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Shailendra Kumar Singh vs Smt. Reeta Singh And Another on 19 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Reserved

Court No. – 3

Case :- FIRST APPEAL No. – 151 of 2012

Appellant :- Shailendra Kumar Singh

Respondent :- Smt. Reeta Singh And Another

Counsel for Appellant :- Manish Tripathi,Brij Mohan Sahai,Raj Priya Srivastava,Rajiv Raman Srivastava,Ravi Singh

Counsel for Respondent :- Sahab Tiwari,Vyomesh Chandra Shukla

Hon’ble Anil Kumar,J.

Hon’ble Saurabh Lavania,J.

(As per Anil Kumar,J.)

Heard Sri Brij Mohan Sahai and Sri Raj Priya Srivastava, learned counsel for the appellant. None is present on behalf of the respondents.

By means of the instant appeal under Section 19 of the Family Courts Act, 1984 (in short “Act, 1984”), the appellant has challenged the judgment and order dated 05.09.2012, passed by the Family Court, Faizabad in Suit No. 105 of 2000 (SectionShailendra Kumar Singh v. Smt. Reeta Singh), whereby the divorce petition under Section 13 of the Hindu Marriage Act, 1955 (in short “Act, 1955”) moved by the appellant was dismissed.

Facts, in brief, of the present case as submitted by the learned counsel for the appellant are to the effect that the marriage between appellant-Shailendra Kumar Singh and respondent-Smt. Reeta Singh was solemnized as per the Hindu Rites and Rituals on 18.04.1987. In the year 1993, out of their wedlock, a daughter namely Ankita was born.

It is further submitted by the learned counsel for the appellant that in the meantime the appellant got appointment at District- Bahraich, so he had to leave his home situated at Dharupur, Ambedkar Nager leaving there his wife and minor daughter.

Learned counsel for the appellant further submitted that when appellant returned to his home, he came to know that his wife has made illicit relationships with Sri Sunil Kumar Shahi @ Pappu and one Sri Ram Shakal Singh. So, in view of the said facts, some hot talks took place between the appellant-Shailendra Kumar Singh and respondent-Smt. Reeta Singh, as a result of which, in the month of September, 1998, the respondent-Smt. Reeta Singh left her matrimonial house and started living at her parental house in District- Azamgarh.

Learned counsel for the appellant further submitted that thereafter, the appellant tried his best to pacify the issue, however all the efforts went in vain, as such, having no other alternative option left, the appellant filed a petition on 06.03.2000 in the Court of Principal Judge/ Family Court, Faizabad for divorce under Section 13 (1)(i) of the Act, 1955, which was registered as Regular Suit No. 105 of 2000 (SectionShailendra Kumar Singh v. Smt. Reeta Singh).

Section 13 (1)(i) of the Act, 1955 reads as under:-

“13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband of the wife, be dissolved by a decree of divorce on the ground that the other party-

[(i) has, after the solemnization of marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]”

On 04.01.2001, respondent-Smt. Reeta Singh filed her written statement and thereafter, she also filed the additional written statement dated 16.11.2002/10.01.2003 on 10.01.2003. The rebuttal was filed by the appellant on 10.11.2019.

Leaned counsel for the appellant further submitted that thereafter, an application for amendment of the plaint was filed by the appellant and the same was allowed and accordingly, the plaint was amended and Sri Ram Shakl Singh was impleaded as respondent No. 2 in the petition filed by the appellant under Section 13 of the Act, 1955 as well as certain amendments were incorporated in the facts of the case. The written statement was also amended by moving the application for amendment dated 03.09.2008.

Learned counsel for the appellant further submitted that in order to prove his case, in addition to the documentary evidence, which were letters written by the appellant as well as respondent-Smt. Reeta Singh, on behalf of the appellant, P.W.-1-Shailendra Singh was examined and on behalf of defendant, D.W.-1/Smt. Reeta Singh and DW-2/ Sri Satya Prakash Singh were examined and the evidence of Sri Ram Shakal Singh, who was impleaded as respondent No. 2 was filed in the petition by way of an affidavit.

Vide order dated 05.09.2012, the Principal Judge, Family Court, Faizabad dismissed the Regular Suit No. 105 of 2000 (SectionShailendra Kumar Singh v. Smt. Reeta Singh).

Aggrieved by the order dated 05.09.2012, the present appeal has been filed by the appellant-Sri Shailendra Kumar Singh under Section 19 of the Act, 1984.

Learned counsel for the appellant has pressed the present appeal on the following grounds:-

(a) that the Court below has wrongly dismissed the petition on the ground that the appellant-Sri Shailendra Kumar Singh failed to prove that the respondent-Smt. Reeta Singh was living in adultery.

(b) that the appellant-Sri Shailendra Kumar Singh and the respondent-Smt. Reeta Singh have got no matrimonial relation since September, 1998 and they are living separately, as such there is no possibility to live together as husband and wife, so on the said ground, the divorce petition should be allowed.

Sri. Raj Priya Srivastava, learned counsel for the appellant while pressing the first point submitted that in the present case, it is categorically stated by the appellant way of pleadings that the respondent-Smt. Reeta Singh had an illicit relationship with Sri Sunil Kumar Shahi @ Pappu. In this regard, he placed reliance on paragraph No. 8 of the plaint.

In addition to the above facts, learned counsel for the appellant also submitted that the respondent-Smt. Reeta Singh had also got an illicit relationship with her Brother-in-Law (Jija)/husband of her sister. In this regard, he placed reliance on paragraph No. 6 of the petition and on the basis of the averments made in paragraph No. 9 of the petition, it is also submitted by Sri. Raj Priya Srivastava, learned counsel for the appellant that the respondent-Smt. Reeta singh and Sri Ram Shakal Singh were seen by her Bhabhi in compromising position/situation.

It is also submitted by learned counsel for the appellant that from the letters which were written by the appellant and the respondent-Smt. Reeta Singh, it is clearly established that respondent-Smt. Reeta singh had illicit relationships with Sri Sunil Kumar Shahi @ Pappu and with Ram Shakal Singh.

In this regard, learned counsel for the appellant placed reliance on the statement given by DW-1/respondent-Smt. Reeta Singh and submitted that in view of the said statement given by respondent-Smt. Reeta Singh in her cross examination, the order which has been passed by the trial Court on the basis of evidence led by the parties, thereby dismissing the petition of the appellant, is contrary to law and, as respondent-Smt. Reeta Singh gave contradictory statement as D.W. 1, as such her evidence cannot be considered as reliable.

The relevant portion of the statement given by DW-1/respondent-Smt. Reeta Singh in her cross-examination is quoted below:-

Þ;g dguk xyr gS fd og xHkZikr uktk;t FkkA ;g dguk xyr gS fd eqs uktk;t xHkZ Fkk ftls fNikus ds fy, xHkZikr djk;kA eSusa ‘kknh ds ckn vius ifr dks vusdksa i fy[kk gSA xokg us ikoyh esa nkf[ky dkxt la065@x i dks ns[kdj dgk ;g esjs }kjk esjs ifr dks fy[kk x;k gSA

;g dguk xyr gS fd esjs o jke ‘kdy ds lEcU/k ls xHkZ gks x;k Fkk vkSj jke ‘kdy flag us xHkZikr djk;k FkkA xHkZikr esjs cgu us djk;k ;g ckr ogh crk ldrh gSA eSa xHkZikr vLirky dk uke ugha crk ldrhA jkts lqyrkuiqj esa esjk xHkZikr ugha gqvk FkkAÞ

Learned counsel for the appellant while pressing the second point submitted that from the material available on record, it is clearly established that the appellant and respondent-Smt. Reeta Singh are living separately since September 1998, as pleaded by the appellant in his petition and the same is also supported by the statement given by the respondent-Smt. Reeta Singh in her statement that they are living separately since 1999. Learned Counsel for the appellant submitted that there is irretrievable breakdown of marriage between the parties, it is on the ground of serious allegation of adultery and separate living admittedly since the year 1999, as such the trial Court should have granted the decree of divorce on the said ground. In support of his argument, learned counsel for the appellant placed reliance on the judgments of Hon’ble Apex Court in the case of SectionNaveen Kohli v. Neelu Kohli reported in AIR 2006 SC 1675 : (2006) 4 SCC 558 : JT 2006 (3) SC 491 : (2006) 3 SCALE 252 and SectionSamar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511 : JT 2007 (5) 569 : (2007) 5 SCALE 1 : (2007) 4 SCR 428.

Accordingly, it is submitted by the learned Counsel for the appellant that the judgment and decree passed by the trial Court may be set aside and divorce petition may be allowed.

We have heard learned counsels for the appellant and perused the record.

As per the admitted facts of the present case, the marriage between the appellant and respondent-Smt. Reeta Singh was solemnized on 18.4.1987, as per the Hindu Rights and Rituals. In the year 1993, out of the wedlock of appellant and respondent-Smt. Reeta Singh, one baby girl namely Ankita was born. Thereafter, the matrimonial relations between the appellant and respondent-Smt. Reeta Singh became estranged, as such respondent-Smt. Reeta Singh/wife of the appellant, as admitted by her, started living separately since 1999. Thereafter, the appellant filed a divorce petition under Section 13(1)(i) of the Act, 1955 on the ground of illicit relationship of respondent-Smt. Reeta Singh with other persons, which was registered as petition No. 105 of 2000 (SectionShailendra Singh v. Smt. Reeta Singh) before the Principal Judge/Family Court, Faizabad and was dismissed on 5.09.2012.

During the pendency of the present appeal, learned counsel for the parties submitted that there is a likelihood that the dispute may be amicably settled between the parties. So in view of the said facts, this Court took steps for settlement of dispute between the parties amicably settled, however, the dispute could not be settled amicably settled between the parties at the behest of respondent-Smt. Reeta Singh.

So far as the first argument which has been raised by learned Counsel for the appellant, on the ground of adultery, is concerned, we feel it appropriate to have the meaning of word “Adultery”, provided under Section 497 of CPC, which reads as under:-

“497. Adultery.–Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

Clause (i) : Adultery as per Mulla, Hindu Law,21st Edition 2010 P. 906 under chapter IV, Nullity of Marriage And Divorce.

By way of amendment in the Act of 1976, Section 13(1)(i) has been introduced in the Act, 1955 and as per the same, a petition of divorce can lie at the instance of the husband or the wife , if the other party has after the solemnization of the marriage committed even a single act of adultery. It must also be noticed that to bring a case under this section it is not necessary now to show that the respondent is living in adultery. The benefit of this liberalized provision can be availed of even in an appeal pending at the commencement of the amending act. It must also been noticed that the expression ”adultery’ has not been used in the cause and instead the word are ”had voluntary sexual intercourse with any other person other than his or her spouse’. Adultery in matrimonial law is one of the principal grounds for relief, and has been defined as consensual sexual intercourse between a married person and another person of the opposite sex during the subsistence of the marriage. An attempt to commit adultery must be distinguished fro adultery, and will not of itself be sufficient ground for relief.

Direct proof of adultery is not imperative. It would be unreasonable to expect direct evidence and such evidence if bought before the court, must be suspected and is at to be disbelieved. The accepted rule, therefore, is that circumstantial evidence is all that can normally be expected in proof of the charge. The circumstances must be such as to lead to fair inference, as a necessary conclusion; and unless thiswas so, no protection whatever could be given to marital rights. It is impossible to indicate those circumstances universally, because they might be infinitely diversified by the situation and character of the parties, by the state of the general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have important bearing upon the particular case. The only general rule upon the subject is, that the circumstances must be such as would lead the guarded judgment of a reasonable and just man to the conclusion. The facts usually are not of a complicated nature, nut determinable upon common grounds of reason, it is in consequence of this rule that it is not necessary to prove a fact of adultery in time and place. Nor is it absolutely incumbent on the petitioner to prove the identity of the person with whom the alleged act of adultery took place. A spouse is not entitled to a decree on allegations arising out of suspicion created by surrounding circumstances, for such allegations would have to be proved. Mere suspicion is not enough to avail of a remedy under the section. The High Court of Madhya Pradesh distinguishing the judgment of the Supreme Court in SectionV. Bhagat v. D. Bhagat, and Chetandass v. Kamladevi, and the decision of Chanralekha Trivedi has held that when alleged serious allegation about the character of the spouse were not proved and he has also not cooperated in the reconciliation proceedings, no decree of divorce could be passed.

The Hon’ble Apex Court in the case of SectionV. Bhagat v. D. Bhagat, reported in (1994) 1 SCC 337 345, after taking into consideration other judgments on the point in issue in para Nos. 13 to 18 held as under:-

“13. Cruelty contemplated by the sub-clause is both physical and mental. We are concerned herein with the latter. It is not possible to define ”mental cruelty’ exhaustively. As observed by Lord Reid in Gollins v. Gollins [1964 AC 644 : (1963) 2 All ER 966] :

“No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health.

It is easy to see that the origin of this requirement is the decision in the well-known case of Russell v. Russell [(1895-99) All ER Rep 1 : (1897) AC 395] .”

To the same effect are the observations of Lord Pearce (at p. 695; All ER p. 992):

“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 person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.

***

I agree with Lord Merriman whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or apprehended injury to health. In the light of that vital fact the court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person’s point of view, after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it.

***

The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or conduct complained of may all be relevant.”

The reference to “injury to life, limb or health” in the above passages must be understood in the context of the requirements of the divorce law then obtaining in the United Kingdom.

14. The change of law brought about by the SectionHindu Marriage Laws (Amendment) Act, 1976 deserves notice. Prior to the said SectionAmendment Act, cruelty was not a ground for claiming divorce under the SectionHindu Marriage Act. It was a ground only for claiming judicial separation under Section 10. By the said SectionAmendment Act, cruelty was made a ground for divorce as well — evidently in recognition of the changing mores of the society. While doing so, it is significant, the words “as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party,” qualifying the expression “cruelty” in Section 10(1)(b), were omitted by Parliament. It is, therefore, not necessary for the party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension — a reasonable apprehension — in his/her mind that it will be harmful or injurious for him/her to live with the other party. Now what does this change mean? Surely, the deletion of the said words could not have been without a purpose. The cruelty of the nature described in Section 10(1)(b) has been explained in this Court’s decision in SectionN.G. Dastane v. S. Dastane [(1975) 2 SCC 326 : AIR 1975 SC 1534] . Chandrachud, J. speaking for the Bench, held that where an allegation of cruelty is made, the enquiry has to be —

“… whether the conduct charged 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”.

The learned Judge held further: (SCC pp. 337-38, paras 30-31)

“It is not necessary, as under the English law, that the cruelty must be of such a character as to cause ”danger’ to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other. … But under Section 10(1)(b), harm or injury to health, reputation, the working-career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.”

This requirement is no longer present in Section 13(1)(i-a).

15. If so, the question arises what kind of cruel treatment does clause (i-a) contemplate? In particular, what is the kind of mental cruelty that is required to be established? While answering these questions, it must be kept in mind that the cruelty mentioned in clause (i-a) is a ground now for divorce as well as for judicial separation under Section 10. Another circumstance to be kept in mind is that even where the marriage has irretrievably broken down, the Act, even after the 1976 Section(Amendment) Act, does not permit dissolution of marriage on that ground. This circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a).

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 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.

17. At this stage, we may refer to a few decisions of this Court rendered under Section 13(1)(i-a). SectionIn Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105 : 1988 SCC (Cri) 60] , Justice K. Jagannatha Shetty, speaking for the Division Bench, held: (SCC pp. 108-09, paras 4 and 5)

“Section 13(1)(i-a) uses the words ”treated the petitioner with cruelty’. The word ”cruelty’ has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and 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 the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, 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, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.

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. Because as Lord Denning said in Sheldon v. Sheldon [(1966) 2 All ER 257, 259 : (1966) 2 WLR 993] ”the categories of cruelty are not closed’. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.”

It was a case where the wife was a postgraduate in biological sciences while the husband was a doctor. The wife moved the court for divorce on the ground of cruelty. According to her, she had an amount of Rupees two lakhs in fixed deposit in a bank apart from a house property, that her mother-in-law used to make constant demands of money, and that the respondent-husband supported his mother therein. She did not report the same to her parents because she was afraid that if she informed her parents, something may be done to her. The respondent-husband himself admitted in a letter written to the wife that the demand for dowry by his parents was nothing wrong. On the above facts, it was held that the ground of cruelty was established and divorce was granted. The following further observations of Shetty, J. appear to us relevant: (SCC pp. 114-15, para 18)

“Section 13(1)(i-a) of the SectionHindu Marriage Act provides that the party has after solemnization of the marriage treated the petitioner with cruelty. What do these words mean? What should be the nature of cruelty? Should it be only intentional, wilful or deliberate? Is it necessary to prove the intention in matrimonial offence? We think not. We have earlier said that cruelty may be of any kind and any variety. It may be different in different cases. It is in relation to the conduct of parties to a marriage. That conduct which is complained of as cruelty by one spouse may not be so for the other spouse. There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The cruel treatment may also result by the cultural conflict of the spouse. In such cases, even if the act of cruelty is established, the intention to commit suicide cannot be established. The aggrieved party may not get relief. We do not think that that was the intention with which the Parliament enacted Section 13(1)(i-a) of the SectionHindu Marriage Act. The context and the set up in which the word ”cruelty’ has been used in the section, seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But 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. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.”

18. SectionIn Chanderkala Trivedi v. Dr S.P. Trivedi [(1993) 4 SCC 232 : 1993 SCC (Cri) 1154 : (1993) 3 Scale 541] the husband sued for divorce on the ground of cruelty by wife. The wife filed a written statement wherein she attributed adultery to the husband. In reply thereto the husband put forward another allegation against the wife that she was having undesirable association with young boys. Considering the mutual allegations, R.M. Sahai, J. speaking for Division Bench, observed: (SCC p. 233, para 2)

“Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife. (also see: SectionChintala Syamala v. Chintala Venkata Satyanarayana Rao, (2008) 10 SCC 711 : (2009) 1 SCC (Cri) 90 and SectionVijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 ).”

Now, reverting to the facts of the present case, as per the pleadings of the appellant in this appeal, he has stated that his wife has got illicit relationship with (a) Sri Sunil Kumar Shahi @ Pappu and (b) Ram Shakal Singh/respondent No. 2/Jija of respondent-Smt. Reeta Singh.

So far as the assertion made by the appellant in respect to the illicit relationship of respondent-Smt. Reeta Singh with Sri Sunil Kumar Shahi @ Pappu and Ram Shakal Singh/respondent No. 2/Jija of respondent-Smt. Reeta Singh is concerned, as pleaded in the appeal, the foundation laid down in this regard is to the effect that Bhabi of respondent-Smt. Reeta Singh seen her with Sri Sunil Kumar Shahi @ Pappu, as pleaded in paragraph 6. The said fact has to be proved by the appellant, but the appellant has not proved or established the said fact.

At this stage, it is relevant to mention here that during the pendency of the litigation Sri Sunil Kumar Shahi @ Pappu died and the appellant did not produce his Bhabhi, who allegedly had seen respondent-Smt. Reeta Singh with Pappu @ Sunil Kumar, as pleaded in the appeal.

So far as the matter in respect to illicit relationship with Ram Shakal Singh is concerned, as pleaded in the appeal, the same is based on the letters of respondent-Smt. Reeta Singh. However, a perusal of the said letters which is on record, it is not clearly established that the contents of the said letter in any way establish that there was illicit relationship of respondent-Smt. Reeta Singh either with Sri Sunil Kumar Shahi @ Pappu or with Ram Shakal Singh rather the appellant was not able to prove the said fact by way of any evidence.

Further in the matter in question, Ram Shakal Singh, against whom the appellant allegedly averred to have illicit relationship with respondent-Smt. Reeta Singh, has produced his evidence by way of filing an affidavit on behalf of the defendants, but he was not cross examined by the appellant in order to establish the fact of illicit relationship of his wife with Ram Shakal Singh.

In view of the aforesaid reasons, we are of the view that the appellant-Shailendra Singh failed to establish his case in regard to allegation of adultery, on which ground he sought the divorce decree.

So far as the argument as made by learned counsel for the appellant that the contradictory statement was given by the respondent-Smt. Reeta Singh, when examined as witness-D.W-1, as stated hereinabove, we would like to say that no doubt there is a contradiction in the statement given by respondent-Smt. Reeta Singh during her cross-examination, but on the said score the appellant cannot get any benefit because the appellant through his evidence failed to prove the facts stated in his plaint. In the instant case, from the material available on record the ground of adultery, which has been taken by the appellant against Sri Sunil Kumar Shahi @ Pappu and respondent No. 2-Ram Shakal Singh has not been proved by him on the basis of evidence which has been led by him either oral or documentary. Needless to say that it is a principle that “plaintiff can succeed on the strength of his own case and not on the correctness of the defence.”

Now, the second point which is to be considered in the present case is whether the divorce decree can be granted on the ground of irretrievable breakdown of marriage keeping in view the facts that the appellant and the respondent-Smt. Reeta Singh are living separately since 1998/99 and serious allegations have been levelled against respondent-Smt. Reeta Singh.

From the material available on record, the position which emerges out is to the effect that, as per the case of the appellant, the respondent-Smt. Reeta Singh left her matrimonial house and started living with her parents since September, 1999.

However, in the statement, respondent-Smt. Reeta Singh/D.W.-1 stated as under:-

ÞeSa lu~ 1999 esa llqjky ls vf[kjh ckj ek;ds xbZA rc ls eSa ek;ds esa gwaA ek;ds tkus o lu~ 2000 ds chp eSaus dksbZ izkFkZuk i ngst ds eqdnes ds igys ugha fn;kA esjh cgu vk’kk jkts lqyrkuiqj esa v/;kfidk gSA eSa dgha ugha i+krh gwaA ;g dguk xyr gS fd esjk jke ‘kdy flag ls uktk;t lEcU/k Fkk ftldh otg ls uktk;t xHkZ Fkk mls eSus fxjk fn;kA ;g Hkh dguk xyr gS fd eSaus viuh pfj ghurk ds {kek ds lEcU/k esa ifr dks dbZ ckj i fy[kk cfYd lkl ls xM+k gksus dh otg ls ifr dks i fy[kk FkkA ß

In view of the aforesaid facts, the position which emerges out is to the effect that the appellant and respondent-Smt. Reeta Singh are living separately for the last 20 years and further between them, various criminal proceedings were taken place. So, now the question which is to be considered is to the effect that “can a suit of appellant be decreed for divorce on the ground of irretrievable breakdown of marriage due to long separation, as the same tantamounts to a mental/physical cruelty?”

The word ‘cruelty’ has not been defined in the SectionHindu 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 eqnuiry 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.

Hon’ble the Apex Court in the case of Saroj Rani Vs. Sudarshan Kumar Chadha, (1984) 4 SCC 90, 98, where it was held that court’s satisfaction about permanent breakdown of the marriage may serve as an additional justification for granting divorce. Where on facts the marriage has broken down and the parties can no longer live together the court should have no compunction in granting the divorce.

In the case of SectionV. Bhagat v. D. Bhagat, (1994) 1 SCC 337, the Apex Court held that mental cruelty means 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, must be of such a nature that the parties could not reasonably be expected to live together. Regard must be had to the social status, education level of the parties and the society they move.

In Romesh Chander Vs. Savitri, (1995) 2 SCC 7, Hon’ble Supreme Court again held that when marriage is dead, emotionally and practically, and there is no chance of its being retrieved, continuance of it would be cruelty within the meaning of Section 13 (1) (i-a) of the Act.

In the case of Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558, the Hon’ble Supreme Court observed as hereunder :-

“32. Both the parties have levelled allegations against each other for not maintaining the sanctity of marriage and involvement with another person. According to the respondent, the appellant is separately living with another woman “Shiva Nagi”. According to the appellant, the respondent was seen indulging in an indecent manner and was found in a compromising position with one Biswas Rout. According to the findings of the trial court both the parties failed to prove the allegations against each other. The High Court has of course reached the conclusion that the appellant was living with one “Shiva Nagi” for a considerable number of years. The fact of the matter is that both the parties have been living separately for more than 10 years. A number of cases including criminal complaints have been filed by the respondent against the appellant and every effort has been made to harass and torture him and even to put the appellant behind the bars by the respondent. The appellant has also filed cases against the respondent.

38. D. Tolstoy in his celebrated book The Law and Practice of Divorce and Matrimonial Causes, (6th Edn., p. 61) defined cruelty in these words:

“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.”

“72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective and bound to be a source of greater misery for the parties.

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.

77. Some jurists have also expressed their apprehension for introduction or irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems that are sought to be solved.

78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.

79. When we carefully evaluate the judgment of the High Court and scrutinise its findings in the background of the facts and circumstances of this case, then it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.

80. The High Court ought to have considered the repercussions, consequences, impact and ramifications of all the criminal and other proceedings initiated by the parties against each other in the proper perspective. For illustration, the High Court has mentioned that so far as the publication of the news items is concerned, the status of the husband in a registered company was only that of an employee and if any news item is published, in such a situation, it could not, by any stretch of imagination be taken to have lowered the prestige of the husband. In next para 69 of the judgment that in one of the news items what has been indicated was that in the company, Nikhil Rubber (P) Ltd., the appellant was only a director along with Mrs Neelu Kohli who held 94.5% shares of Rs.100 each in the Company. The news item further indicated that Naveen Kohli was acting against the spirit of the article of association of Nikhil Rubber (P) Ltd., had caused immense loss of business and goodwill. He had stealthily removed produce of the Company, besides diverted orders of foreign buyers to his proprietorship firm M/s Naveen Elastomers. He had opened the bank account with forged signatures of Mrs Neelu Kohli and fabricated the resolution of the board of directors of the Company. Statutory authority under the SectionCompanies Act had refused to register documents filed by Mr Naveen Kohli and had issued show-cause notice. All business associates were cautioned to avoid dealing with him alone. Neither the Company nor Mrs Neelu Kohli shall be liable for the acts of Mr Naveen Kohli. Despite the aforementioned finding that the news item was intended to caution business associates to avoid dealing with the appellant then to come to this finding in the next para that it will by no stretch of imagination result in mental cruelty is wholly untenable.”

86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.”

Hon’ble the Apex Court in the case of SectionSamar Ghosh vs. Jaya Ghose, (2007) 4 SCC 511, held as under :-

“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(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 behaviour 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 behaviour 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 sterilisation 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.

102. When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen-and-a-half years (since 27-8-1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent.”

Hon’ble the Apex Court in the case of SectionRishikesh Sharma vs. Saroj Sharma, (2007) 2 SCC 263, held as under :-

“4. We heard Mr A.K. Chitale, learned Senior Counsel and Mr S.S. Dahiya, learned counsel for the respondent and perused the judgment passed by both the trial court and also of the High Court. It is not in dispute that the respondent is living separately from the year 1981. Though the finding has been rendered by the High Court that the wife last resided with her husband up to 25-3-1989, the said finding according to the learned counsel for the appellant is not correct. In view of the several litigations between the parties it is not possible for her to prosecute criminal case against the husband and at the same time continue to reside with her husband. In the instant case the marriage is irretrievably broken down with no possibility of the parties living together again. Both the parties have crossed 49 years and living separately and working independently since 1981. There being a history of litigation with the respondent wife repeatedly filing criminal cases against the appellant which could not be substantiated as found by the courts. This apart, only child born in the wedlock in 1975 has already been given in marriage. Under such circumstances the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant. This apart, the wife also has made certain allegations against her husband, that the husband has already remarried and is living with another lady as stated by her in the written statement. The High Court also has not considered the allegations made by the respondent which have been repeatedly made and repeatedly found baseless by the courts.

5. In our opinion it will not be possible for the parties to live together and therefore there is no purpose in compelling both the parties to live together. Therefore, the best course in our opinion is to dissolve the marriage by passing a decree of divorce so that the parties who are litigating since 1981 and have lost valuable part of life can live peacefully for remaining part of their life.

6. During the last hearing both the husband and wife were present in the Court. The husband was ready and willing to pay a lump sum amount by way of permanent alimony to the wife. The wife was not willing to accept the lump sum amount but however expressed her willingness to live with her husband. We are of the opinion that her desire to live with her husband at this stage and at this distance of time is not genuine. Therefore, we are not accepting this suggestion made by the wife and reject the same.”

Hon’ble the Apex Court in the case of SectionGeeta Jagdish Mangtani vs. Jagdish Mangtani, (2008) 5 SCC 177, held as under :-

“4. The husband has made allegation that after the birth of the son he had gone to the house of the wife at Adipur, Gujarat where he was not allowed to meet her nor was he allowed to see his son. Likewise, the wife has made allegations that her mother-in-law had made dowry-related demands from her. These are mere allegations and counter-allegations on which reliance cannot be placed. Nothing of this kind was stated in the notices or replies thereto. The most important fact which emerges is that from 2-6-1993, the parties have been staying separately and there is total lack of any effort on their part to stay together. Since the wife left the matrimonial home on 2-6-1993 and has, admittedly, not returned to the said home, the absence of any desire on her part to honour the matrimonial obligation is clear. In this connection the observation of the High Court is worth reproducing:

“… Both the husband and wife have renounced the relationship as husband and wife since June 1993 and from the record of the case also presently the questions which I have asked in the chamber, I am satisfied that both the husband and wife had no intention to live together as husband and wife and decided to break off from the relationship of marriage or withdraw that companionship of husband and wife. Desertion means rejection by the party of all the obligations of marriage and permanent forsaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other.

14.7. I have considered the entire aspect and there is no useful purpose to have kept the parties as husband and wife particularly from 1993 when both the husband and wife have not stayed together. Though I have made efforts to see that the wife can go to her matrimonial home at Mumbai or the husband can stay at Gandhidham but unfortunately this Court’s effort to reunite them as husband and wife failed. This Court has therefore no alternative but to pass the order for divorce to see that both people can be free to have their own houses in this behalf because to keep both the husband and wife together when one stays at Mumbai and another at Gandhidham, without the intention to stay together, would serve no purpose. Therefore, the marriage is completely broken down and no useful purpose would be served by dismissing the second appeal.”

Hon’ble the Apex Court in the case of SectionSatish Sitole vs. Smt. Ganga, (2008) 7 SCC 734, held as under :-

“11. The prayer made on behalf of the appellant and endorsed by the respondent is neither novel nor new. At the very beginning of this judgment we had referred to the decision of this Court in Romesh Chander [(1995) 2 SCC 7], where it was held that when a marriage is dead emotionally and practically and there is no chance of its being retrieved, the continuance of such a marriage would amount to cruelty. Accordingly, in exercise of powers under SectionArticle 142 of the Constitution of India the marriage between the appellant and the respondent was directed to stand dissolved, subject to the condition that the appellant would transfer his house in the name of his wife.

13. Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably.”

This Court in the case of Mohit Tandon vs. Preeti Tandon, 2010 (2) All CJ 1108, held as under :-

“The essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life. The ground of act of cruelty are to be distinguished from ordinary wear and tear of family. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.

It may be added that cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted, cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse, is a necessary element in cruelty.

Taking into consideration the facts in its entirety and the failure of settlement between them either before the lower court and also by us, we are of the view that the marriage has seized to exist in substance and in reality, living apart is a symbol indicating the negation of such sharing. It is indicative of the disruption of the essence of marriage. From the circumstances, we are fully convinced that the marriage between the parties is 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 has been wrecked beyond the hope of salvage and cannot be repaired. The Apex Court in number of cases, namely, Harpit Singh Anand Versus State of West Bengal [2004 (10) SCC 505], Kanchan Devi Vs. Promod Kkumar Mittal [(1996) 8 SCC 90] and Ashok Hurra Vs. Rupa Bipin Zaveri [(1997) 4 SCC 226], in order to do complete justice, granted decree of divorce and directed for closer of all sort of proceedings between the parties.

In the instant case, the record is clear that the parties are living separately and are are not discharging their matrimonial obligations continuously for the last over 15 years and there is no possibility of any reconciliation. Thus, the conclusion is inevitable that the marriage has broken down completely and irretrievably and as such there is no point in compelling them to live together and to make their life more miserable.

In Sandhya Rani v. Kalyan Ram Narayan 1994( suppl) 2 SCC 588 the Apex Court while reiterating the stand that there is no justification for continuing with the marriage which has broken down irretrievably took the view that since the parties are living separately for last more than three years there is no doubt in taking the stand that the marriage between the parties has broken down irretrievably and, therefore, the Court has no option but to grant decree of divorce.

In the case of SectionMrs. Chandrakala Memon and another vs. Capt. Vipin Memon and another JT 1993(1) SC 229 the Apex Court held that when the parties were living separately for many years and there appear to be no scope of settlement between them with no chance of their coming together, the decree of divorce was justified. Similar view was expressed by the Supreme Court in the case of SectionSmt. Kanchan Devi v. Pramod Kumar Mittal and another; AIR 1996 SC 192. In the said case, the parties were living separately for more than 12 years and it appeared to the Court that there was no possibility of any reconciliation and as such directed for the dissolution of marriage by a decree of divorce.

It is indeed 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 infact has ceased to exist.

In view of the aforesaid decisions, to end the miseries of the parties and to allow them to henceforth live a happy and peaceful life by brining to an end the litigation appear to be a more sound, reasonable and practical decision. The parties are living separately for about 15 years and there is no possibility of their uniting. Thus, for all practical purposes the marriage is completely dead. IN view of the above and the allegations/counter allegations levelled against each other, the element of cruelty on the part of both of them is also inherent. The Apex Court in the case of SectionNaveen Kohli v. Neelu Kohli ; AIR 2006 SC 1675 suggested that the break down of marriage completely be added as one of the grounds for obtaining divorce. SectionIn Satish Sithole vs. Ganga; AIR 2008 SC 3093 the Supreme Court ruled and laid down that the living of parties to a marriage separately for a long time, making acrimonious allegations against each other amounts to cruelty and continuance of such marriage is a further act of cruelty. Therefore, following the principle of ‘live and let live’ and the precedent laid down by the Apex Court, it is desirable and expedient in the interest of justice to set-aside the impugned orders passed by the Family Court and to allow the appeals.”

Hon’ble the Apex Court in the case of SectionSukhendu Das vs. Rita Mukherjee, 2017 (9) SCC 432, held as under :-

“7. The respondent, who did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance. In spite of service of notice, the respondent did not show any interest to appear in this Court also. This conduct of the respondent by itself would indicate that she is not interested in living with the appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty (SectionSamar Ghosh v. Jaya Ghosh [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, p. 547, para 101(xiv)] ). The High Court observed that no attempt was made by either of the parties to be posted at the same place. Without entering into the disputed facts of the case, we are of the opinion that there is no likelihood of the appellant and the respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.”

8. This Court, in a series of judgments, has exercised its inherent powers under SectionArticle 142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted (SectionManish Goel v. Rohini Goel [Manish Goel v. Rohini Goel, (2010) 4 SCC 393, p. 398, para 11 : (2010) 2 SCC (Civ) 162] ). Admittedly, the appellant and the respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony (SectionRishikesh Sharma v. Saroj Sharma [Rishikesh Sharma v. Saroj Sharma, (2007) 2 SCC 263, pp. 264-65, paras 4 and 5] ). The daughter of the appellant and the respondent is aged about 24 years and her custody is not in issue before us. In the peculiar facts of this case and in order to do complete justice between the parties, we allow the appeal in exercise of our power under SectionArticle 142 of the Constitution.”

A Division Bench of this Court in First Appeal No.31 of 2007 “SectionSmt. Dr. Sarita vs. Dr. Vikas Kanaujia” decided on 22.08.2019 held as under :-

“Hon’ble the Apex Court in the case of Parveen Mehta Vs. Inderjit Mehta, 2002 (5) SCC 706 held as under :

“18. Quoting with approval the following passage from the judgment in SectionV. Bhagat v. D. Bhagat [(1994) 1 SCC 337] this Court observed therein:

“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 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.”

19. Clause (i-a) of sub-section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla’s Hindu Law, 17th Edn., Vol. II, p. 91).

20. In the case in hand the foundation of the case of “cruelty” as a matrimonial offence is based on the allegations made by the husband that right from day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically, she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in the presence of elderly persons like Shri S.K. Jain. This Court in the case of SectionDr N.G. Dastane v.S. Dastane [(1975) 2 SCC 326 : AIR 1975 SC 1534] observed:

“Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment.”

21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”

……….

**dzwjrk dHkh dHkh ,sls d`R;ks ls Hkh mRiUu gksrh gS ftudk dksbZ izR;{k vkSj ewfrZ :i ugh gksrk gS vkSj u gh lk{; ls LFkkfir fd;k tk ldrk gSA ysfdu budh vuqHkwfr vo’; dh tk ldrh gSa bl Js.kh dk rF; bl vfHkdFku es ‘kkfey gS fd foi{kh us ‘kknh ds rRdky ckn lqgkxjkr vkSj mlds ckn izkFkhZ ds lkFk nkEiR; thou ds vkuUn dh vuqHkwfr vkSj vuqHko ls izkFkhZ dks oafpr j[kk vkSj foi{kh us dksbZ lgHkkfxrk ugh dhA**

“Cruelty sometimes arises from the acts which are not in tangible and physical state nor can they be established with evidence. But they can certainly be realised. This statement includes such a category of fact that the opposite party deprived the applicant of marital bliss, and did not ensure participation, on the wedding night immediately after the marriage and also on later occasion.”

36. In the opinion of Court, recital contained in paragraph 3 at page 73 is not a finding but a recital regarding explanation offered by Court to the pleading raised by plaintiff-respondent. Even otherwise also when paragraphs 4, 5 and 10 of plaint relied upon by learned Senior Counsel are examined, the same appear to be contradictory to paragraphs 3 and 6 of plaint itself. In other words there is no categorical pleading regarding denial of physical pleasure to plaintiff-appellant after marriage on account of non establishment of conjugal relationship between parties. Even in cross-examination of D.W.1, i.e. Dr. Sarita, we find that no specific question was put to her regarding aforesaid. Reliance placed upon written statement of defendant-appellant is also of no help as averments/allegations made in paragraphs 4, 5 and 10 of plaint were not admitted by defendant-appellant. Furthermore, suit filed by plaintiff-respondent has not been decreed on the ground of denial of physical pleasure. Therefore, once Court below has not taken this as a basis for passing decree of divorce, the impugned judgement and decree cannot be supported on this ground as judgement contains reasons in support of decree.

37. Mr. Ravi Kiran Jain, learned Senior Counsel has alternatively submitted that marriage of parties has broken down irretrievably as parties are living separately since 2.7.2004, therefore, decree of divorce granted by Court below should not be reversed.

38. The argument raised by learned Senior Counsel appears to be attractive at the first flush. However, upon deeper scrutiny, the same is devoid of substance.

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 SectionNaveen Kohli v. Neelu Kohli (2006) 4 SCC 558 and Rishikesh Sharma Vs. Saroj Sharma, 2006(12) SCALE 282. It is also noteworthy that in SectionNaveen 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 SectionArticle 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 SectionShyam 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 SectionGirish Chandra Srivastava v. Reeta Srivastava reported in 2019 SCC OnLine All 3554 observed as under:-

“17. Recently a Division Bench of this Court in SectionSmt. 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. SectionIn 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, SectionN.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. SectionIn 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. SectionIn 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. SectionIn 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. SectionIn 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. SectionIn 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. SectionIn 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. SectionIn 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 SectionRavinder 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 SectionVishnu 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 SectionR. 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. SectionIn 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. SectionIn 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.

From the facts of the case, it can be gathered that the relations between the parties are sufficiently spoiled and marital knot between them has completely shattered, it is in view of the allegations made by the husband against the wife and vice versa, as per her own admission, is living separately since the year 1999 i.e. wife is living separately for the last two decades. In the facts of the case, in our view, no fruitful purpose would be served in maintaining the matrimonial ties between the parties. For all the practical purposes, the marriage between the parties is dead. In the facts of the case, we are of the view that the marriage between the appellant and respondent-Smt. Reeta Singh has broken down irretrievably, leaving the Court with no option but to grant the decree of divorce.

For the foregoing reasons, the appeal is allowed. The order dated 05.09.2012, passed by the Family Court, Faizabad in Suit No. 105 of 2000 (SectionShailendra Kumar Singh v. Smt. Reeta Singh), is set-aside. The decree of divorce is hereby granted. No order as to costs.

Order Date :- 19.12.2019

Arun/-

 

 

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