Bhavesh Aggarwal v. Jyoti Gupta

o �������������������� -1-o

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-M-352-2018 (O&M) Reserved on :- 21.01.2025 Date of decision: 31.01.2025

Bhavesh Aggarwal ….Appellant

Versus

Jyoti Gupta alias Charu Gupta ….Respondent

CORAM: HON'BB E MR. JUSTICE SUDHIR SINGH HON'BB E MRS. JUSTICE SUKHVINDER KAUR

Present: Mr. Robin Dutt, Advocate, for the appellant.

Mr. Harshit Jain, Advocate, for the respondent. ***

SUDHIR SINGH, J.

The present appeal has been filed against the judgment and decree dated 27.08.2018 passed by the learned Additional District Judge, Yamuna Nagar at Jagadhri, 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.

¶2The brief facts of the case are that the marriage between the parties was solemnized on 03.11.2011, according to Hindu rites at Jagadhri and no child was born out of the said wedlock. It was averred by the appellant-o �������������������� -2-o husband that the behaviour of the respondent-wife towards him and his family members had been rude, arrogant and hostile and she had insulted him many a times and in this way had caused mental cruelty to him. It was further stated that after few days of marriage, the respondent-wife refused to do the household work and avoided her marital duties. When the appellant-husband asked her in this regard, she replied that she had not performed marriage with him for doing the household work. It was further stated that the respondent-wife used to taunt and humiliate the appellant-husband for being less qualified than her. It was further pleaded that after six months of marriage, the respondent-wife and her parents started pressurizing the appellant-husband to reside separately from his parents, as she did not want to live with her parents-in-law and when the appellant-husband showed his inability to do, they started quarreling with him. It was the pleaded case of the appellant-husband that finding no alternative, the parents of the appellant-husband constructed a separate portion on the first floor of the house, where the appellant-husband and the respondent-wife started residing separately, but the behaviour of the respondent-wife did not change and she used to quarrel with the appellant-husband on petty matters. She used to humiliate the appellant-husband and also refused to have physical relations with him. It was also o �������������������� -3-o the case of the appellant-husband that the respondent-wife used to go to her duty after locking the rooms of the first floor and thereby, refused the entry of the appellant-husband in the house. It was further pleaded that before marriage, the parents of the respondent-wife had told that her date of birth was 28.07.1983, whereas her actual date of birth was 18.07.1981. Terming the aforesaid acts on the part of the respondent-wife a decree of divorce was sought for.

¶3Upon notice, the respondent-wife entered appearance and filed her written statement admitting the factum of marriage between the parties. However, she denied all other allegations levelled in the petition. Rather, it was pleaded that she had suffered harassment, taunting, teasing and mental cruelty at the hands of the appellant-husband and his family members. It was pleaded that at the time of marriage, besides customary items, cash amount was also given by the parents of the respondent-wife to the appellant-husband and his family members for purchasing dowry articles, as per their choice. It was further pleaded that the appellant-husband and her family members were treating the respondent-wife as earning servant and watchman of the house without pay. It was further the case of the respondent-wife that her married life was going smoothly till 03.07.2013, so long as her in-laws o �������������������� -4-o were getting her salary, but when she refused to give her salary to her in-laws, they started giving abuses and beatings to her. It was further pleaded that on 15.08.2014, mother-in-law of the respondent-wife gave beatings to her and in that regard, the matter was reported to the police. Again on 20.04.2015, she was given beatings by the appellant-husband, whereupon she got herself medically examined at Civil Hospital, Jagadhri and filed a complaint with the police. It was denied that the respondent-wife had refused to reside in her matrimonial house. Accordingly, a prayer for dismissal of the petition was made.

¶4From the pleadings of the parties, the trial Court framed the following issues:-

¶1Whether the petitioner is entitled to a decree for divorce by dissolution of marriage, as prayed for? OPP.

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

¶3Whether the petitioner is estopped by his own act and conduct from filing the present petition? OPR

¶4Relief.

¶5In evidence, the appellant-husband himself appeared in the witness box as PW-1 and examined Atul Goel, as PW-2. On the other hand, the respondent-wife herself appeared as RW-2 and examined Parveen Kumar, her father in law, as RW-1. o �������������������� -5-o

¶6After hearing the contentions of both the parties and considering the evidence brought on record, the learned trial Court dismissed the petition, as noticed above.

¶7Learned counsel for the appellant-husband has vehemently argued that the averments contained in the divorce petition, which are duly corroborated by the evidence led by the appellant, have totally been ignored by the learned trial Court. It is further argued that the appellant-husband has duly proved before the trial Court by leading cogent and convincing evidence that the respondent-wife and her family was having malafide intention from the very beginning, as they had given wrong date of birth of respondent-wife, but the said fact has totally been ignored by the learned trial Court. It is further argued that the respondent-wife got registered a false criminal case i.e. FIR No.488 dated 18.08.2015, under Sections 323, 406, 498-A and 506 IPC, at Police Station, City, Jagadhri, against the appellant-husband. However, the appellant-husband has been acquitted in the said case vide judgment dated 10.01.2023, passed by the Additional Chief Judicial Magistrate, Yamuna Nagar at Jagadhri. He further argued that registration 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, o �������������������� -6-o lastly, argued that the parties have been living separately since 2013 and during this period, there has been no resumption of marital relations or cohabitation between them and, thus, their marriage has become unworkable.

¶8On the other hand, learned counsel appearing for the respondent-wife, while defending the impugned judgment and decree passed by the learned trial Court, 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 trial Court, do not require any interference by this Court.

¶9We 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 considera-tion:-o o "1.o Whetheroaolongoseparationobetweenotheoparties,orender-ingotheomaritalobondoasounworkableoandoitsohavingobeenorup-turedobeyondorepair,oamountsotoomentalocruelty?ooo o 2.ooooooooWhetherotheoimpugnedojudgmentoandodecreeopassedobyo theolearnedotrialoCourt,orequiresoanyointerference?o o

¶10The learned trial Court, has found that the appellant-husband was not able to prove that the respon-dent-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 o �������������������� -7-o sufficient reason. It was further found that since the res-pondent-wife had been living on the first floor in the matri-monial home, therefore, she had not deserted the appellant-husband.

¶11Though, 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 11 years now 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.

¶12Indisputably, the parties have been living separately since 2013. 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.

¶13It may be noticed here that during the pendency of this appeal, the matter was settled between the parties vide agreement dated 26.09.2019 and in view of the said agreement/settlement arrived between them, the present o �������������������� -8-o appeal was disposed of vide order dated 04.02.2020. However, subsequently, the said order was recalled vide order dated 04.02.2022, as the parties failed to comply with the terms of the compromise/agreement dated 26.09.2019 and the appeal was revived for regular hearing.

¶14It 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.

¶15In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, it was held by the Hon'ble Supreme court that no uni-form 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:-oo o "101.oo Noouniformostandardocanoeverobeolaidodownoforoguidance,oyeto weodeemoitoappropriateotooenumerateosomeoinstancesoofohumanobeha-o �������������������� -9-o viourowhichomayobeorelevantoinodealingowithotheocasesoofo"mentalocru-elty".oTheoinstancesoindicatedoinotheosucceedingoparagraphsoareoonlyoil-lustrativeoandonotoexhaustive:o o (i)oo Onoconsiderationoofocompleteomatrimonialolifeoofotheoparties,o acuteomentalopain,oagonyoandosufferingoasowouldonotomakeopossibleoforo theopartiesotooliveowithoeachootherocouldocomeowithinotheobroadopara-metersoofomentalocruelty.o o (ii)oo Onocomprehensiveoappraisaloofotheoentireomatrimonialolifeoofo theoparties,oitobecomesoabundantlyoclearothatosituationoisosuchothatotheo wrongedopartyocannotoreasonablyobeoaskedotooputoupowithosuchoconducto andocontinueotooliveowithootheroparty.o o (iii)oo Mereocoldnessoorolackoofoaffectionocannotoamountotoocruelty,o frequentorudenessoofolanguage,opetulanceoofomanner,oindifferenceoando neglectomayoreachosuchoaodegreeothatoitomakesotheomarriedolifeoforotheo otherospouseoabsolutelyointolerable.o o (iv)oo Mentalocrueltyoisoaostateoofomind.oTheofeelingoofodeepoanguish,o disappointment,ofrustrationoinooneospouseocausedobyotheoconductoofo otheroforoaolongotimeomayoleadotoomentalocruelty.o o (v)oo Aosustainedocourseoofoabusiveoandohumiliatingotreatmentocalcu-latedotootorture,odiscommodeoororenderomiserableolifeoofotheospouse.o o (vi)oo Sustainedounjustifiableoconductoandobehaviouroofooneospouseo actuallyoaffectingophysicaloandomentalohealthoofotheootherospouse.oTheo treatmentocomplainedoofoandotheoresultantodangerooroapprehensionomusto beoveryograve,osubstantialoandoweighty.o o (vii)oo Sustainedoreprehensibleoconduct,ostudiedoneglect,oindifferenceo orototalodepartureofromotheonormalostandardoofoconjugalokindnessocaus-ingo injuryo too mentalo healtho oro derivingo sadistico pleasureo cano alsoo amountotoomentalocruelty.o o (viii)oTheoconductomustobeomuchomoreothanojealousy,oselfishness,opos-sessiveness,owhichocausesounhappinessoandodissatisfactionoandoemo-tionaloupsetomayonotobeoaogroundoforograntoofodivorceoonotheogroundoofo mentalocruelty.o o (ix)oo Mereotrivialoirritations,oquarrels,onormalowearoandotearoofotheo marriedolifeowhichohappensoinoday-to-dayolifeowouldonotobeoadequateo forograntoofodivorceoonotheogroundoofomentalocruelty.o o (x)oo Theomarriedolifeoshouldobeoreviewedoasoaowholeoandoaofewoiso-latedoinstancesooveroaoperiodoofoyearsowillonotoamountotoocruelty.oTheo illoconductomustobeopersistentoforoaofairlyolengthyoperiod,owhereotheore-lationshipohasodeterioratedotooanoextentothatobecauseoofotheoactsoandobe-o �������������������� -10-o haviouroofoaospouse,otheowrongedopartyofindsoitoextremelyodifficultotoo liveowithotheootheropartyoanyolonger,omayoamountotoomentalocruelty.o o (xi)oo Ifoaohusbandosubmitsohimselfoforoanooperationoofosterilisationo withoutomedicaloreasonsoandowithoutotheoconsentooroknowledgeoofohiso wifeoandosimilarly,oifotheowifeoundergoesovasectomyooroabortionowith-outomedicaloreasonoorowithoutotheoconsentooroknowledgeoofoherohus-band,osuchoanoactoofotheospouseomayoleadotoomentalocruelty.o o (xii)oo Unilateralodecisionooforefusalotoohaveointercourseoforoconsidera-bleoperiodowithoutothereobeingoanyophysicaloincapacityoorovalidoreasono mayoamountotoomentalocruelty.o o (xiii)oo Unilateralodecisionoofoeitherohusbandoorowifeoafteromarriageonoto toohaveochildofromotheomarriageomayoamountotoocruelty.o o (xiv)oo Whereothereohasobeenoaolongoperiodoofocontinuousoseparation,oito mayofairlyobeoconcludedothatotheomatrimonialobondoisobeyondorepair.o Theomarriageobecomesoaofictionothoughosupportedobyoaolegalotie.oByore-fusingotooseverothatotie,otheolawoinosuchocases,odoesonotoserveotheosancti-tyoofomarriage;oonotheocontrary,oitoshowsoscantoregardoforotheofeelingso andoemotionsoofotheoparties.oInosucholikeosituations,oitomayoleadotoomen-talocruelty."o oo o 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:-oo o "62.oo Evenoatothisostage,otheorespondentodoesonotowantodivorceobyo mutualoconsent.oFromotheoanalysisoandoevaluationoofotheoentireoevi-dence,oitoisoclearothatotheorespondentohasoresolvedotooliveoinoagonyoonlyo toomakeolifeoaomiserableohelloforotheoappellantoasowell.oThisotypeoofo adamantoandocallousoattitude,oinotheocontextoofotheofactsoofothisocase,o leavesonoomanneroofodoubtoinoouromindothatotheorespondentoisobento uponotreatingotheoappellantowithomentalocruelty.oItoisoabundantlyoclearo thatotheomarriageobetweenotheopartiesohadobrokenodownoirretrievablyo o �������������������� -11-o andothereoisonoo chanceo ofotheiro comingotogether,oorolivingotogethero again.oTheoHighoCourtooughtotoohaveovisualizedothatopreservationoofo suchoaomarriageoisototallyounworkableowhichohasoceasedotoobeoeffectiveo andowouldobeogreaterosourceoofomiseryoforotheoparties.o o o o xxxoo o xxxoo o xxxo o 67.o TheoHighoCourtooughtotoohaveoconsideredothatoaohumanoprob-lemocanobeoproperlyoresolvedobyoadoptingoaohumanoapproach.oInotheoin-stantocase,onototoograntoaodecreeoofodivorceowouldobeodisastrousoforotheo parties.oOtherwise,othereomayobeoaorayoofohopeoforotheopartiesothatoaftero aopassageoofotimeo(afteroobtainingoaodecreeoofodivorce)otheopartiesomayo psychologicallyoandoemotionallyosettleodownoandostartoaonewochapteroino life.o o 68.o o Inoouroconsideredoview,olookingotootheopeculiarofactsoofo theocase,otheoHighoCourtowasonotojustifiedoinosettingoasideotheoorderoofo theoTrialoCourt.oInoouroopinion,owisdomoliesoinoacceptingotheopragmatico realityoofolifeoandotakeoaodecisionowhichowouldoultimatelyobeoconduciveo inotheointerestoofobothotheoparties."o o o o 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:-oo o �������������������� -12-o o "20.oInotheopresentocase,oitoisonotoinodisputeothatobothotheoappellantoando respondentoareoworkingoasoteachersoonoregularobasisoinoGovernmento departments.oFurtherotheyoareolivingoseparatelyosinceo27.07.2011.oTheo elderosono(ManavoGoyal),owhooisosufferingofromocancer,oisolivingowitho appellant-ohusbandoandotheoyoungerosono(Rooham)oisostayingowithotheo mother.oAfterolivingoseparatelyofromoherohusbandoforomoreothano10o years,otheorespondent-owifeoisostillonotoreadyotoogiveodivorceotoohim.o o o o 21.oTheoissueoforoconsiderationoinotheopresentoappealowouldobeowhethero theorelationshipoofotheohusbandoandowifeohasocomeotooanoendoandoifotheo respondent-wifeoisonotoreadyotoogiveomutualodivorceotootheoappellant-o husband,owhetherothisoactoofoher,o wouldoamountotoocrueltyotowardso husband,okeepingoinoviewotheofactothatosheoisonotostayingowithoherohus-bandoforotheolasto10oyearsoandothereoisonooscopeothatotheyocanocohabitoaso husbandoandowifeoagain.o o o o xxo o xxo o xxo o o32.oo Inotheopresentocase,otheoappellant-husbandoisolookingoafterohiso sonoManavoGoyalosinceo27.07.2011oandohasoborneoallotheoexpensesoin-curredouponohisoson,owhooisosufferingofromoCancer.oThus,oifotheoappealo filedobyotheoappellant-husbandoisodismissed,oheowillofaceomentaloagonyo withohisoson,owhooisoilloandorequiresorepeatedocheckoupsoandotreatmentso fromovariousohospitals.oTheoappellantoandotheorespondentoareoveryosureo thato theyo cannoto liveo togethero aso husbando ando wife.o Theo appellant-husbandohasoshownothatoheoalsoolovesohisosecondosonoi.eoRooham,oasoheo broughtogiftsoforohimoono18.08.2021oandoevenorespondent-wifeoalsoo broughtogiftsoforoManavoGoyal.oBothotheoappellantoandotheorespondento areoregularogovernmentoteachersoandoareogettingogood++osalaryoando theyoareobringingoupooneochildoeach.oIfotheoparentsoareonotograntedodi-vorce,othenobothotheochildrenonamelyoManavoGoyaloandoRoohamoGoyalo willonotobeoableotoomeetoeachootheroinoaopositiveoenvironment.oThisowillo furtheroresultoinocrueltyobecauseoofotheorigidoattitudeoinogivingodivorce.o FurtherowhenotheoappellantoandotheorespondentocameotoothisoCourtoono

18.08.2021,otheyoexpressedotheiroloveoandoaffectionotoochild,owhooisonoto stayingowithothem.oTheoelementoofomarriageowhichohasobecomeodeado willoresultoinofurtherolossotoobothotheochildren.oItoisoaorightotimeoifobotho theochildrenomeetowithoeachootheroinoaopositiveoenvironmentoasotheopar-entsoareofinallyoindependent.oTheoelementoofosilenceobetweenotheopar-tiesowilloresultointoomentalocrueltyotootheochildren,oasobothotheosiblingso o �������������������� -13-o cannotomeetowithoeachoother.oMentalocrueltyowilloblendowithoirretrieva-bleoandodeadomarriageoisoaogoodogroundotoograntodivorceotootheoparties."o o o 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:-oo o "15.oo Inotheopresentomatter,oonoperusaloofotheopleadingsoofotheorespec-tiveopartiesoandotheoevidenceoadducedobyothemoinosupportothereof,oaso alsootheoadmissionoofotheopartiesoandotheirowitnesses,oitoisofoundothatotheo respondentowifeoisolivingoseparatelyofromoherohusbandoatoheroparentalo homeowithoutoanyojusto andoreasonableocauseosinceoMay,o2014.oSheo lodgedoaoreportoono17/09/2014oagainstotheohusbandounderoSectionso498-A,o323,o294,o506oofoIPCoandoafterotrial,oheowasoacquittedoofoallotheo charges.oThisoapart,otheowifeoalsoomadeoaoreportoagainstotheohusbando andohisoparentsounderoProtectionoofoWomenofromoDomesticoViolenceo Act.oItoisoalsooadmittedopositionothatotheowifeofiledodivorceopetitionoun-derosectiono13oofotheoHinduoMarriageoActowhichowasodismissedoforo wantoofoprosecution.oItoisoalsooadmittedobyotheowifeothatonooapplicationo underosectiono9oofotheoHinduoMarriageoActofororestitutionoofoconjugalo rightsowasofiledobyoher.oItoisonotodisputedothatotheowifeoisoworkingoaso PanchayatoSecretaryoandoisoalsoogettingoRs.o7,000/-operomonthoasomain-tenance.oTherefore,oinotheogivenofactsoandocircumstancesoofotheocase,o theoconductoofotheowife,oinolightoofotheojudgmentsoofoHon'bleoSupremeo Courtoasomentionedoabove,otheoactocommittedobyotheowifeoagainstotheo husbandoamountsotoocrueltyoandoitostandsoprovedothatosheoisolivingosepa-ratelyofromotheohusbandosinceo2014owithoutoanyojustoandoreasonableo cause.oTheyoareoseemsotoobeonoopossibilityoofotheirore-union.oInotheseo circumstances,othisoCourtofindsonooillegalityooroperversityoinotheoim-pugnedojudgementoofotheoFamilyoCourtograntingodecreeoofodivorceoino favouroofotheohusband."o o

¶16If the facts of the present case are examined in the light of the law laid down by the Hon'ble Supreme Court o �������������������� -14-o in the aforesaid judgments, it would come out that the parties, who have been living separately since 2013, 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.

¶17Still further, as noticed above, vide judgment dated 10.01.2023, passed by the learned Additional Chief Judicial Magistrate, Yamuna Nagar at Jagaadhri, the appel-lant-husband has been acquitted of the charges framed against him in the criminal case registered by the respon-dent-wife for various offences including the offence under Section 498-A IPC.

¶18In 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.

¶19Consequently, 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 ans-wered, accordingly.

¶20Decree sheet be prepared accordingly. o �������������������� -15-o

¶21However, we grant liberty to the respondent-wife to move an appropriate application before learned tri-al/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.

¶22All pending applications(s), if any, shall also stand disposed of. (SUDHIR SINGH) JUDGE

(SUKHVINDER KAUR) JUDGE

31.01.2025 Ajay Prasher - Whether speaking/reasoned: Yes/No - Whether reportable: Yes/No