FAO-1154-2015 (O&M) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

FAO-1154-2015 (O&M)

Date of decision: 04.03.2025

VIKAS DHUPER ...Appellant

Versus

HENA DHUPER ...Respondent

CORAM: HON'BLE MR. JUSTICE SUDHIR SINGH

HON’BLE MRS. JUSTICE SUKHVINDER KAUR

Present:- Mr. Manish Soni, Advocate for appellant

Ms. Digantika Rao, Advocate for

Mr. Aman Pal, Advocate for the respondent

SUDHIR SINGH, J.

Challenge in the present appeal is to the judgment and

decree dated 31.10.2014 passed by the learned District Judge, Family

Court, Gurgaon (for short `the Family Court’), whereby the petition

under Section 13 of the Hindu Marriage Act, 1955 (for short `the

Act’) filed by the appellant-husband, was dismissed.

2. It may be noticed that during the pendency of the present

appeal, vide order dated 27.01.2025, following directions inter- alia

were issued by this Court to the learned Family Court:

“xx xx xx xx

Considering the aforesaid, it is directed the aforesaid

execution petition pending before the learned Family Court

FAO-1154-2015 (O&M) 2

be disposed of, preferably, within a period of 03 weeks from

today”

xx xx xx xx

3. In pursuance of the said order, the learned Principal

Judge, Family Court, Gurugram, on 10.02.2025, while disposing of

the execution application, passed the following order:-

“Respondent has appeared in person alongwith Shri Paras

Yadav, Advocate. The respondent has made the payment of

Rs. 19,50,000/- through cheque. He also got recorded his

statement that, in case, cheque is dishonoured he would be

liable to pay the double amount of cheque to the petitioner.

The petitioner has received the cheque vide separate

statement. I have seen the calculation of both the parties also.

The respondent claimed that he has also paid the amount

through three execution petition filed by the petitioners. He

has also paid Rs.1,95,000/- in the Hon'ble High Court. That

amount is still lying over there. He has shown the court entry

to entry of bank account statements and claimed that he has

cleared all the outstanding amount. Petitioner is in habit of

filing the wrong calculation. He also furnished the affidavit

that in case there is any outstanding he is ready to make the

payment. He claimed that he has already paid the excess

amount to the tune of Rs. 2,60,000/-. The total amount has

already been paid by him in four lots. First, he paid

Rs.19,90,000/-, he paid Rs. 1,95,000/-, Rs.3,25,000/- and

today he has been paying Rs.19,50,000/-. In this way the total

amount has been paid Rs.44,60,000/- to the petitioner. The

total amount was required to be paid Rs.42 Lakhs. He has

FAO-1154-2015 (O&M) 3

paid a sum of Rs.2,60,000/- extra amount to the petitioner till

today. He claimed that this amount be adjusted in

forthcoming maintenance amount.

Since he has made the payment through the cheque.

The present execution petition stands disposed off. It is also

made clear that in case cheque is dishonoured, he shall be

liable to pay the double the amount and face the

consequences as per law. It is also made clear that the excess

amount paid by the respondent shall be liable to be adjusted

in the forthcoming maintenance amount. This payment shall

be subject to the objection if any on the part of the petitioner,

in case petitioner proves, that she has to recover extra more

amount in that case the respondent shall be bound by the

undertaking furnished by him today in the court in the shape

of affidavit. File be completed and consigned to the record

room”

3. Considering the fact that since there is no maintenance

amount pending now, the learned counsel for the appellant-husband

prays that the appeal be decided on merits. Thus, we proceed to decide

the main appeal.

4. The aforesaid divorce petition had been filed by the

appellant-husband, inter-alia, pleading therein that his marriage with

the respondent-wife was solemnized on 12.11.2002, as per Hindu rites

and out of the said wedlock, two children were born. The appellant-

husband alleged that the respondent-wife had a history of problematic

behaviour, including theft of jewellery in the year 2004, to which she

later apologized. Further, the respondent-wife also consumed alcohol

FAO-1154-2015 (O&M) 4

and would frequently leave the house without informing anyone and

on being confronted, she became abusive. It was also asserted that the

respondent-wife neglected her wifely duties, such as maintaining the

house, and got engaged in petty acts like blocking the sewerage to

harass the appellant-husband’s family. Furthermore, on 18.03.2011,

the respondent-wife left the house under the pretext of her mother

being unwell. Upon checking, the appellant-husband found her in a

bedroom with a friend of the appellant-husband, which left him in an

utter shock. It was further asserted that the respondent-wife frequently

hosted liquor parties and took sleeping pills, leading to an attempted

suicide incident for which, she had later apologized and promised a

better behaviour after a psychiatric evaluation. On 25.01.2012, the

respondent-wife along with their children, left the appellant-husband,

taking valuables, clothes, and the children's passports. However, she

continued threatening the appellant-husband, who did try to resolve

the situation amicably, but to no avail.

6. Upon notice, the respondent-wife appeared and filed her

written statement, admitting the factum of marriage and birth of the

children. However, it was asserted by her that she along with her two

children was residing at her parental house. The respondent-wife

claimed that the appellant-husband and his family had been

demanding and receiving additional dowry from her and her parents,

and, thus, he should not be allowed to benefit from his own wrongs.

Rest of the allegations were denied in toto. It was further pleaded by

the respondent-wife that she had lodged DDR No. 19 on 21.01.2012

and was medically examined at Civil Hospital, Gurgaon, leading to

FAO-1154-2015 (O&M) 5

the registration of FIR No. 36 on 15.02.2012, under sections 498-A,

406, 323, and 506 IPC against the appellant-husband and his family.

The respondent-wife also alleged that the appellant-husband’s brother,

Rahul, had spoken to her parents, but he himself had an inappropriate

interest in her. The respondent-wife further maintained that she had

always treated his family with respect and had never organized parties

or threatened the appellant-husband. It was further the case of the

respondent-wife that she had taken medication only under medical

advice and the mother of the appellant-husband had been taking her to

a Psychiatrist without informing her parents and had been

administering drugs to her. The respondent-wife further pleaded that

she had tried to resolve the matter with the appellant-husband, but he

refused to settle, claiming that there were several women eager to

marry him.

7. On the basis of the pleadings of the parties, the following

issues were framed by the Family Court:-

i) Whether the petitioner is entitled for the

decree of divorce on the grounds as mentioned in

the petition? OPP

ii) Relief.

8. In evidence, the appellant-husband examined himself as

PW-1 and Ms. Mamta, DRK, District Courts Gurgaon as PW2 besides

tendering document Ex. P1. On the other hand, the respondent-wife

examined herself as RW1 and had also tendered documents Ex. R1 to

Ex. R13 and Mark A to Mark D.

FAO-1154-2015 (O&M) 6

9. The learned Family Court after taking into consideration

rival contentions of the parties and evidence on record, dismissed the

petition filed by the appellant-husband, as noticed above.

10. Learned counsel for the appellant-husband has

vehemently contended that the respondent-wife had lodged a criminal

case bearing FIR No.36 dated 15.02.2012, under Sections 323, 498A,

406, 506 and 34 IPC against the appellant-husband, which culminated

into acquittal vide judgment dated 29.08.2017 passed by the trial

Court. This has itself caused mental cruelty to the appellant-husband.

Further, he submits that parties have been living separately since

2012, and there is nothing left in their marriage, and it has become a

dead wood.

11. On the other hand, learned counsel for the respondent-

wife, while defending the findings recorded by the learned Family

Court, submits that the allegations levelled by the appellant-husband

in the divorce petition, were general and vague in nature and the same

could not be proved by way of any cogent and convincing evidence.

Further, the learned counsel for the respondent-wife submits that the

appellant-husband cannot take advantage of his own wrongs,

inasmuch as it was the mother of the appellant-husband who had

administered her drugs without her consent or knowledge and had

declared her as mentally ill.

12. We have heard learned counsel for the parties and have

also gone through the records of the case, including the impugned

judgment and decree. In our opinion, the following questions would

arise for adjudication in the present appeal:-

FAO-1154-2015 (O&M) 7

“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?

13. The learned Family Court has found that the appellant-

husband and the respondent-wife presented contradictory statements

regarding their relationship. The appellant-husband had levelled

allegations against the respondent-wife questioning her moral

character, while the respondent-wife levelled similar accusations

against the appellant-husband. It was found by the learned Family

Court that apart from their self-serving statements, there was no direct

or credible evidence against either parties. It was further found by the

learned Family Court that the appellant-husband failed to prove that

the respondent-wife’s conduct justified grant of a decree of divorce.

Moreover, the appellant-husband failed to prove that the behaviour

attributed to the respondent-wife, caused him significant mental

distress, making it impossible to live with her. Further, it was found

that from the evidence presented, it could not be concluded that the

respondent-wife’s behaviour was such that the appellant-husband

could not reasonably tolerate the respondent-wife and continue living

with her. Furthermore, there was no credible evidence to suggest that

the respondent-wife's alleged conduct severely impacted the

appellant-husband’s physical or mental well-being to a degree that

would justify their separation. Regarding the claim of desertion, it has

FAO-1154-2015 (O&M) 8

been observed that no substantial evidence has been provided. Hence,

the divorce petition was dismissed, as noticed above.

14. Although the appellant-husband was unable to provide

evidence of physical or mental cruelty or desertion before the Family

Court, 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 15 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.

15. 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 dispute but the mediation between the parties

failed. The parties were directed to be present before the Mediation

Centre vide order dated 15.07.2019 passed by the Co-ordinate Bench

of this Court. Separate sessions were held between the parties on

17.02.2020 and 18.02.2020. The report dated 18.02.2020 of the

Mediator recorded, but the settlement could not be reached. The said

report reads as under:-

“Petitioner did not come present. However, despite various

efforts, the parties could not reach at any amicable

settlement. Hence, the file is sent back to the hon’ble High

Court.”

16. Indisputably, the parties have been living separately since

2012. In the absence of any resumption of matrimonial obligations

and cohabitation between the parties for a long period, there is no

FAO-1154-2015 (O&M) 9

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.

17. 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 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.

18. 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

FAO-1154-2015 (O&M) 10

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,

FAO-1154-2015 (O&M) 11

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 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

FAO-1154-2015 (O&M) 12

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 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:-

FAO-1154-2015 (O&M) 13

“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 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

FAO-1154-2015 (O&M) 14

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 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.”

FAO-1154-2015 (O&M) 15

19. 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 2012, 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.

20. It may further be noticed that the appellant-husband

stands acquitted of the charges against him under Sections 323, 498-

A, 406, 506 and 34 IPC passed by the Judicial Magistrate 1

st

Class,

Gurugram vide judgment dated 29.08.2017. Even an appeal filed by

the respondent-wife, against the said judgment, was dismissed by the

learned Additional Sessions Judge, Gurugram, vide order dated

16.10.2024. 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 members 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. In

our opinion, once the appellant-husband stands acquitted in the

aforesaid FIR and even the appeal against the said acquittal, has also

been dismissed, the same amounts to cruelty.

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 his company

FAO-1154-2015 (O&M) 16

or come 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. Consequently, the present appeal is allowed. The

impugned judgment and decree passed by the learned Family Court, is

set aside and the marriage between the parties is dissolved by a decree

of divorce. Question No.2 is answered, accordingly.

24. Further, the respondent-wife will be at liberty to move an

application under Section 25 of the Hindu Marriage Act, seeking

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.

25. Decree sheet be prepared accordingly.

26. Pending application(s), if any, shall also stand disposed of.

[ SUDHIR SINGH ]

JUDGE

[ SUKHVINDER KAUR ]

JUDGE

04.03.2025

Himanshu/A

Whether speaking/reasoned Yes/No

Whether reportable Yes/No