Mukesh Kumar v. Anita Kashyap

HI GH COURT OF UTTARAKHAND AT NAI NI TAL HON'BLE THE CHI EF JUSTI CE MS. RI TU BAHRI AND HON'BLE SRI JUSTI CE RAKESH THAPLI YAL 5 t h Sept em ber , 2 0 2 4 A.O. NO. 9 Of 2 0 2 3

Mukesh Kumar

…....Appellant. Ver su s

Anita Kashyap

…….Respondent

Counsel for the appellant

: Mr. T.A. Khan, learned SeniorCounsel assisted by Mr. Mohd. Shafy, leaned counsel. Counsel for the respondent : Mr. Karan Anand, learned counsel

JUDGMENT : (per Ms. Rit u Bah r i, C.J.)

The instant Appeal has been filed by the appellant-husband challenging the judgment and order dated

16.12.2022 passed by the Additional Judge, Family Court, Dehradun in Original Suit No. 386 of 2017, whereby the learned Additional Judge, Family Court, Dehradun has decreed the suit for restitution of conjugal rights filed by the respondent.

¶2The marriage between the parties was solemnized on 18.11.2011 and they are living separately since 2014. There is also no issue from the marriage. The marriage between the parties is a dead marriage in view of the judgments of the Hon'ble Supreme Court.

¶3The relevant details of the present appeal are as follows : -

Date of marriage

18.11.2011 Date of Separation Since 2014 Details of the criminal proceedings between the parties. 1) Misc. Criminal Case No. 1175 of 2016 under Domestic Violence Act pending before the Judicial Magistrate, 2nd Class, Dehradun. 2) First Appeal No. 112 of 2019 pending before the Allahabad High Court. Issues from the marriage None. Decision of the Family Court Suit No. 386 of 2017 filed by the respondent under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights was allowed by order dated 16.12.2022. Maintenance decided by the Family Court Rs. 15,000/ - per month since 2022. Reliance placed on the judgments of the Hon'ble Supreme Court on the

¶1Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

¶2Shilpa Sailesh v. Varun

issue of dead marriage. Sreenivasan, 2023 SCC OnLine SC

544.

¶3Prakashchandra Joshi v. Kuntal Prakashchandra Joshi @ Kuntal Visanji Shah, 2024 INSC 55.

¶4As per the judgment of the Family Court, vide order dated 16.12.2022, the suit of the respondent-wife filed under Section 9 of the Hindu Marriage Act, 1955 has been allowed.

¶5Learned counsel for the appellant states that the appellant is ready to give Rs. 10 Lacs as permanent alimony to the respondent-wife, within a period of one month.

¶6There is one criminal litigation pending between the parties and also one first appeal, which is pending before the Allahabad High Court.

¶7The marriage of the parties was solemnized on

18.11.2011, and both the parties are living separately since 2014. There is almost 10 years' separation between the parties. There is no child from the marriage.

¶8Keeping in view the facts of this marriage, it can be said that this marriage is nothing more than a dead

marriage, and if both the parties are not granted divorce, it will amount to cruelty to both the parties. There is no emotional bonding between the parties, and there is no scope of patch-up between them, keeping in view the long period of separation of almost 10 years.

¶9Recently, the Hon'ble Supreme Court in the case of Sh r i Rak esh Ram an v. Sm t . Kavit a, 2 0 2 3 LiveLaw ( SC) 3 5 3 has examined the issue of dead marriage, and has held that in a case, where the marriage has broken down irretrievably, then it spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty, and hence it is a case of long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the Hindu Marriage Act, 1955.

¶10In view of the above-said discussion, the present Appeal is allowed, and the judgment and order dated

16.12.2022 passed by the learned Additional Judge, Family Court, Dehradun is set-aside. Divorce is granted to the parties, and the marriage is dissolved.

¶11Permanent alimony of Rupees Ten Lakhs shall be paid by the appellant-husband to the respondent-wife within a period of one month. A 2024:UHC:6408-DBo

¶11Pending application(s), if any, also stand disposed of accordingly. ______________ RI TU BAHRI , C.J.

__________________

RAKESH THAPLI YAL, J. thDt: 5 September, 2024 Rathouro o o DN: c=IN, o=HIGH COURT OF PRAVIND UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND,

2.5.4.20=23699ccc2fd40ad81b6fd13323779 d9e3aeb1097d17dbb53d481cabd25946eeRA S d, postalCode=263001, st=UTTARAKHAND, serialNumber=1F65499E931DF71CDAF92A 40CC6179B8E010331BA695239171F906FD 5C45C4E8, cn=PRAVINDRA S RATHOUR Date: 2024.09.17 15:14:48 +05'30'RATHOUR