As per case facts, the appellant-husband filed for divorce alleging cruelty and desertion, citing his wife's uncordial behavior, pressure to live separately, refusal of marital duties, frequent departures, and filing ...
FAO-1160-2020 (O&M) - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-1160-2020 (O&M)
Date of decision: 05.03.2025
Rajiv Sohal ….Appellant
Versus
Monica ….Respondent
CORAM: HON’BLE MR. JUSTICE SUDHIR SINGH
HON’BLE MRS. JUSTICE SUKHVINDER KAUR
Present: Mr. Rajiv Malhotra, Advocate,
for the appellant.
Mr. Kushagra Mahajan, Advocate,
for the respondent.
***
SUDHIR SINGH, J.
The present appeal has been filed against the
judgment and decree dated 31.10.2019 passed by the
learned Principal Judge, Family Court, Amritsar, whereby
the petition under Section 13 of the Hindu Marriage Act,
1955 (for brevity ‘the Act’) filed by the appellant-husband
for dissolution of marriage by way of decree of divorce on
the grounds of cruelty and desertion, has been dismissed.
2. The brief facts of the case are that the marriage
between the parties was solemnized on 07.12.2000,
according to Hindu rites. Out of the said wedlock, two
children, namely, Shilpi (daughter) and Sagar (son) were
born on 19.12.2001 and 23.02.2005, respectively. It was
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averred by the appellant-husband that the behaviour of the
respondent-wife towards him and his family members was
not cordial and she had insulted him many a time. It was
further stated that after few days of marriage, the
respondent-wife started pressurizing the appellant-husband
to reside separately from his parents. She refused to do the
household work and avoided her marital duties. She used to
leave the matrimonial home frequently, without informing
the appellant-husband. In July, 2011, the respondent-wife
left the matrimonial home and made a complaint against
the appellant-husband and his family members in Mahila
Mandal, where a compromise was effected between them. It
was further stated that in the month of December, 2011,
the appellant-husband had shifted to Delhi in connection
with his job and arranged an accommodation there. He
asked the respondent-wife to reside with him at Delhi, but
she refused to do so. The family members of the
respondent-wife threatened the appellant-husband to
implicate him in false cases. The appellant-husband also
filed a petition under Section 9 of the Act, wherein a
compromise had been effected between them. Pursuant to
the said compromise, the appellant-husband had
purchased some property jointly in the name of both the
parties, but the respondent-wife refused to reside with him.
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Terming the aforesaid acts on the part of the respondent-
wife as cruelty, a decree of divorce was sought for.
3. Upon notice, the respondent-wife entered
appearance and filed her written statement admitting the
factum of marriage between the parties and birth of the
children. However, she denied all other allegations levelled
in the petition. Rather, it was pleaded that she had suffered
harassment and humiliation at the hands of the appellant-
husband and his family members. It was pleaded tha t at
the time of marriage, sufficient dowry articles were given to
the appellant-husband and his family members, as per their
demand, but they were not happy with the same. It was
further the case of the respondent-wife that from the very
beginning of the marriage, her elder sister-in-law, Aruna
Sohal, was inimical towards her. She had been residing at
her parental house along with the minor daughter. It was
stated that the appellant-husband used to harass and
maltreat the respondent-wife at the instigation of his elder
sister, Aruna Sohal, who had spoiled the married life of the
respondent-wife. Accordingly, a prayer for dismissal of the
petition was made.
4. From the pleadings of the parties, the Family Court
framed the following issues:-
1. Whether the petitioner is entitled to decree of
divorce on the ground of cruelty? OPP.
2. Whether the petition is not legally maintainable?
OPR
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3. Relief.
5. In evidence, the appellant-husband himself
appeared in the witness box as PW-1 and also examined
PW-2 Chanchal Kumar and PW-3 Shilpi. On the other
hand, the respondent-wife herself appeared as RW-3 and
examined Rajesh Kumar RW-1, Sunil Kumar as RW-2,
Davinder Kumar Sharma RW-4 and Budh Singh Clerk as
RW-5, besides tendering documentary evidence Ex.RX to
Ex.RZ.
6. After hearing the contentions of both the parties
and considering the evidence brought on record, the learned
Family Court dismissed the petition, as noticed above.
7. Learned counsel for the appellant-husband has
vehemently argued that the averments contained in the
divorce petition, which were duly corroborated by the
evidence led by the appellant, have totally been ignored by
the learned Family Court. It is further argued that the
appellant-husband has duly proved before the Family Court
by leading cogent and convincing evidence that behaviour of
the respondent-wife towards the appellant-husband and his
family members remained rude, arrogant and cruel, as she
had pressurized the appellant-husband to reside separately
from his parents, but the said fact has totally been ignored
by the learned Family Court. It is further argued that the
respondent-wife had filed false criminal complaints under
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Section 12 of the Protection of Women from Domestic
Violence Act, 2005 against the appellant-husband, wherein
the matter had been compromised between the parties. He
further argued that filing of false criminal case against the
appellant-husband amounts to cruelty on the part of the
respondent-wife and only on this ground, the appellant-
husband is entitled to seek divorce from the respondent-
wife. It is, lastly, argued that the parties have been living
separately since 2011 and during this period, there has
been no resumption of marital relations or cohabitation
between them and, thus, their marriage has become
unworkable.
8. On the other hand, learned counsel appearing for
the respondent-wife, while defending the impugned
judgment and decree passed by the learned Family Co urt,
has argued that the allegations levelled by the appellant-
husband were general and vague in nature and that he
could not prove the same by leading any cogent and
convincing evidence. Thus, it is contended that the findings
recorded by the learned Family Court, do not require any
interference by this Court.
9. We have heard learned counsel for the parties
and have also gone through the records of the case. In our
opinion, the following questions would arise for
consideration:-
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“1. Whether a long separation between the parties,
rendering the marital bond as unworkable and its having been
ruptured beyond repair, amounts to mental cruelty?
2. Whether the impugned judgment and decree passed by
the learned Family Court, requires any interference?
10. The learned trial Court, has found that the
appellant-husband was not able to prove that the
respondent-wife had treated him with cruelty. Still further,
it was found that the appellant-husband could not prove on
record that the respondent-wife had deserted him without
any sufficient reason. It was further found that the
appellant-husband and his family members had left the
house and started residing on the first floor of their shop
just to harass the respondent-wife. It was yet further found
that the electricity bills for the relevant period were paid by
father of the respondent-wife. Thus, it was found that the
appellant-husband had himself left the company of the
respondent-wife.
11. Though, the divorce petition filed by the
appellant-husband was dismissed, yet we must examine
whether the marital relationship between the husband and
wife has ruptured beyond repair, especially when the
parties have been living separately for more than 13 years
now and during this period, there has been no resumption
of their relationship and rather, on account of the
protracted litigation, the same has got worsened day by day.
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12. Indisputably, the parties have been living
separately since 2011. In the absence of any resumption of
matrimonial obligation and cohabitation between the
parties for a long period, there is no possibility of their
reunion. Undoubtedly, it is an obligation on the part of the
Court that matrimonial bond should as far as possible, be
maintained, but when the marriage has become unworkable
and it has become totally dead, no purpose would be served
by ordering the reunion of the parties.
13. We may notice here that before the learned
counsel for the parties proceeded to advance their
respective arguments, a specific query had been put to
them whether there was any chance of an amicable
settlement of the dispute between the parties. However, no
satisfactory reply came forth leaving this Court with no
option but took proceed with the hearing of the matter for
final disposal.
14. It is well settled that in order to constitute
cruelty, the party alleging the same must prove on record
that the behaviour of the party complained against, is or
has been as such that it has made it impossible for the said
party to live in the company of the party complained
against. The acts of cruelty must be such from which it can
be reasonably and logically concluded that there cannot be
any re-union between the parties due to the said acts. The
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cruelty can either be physical or mental or both. Though
there is no mathematical formula to devise the extent of
cruelty alleged against, yet the facts and circumstances of
each and every case must be examined in the light of the
gravity contained in them.
15. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC
511, it was held by the Hon’ble Supreme court that no
uniform standard can be laid down as regards the cruelty,
but certain instances of human behaviour, relevant in
dealing with the cases of `mental cruelty’, were formulated.
It was held by the Hon’ble Apex Court 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.
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(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
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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.”
In Naveen Kohli v. Neetu Kohli, 2006 (4) SCC
558, the Hon’ble Apex Court was considering a case of
irretrievable breakdown of marriage. In the said case, the
wife had been living separately for a long time, but did not
want divorce by mutual consent only to make life of her
husband miserable. The Hon’ble Apex Court, while holding
the acts and conduct of the wife as cruelty, has held as
under:-
"62. Even at this stage, the respondent does not want
divorce by mutual consent. From the analysis and
evaluation of the entire evidence, it is clear that the
respondent has resolved to live in agony only to make life
a miserable hell for the appellant as well. This type of
adamant and callous attitude, in the context of the facts
of this case, leaves no manner of doubt in our mind that
the respondent is bent upon treating the appellant with
mental cruelty. It is abundantly clear that the marriage
between the parties had broken down irretrievably and
there is no chance of their coming together, or living
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together again. The High Court ought to have visualized
that preservation of such a marriage is totally unworkable
which has ceased to be effective and would be greater
source of misery for the parties.
xxx xxx xxx
67. The High Court ought to have considered that a
human problem can be properly resolved by adopting a
human approach. In the instant case, not to grant a
decree of divorce would be disastrous for the parties.
Otherwise, there may be a ray of hope for the parties that
after a passage of time (after obtaining a decree of divorce)
the parties may psychologically and emotionally settle
down and start a new chapter in life.
68. In our considered view, looking to the peculiar facts
of the case, the High Court was not justified in setting
aside the order of the Trial Court. In our opinion, wisdom
lies in accepting the pragmatic reality of life and take a
decision which would ultimately be conducive in the
interest of both the parties.”
Still further, in K. Srinivas Rao
v. D.A. Deepa,
2013 (5) SCC 226 has observed that when a marriage is
dead for all purposes, it cannot be revived by Court's
verdict, if the parties are not willing since marriage involves
human sentiments and emotions and if they have dried up,
there is hardly any chance of their springing back to life on
account of artificial reunion created by the Court’s decree.
A Coordinate Bench of this Court in Amandeep
Goyal Vs. Yogesh Rani , 2022(1) PLR 479, while
considering the long separation of 10 years between the
parties and the factum of wife not ready and willing to give
mutual divorce, held that the marriage was dead and it
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amounts to cruelty towards the husband. The relevant
extract from the said judgment would read as under:-
“20. In the present case, it is not in dispute that bo th the
appellant and respondent are working as teachers on
regular basis in Government departments. Further they
are living separately since 27.07.2011. The elder son
(Manav Goyal), who is suffering from cancer, is living with
appellant- husband and the younger son (Rooham) is
staying with the mother. After living separately from her
husband for more than 10 years, the respondent- wife is
still not ready to give divorce to him.
21. The issue for consideration in the present appeal
would be whether the relationship of the husband and
wife has come to an end and if the respondent-wife is not
ready to give mutual divorce to the appellant- husband,
whether this act of her, would amount to cruelty towards
husband, keeping in view the fact that she is not staying
with her husband for the last 10 years and there is no
scope that they can cohabit as husband and wife again.
xx xx xx
32. In the present case, the appellant-husband is
looking after his son Manav Goyal since 27.07.2011 and
has borne all the expenses incurred upon his son, who is
suffering from Cancer. Thus, if the appeal filed by the
appellant-husband is dismissed, he will face mental
agony with his son, who is ill and requires repeated check
ups and treatments from various hospitals. The appellant
and the respondent are very sure that they cannot live
together as husband and wife. The appellant-husband
has shown that he also loves his second son i.e Rooham,
as he brought gifts for him on 18.08.2021 and even
respondent-wife also brought gifts for Manav Goyal. Both
the appellant and the respondent are regular government
teachers and are getting good++ salary and they are
bringing up one child each. If the parents are not granted
divorce, then both the children namely Manav Goyal and
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Rooham Goyal will not be able to meet each other in a
positive environment. This will further result in cruelty
because of the rigid attitude in giving divorce. Further
when the appellant and the respondent came to this
Court on 18.08.2021, they expressed their love and
affection to child, who is not staying with them. The
element of marriage which has become dead will result in
further loss to both the children. It is a right time if both
the children meet with each other in a positive
environment as the parents are finally independent. The
element of silence between the parties will result into
mental cruelty to the children, as both the siblings cannot
meet with each other. Mental cruelty will blend with
irretrievable and dead marriage is a good ground to grant
divorce to the parties.”
A Division Bench of the Chhattisgarh High Court
in Duleshwari Sahu Vs. Ramesh Kumar Sahu,
2023 AIR
(Chhattishgarh) 95, has held that where the wife had been
residing separately from the husband for a long period
without any justifiable cause, the same would amount to
cruelty. It was held as under:-
“15. In the present matter, on perusal of the plea dings
of the respective parties and the evidence adduced by
them in support thereof, as also the admission of the
parties and their witnesses, it is found that the
respondent wife is living separately from her husband at
her parental home without any just and reasonable cause
since May, 2014. She lodged a report on 17/09/2014
against the husband under Sections 498-A, 323, 294,
506 of IPC and after trial, he was acquitted of all the
charges. This apart, the wife also made a report against
the husband and his parents under Protection of Women
from Domestic Violence Act. It is also admitted position
that the wife filed divorce petition under section 13 of the
Hindu Marriage Act which was dismissed for want of
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prosecution. It is also admitted by the wife that no
application under section 9 of the Hindu Marriage Act for
restitution of conjugal rights was filed by her. It is not
disputed that the wife is working as Panchayat Secretary
and is also getting Rs. 7,000/- per month as
maintenance. Therefore, in the given facts and
circumstances of the case, the conduct of the wife, in
light of the judgments of Hon'ble Supreme Court as
mentioned above, the act committed by the wife against
the husband amounts to cruelty and it stands proved
that she is living separately from the husband since 2014
without any just and reasonable cause. They are seems to
be no possibility of their re-union. In these
circumstances, this Court finds no illegality or perversity
in the impugned judgement of the Family Court granting
decree of divorce in favour of the husband.”
16. If the facts of the present case are examined in
the light of the law laid down by the Hon’ble Supreme Court
in the aforesaid judgments, it would come out that the
parties, who have been living separately since 2011, if
compelled to live together, would become a fiction supported
by a legal tie and it would show scant regard for the feelings
and emotions of the parties. This, in itself would amount to
mental cruelty to both the parties.
17. In view of the above, considering the totality of
the facts and circumstances of the case, we hold that the
marriage between the parties has become unworkable and
has reached the stage of beyond repair and if the parties are
called upon to stay together, it may lead to mental cruelty to
both of them. Question No.1 is answered in affirmative.
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18. Consequently, the present appeal is allowed. The
impugned judgment and decree passed by the learned trial
Court, is set aside and the marriage between the parties is
dissolved by a decree of divorce. Question No.2 is answered,
accordingly.
19. Decree sheet be prepared accordingly.
20. However, we grant liberty to the respondent-wife
to move an appropriate application before learned
trial/Family Court for grant of permanent alimony. If any
such application is filed by the respondent-wife, the same
shall be considered and decided by the Court concerned, in
accordance with law, preferably within a period of 06
months from the date of filing thereof.
21. All pending applications(s), if any, shall also
stand disposed of.
(SUDHIR SINGH)
JUDGE
(SUKHVINDER KAUR)
JUDGE
05.03.2025
Ajay Prasher
- Whether speaking/reasoned: Yes/No
- Whether reportable: Yes/No
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