As per case facts, the husband filed for divorce, but the trial court granted judicial separation. The husband appealed for divorce, citing cruelty, irretrievable breakdown, and the wife's false allegations, ...
FAO-M-103-2016 (O&M) & connected matter -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Decided on: 24.03.2025
1.
FAO-M-103-2016 (O&M)
Rajesh Yadav
...Appellant
Versus
Smt. Asha Devi
...Respondent
2. FAO-M-204-2016 (O&M)
Smt. Asha Devi
...Appellant
Versus
Rajesh Yadav
...Respondent
CORAM: HON'BLE MR. JUSTICE SUDHIR SINGH
HON’BLE MRS. JUSTICE SUKHVINDER KAUR
Present:- Mr. Rajat Mor, Advocate,
for appellant-husband.
Ms. Ruchi Sekhri, Advocate,
for respondent-wife.
SUDHIR SINGH, J.
This order shall dispose of above noted two
appeals, as the same have arisen out of a common
judgment and decree dated 10.12.2015 passed by the
learned Additional District Judge, Rewari (for short `the trial
Court’), whereby while deciding the petition under Section
FAO-M-103-2016 (O&M) & connected matter -2 -
13 of the Hindu Marriage Act, 1955 (for short `the Act’) filed
by the husband (Rajesh Yadav), a decree of judicial
separation was passed under Section 13-A of the Act (as
described under Section 10 (2) of the Act).
2. FAO-M-103-2016 has been preferred by the
husband (Rajesh Yadav) challenging the said decree on the
ground that instead of passing a decree for judicial
separation, the learned trial Court ought to have granted
the decree of divorce, whereas FAO-M-204-2016 has been
filed by the wife (Asha Devi) challenging the grant of decree
of judicial separation. The facts are taken from FAO-M-103-
2016.
3. The aforesaid petition had been filed by the
husband (hereinafter referred to as ‘the appellant-husband’)
before the trial Court, inter-alia, pleading therein that his
marriage with the respondent-wife was solemnized on
13.02.2015 as per Hindu rites and out of the said wedlock,
a son, namely, Parteek, was born. The appellant-husband
further pleaded that at the time of marriage, he was
employed with a firm of Charted Accountant as Field
Assistant at Delhi. After the marriage, the respondent-wife
pressurized him either to quit the job or to take her along
with him at Delhi. It was further pleaded that the
respondent-wife, under the influence of her mother, started
levelling false allegations against the appellant-husband
FAO-M-103-2016 (O&M) & connected matter -3 -
and his family members. Her behaviour towards the
appellant-husband and his family members was not good
and she used to insult and humiliate them. She threatened
the appellant and his parents to implicate them in false
case. She also threatened to commit suicide. Earlier, on
23.01.2007, the appellant-husband filed a petition for
divorce in a Court at Rewari, but the same was withdrawn
on the assurance of the respondent-wife that she would
mend her ways. The appellant-husband again filed a divorce
petition on 27.08.2010, but the same was also withdrawn
on 23.08.2011. It was pleaded that on 01.08.2010, the
respondent-wife had stolen the key of her mother-in-law
with an ulterior motive and in that regard, the matter was
reported to the police by the father of the appellant-
husband, whereupon DDR No.358 dated 02.08.2010 was
registered against the respondent-wife. On 11.08.2010, the
father of respondent-wife took her to her parental home and
thereafter, she never came back to the matrimonial home.
4. Upon notice, the respondent-wife entered
appearance and filed her written statement denying the
allegations in the petition. It was specifically denied that the
behaviour of the respondent-wife was not good towards the
appellant-husband. Rather, it was pleaded that she had
suffered harassment, taunting, teasing and mental cruelty
at the hands of the appellant-husband and his family
FAO-M-103-2016 (O&M) & connected matter -4 -
members. It was further pleaded that she was given beating
by the appellant-husband on account of bringing
insufficient dowry. Due to this reason, she had filed a
complaint under Sections 498-A/406/34 IPC against the
appellant-husband and his family members. In fact, the
appellant-husband had deserted her for bringing
inadequate dowry. Accordingly, a prayer for dismissal of
the petition was made
5. On the basis of the pleadings of the parties, the
following issues were framed by the trial Court:-
1) Whether the petitioner has been treated
with cruelty at the hands of the
respondent? If so, its effect? OPP
2) Whether the petitioner is entitled for
decree of divorce under Section 13 (1)
(ia) of HM Act on the ground alleged in
the petition? OPP
3) Whether the petition of the petitioner is
not maintainable in the present form?
OPR
4) Whether the petitioner has no cause of
action to file the present petition? OPR
5. Whether the petitioner has concealed
the true and material facts from the
Court? OPR
6. Relief.”
6. In evidence, the appellant-husband himself
stepped into the witness box as PW-1 and examined P W-2
Ram Kishan (his father). On the other hand, the
respondent-wife herself appeared as RW-1 and examined
her father Birender Singh as RW-2.
7. The learned trial Court, after taking into
consideration rival contentions of the parties and evidence
FAO-M-103-2016 (O&M) & connected matter -5 -
on record, partly allowed the petition filed by the appellant-
husband, as noticed above.
8. Learned counsel for the appellant-husband has
vehemently argued that the learned trial Court has returned
a finding that the Court could not lose sight of the fact that
the wife had raised finger towards her father-in-law stating
that he was having an evil eye upon her and that both the
parties had lost faith in their relationship and they were
committing cruelty towards each other by levelling
allegations of one kind or the other. It is, thus, argued that
in such circumstances, it was incumbent upon the learned
trial Court to grant a decree of divorce instead of judicial
separation. It is also argued that the decree for judicial
separation is nothing, but a step in aid to the decree of
divorce. It is further argued that the marriage between the
parties was solemnized on 13.02.2005 and the divorce
petition was filed on 23.07.2013. The parties have been
living separately since 2010 and thus, keeping in view the
long separation between them, the marriage has become a
dead wood for all purposes. It is also argued that during
the aforesaid period of separation, no effort was made by
the respondent-wife to join the company of the appellant-
husband or move an application under Section 9 of the Act.
It is further argued that in the FIR got registered by the
respondent-wife under Sections 498-A, 323, 325, 354, 406,
FAO-M-103-2016 (O&M) & connected matter -6 -
506 IPC, the appellant-husband and his family members,
were acquitted by the trial Court vide judgment dated
03.10.2015 and the said finding has not been altered or
modified in an appeal or revision, as the case may be, by
any higher Court.
9. On the other hand, the learned counsel for the
respondent-wife has vehemently contended that the learned
trial Court has wrongly held that the respondent-wife had
caused cruelty towards the appellant-husband and his
family members. Even otherwise, it is contended that if, the
findings recorded by the trial Court are admitted to be true
at their face value, then also it would be apparent that the
appellant-husband has also been held guilty of committing
cruelty towards the respondent-wife. Learned counsel for
the respondent-wife has further contended that when the
appellant-husband himself has been held guilty of
committing cruelty towards the respondent-wife, he could
not have been held entitled to the decree of judicial
separation. It is also argued that acquittal of the appellant-
husband and his family members in an FIR got registered
for various offences, including the matrimonial offences, is
no ground to hold that she had committed any cruelt y to
her husband or in-laws. Learned counsel for the
respondent-wife has further argued that merely because the
parties have been living separately for a long time, is no
FAO-M-103-2016 (O&M) & connected matter -7 -
ground to grant the decree of divorce, especially when the
respondent-wife is still ready and willing to live in the
company of the appellant-husband.
10. We have heard learned counsel for the parties
and have also gone through the records of the case.
11. In our opinion, the following questions would
arise for adjudication in the present appeal:-
“1. Whether, in view of a long separation
between the parties, a decree for
judicial separation could be converted
into that of divorce?
2. If the answer of question No.1 is in
affirmative, whether the decree of
judicial separation is required to be
converted into a decree of divorce?”
12. Now, 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 14 years and during this period,
there has been no resumption of their relationship and
rather on account of protracted litigation, the same has got
worsened day by day.
13. In the present case, efforts have been made firstly
to resolve the matrimonial dispute through the process of
mediation, which is one of the effective modes of alternative
mechanism in resolving the personal disputes, but the
mediation between the parties failed. The parties were
directed to be present before the Mediator vide order dated
06.09.2016 passed by a Co-ordinate Bench of this Court.
FAO-M-103-2016 (O&M) & connected matter -8 -
The report dated 04.11.2016 of the Mediator, reads as
under:-
“Single session took place. Respondent wife never
joined mediation proceedings despite notices. Hence,
the case file is sent back to the Hon’ble High Court.”
14. Thereafter, vide order dated 22.02.2017, parties
were again directed to appear before the Mediation and
Conciliation Centre of this Court. Report dated 16.03.2017
of the Mediator reads as under:-
“
Single as well as separate sessions held with the
parties. However, the parties could not reconcile the
matter. Therefore, the case is sent back to the
Hon’ble High Court
.”
15. Indisputably, the parties have been living
separately since 2010. 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. The mediation proceedings before this Court, for
an amicable settlement of the dispute between the parties,
remained unsuccessful. This further speaks of the
bitterness of their relationship. 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.
FAO-M-103-2016 (O&M) & connected matter -9 -
16. It is well settled that in order to constitute a
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
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.
17. 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
FAO-M-103-2016 (O&M) & connected matter -10
-
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.
FAO-M-103-2016 (O&M) & connected matter -11
-
(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.”
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
FAO-M-103-2016 (O&M) & connected matter -12
-
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
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
FAO-M-103-2016 (O&M) & connected matter -13
-
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
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 both 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
FAO-M-103-2016 (O&M) & connected matter -14
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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
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:-
FAO-M-103-2016 (O&M) & connected matter -15
-
“15. In the present matter, on perusal of the pleadings
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
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.”
18. 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 2010, if
compelled to live together, would become a fiction supported
FAO-M-103-2016 (O&M) & connected matter -16
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by a legal tie and it would show scant regard for the feelings
and emotions of the parties. This, it itself would amount to
mental cruelty to both the parties.
19. As would appear from the impugned judgment
and decree passed by the learned trial Court, the appellant-
husband and his family members stood acquitted in the FIR
got registered by the respondent-wife. The said FIR was in
respect of various offences, including the offence under
Section 498-A IPC. There is no material on record that the
finding of acquittal in the said FIR recorded by the learned
trial Court vide judgment dated 03.10.2015 has been
altered, modified or set aside by any higher Court. In Rani
Narasimha Sastry vs. Rani Suneela Rani, 2019 (Suppl .)
Civil Court Cases 201, it has been held by the Hon’ble
Supreme Court that if the wife initiates criminal
proceedings against the husband and his family memb ers
and if ultimately they are acquitted of the charges framed
against them, the same amounts to cruelty and divorce can
very well be granted on the said ground.
20. Another fact, which needs to be noticed is that
the learned trial Court has also found that the respondent-
wife had levelled allegations against the character of her
father-in-law saying that he was having an evil eye upon
her, but she could not substantiate the said plea by leading
any cogent or convincing evidence.
FAO-M-103-2016 (O&M) & connected matter -17
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21. Still further, there is nothing on record to
indicate that since the date of filing of the divorce petition
by the appellant-husband, the respondent-wife had made
any effort to join her company or bring her back to the
matrimonial home and/or had filed any petition under
Section 9 of the Act for restitution of conjugal rights.
22. 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.
23. As a consequence to the decision of Question
No.1, the decree of judicial separation dated 10.12.2015
passed by the learned trial Court is converted into a decree
of divorce. The impugned judgment and decree passed by
the learned trial Court, is modified and the marriage
between the parties is dissolved by a decree of divorce.
Question No.2 is answered, accordingly. Consequently, the
appeal i.e.FAO-M-103-2016 filed by the husband is allowed,
whereas FAO-M-204-2016 filed by the respondent-wife is
dismissed.
24. Decree sheet be prepared accordingly.
25. Pending application(s), if any, shall also stand
disposed of.
FAO-M-103-2016 (O&M) & connected matter -18
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26. However, the respondent-wife will be at liberty to
move an appropriate application for grant of permanent
alimony before the learned Family Court. We make it clear
that if any such application is moved, the same shall be
decided by the learned Family Court in accordance with
law, preferably within a period of six months.
[ SUDHIR SINGH ]
JUDGE
[ SUKHVINDER KAUR ]
JUDGE
24.03.2025
Ajay Prasher
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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