dkxt [email protected] vly i nkf[ky fd;k x;k gSA ;g i ;kph ds vuqlkj izR;fFkZuh }kjk fy[kk x;k ftlesa tgj [kkus dh xyrh ds fy, vQlksl O;Dr fd;k x;k gS rFkk {kek djus dk dFku fd;k x;k gSA bl i ls izR;fFkZuh us budkj fd;k gS rFkk ;g dgk gS fd ;g i mlds }kjk ugha fy[kk x;k gSA bl i ij mldk fgUnh esa uke fy[kk gqvk gSA esjs }kjk fyf[kr mRRkj ,oa mlds }kjk fn;s x;s lk{; ij mlds gLrk{kj dks ns[kk x;k ftl ij vaxzsth esa gLrk{kj cus gSa ,slh fLFkfr esa bl gLrk{kj dk feyku U;k;ky; }kjk lEHko ugha gSA ;kph ds vf/koDrk }kjk rdZ nsrs gq, ;g Hkh dgk x;k fd izR;fFkZuh us bl i dh etewu dks fy[kus ls budkj fd;k gSA blfy, ;g lek tk;s fd ;g i izR;fFkZuh us gh fy[kk gS ysfdu ;gka ;g /;ku nsus ;ksX; gS fd izR;fFkZuh us vius c;ku esa ;g Li”V :i ls Lohdkj fd;k gS fd ;fn mlds gLrys[k dks fo’ks”kK ds ikl Hkstk tkrk gS rks blesa mls dksbZ vkifRr ugha gSA U;k;ky; ds er esa ;fn fdlh i dh gLrys[k dks izR;fFkZuh budkj dj jgh gS rks ;kph dk ;g nkf;Ro Fkk fd og fo’ks”kK dh jk; gsrq mfpr dk;Zokgh djrk ysfdu ;kph dh rjQ ls bl izdkj dh dksbZ dk;Zokgh ugha dh x;h gS vkSj ;g lkfcr ugha djk;k x;k gS fd ;g gLrys[k izR;fFkZuh dk gh gSA ,slh fLFkfr esa ;g i Hkh lkfcr ugha gSA vr% dzwjrk ds fy, ;g Hkh vk/kkj lkfcr ugha gSA

;kph dh vksj ls dzwjrk dk nloka vk/kkj ysrs gq, dgk x;k gS fd mldh nknh dh e`R;q fn0 10-03-06 dks gqbZ Fkh vkSj izR;fFkZuh ugha vk;h vkSj u fdlh laLdkj esa Hkkx fy;kA bu rF;ksa ls Hkh izR;fFkZuh us bUdkj fd;k gS vkSj ;g dgk gS fd fn0 10-03-2006 ds igys ls gh vkSj e`R;q laLdkj ds ifjiw.kZ gksus rd izR;fFkZuh ;kph ds oa’khuxj fLFkr edku esa jgrh jghA ;gka rd fd e`R;q dh lwpuk rd izR;fFkZuh us gh ;kph ds firk dks nh FkhA ;gka ;g /;ku nsus ;ksX; gS fd ;kph ds vuqlkj e`R;q ds i’pkr~ izR;fFkZuh ugha vk;h tcfd izR;fFkZuh ds vuqlkj og ;kph ds gh ?kj esa jgh Fkh ysfdu ;fn ;kph dk ;g dFku ekuk tk; fd izR;fFkZuh mldh nknh dh e`R;q ds i’pkr~ fdlh laLdkj esa Hkkx ysus ugha vk;h rks loZizFke ;g Hkh lkspuk gksxk fd ;kph dh rjQ ls dc vkSj dkSu izR;fFkZuh dks fyokus x;k D;ksafd u vkus dk iz’u rc mBrk gS tc dksbZ fyokus tk;s vkSj izR;fFkZuh u vk;sA vHkh Hkh lkekU; ?kjksa esa vkSjrsa Lor% llqjky vkSj ek;ds vkrh tkrh ugha gSA muds firk cxSjk ysus tkrs gSaA ;kph dh rjQ ls ;g ugha lkfcr fd;k x;k gS u gh crk;k fd mldh rjQ ls izR;fFkZuh dks fyokus ds fy, dkSu vkSj dc x;k FkkA blds vfrfjDr] U;k;ky; ds er esa ;g vk/kkj fookg fo?kVu dk gks Hkh ugha ldrk gSA

The aforesaid finding given by the trial Court is based on the letter i.e. paper No.08 Ga/2 and the statement given by the respondent as D.W.-1 during her cross-examination. However, while giving the above mentioned finding on the ground of cruelty based on the fact pleaded by the appellant to the effect that respondent tried to commit suicide the trial court failed to consider the statements of P.W.-2 and P.W.-4 namely Sri Ram Bhushan Trivedi and Sri Antim Mishra, who have categorically stated that to commit suicide, the respondent herself consumed the pesticide (poison) and the doctor had made all efforts in order to save her life and in this regard, there is no documentary evidence, which in our view, is an error committed by the trial Court.

At this stage, it would be appropriate to mention that we have not considered other pleas taken by the appellant with regard to the cruelty before the Trial Court except we have considered herein above as main thrust has been given on the same by the counsel for the appellant.

The trial Court while rejecting the ground of irretrievable break down of marriage taken by the appellant has given a finding, which reads as under :

“;kph ds vf/koDrk us rdZ nsrs gq, ;g Hkh dgk gS fd mHk;i{k ds e/; fookg fo?kVu dh vlq/kk;Z (irretrievable break down of marriage) fLFkfr gS vkSj mHk;i{k ,d nwljs ls 17-02-2006 ls vyx jg jgs gSaA ,slh fLFkfr esa fookg dks fo?kfVr dj fn;k tk;sA ;kph ds vf/koDrk }kjk U;k;k;y dk /;ku uohu dksgyh cuke uhyw dksgyh ds fu.kZ; esa ekuuh; mPpre U;k;ky; }kjk m)r dh x;h vU; fof/k O;oLFkkvkas dh rjQ vkdf”kZr fd;k ftlesa (irretrievable break down of marriage) ds fl)kUr ds vk/kkj ij fookg fo?kfVr fd;k x;k gSA

psrunkl cuke deyknsoh , vkbZ vkj 2001 ,l lh 1709 ds ekeys esa ekuuh; mPpre U;k;ky; }kjk /kkjk13 o 23 fgUnw fookg vf/kfu;e ds izko/kkuksa dk fo’ys”k.k fd;k x;k gSA mDr fof/k O;oLFkk esa ekuuh; mPpre U;k;ky; }kjk ;g vo/kkfjr fd;k x;k gS rykd fd, tkus dk vuqrks”k irretrievable break down of marriage ds fl)kUr ij ,sls gYds esa ugha fn;k tk ldrk gS D;ksafd ifr ftlus xyrh dh ¼O;kfHkpkfjrk dk thou O;rhr fd;k½ mls bldk ykHk ugha fn;k tk ldrk gSA tcfd iRuh ifr ds lkFk jgus ds fy, rRij gS c’krsZ ifr viuh O;fHkpkfjrk dk thou fcrkuk NksM+ nsaA bl U;k;ky; ds le{k tks izdj.k gS mlesa rks iRuh vFkkZZr~ izR;fFkZuh dh rjQ ls fdlh izdkj dh dksbZ ‘krZ Hkh ugha yxk;h tk jgh gSA izR;fFkZuh dh rjQ ls rks ;gka rd dgk tk jgk gS fd mlds ifr vFkkZr~ ;kph ftl rjg pkgsa j[ksa] og muds lkFk jgus ds fy, rS;kj gS vkSj Hkfo”; esa Hkh jgsxhA U;k;ky; ds er esa ek bl vk/kkj ij fd ;kph viuh LosPNkpkfjrk ls vyx jg jgk gS rks mls ;kfpr vuqrks”k iznku ugaha fd;k tk ldrk gSA

bl U;k;ky; dk er gS fd irretrievable break down of marriage ds fl)kUr ds vk/kkj ij fookg dks gYds esa fo?kfVr ugha djuk pkfg,A tc nksuksa i{k viusvius fopkjksa ij vfMx jgs vkSj muds e/; lqyg dh dksbZ LkEHkkouk ugha gks ldrhA rHkh irretrievable break down of marriage ds fl)kUr ds vk/kkj ij fookg dks fo?kfVr fd;k tkuk pkfg,A tgka rd bl izdj.k ds rF;ksa dk iz’u gS mlls ;g izdV gksrk gS fd izR;fFkZuh esa vius ifr vFkkZr~ ;kph ds izfr iw.kZr;k leiZ.k dk Hkko gSA lqyg lekSrk dsUnz esa Hkh izR;fFkZuh us leiZ.k dk gh Hkko fn[kk;k gS rFkk U;k;ky; ds le{k izLrqr vius ‘kiFki ,oa c;kuksa es Hkh leiZ.k dk Hkko fn[kk;k gS rFkk [email protected];kph o mlds ifjokjokyksa ds fo:) fdlh izdkj dk dksbZ vkjksi ;k izR;kjksi ugha yxk;k gS tcfd [email protected];kph dks rykd dh fMdzh ds vfrfjDr vkSj dqN Lohdk;Z ugha gSA tcfd ;kph viuh LosPNkpkfjrk dk iw.kZ izn’kZu dj jgk gS fd mls rykd nh tk;sA mlds }kjk tks izR;fFkZuh ij vkjksi yxk;s x;s gSa mudks lkfcr ugha dj ldk gSA ,slh fLFkfr esa ,di{kh; :i ls irretrievable break down of marriage ds fl)kUr ds vk/kkj ij fookg fo?kfVr ugha fd;k tk ldrk gSA mijksDr foospu ds vk/kkj ij eSa bl fu”d”kZ ij igqapk gwa fd tks dwzjrk ds vk/kkj crk;s x;s gSa mudks ;kph lkfcr djus esa iw.kZr% vlQy jgk gSA rnuqlkj ;g fook|d udkjkRed :i ls fu.khZr fd;k tkrk gSA

From the above quoted, underlined, findings, it is apparent that the trial Court has specifically mentioned that if there is no chance of settlement between the parties and parties are adamant on their stand then on the ground of irretrievable breakdown of marriage, decree of divorce can be granted and thereafter rejected the plea based on irretrievable break down of marriage ignoring the observation made by it in the judgment dated 18.07.2014, under appeal, wherein the trial Court has observed that there is no chance of settlement between the parties. The relevant observation on reproduction read as under :

“पुकार पर उभयपक्ष उपस्थित | प्रस्तुत वाद पर पक्षकारों से विस्तार से वार्ता अलग अलग रूप में की | वादी का कथन है कि हमने एवं हमारे परिवार के सदस्यों ने इस प्रकरण को सुलह समझौते से घर के अन्दर ही सुलझाने का प्रयत्न किया लेकिन प्रतिवादिनी ने एक भी बात पर कभी भी सहमती नहीं जताई | हमारे बीच सुलह समझौते की सम्भावना नहीं रह गई है | हमे विवाह विच्छेद ही चाहिए | प्रतिवादिनी बार बार अपने पति से अनुनय विनय कर भूल जाओ माफ करों के सिद्धांत पर अपने दाम्पत्य जीवन को पुनः स्थापित करने के लिए आग्रह किया एवं यह भी वचन दिया कि अगर कहीं भी कोई हमसे व हमारे परिवार से कोई त्रुटी हुई हो, उसकी पुनरावृत्ति नहीं होगीं | उभयपक्ष के मध्य विचारविमर्श में वादी पुनीत कुमार त्रिवेदी से कोई भी सकारात्मक जवाब नहीं मिला | अतः मै इस निष्कर्ष पर पंहुचा हूँ कि उक्त प्रकरण में वादी को तलाक के सिवा और कुछ मन्जूर नहीं है | अतः पत्रावली अग्रिम कार्यवाही हेतु न्यायालय में दिनांक २४.०९.२०१२ को पेश हो |

मेरे द्वारा भी २०.०५.२०१४ को पक्षकार को समझाया बुझाया गया परन्तु समझाना व्यर्थ रहा |”

Now a days in most of the cases, divorce is sought on the ground of cruelty. The meaning of cruelty is also changed depending on the facts and circumstances of each case. “Cruelty” is an act of showing indifferent to or delighting in another’s pain. According to Little Lifco Dictionary ‘cruelty’ means, brutality; harshness or unkindness. But in the matrimonial cases, the dictionary meaning of cruelty has not been taken as it is. The word “cruelty” has not been defined in the Hindu Marriage Act.

The courts have described the cruelty in different cases differently depending on the facts and circumstances of each case. Accordingly “cruelty” may be infinite variety. It can be subtle or brutal. It may be physical or mental. It may be by words, gestures or by mere silence, violence or non violence. That is the reason why courts have never tried to give an exclusive definition of cruelty as understand in matrimonial law. “(H.S. Gour’s Hindu Code, V Ed, I volume, page No. 40).

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

“To constitute cruelty on which a decree for judicial separation can rest, one spouse must be found to have treated the other with such cruelty as to cause a reasonable apprehension in the mind of the complaining spouse that it will be harmful or injurious for such a one to live with the spouse complained against”. (See Kusumalata vs. Kampta Prasad, (AIR 1965 All. 280).

In Halsbury’s Laws of England “cruelty” is defined as under :

“The legal conception of cruelty which is not defined by statute, is generally described as conduct of such character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger”

“The whole of the law relating to legal cruelty in matrimonial cases is only judge-made law and there has been considerable divergence of view revealed in the judgments passed by various Courts. The range of the reported decisions in cruelty cases is so large that any attempt to reconcile them will only be futile. In the case of Collins Us. Gollins (1963) 2 All.E.R. 966 decided by the House of Lords, the diversity of judicial opinion has been traced and it shows how uncertain the law is on the concept of legal cruelty in matrimonial cases” (H.S. Gour’s Hindu Code, 5th Ed Volume I page 490). Therefore, whether particular act constitutes “cruelty” or not depends on the circumstances of each case and cumulative conduct of the party against whom the “cruelty” is charged. A.P. High Court in Chintagunti Jagannadham vs. Chintagunti Savithramma, (AIR 1972 A.P. 377) held that in order to cause a reasonable apprehension in the mind of the wife that it would be harmful or injurious to her to live with her husband, it is not necessary to prove that the husband has beaten her more than once. Still ill treatment or treating the wife with cruelty does not lie merely in beating her. A long course of ill treatment would ultimately result in beating. The wife may put up even with beating, but in circumstances after a long course of ill treatment, if the wife is beaten, that may create a reasonable apprehension in certain circumstances that it would be harmful or injurious for her to live with her husband. That will depend on the facts and circumstances of each case. So beating may some times be treated as cruelty and some other times it may not be, depending on the circumstances of the case. Therefore the English courts have held that to find cruelty it is necessary to consider the conduct complained of and whether such conduct causes danger to health-bodily or mental or a reasonable apprehension there of. Following the English Judgments on the subject Kerala High Court in Madhavan Pillai vs. Mrs. Katherine M. Pillai, (AIR 1970 Ker. 316) held as under:

It is impossible to give a comprehensive definition of cruelty but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable persons, after taking due account of the temperament and all the other particular circumstance would consider that the conduct complained of is such that this spouse should not be called on to endure it.”

However, whether particular act amounts to cruelty or not depends on circumstances of a particular case. Obviously a case of legal cruelty consist of acts of repeated physical violence. In several English cases it was held that the acts of the spouse during insanity do not constitute cruelty because that person does not know what he/she doing or what he/she doing is wrong thing. It was also held that want of civility, actual rudeness and insult do not constitute cruelty. At the same time some of the things, which will not under ordinary circumstances amount to cruelty have been held to be such of cruelty. Ex: husbands constant drinking, spitting, enforcing the wife’s prostitution, husband madness, threats by husband etc.

Under Hindu Marriage Act the ‘Cruelty’ was the ground for judicial separation before the amendment of Hindu Marriage Act in 1976. Section 13(1) (i-a) was incorporated in 1976 making cruelty is one of the grounds for divorce. The Delhi High Court in Rajinder Bhardwaj vs. M/s. Anita Sharma, (AIR 1993 Del. 135) has discussed about cruelty in detail as under:

Clause (ia) of Section 13 (1) was amended in 1976. Before the amendment of 1976, the petitioner was required to show that the respondent had treated him or her 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 Respondent. The formulation of cruelty after the amendment of 1976 has been brought at par with its formulation under the Special Marriage Act, and the Special Marriage Act has borrowed it from the Matrimonial Causes Act, 1950. The change in the formulation of cruelty under the Hindu Marriage Act not merely brought it at par with the Special Marriage Act, but has also simplified it. Cruelty in such cases has to be of the type which should satisfy the conscience of the Court to believe that the relations between the parties had deteriorates to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress. Cruelty as a ground of divorce under Section 13 (1) (ia) is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. Now the act or omission or conduct which constitutes cruelty need not cause any sort of apprehension in the mind of the petitioner.

No hard and fast rule can be laid down as to what acts or conduct will amount to cruelty in any given case. What may amount to cruelty in one case may not be in another case. In deciding whether or not a particular state of affairs amounts to legal cruelty, the court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and manners of the parties. Whether acts and conducts complained of constitute cruelty have to be construed in reference to the whole matrimonial relationship. It may be that various acts or conduct complained of, by itself and in isolation to each other, do not amount to cruelty, but in their overall effect they may amount to cruelty.

Hon’ble the Apex Court in the case of Shobha Rani vs. Madhukar Reddi, (1998) 1 SCC 105 held that the word cruelty has not been defined in the Hindu Marriage Act. It has been used in Section 13 (1) (i-a) of the act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.

In Shailendra Kumar Singh vs. Reeta Singh and another, 2019 SCC OnLine All 5316, this Court held as under :

“39. The issue relating to irretrievable break down of marriage has been considered by a Division Bench of this Court in First Appeal No. 525 of 2006 (Smt. Kavita Sharma Vs. Neeraj Sharma) decided on 7.2.2018, wherein it has been observed in paragraph 28:-

“28. The above findings recorded by Court below could not be shown perverse or contrary to record. Having considered the fact that parties are living separately from decades, we are also of the view that marriage between two is irretrievable and has broken down completely. Irretrievable breakdown of marriage is not a ground for divorce under 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, Courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others 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. On the ground of irretrievable marriage, Courts have allowed decree of divorce and reference may be made to Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 and Rishikesh Sharma Vs. Saroj Sharma, 2006(12) SCALE 282. It is also noteworthy that in Naveen Kohli v. Neelu Kohli (supra) Court made recommendation to Union of India that Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for grant of divorce.”

40. Similarly this Court in First Appeal No. 792 of 2008 (Ashwani Kumar Kohli Vs. Smt. Anita) decided on 17.11.2016 has also considered this question and observed in paragraphs 7, 8, 10, 11, 12 and 13 as under:-

“7. Therefore, point for adjudication in this appeal is “whether a decree of reversal can be passed by granting divorce to the appellant on the ground which was not subject matter of adjudication before the Court below and is being raised for the first time in appeal”.

8. Under the provisions of Act, 1955 there is no ground like any “irretrievable breakdown of marriage”, justifying divorce. It is a doctrine laid down by judicial precedents, in particular, Supreme Court in exercise of powers under Article 142 of the Constitution has granted decree of divorce on the ground of irretrievable breakdown of marriage.

10. This aspect has been considered by this Court in Ram Babu Babeley Vs. Smt. Sandhya AIR 2006 (All) 12 2006 AWC 183 and it has laid down certain inferences from various authorities of Supreme Court, which read as under:-

“(i) The irretrievable break down of marriage is not a ground for divorce by itself. But while scrutinizing the evidence on record to determine whether the grounds on which divorce is sought are made out, this circumstance can be taken into consideration as laid down by Hon’ble Apex Court in the case of Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and V. Bhagat versus D. Bhagat, AIR 1994 SC 710.

(ii) No divorce can be granted on the ground of irretrievable break down of marriage if the party seeking divorce on this ground is himself or herself at fault for the above break down as laid down in the case of Chetan Dass Versus Kamla Devi, AIR 2001 SC 1709, Savitri Pandey v. prem Chand Pandey, (2002) 2 SCC 73 and Shyam Sunder Kohli v. Sushma Kohli, (2004) 7 SCC 747.

(iii) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties can not live together as laid down in Chandra Kala Trivedi versus Dr. SP Trivedi, (1993) 4 SCC 232.

(iv) The decree of divorce on the ground that the marriage had been irretrievably broken down can be granted in those cases also where the conduct or averments of one party have been so much painful for the other party ( who is not at fault) that he cannot be expected to live with the offending party as laid down in the cases of V. Bhagat versus D. Bhagat, (supra), Ramesh Chander versus Savitri, (1995) 2 SCC 7, Ashok Hurra versus Rupa Bipin Zaveri, 1997(3) AWC 1843 (SC), 1997(3) A.W.C. 1843(SC) and A. Jayachandra versus Aneel Kaur, (2005) 2 SCC 22.

(v) The power to grant divorce on the ground of irretrievable break down of marriage should be exercised with much care and caution in exceptional circumstances only in the interest of both the parties, as observed by Hon’ble Apex Court at paragraph No. 21 of the judgment in the case of V. Bhagat and Mrs. D. Bhagat, AIR (supra) and at para 12 in the case of Shyam Sunder Kohli versus Sushma Kohli, (supra).”

11. The above authorities have been followed by this Court in ”Pradeep Kumar Vs. Smt. Vijay Lakshmi’ in 2015 (4) ALJ 667 wherein one of us (Hon’ble Sudhir Agarwal,J.) was a member of the Bench.

12. In Vishnu Dutt Sharma Vs. Manju Sharma, (2009) 6 SCC 379, it was held that under Section 13 of Act 1955 there is no ground of irretrievable breakdown of marriage for granting decree of divorce. Court said that it cannot add such a ground to Section 13, as that would amount to amendment of Act, which is the function of legislature. It also referred to some judgments of Supreme Court in which dissolution of marriage was allowed on the ground of irretrievable breakdown but held that those judgments do not lay down any precedent. Supreme Court very categorically observed as under:-

“If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Court. Hence, we do not find force in the submission of learned counsel for the appellant.”

13. The above view has been followed in Darshan Gupta Vs. Radhika Gupta (2013) 9 SCC 1. Similar view was expressed in ”Gurubux Singh Vs. Harminder Kaur’ (2010) 14 SCC 301. This Court also has followed the above view in Shailesh Kumari Vs. Amod Kumar Sachan 2016 (115) ALR 689.”

The Division Bench of this Court in the case of Girish Chandra Srivastava v. Reeta Srivastava reported in 2019 SCC OnLine All 3554 observed as under:-

“17. Recently a Division Bench of this Court in Smt. Sarita Devi v. Sri. Ashok Kumar Singh reported in 2018 (3) AWC 2328 has considered the question of cruelty in detail in paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 and 29 which reads as under:–

“16. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 Court considered the concept of cruelty and referring to Oxford Dictionary defines ”cruelty’ as ”the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.

18. In Black’s Law Dictionary, 8th Edition, 2004, term “mental cruelty” has been defined as, “a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”

19. The concept of cruelty has been summarized in Halsbury’s Laws of England, Vol.13, 4th Edition Para 1269, as under:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.”

20. In 24 American Jurisprudence 2d, the term “mental cruelty” has been defined as under:

“Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.”

21. One of the earliest decision considering “mental cruelty” we find is, N.G. Dastane v. S. Dastane, (1975) 2 SCC 326, wherein Court has said:

“The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.”

22. In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan, (1981) 4 SCC 250 Court said that a concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

23. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, Court observed that word ”cruelty’ has not been defined in Act, 1955 but legislature, making it a ground for divorce under Section 13(1)(i)(a) of Act, 1955, has made it clear that conduct of party in treatment of other if amounts to cruelty actual, physical or mental or legal is a just reason for grant of divorce. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact about degree. If it is mental, the enquiry must begin as to the nature of cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse. There may, however, be cases where conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, cruelty will be established if conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.

24. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337 considering the concept of “mental cruelty” in the context of Section 13(1)(i)(a) of Act, 1984, Court said that it can be defined as conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to 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 other party. It is not necessary to prove that mental cruelty is such as to cause injury to the health of other party. While arriving at such conclusion, regard must be had to the social status, educational level of 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 thus has to be determined in each case having regard to the facts and circumstances of each case.

25. In Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, Court observed that matrimonial matters relates to delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with spouse. The relationship has to conform to the social norms as well. There is no scope of applying the concept of “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce but it has to be considered in the backdrop of facts and circumstances of the case concerned.

26. In Savitri Pandey v. Prem Chandra Panadey, (2002) 2 SCC 73, Court held that mental cruelty is the conduct of other spouse which causes mental suffering or fear to matrimonial life of other. Cruelty postulates a treatment of party to marriage with such conduct as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious to live with other party. Cruelty has to be distinguished from ordinary wear and tear of family life.

27. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 Court held that complaints and reproaches, sometimes of ordinary nature, may not be termed as ”cruelty’ but their continuance or persistence over a period of time may do so which would depends on the facts of each case and have to be considered carefully by the Court concerned.

28. In Samar Ghosh v. Jaya Ghosh (supra) Court said that though no uniform standard can be laid down but there are some instances which may constitute mental cruelty and the same are illustrated as under:

“(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”

29. The aforesaid Division Bench judgement clearly explains different shades of ”cruelty’ which by itself are sufficient enough to dissolve the marriage on the ground of cruelty. The aforesaid judgement also prescribes the mode as to how ”cruelty’ has to be proved and in what decree it has to be proved so as to grant of decree of divorce on the ground of ”cruelty’.”

In the case of Ravinder Kaur v. Manjeet Singh, (2019) 8 SCC 308 : 2019 SCC OnLine SC 1069 313, the Hon’ble Apex Court observed as under:-

“12. In the above background, keeping in view the nature of allegations made and the evidence tendered in that regard, we find that the consideration made by the trial court with reference to the reliability of the evidence is more appropriate. As already noticed the High Court, while taking note of the nature of allegations made has proceeded on the basis that there is irretrievable breakdown of the marriage. Needless to mention that irretrievable breakdown of marriage by itself is not a ground provided under the statute for seeking dissolution of marriage. To this effect it would be apposite to refer to the decision rendered by this Court to that effect in Vishnu Dutt Sharma v. Manju Sharma [Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379 : (2009) 2 SCC (Civ) 897] relied upon by the learned counsel for the appellant. No doubt on taking note of the entire material and evidence available on record, in appropriate cases the courts may have to bring to an end, the marriage so as not to prolong the agony of the parties. However, in the present facts, at this point in time even that situation does not arise in view of the changed scenario on the death of the respondent herein.”

Hon’ble the Apex Court in the case of R. Srinivas Kaumar vs. R. Shametha, (2019) 9 SCC 409, held as under :-

“5.1. At the outset, it is required to be noted and does not seem to be in dispute that since last 22 years both the appellant husband and the respondent wife are residing separately. It also appears that all efforts to continue the marriage have failed and there is no possibility of reunion because of the strained relations between the parties. Thus, it appears that marriage between the appellant husband and the respondent wife has irretrievably broken down. In Hitesh Bhatnagar [Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234 : (2011) 2 SCC (Civ) 701] , it is noted by this Court that courts can dissolve a marriage as irretrievably broken down only when it is impossible to save the marriage and all efforts are made in that regard and when the Court is convinced beyond any doubt that there is actually no chance of the marriage surviving and it is broken beyond repair.

5.2. In Naveen Kohli [Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558] , a three-Judge Bench of this Court has observed as under: (SCC pp. 579-80 582, paras 74, 85 86)

“74. … 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.

* * *

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. …

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.”

Thus, the legal position which emerges from the analysis of the entire case law on the subject referred to hereinabove is that it is the duty of the Court to consider and examine while deciding an issue of divorce whether the marriage between the parties has broken down irretrievably or it is dead emotionally and practically and there is no chance of its being retrieved before compelling the parties to live with each other.”

Taking into consideration the above said position of law on the ground of irretrievable breakdown of marriage and the facts of the present case including the fact that admittedly the parties are living separately since 17.02.2006 till date, meaning thereby that the parties are living separately for more than fourteen years and litigation between the parties was initiated by filing divorce suit by the appellant in the year 2008, as also the observation made by the trial Court, quoted above, to the effect that the efforts to continue with the marriage have been failed and there is no possibility of reunion between the parties and the statement of counsel for the appellant to the effect that even at this stage there is no hope of settlement or reunion between the parties and no fruitful purpose would be served in maintaining the matrimonial relations between the parties as the matimonial bond is beyond repair and the relations between the parties are sufficiently spoiled and for all practical purpose there is an irretrievable break down of marriage, we are of the considered opinion that the finding given by the trial Court that the appellant is not entitled for decree of divorce on the ground of long separation/irretrievable breakdown of marriage is liable to be interfered and the judgment passed by the trial court is liable to be set aside and the appellant is entitled to decree of divorce. In addition to above, we have also observed, herein above, that while recording the finding with regard to the fact related to consumption of pesticide (poison) the Trial Court committed an error of law and fact both as while giving the finding the Trial Court did not consider the statement of P.W.-2 and P.W.-4.

For the foregoing reasons, the appeal is allowed and the judgment passed by the court below dated 18.07.2014 is set aside and the decree of divorce is granted.

(Saurabh Lavania,J.) (Anil Kumar,J.)

Order Date :- 29.04.2020

Mahesh

 

 

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