Vijay Kumar v. Renu Bala

SUDHIR SINGH, J.

Challenge in the present appeal is to the judgment and decree dated 15.03.2023 passed by the learned Principal Judge, Family Court, Hoshiarpur (for short the ?Family Court'), hereby the petition under Section 13 of the Hindu Marriage Act, 1955 (for short ?the Act') filed by the appellant-husband, for dissolution of marriage on the grounds of cruelty and desertion, as dismissed.

¶2The aforesaid petition had been filed by the appellant-husband, inter-alia, pleading therein that his marriage ith the respondent-ife as solemnized on 2024.12.20 14:4822.11.2009 as per Sikh rites and out of the said edlock, a FAO-2178-2023 (O&M)                                      -2 - female child as born on 24.02.2013. It as pleaded that at the time of marriage, the respondent-ife as orking as a school teacher at village Jandoli on contractual basis, hereas the appellant-husband as orking as a Technical Assistant in Horticulture Department on contract basis. The appellant-husband further pleaded that from the very inception of the marriage, the behaviour of the respondent-ife as not good to ards him and his mother. The respondent-ife as putting pressure upon the appellant-husband to live at her parental home and become a Ghar Jawai. When the appellant-husband refused to do so, the respondent-ife left the matrimonial home and took along valuable clothes and gold ornaments. When the appellant-husband along ith his relatives and other respectable persons of the locality, visited at the parental house of the respondent-ife to bring her back, she flatly refused to accede to such request. It is further pleaded that after the birth of female child in February, 2013, the appellant-husband, along ith his cousin and mother, visited her in-la s' house to see the child, but the respondent-ife misbehaved ith them. She threatened that she ould implicate the appellant-husband in a false case. It as further pleaded that the appellant-husband had filed a petition under Section 9 of the Act in the Court at Gurdaspur, hich as later on, transferred to Dasuya, District Hoshiarpur, upon filing of an application by the integrity of this documentrespondent-ife. Finally, it as pleaded that the FAO-2178-2023 (O&M)                                      -3 - respondent-ife had treated the appellant-husband ith mental as ell as physical cruelty.

¶3Upon notice, the respondent-ife entered appearance and filed her ritten statement admitting the factum of marriage and the birth of female child. Ho ever, it as denied that the appellant-husband as ever compelled to live as a Ghar Jawai. Rather, it as pleaded that she had suffered humiliation and mental cruelty at the hands of the appellant-husband and his mother. It as pleaded that the appellant-husband as a high-headed, cruel and mannerless person and he as al ays living under the pressure and influence of his mother. It as denied that she had deserted the appellant-husband. It as further pleaded that she as thro n out of the matrimonial home by the appellant-husband on 22.08.2012. Accordingly, a prayer for dismissal of the petition as made

¶4On the basis of the pleadings of the parties, the follo ing issues ere framed by the Family Court:- "1. Whether respondent has committed cruelty upon the petitioner and has deserted her and petitioner is entitled to decree of divorce on the ground of cruelty and desertion? OPP

¶2Whether petition is not maintainable in the present form? OP

¶3elief."

¶5In evidence, the appellant-husband himself stepped into the itness box as PW-3 and examined PW-1 Kamlesh, PW-2 Gurnam Singh, Sarpanch, PW-4 Suman 2024.12.20 14:4B8 ala and PW-5 Sheela Devi, besides tendering some FAO-2178-2023 (O&M)                                      -4 - documents as Ex.P4 and P-5. On the other hand, the respondent-ife herself appeared as RW-4 and examined RW-1 Mohan Singh, RW-2 Kapoor Chand and RW-3 Ravi Kumar. She also tendered into evidence documents Mark-A and Mark-B as ell as Ex.RA to Ex.RG.

¶6The 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.

¶7Learned counsel for the appellant-husband has vehemently argued that the appellant-husband had proved by ay of evidence on record that the respondent-ife had committed cruelty to him. It is further submitted that the appellant-husband had duly proved before the Family Court that the respondent-ife had put pressure upon him to reside at her parental house as a Ghar Jawai. It is further argued that the respondent-ife had not only deserted the appellant-husband, but also treated him ith cruelty. It is yet further argued that once the respondent-ife had ithdra n from all matrimonial obligations and responsibilities, the approach of the learned Family Court, in denying the decree of divorce to the appellant-husband is not justified in la .

¶8It is further argued that the parties have been living separately since 2012 and during this long period of nearly 12 years, there has been no resumption of marital integrity of this documentties bet een the parties and, thus, the matrimonial alliance FAO-2178-2023 (O&M)                                      -5 - of the parties has reached the dead end and, accordingly, it is prayed that the decree of divorce may be granted on the ground of long separation.

¶9On the other hand, the learned counsel for the respondent-ife, hile defending the findings recorded by the learned Family Court, has submitted that the allegations levelled by the appellant-husband in the divorce petition, ere general and vague in nature and the same could not be proved by ay of any cogent and convincing evidence. It is further submitted that in fact, it as the appellant-husband, ho had committed cruelty upon the respondent-ife and she as forced to leave the matrimonial home. The appellant-husband had failed to narrate any specific date or event as regards the alleged cruelty committed to him. It is yet further argued that mere long separation bet een the parties, is no ground to dissolve the marriage.

¶10We have heard learned counsel for the parties and have also gone through the records of the case.

¶11Indisputably, the marriage bet een the parties as solemnized in November, 2009. The parties have been living separately since 2012. The divorce petition as filed on 24.01.2017 and the same as dismissed on 15.03.2023.

¶12In vie of the aforesaid factual position, in our opinion, the follo ing questions ould arise for adjudication in the present appeal:- FAO-2178-2023 (O&M)                                      -6 - "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?

¶2Whether the impugned judgment and decree passed by the learned Family Court, requires any interference?"

¶13The learned Family Court has found that the allegations levelled against the respondent-ife regarding the alleged cruelty committed upon him, ere not proved on record. It as further found that the appellant-husband had also failed to prove that the respondent-ife had refused to live in her matrimonial home. Learned Family Court, further found that it as the respondent-ife, ho anted to reside ith the appellant-husband. It as further found that the respondent-ife had filed a petition under the Protection of Women from Domestic Violence Act against the appellant-husband, hich indicated that she as forced to live separately from him. It as also observed by the learned Family Court that there as no evidence to support the claim that the respondent-ife had compelled the appellant-husband to live as Ghar Jawai in her parental house.

¶14Although the appellant-husband as unable to provide evidence of physical/mental cruelty or desertion before the Family Court, e must examine, hether the marital relationship bet een the husband and ife has ruptured beyond repair, especially hen the parties have been living separately for more than t elve years and 2024.12.20 14:4d8uring this period, there has been no resumption of their FAO-2178-2023 (O&M)                                      -7 - relationship and rather on account of protracted litigation, the same has got orsened day by day.

¶15In the present case, efforts have been made firstly to resolve the matrimonial dispute through the process of mediation, hich is one of the effective modes of alternative mechanism in resolving the personal disputes, but the mediation bet een the parties failed. The parties ere directed to be present before the Counsellor vide order dated 16.04.2024 passed by this Court. The report dated

21.05.2024 of the Mediator, reads as under:- "Counselling session was conducted for Vijay Kumar and enu Bala, focusing on their marital conflicts. Vijay Kumar and enu Bala, who got married in 2009, have been living separately for the past twelve years. They have one child, aged twelve, who resides with the mother, and reportedly, the father has no relationship with the daughter. The initial counselling session aimed to delve into the underlying issues causing the marital discord. Various techniques were employed to facilitate understanding and encourage the parties to reach an amicable resolution. Despite the efforts, the scheduled second counselling session, set for May 10, 2024, did not take place. Despite repeated attempts to contact both the parties, the respondent, unfortunately, declined to participate in further sessions. Observations from the counselling sessions include:

1.k The counselling sessions were primarily focused on comprehending the conflicts and implementing appropriate interventions.

2.k Despite efforts to schedule additional sessions, the respondent declined to attend further counselling meetings after the initial session." FAO-2178-2023 (O&M)                                      -8 -

¶16Indisputably, the parties have been living separately since 2012. In the absence of any resumption of matrimonial obligation and cohabitation bet een 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 bet een 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 hen the marriage has become un orkable and it has become totally dead, no purpose ould be served by ordering the reunion of the parties.

¶17It is ell 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 hich it can be reasonably and logically concluded that there cannot be any re-union bet een 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.

¶18In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC integrity of this document511, it as held by the Hon'ble Supreme court that no FAO-2178-2023 (O&M)                                      -9 - uniform standard can be laid do n as regards the cruelty, but certain instances of human behaviour, relevant in dealing ith the cases of 'mental cruelty', ere formulated. It as held by the Hon'ble Apex Court as under:- "101. No uniform standard can ever be laid do n for guidance, yet e deem it appropriate to enumerate some instances of human behaviour hich may be relevant in dealing ith 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 ould not make possible for the parties to live ith each other could come ithin 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 ronged party cannot reasonably be asked to put up ith such conduct and continue to live ith 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, FAO-2178-2023 (O&M)                                      -10 -

(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, hich 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 ear and tear of the married life hich happens in day-to-day life ould not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be revie ed as a hole and a fe isolated instances over a period of years ill not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, here the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the ronged party finds it extremely difficult to live ith the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilisation ithout medical reasons and ithout the consent or kno ledge of his ife and similarly, if the ife undergoes vasectomy or abortion ithout medical reason or ithout the consent or kno ledge 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 ithout there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or ife 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 la in such cases, does not AJAY PRASHER serve the sanctity of marriage; on the contrary, it sho s FAO-2178-2023 (O&M)                                      -11 - scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty." In Naveen Koh? v. Neetu Koh? , 2006 (4) SCC 558, the Hon'ble Apex Court as considering a case of irretrievable breakdo n of marriage. In the said case, the ife had been living separately for a long time, but did not ant divorce by mutual consent only to make life of her husband miserable. The Hon'ble Apex Court, hile holding the acts and conduct of the ife as cruelty, has held as under:- "62. Even at this stage, the respondent does not ant 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 ell. 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 ith mental cruelty. It is abundantly clear that the marriage bet een the parties had broken do n 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 un orkable hich has ceased to be effective and ould be greater source of misery for the parties. xxx xxx xxx

¶67The 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 ould be disastrous for the parties. Other ise, 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 do n and start a ne chapter in life.

¶68In our considered vie , looking to the 2024.12.20 14:48 peculiar facts of the case, the High Court as not justified in setting aside the order of the Trial Court. In our FAO-2178-2023 (O&M)                                      -12 - opinion, isdom lies in accepting the pragmatic reality of life and take a decision hich ould ultimately be conducive in the interest of both the parties." Still further, in K. Sr n vas Rao v. D.A. Deepa, 2013 (5) SCC 226 has observed that hen a marriage is dead for all purposes, it cannot be revived by Court's verdict, if the parties are not illing 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 Aman?eep Goya? Vs. Yogesh Ran , 2022(1) PLR 479, hile considering the long separation of 10 years bet een the parties and the factum of ife not ready and illing to give mutual divorce, held that the marriage as dead and it amounts to cruelty to ards the husband. The relevant extract from the said judgment ould read as under:- "20. In the present case, it is not in dispute that both the appellant and respondent are orking as teachers on regular basis in Government departments. Further they are living separately since 27.07.2011. The elder son (Manav Goyal), ho is suffering from cancer, is living ith appellant-husband and the younger son (Rooham) is staying ith the mother. After living separately from her husband for more than 10 years, the respondent-ife is still not ready to give divorce to him.

¶21The issue for consideration in the present appeal ould be hether the relationship of the husband and ife has come to an end and if the respondent-ife is not ready to give mutual divorce to the appellant-husband, hether this act of her, ould amount to cruelty to ards husband, keeping in vie the fact that she is not staying 2024.12.20 14:48 ith her husband for the last 10 years and there is no scope that they can cohabit as husband and ife again. FAO-2178-2023 (O&M)                                      -13 - xx xx xx

¶32In 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, ho is suffering from Cancer. Thus, if the appeal filed by the appellant-husband is dismissed, he ill face mental agony ith his son, ho 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 ife. The appellant-husband has sho n that he also loves his second son i.e Rooham, as he brought gifts for him on 18.08.2021 and even respondent-ife 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 ill not be able to meet each other in a positive environment. This ill further result in cruelty because of the rigid attitude in giving divorce. Further hen the appellant and the respondent came to this Court on 18.08.2021, they expressed their love and affection to child, ho is not staying ith them. The element of marriage hich has become dead ill result in further loss to both the children. It is a right time if both the children meet ith each other in a positive environment as the parents are finally independent. The element of silence bet een the parties ill result into mental cruelty to the children, as both the siblings cannot meet ith each other. Mental cruelty ill blend ith irretrievable and dead marriage is a good ground to grant divorce to the parties." A Division Bench of the Chhattisgarh High Court in Du?esh?ar Sahu Vs. Ramesh Kumar Sahu, 2023 AIR (Chhattishgarh) 95, has held that here the ife had been residing separately from the husband for a long period FAO-2178-2023 (O&M)                                      -14 - ithout any justifiable cause, the same ould amount to cruelty. It as 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 itnesses, it is found that the respondent ife is living separately from her husband at her parental home ithout 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 as acquitted of all the charges. This apart, the ife 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 ife filed divorce petition under section 13 of the Hindu Marriage Act hich as dismissed for ant of prosecution. It is also admitted by the ife that no application under section 9 of the Hindu Marriage Act for restitution of conjugal rights as filed by her. It is not disputed that the ife is orking 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 ife, in light of the judgments of Hon'ble Supreme Court as mentioned above, the act committed by the ife against the husband amounts to cruelty and it stands proved that she is living separately from the husband since 2014 ithout 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."

¶19If the facts of the present case are examined in the light of the la laid do n by the Hon'ble Supreme Court in the aforesaid judgments, it ould come out that the parties, ho have been living separately since 2012, if integrity of this dcoocumenpt elled to live together, ould become a fiction supported FAO-2178-2023 (O&M)                                      -15 - by a legal tie and it ould sho scant regard for the feelings and emotions of the parties. This, it itself ould amount to mental cruelty to both the parties.

¶20It may further be noticed that on the one hand, the respondent-ife is defending the judgment and decree passed by the learned Family Court, but on the other hand, her behaviour during proceedings before the Counsellor remained adamant and even during the course of hearing of the appeal, she has refused to agree for a mutual divorce. It does not, thus, appeal to the common prudence, as to hat ould be gain to the respondent-ife by keeping this dead relationship alive.

¶21Still further, there is nothing on record to indicate that since the date of filing of the divorce petition by the appellant-husband, the respondent-ife had made any effort to join his company or had filed any petition under Section 9 of the Act for restitution of conjugal rights. Thus, the only aim of the respondent-ife appears to be to keep the appellant-husband engaged in the protracted litigation.

¶22In vie of the above, considering the totality of the facts and circumstances of the case, e hold that the marriage bet een the parties has become un orkable 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 ans ered in affirmative. FAO-2178-2023 (O&M)                                      -16 -

¶23Consequently, the present appeal is allo ed. The impugned judgment and decree passed by the learned Family Court, is set aside and the marriage bet een the parties is dissolved by a decree of divorce. Question No.2 is ans ered, accordingly.

¶24Decree sheet be prepared accordingly.

¶25Pending application(s), if any, shall also stand disposed of.

¶26Ho ever, the respondent-ife ill 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 ith la , preferably ithin a period of six months. The amount of Rs.35,000/- deposited by the appellant-husband, as interim litigation expenses, in compliance ith the order dated

02.05.2023, is ordered to be released in favour of the respondent-ife, as per rules.

[ SUDHIR SINGH 1 JUDGE

[ JASJIT SINGH BEDI 1 JUDGE

05.12.2024 Ajay Prasher

FAO-2178-2023 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO-2178-2023 (O&M) De? ?e? on: 05.12.2024 Vijay Kumar ...Appellant Versus Renu Bala ...Respondent CORAM: HON'BLE MR. JUSTICE SUDHIR SINGH HON'BLE MR. JUSTICE JASJIT SINGH BEDI Present:- Mr. Deepak Sabher al, Advocate, for the appellant. Ms. Harveen Kaur, Advocate, for the respondent.