# Ajay Lavania v. Smt. Shobhna Dubey

- **Citation:** (2011) 2 ILRA 755
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-28
- **Case number:** First Appeal No. 77 of 2010
- **Bench:** Devi Prasad Singh, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-lavania-v-smt-shobhna-dubey-41940
- **Pages:** 21

## Headnote

Hindu Marriage Act-Section 13-Divorceon ground of apprehension in mind
resulting
into
harm
or
injury-heldapprehension should be resemble no
material
placed-only
on
liking
or
disliking-matrimonial life can not be
thrown on flimsy ground.

Held: Para 65

Apprehension with regard to harm or
injury should also be of such nature
which
may
cause
the
other
side
irreparable
loss
or
injury.
Meaning
thereby, the reasonable apprehension
with regard to harm or injury should be
such which may not be bearable to lead
a normal life.

In the present case, there appears to be
no
material
which
may
create
a
reasonable apprehension in the mind of
the plaintiff appellant resulting into
harm or injury in incident which may not
be bearable or irreparable because of
which the appellant cannot lead a
matrimonial
life
along
with
the
respondent. Liking or disliking shall not
be a ground to decree a divorce.
Case law discussed:
(2003) 6 SCC 334; 2003(2) AWC 1665(SC);
2005(3) AWC 2093; AIR 2007 Andhra Pradesh
201; Civil Appeal Nos.8196-8197 of 2010
Sanjeeta Das versus Tapan Kumar Mohanty,
another judgment dated 27.2.2009 delivered
in Civil Appeal No.1330 of 2009 Vishnu Dutt
Sharma versus Manju Sharma; (2004)7 SCC
747; [2002(46)ALR 465] ;(2001)4 SCC 250;
AIR 2005 Bombay 278; AIR 1989 Delhi 121;
AIR 1984 Allahabad 81; AIR 1964 MP 28;
(2009)4 SCC 366 ; (2005)3 SCC 313 ;
(2005)10 SCC 299; (1997)7 SCC 7

## Text

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2 All] Ajay Lavania V. Smt. Shobhna Dubey
755
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.07.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE S.C. CHAURASIA, J.

First Appeal No. 77 of 2010

Ajay Lavania S/O Late Dr.Jagdish Prasad
Lavania (At 2 P.M.)

 ...Petitioner
Versus
Smt. Shobhna Dubey D/O Dr. S.P. Dubey
W/O Dr. Ajay Lavania ...Respondent

Counsel for the Petitioner:
Sri Sudeep Seth

Counsel for the Respondents:
Sri Pawan Kumar Pandey

Hindu Marriage Act-Section 13-Divorceon ground of apprehension in mind
resulting
into
harm
or
injury-heldapprehension should be resemble no
material
placed-only
on
liking
or
disliking-matrimonial life can not be
thrown on flimsy ground.

Held: Para 65

Apprehension with regard to harm or
injury should also be of such nature
which
may
cause
the
other
side
irreparable
loss
or
injury.
Meaning
thereby, the reasonable apprehension
with regard to harm or injury should be
such which may not be bearable to lead
a normal life.

In the present case, there appears to be
no
material
which
may
create
a
reasonable apprehension in the mind of
the plaintiff appellant resulting into
harm or injury in incident which may not
be bearable or irreparable because of
which the appellant cannot lead a
matrimonial
life
along
with
the
respondent. Liking or disliking shall not
be a ground to decree a divorce.
Case law discussed:
(2003) 6 SCC 334; 2003(2) AWC 1665(SC);
2005(3) AWC 2093; AIR 2007 Andhra Pradesh
201; Civil Appeal Nos.8196-8197 of 2010
Sanjeeta Das versus Tapan Kumar Mohanty,
another judgment dated 27.2.2009 delivered
in Civil Appeal No.1330 of 2009 Vishnu Dutt
Sharma versus Manju Sharma; (2004)7 SCC
747; [2002(46)ALR 465] ;(2001)4 SCC 250;
AIR 2005 Bombay 278; AIR 1989 Delhi 121;
AIR 1984 Allahabad 81; AIR 1964 MP 28;
(2009)4 SCC 366 ; (2005)3 SCC 313 ;
(2005)10 SCC 299; (1997)7 SCC 7

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Present appeals under Section
19 of the Family Courts Act, read with
Section 28 of the Hindu Marriage Act,
1955 have been preferred against the
impugned judgment dated 27.8.2010,
passed by Principal Judge, Family
Court, Lucknow so far as it relates to
decree of Regular Suit No.2077 of 2007
filed by the respondent under Section 9
of the Hindu Marriage Act. By the said
judgment
dated
27.8.2010,
learned
Family Court has also dismissed the suit
of
plaintiff/
appellant
filed
under
Section 13 of the Hindu Marriage Act.

2. Since ages, solemnisation of
marriage has been found to be best
mode of life to save the human race
from animal's living and consequential
irreparable injury. The institution of
marriage is not only based on thousand
years of experience of human race but it
is a time tested ceremony which has
saved the human race since ages from
desertion, prostitution and different
forms of agony. Different religions have
given
importance
to
marriage
in
different
way.
Even,
non-believers
prefer marriage to save their children or
coming generation to become street boy.
Non-believers may enter into wedlock
756 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
under the law framed by the State. In
India,
particularly
among
Hindus,
ceremony of marriage has been pious
bond to unite men and women to work
collectively not only for own interest
but also for generations to come.

Marriage in Hindu Religion

3. Marriage and sonship constitute
some of the unique chapters in the litera
legis of ancient Hindu Law. As early as
the time of Rig-Veda marriage had
assumed
the
sacred
character
of
sacrament and sanction of religion had
heightened the character and importance
of the institution of marriage. The RigVeda
pronounces
some
impressive
texts:

After completing the seventh step
(Saptpadi) the bridegroom said: "with
seven steps we have become friends
(sakha). May I attain to friendship with
thee: May I not be separated from thy
friendship." Satpatha Brahamna speaks
of the wife as the half of one's selfArdho ha va esha atmano.

4. The basal thought was that
marriage was a prime necessity for that
alone could enable a person to discharge
properly his religious and secular
obligations. The earliest records shows
that rules of inheritance depended on the
rules of marriage and it was obligatory
on the father to give the daughter in
marriage as gift are given. The Smiritis
deals with the subject of marriage with
meticulous care and make fascinating
study. Apastamba has stated that from
time of marriage the husband and wife
were united in religious ceremonies and
likewise in rewards of acts of spiritual
merit.

5.

Marriage
a
Sacrament:
Marriage is necessarily the basis of
social organization and foundation of
some
important
legal
rights
and
obligations.
The
importance
and
imperative character of the institution of
marriage needs no comment. In Hindu
Law marriage is treated as a samskara
or a sacrament. It is the last of ten
sacraments, enjoyed by the Hindu
religion for regeneration of men and
obligatory in case of every Hindu who
does not desire to adopt the life of
sanyasi. From the very commencement
of Rig-Vedic age, marriage was a well
established institution, and the Aryan
ideal of marriage was very high.
Monogamy was the rule and the
approved rule, though polygamy existed
to some extent. In Vedic period, the
sacredness of the marriage tie was
repeatedly declared; the family ideal
was decidedly high and it was often
realized.

The high value placed on marriage
is shown by the long and striking hymn
of Rig-Veda, X, 85; "Be, thou, mother
of heroic children, devoted to the Gods,
Be, thou, Queen in thy father -in -law's
household. May all the Gods unite the
hearts of us two into one".

The wife on her marriage was at
once given an honoured position in the
house.
She
was
mistress
in
her
husband's home and where she was the
wife of the eldest son of the family, she
exercised authority over her husband's
brothers and his unmarried sisters. She
was associated in all the religious
offerings and rituals with her husband.
As the old writers put it," a woman is
half her husband and completes him".
2 All] Ajay Lavania V. Smt. Shobhna Dubey
757

Manu
in
impressive
verses,
exhorted men to honour and respect
woman. Woman must be honoured and
adorned by their fathers, brothers,
husbands, and brothers- in-law who
desire their own welfare. Where women
are honoured, there gods are pleased;
but where they are not honoured, no
sacred rite yield rewards." The husband
receives wife from gods, he must always
support her while she is faithful". "Let
mutual fidelity continue until death.
This may be considered as the summary
of the highest law for husband and
wife."

Dispute between husband and wife
not allowed to be litigated either in the
customary tribunals or in the king's
courts. Neither bailment nor contracting
of debt, neither bearing testimony for
one another nor partition of property
was allowed between them.

6.

According
to
Hinduism,
marriage between two souls is a very
sacred affair that stretches beyond one
lifetime and may continue to at least
seven lives. The relationship between
the two does not necessarily have to
begin only when they have attained
birth as human beings. The gender of
the two partners also does not have to
the same in all the births. As the stories
in purans confirm, two individual souls
may come together any time during
their existence upon earth, even when
they assume a lower life from, such as
that of any animal or bird, and carry
forward their relationship further into
higher life forms such as that of human
beings. Once married, a couple is
expected to uphold their family names
by remaining faithful and truthful to
each other and by enacting their
respective roles as laid out in the Hindu
law books.

As
the
epic
Ramayana
and
Mahabharata illustrate, a couple ought
to stick together through the ups and
downs of life, however challenging and
arduous the situation may be, taking
care of each other and keeping in each
other. According to beliefs of Hinduism,
marriage is a sacred institution devised
by gods for the welfare of human
beings.
Its
primary
purpose
is
procreation and continuation of life
upon earth. Sexual union is intended
solely for this purpose and should be
used as such. Its secondary purpose is
upholding of the social order and the
Hindu dharma, while its ultimate aim is
spiritual union with the inmost self,
which is possible when a couple
perform their obligatory duties and earn
the grace of god through their good
karma. A man and woman are believed
to come together as husband and wife
primarily for spiritual reasons rather
than sexual or material, although they
may not be mentally aware of the fact.
Once married, the couple is expected to
carry out their respective traditional
duties as house holders and upholders of
family traditions and work for the
material and spiritual welfare of each
other, the members of their family and
also society.

7. The concept of divorce is alien
to Hinduism, as marriages are meant to
last for a life time. Neither men nor
women can throw away their martial
relationships on some flimsy or selfish
or whimsical grounds. Remarriage is
permitted
only
under
exceptional
circumstances. Polygamy to some extent
also was the practice among the Hindus
758 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
just a few centuries ago. Presently, in
India, the Hindu Marriage Act not only
prohibits it but also makes it a
punishable offense.

However, with the change of time,
advent of western philosophy in India
and having no research oriented work
done at political and judicial forum,
gradually the institution of marriage is
diluting in this country also. Higher
judiciary also in absence of any backup
to find out the injury caused by western
way of life approved to some extent the
matrimonial life professed by western
without
thinking
the
consequences
which nation may suffer in due course
of time.

8. Now, it is well known that more
than 50% wedlock breaks in United
States of America and sometime divorce
takes
place
in
few
months
of
solemnisation of marriage leaving the
lady or man in solitary state or
remarriage again. Change of wife and
husband
in
substantial
number
is
frequent because of "Cake Walks Law"
pertained to divorce. The effect of
breakage of the institution of marriage
cannot be noticed in short span of time
but it took centuries and when society
awakes it becomes too late.

FACTS OF PRESENT CASE

9. It is unfortunate that present
controversy relates to a couple both of
whom belongs to intellectual class of
the society, meant to serve the people.
Both are doctors. The appellant Ajai
Lavania is a Surgeon possessing M.S.
Degree. The respondent Smt. Shobhna
Dubey is Ophthalmology doctor.

10. The marriage of the appellant
and respondent was solemnised at a
very sacred place of the country, i.e.
Brindavan,
district
Mathura
on
1.12.2001. Both came known to each
other through advertisement in the
newspaper. At the time when marriage
was solemnised, the appellant Ajai
Lavania was pursuing his M.S. Course
at
Manipal,
Karnataka
and
the
respondent
was
doing
her
senior
Residency at Meerut. After marriage
they had gone for honeymoon to Goa
for about two weeks. Then went back to
their respective place at Meerut and
Manipal. In July, 2002, the appellant
had completed his M.S. Course whereas
the respondent had completed her
Senior Residency course. It is stated by
the appellant that on persuasion of the
respondent, the appellant joined a job at
Bhairwa Medical College, Nepal where
both used to enter into quarrel for small
matters. Having no consensus to live
together the respondent went to Meerut
and joined Senior Residency again . In
December, 2002, the appellant went to
Manipal along with the respondent and
lived there as husband and wife. There
too, it is alleged that there was
difference of opinion on small matters.
The respondent joined Shanti Manglik
Hospital Fateha Road, Agra in July,
2007 and started to live there along with
the appellant. It is alleged that the
respondent instructed the appellant not
to bring his grand father and grand
mother which has been denied by the
respondent.

11. The cause of action arose on
26.9.2007 when it is alleged by the
appellant that the respondent assaulted
him, broken the furnitures and assaulted
him with cutting his body with teeth.
2 All] Ajay Lavania V. Smt. Shobhna Dubey
759
The appellant got himself checked up in
S.N.
Medical
College,
Agra
and
informed the police and also lodged a
First Information Report against the
respondent. It is also alleged that the
respondent was ousted from Shanti
Manglic Hospital by the Committee of
Management on account of her short
temperament.

12. The appellant has joined Apolo
Hospital, Delhi. There too, it has been
alleged by the appellant that the
respondent visited the hospital on
19.10.2007 and quarreled with the staff
of the Apolo Hospital. From the
material on record, it is admitted fact
that the appellant had gone to attend an
ENT
conference
on
28.9.2007
at
Allahabad along with the respondent
and
while
returning
from
the
conference, it has been alleged by the
respondent that the appellant left her at
Lucknow with demand to pay Rs.4 lacs
so that he may visit Canada. It has been
stated by the respondent that the
appellant has left her at Lucknow on
30.9.2007 merely in the cloth she was
wearing stating that he sill not take her
to Delhi unless her guardian pays Rs.4
lacs to enable him to visit Canada.
Under the aforesaid backdrop, the
respondent had filed a First Information
Report under Crime No.135/2008 under
Sections 498-A/506/507 IP.C read with
Section 3⁄4 Dowry Prohibition Act in
which the appellant and his family
members were convicted and later on
released on bail by the appellate court.
However, the respondent insisted that
she want to live with the appellant and
forgives him but it appears that the
appellant did not agree with the
respondent to live together under the
garb of constant tussle between them
and lodging of the criminal case from
time to time against each other.

Subject to aforesaid backdrop,
while asserting
her right to live
together, the respondent has filed a case
under Section 9 of the Hindu Marriage
Act at Lucknow, registered as Suit
No.2077 of 2007. Thus, the suit was
filed in the year 2007 by the respondent
for restitution of conjugal rights.

13. On the other hand, the
appellant has filed a suit No.669 of
2009 under Section 13 of the Hindu
Marriage Act at Agra on 24.10.2007 for
divorce
which
was
transferred
to
Lucknow. The cause of action has been
shown as on 26.9.2007, when he alleged
to have suffered injury during quarrel
and got himself treated at S.N. Medical
College, Agra and lodged a First
Information
Report
against
the
respondent wife. The Family Court,
Lucknow clubbed both the suits having
common facts and decided by the
impugned judgment.

14. While decreeing the petition
filed by the respondent under Section 9
of
the
Hindu
Marriage
Act
and
dismissing the suit filed by the appellant
for divorce, learned Family Court took
note of the fact that when the appellant
visited
Moti
Lal
Nehru
Medical
College, Allahabad to attend 20th
National Conference on 29/30.9.2007,
both stood together in conference and
remained in the hospital as husband and
wife. Accordingly, learned trial Court
noted the incident of 26.9.2007 as false
with finding that in case it would have
been taken place, then there was no
occasion
for
the
appellant
and
respondent to attend the conference on
760 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
29./30.9.2007 at Allahabad, that too
when a First Information Report was
lodged by the appellant against the
respondent. The trial court took note of
the allegation levelled by the respondent
that
the
appellant
having
illicit
relationship with a lady Rashmi and he
is a club visitor and habitual drinker and
the effort made was to any how to break
the marriage to continue with his living
relationship. He further observed that it
is not a case of cruelty but a case where
a defence has been set up to obtain
divorce on false ground. The Family
Court further noted from the evidence
that because of wedlock, the respondent
was pregnant but on
account of
complicated Ectopic Pregnancy, the
respondent suffered from abortion after
about 8-9 months. Even after the
abortion, they lived together with
physical relationship. During the course
of trial, in the suit No.2077 of 2007 for
restitution of conjugal rights, following
issues were framed :

1. Whether Ajay Lavania without
any justified cause had deserted the
plaintiff Smt. Shobhna Dubey. Hence,
he is not discharging his family duty ?

2. Whether the plaintiff is entitled
for any relief from the Court ?

15. In the suit No.669 of 2009 for
divorce,
the
Family
Court
on
30.11.2009 had framed following issues
:

1. Whether the plaintiff Ajay
Lavania without any justifiable reason
had deserted his wife Smt. Shobhna
Dubey. In consequence thereof, he is
failing his duty towards wife ?

2. Whether the respondent Smt.
Shobhna Dubey has behaved cruelty
with
the
plaintiff
Ajay
Lavania
continuously
since
long
time.
In
consequence thereof, the plaintiff has
got reasonable reason to believe that it
shall be harmful to live with the
defendant as husband and wife.

3. Whether the plaintiff/defendant
is entitled for any relief ?

4. Whether the defendant is entitled
for any relief from the Court ?

16. Section 9 of the Hindu
Marriage Act provides that when either
the husband or the wife without any
reasonable excuse withdrawn from the
society of the other, the aggrieved party
may apply for restitution of conjugal
rights whereas Section 13 provides
various grounds to a person in wedlock
to approach the court for dissolution of
marriage by decree of divorce. For
convenience, Sections 9 and 13(as
amended by Act No.68 of 1976) of the
Hindu Marriage Act are reproduced as
under :

"9.
Restitution
of
conjugal
rights.-

(1) When either the husband or the
wife has, without reasonable excuse,
withdrawn from the society of the other,
the aggrieved party may apply, by
petition to the district court, for
restitution of conjugal rights and the
court, on being satisfied of the truth of
the statements made in such petition and
that there is no legal ground why the
application should not be granted, may
decree restitution of conjugal rights
accordingly.
2 All] Ajay Lavania V. Smt. Shobhna Dubey
761

[Explanation.- Where a question
arises whether there has been reasonable
excuse for withdrawal from the society,
the burden of proving reasonable excuse
shall be on the person who has
withdrawn from the society.]

13. Divorce. (1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband
or the wife, be dissolved by a decree of
divorce on the ground that the other
party-

 (i) has, after the solemnisation of
the marriage, had voluntary sexual
intercourse with any person other than
his or her spouse; or]

(i-a) has, after the solemnization of
the marriage, treated the petitioner with
cruelty; or

[(ib) has deserted the petitioner for
a continuous period of not less than two
years
immediately
preceding
the
presentation of the petition; or]

 (ii) has ceased to be a Hindu by
conversion to another religion; or

 (iii) has been incurably of unsound
mind, or has been suffering continuous
or intermittently from mental disorder
of such a kind and to such an extent that
the petitioner cannot reasonably be
expected to live with the respondent.

Explanation.- In this clause,-

(a)
the
expression
"mental
disorder""
means
mental
illness,
arrested or incomplete development of
mind, psychopathic disorder or any
other disorder or disability of mind and
includes schizophrenia;

(b) the expression "psychopathic
disorder" means a persistent disorder or
disability of mind (whether or not
including subnormality of intelligence)
which results in abnormally aggressive
or seriously irresponsible conduct on the
part of the other party and whether or
not it requires or is susceptible to
medical treatment; or]

(iv)has been suffering from a
virulent and incurable form of leprosy;
or

(v) has been suffering from veneral
disease in a communicable form; or

(vi) has renounced the world by
entering any religious order; or

(vii) has not been heard of as being
alive for a period of seven years or more
by those persons who would naturally
have heard of it, had that party been
alive;

Explanation. In this sub section, the
expression
"desertion"
means
the
desertion of the petitioner by the other
party to the marriage without reasonable
cause and without the consent or against
the wish of such party, and includes the
willful neglect of the petitioner by the
other party to the marriage, and its
grammatical variations and cognate
expression
shall
be
construed
accordingly.

(1A) Either party to a marriage,
whether solemnized before or after the
commencement of this Act, may also
present a petition for the dissolution of
762 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the marriage by a decree of divorce on
the ground

(i)
that
there
has
been
no
resumption of cohabitation as between
the parties to the marriage for a period
of one year or upwards after the passing
of a decree for judicial separation in a
proceeding to which they were parties;
or

(ii)
that
there
has
been
no
restitution of conjugal rights as between
the parties to the marriage for a period
of one year or upwards after the passing
of a decree for restitution of conjugal
rights in a proceeding to which they
were parties.

(2) A wife may also present a
petition for the dissolution of her
marriage by a decree of divorce on the
ground, -

(i) in the case of any marriage
solemnized before the commencement
of this Act, that the husband had
married
again
before
such
commencement or that any other wife of
the
husband
married
before
such
commencement was alive at the time of
the solemnization of the marriage of the
petitioner:

Provided that in either case the
other wife is alive at the time of the
presentation of the petition; or

(ii) that the husband has, since the
solemnization of the marriage, been
guilty of rape, sodomy or bestiality.

(i) in the case of any marriage
solemnized before the commencement
of this Act, that the husband had
married
again
before
the
commencement or that any other wife of
the
husband
married
before
such
commencement was alive at the time of
the solemnization of the marriage of the
petitioner:

Provided that in either case the
other wife is alive at the time of the
presentation of the petition;

(ii) that the husband has, since the
solemnization of the marriage, been
guilty of rape, sodomy or bestiality; or

(iii) that in a suit under Section 18
of
the
Hindu
Adoptions
and
Maintenance Act, 1956(78 of 1956), or
in a proceeding under Section 125 of the
Code of Criminal Procedure, 1973, (Act
2 of 1974) or under corresponding
Section 488 of the Code of Criminal
Procedure, 1898 (5 of 1898), a decree or
order, as the case may be, has been
passed against the husband awarding
maintenance to the wife notwithstanding
that she was living apart and that since
the passing of such decree or order,
cohabitation between the parties has not
been
resumed
for
one
year
or
upwards;or

(iv)that
her
marriage
(whether
consummated or not) was solemnized
before she attained the age of fifteen
years and she has repudiated the
marriage after attaining that age but
before attaining the age of eighteen
years.

Explanation.- This clause applies
whether the marriage was solemnised
before or after the commencement of
the Marriage Laws (Amendment) Act,
1976(68 of 1976)"
2 All] Ajay Lavania V. Smt. Shobhna Dubey
763

However, in the State of U.P., even
prior to Amending Act No.68 of 1976,
ground with regard to cruelty was
incorporated by U.P. Act No.13 of 1962
which is reproduced as under :

"STATE AMENDMENTS

UTTAR
PRADESH.-
In
its
application to Hindus domiciled in U.P
and also when either party to the
marriage was at the time of marriage a
Hindu domiciled in U.P., in Section 13-
(added in Central Act by Amending Act
No.68 of 1976)

(i) in sub-section(1), after clause (i)
insert and deem always to have been
inserted the following :

[(i-a) has persistently or repeatedly
treated the petitioner with such cruelty
as to cause a reasonable apprehension in
the mind of the petitioner that it will be
harmful or injurious for the petitioner to
live with the other party; or", and

(ii) for clause (viii)(since repealed)
substituted and deem always to have
been so substituted the following.

(viii) has not resumed cohabitation
after the passing of a decree for judicial
separation against that party, and-

(a) a period of two years has
elapsed since the passing of such
decree, or

(b) the case is one of exceptional
hardship
to
the
petitioner
or
of
exceptional depravity on the part of
other party, or"

17. Thus, under the Central Act,
cruelty was added in the year 1976 but
in U.P, the word, "persistently or
repeatedly" was on the State book
earlier to it.

A plain reading of Section 13(1)
(ia), shows that a decree of divorce may
be granted by the court in case either of
the party, i.e. husband or wife has
persistently or repeatedly treated the the
other with cruelty causing a reasonable
apprehension to the petitioner that it
will be harmful or injurious for him to
live with the other party. Under Section
13(1)(ib), a suit for divorce may also be
filed on the ground that either side has
deserted the petitioner for continuous
period of not less than two years
immediately preceding the presentation
of the petition.

Thus, keeping in view the U.P.
Amendment and intent of Legislature,
cruelty means persistent or repeated ill
treatment of a spouse to other which
causes a reasonable apprehension in the
mind of plaintiff with regard to harm or
injury which may be caused while living
with other party.

18. Mr. Sudeep Seth, learned
counsel appearing for the appellant has
vehemently argued that the respondent
had treated the plaintiff appellant with
cruelty. Hence he is entitled for divorce.
He submits that the learned Family
Court has not considered the material
evidence on record led by the appellant
and the impugned judgment suffers
from surmises and conjectures. He
further
submits
that
because
of
subsequent conviction in criminal case,
marriage is not revivable, hence divorce
764 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
is the only remedy to secure the ends of
justice.

19. On the other hand, Smt.
Shobhna Dubey, respondent appeared in
person and argued the case stating that
she is ready to live with her husband
and also ready to forget whatever
happened in the past. She also assures
that she is not interested to persecute or
prosecute the members of the appellant's
family. She also stated that minor
quarrels,
fractions
or
disagreement
between the husband and wife does not
constitute cruelty. The Family Court has
recorded the sound finding and the
appeal is liable to be dismissed. She
further submits that since an amendment
application filed by the appellant was
kept pending and not allowed by the
Family Court, subsequent event could
not be taken into account as it would
amount to travel beyond the pleading.

20. Both sides submitted the
written
arguments
as
well
as
compilation of case laws to defend their
cause.

21. Before the trial court, on behalf
of the respondent plaintiff, in suit filed
for restitution of conjugal rights, certain
documentary evidence was filed. The
complaint dated 26.9.2007 along with
the applications C-38/95, C-38/96 and
C-38/97 shows that while lodging a
First Information Report with regard to
assault, the appellant also prayed for
police security keeping in view the
alleged injury in terms of medical report
of the same day obtained from Medical
College. It was after the incident dated
26.9.2007, both husband and wife went
to Allahabad to attend conference on
29/30.9.2007. The injury report prima
facie does not reveal the injury caused
by teeth bite. It has been observed in the
judgment and order dated 31.5.2010 by
Special
Additional
Chief
Judicial
Magistrate, C.B.I., Lucknow in case
No.3674 of 2008, while convicting the
appellant under Sections 498-A, 506,
507 I.P.C. read with Section 3⁄4 Dowry
Prohibition Act, that the incident dated
26.9.2007 was created to avail divorce
(C-40/33 and C-60/33) in the case filed
under Section 13 of the Hindu Marriage
Act. An adverse comment has also been
made by the Special Additional Chief
Judicial Magistrate, C.B.I., Lucknow
while convicting the appellant and other
family members. Photographs have been
filed with regard to honeymoon at Goa
which prima facie shows intimacy
between
the
appellant
and
the
respondent.
Emails
sent
by
the
appellant, copies of which have been
filed in the trial court as C-52/3 to C52/32 also reveals intimacy between the
parties. Email of Shobhna Dubey on
record also shows intimacy between
them. During cross-examination, in the
case under Section 9 of the Hindu
Marriage Act, the appellant himself
stated that he was having cordial
relationship
with
Shobhna
before
pregnancy and even if all the complaints
are taken back, the appellant is not
ready to live with Shobhna Dubey.
Attention has been invited to certain
Email sent by lady Rashmi Rao filed as
C-31/16, 17, 18 to establish living
relationship between the appellant Ajay
Lavania and Rashmi Rao. The appellant
has filed copy of bill to show his
financial prospects. The documentary
evidence on record shows abortion
because
of
complicated
Ectopic
Pregnancy. In his letter dated 29.4.2007,
the
appellant
has
consoled
the
2 All] Ajay Lavania V. Smt. Shobhna Dubey
765
respondent to ignore the ill treatment
imparted by Mrs. Archana Lavania and
Mrs. Prabha Lavania. He ensured that
he is with his wife against them.

22. Learned counsel for the
appellant Shri Sudeep Seth submitted
that the incident dated 26.9.2007 was an
incident of cruelty. Coupled with the
fact that the respondent had alleged
extra
marital
affairs
against
the
appellant with allegation of his being
habitual drinker and lead club life and
watching of blue films, the conviction in
the criminal case creates a ground of
irretrievable break down of marriage.
He submits that the parties have reached
to a situation where there is no chance
of reunion. Learned counsel for the
appellant has relied upon the cases
reported in (2003)6 SCC 334 Vijay
Kumar Ramchandra Bhate versus
Neela Vijaykumar Bhate, 2003(2)
AWC 1665(SC) K.A. Abdul Jaleel
versus T.A. Shahida, 2005(3) AWC
2093 Amar Nath Gupta versus State
of U.P. and another and AIR 2007
Andhra Pradesh 201 Sardar Darshan
Sngh and others versus Smt. Surjeeth
Kaur.

It is also stated that the respondent
has tried to make out a case on the basis
of false and fabricated document and the
Evidence Act is not applicable strictly.

23. In the case of Vijay Kumar
Ram Chandra Bhate (supra) while
interpreting the word, "cruelty" under
the Act, Hon'ble Supreme Court ruled
that the character assassination in or
during divorce proceedings amounts to
cruelty and substantiate the wife's
petition for divorce on the ground of
cruelty. The allegation against the wife
of unchastity, indecent familiarity with
another
person
and
extramarital
relationship alleged in the written
statement by the husband constitute a
cruelty. However, the case in hand
seems to be based on different facts and
circumstances where the allegation of
living relationship has been tried to
establish on the basis of Emails and
other surrounding facts with submission
that the appellant had cooked up a false
case to dissolve the marriage. It is not a
case where character assassination has
been made on false or concocted
ground; rather facts have been tried to
prove on the basis of documentary
evidence which does not seem to have
been categorically denied.

24. In the case of K.A. Abdul
Jaleel (supra), Hon'ble Supreme Court
held
that
the
Family
Court
has
jurisdiction to adjudicate the question
relating
to
properties
of
divorced
parties.

25. In the case of Jagannath
(supra), a Single Judge of this Court
held that while filing petition for
maintenance against the husband, the
Family court has right to take evidence
from both side by consolidating two
suits and give common judgment.

26. In the case of Sardar Darshan
Singh(supra), Hon'ble Single Judge of
Andhra Pradesh High Court opined that
subsequent event shall be taken into
consideration by way of rejoinder.
However, rejoinder is impermissible if
such subsequent pleadings sets up plea
inconsistent with pleading in plaint.

27. The respondent relied upon a
case decided on 22.9.2010 by Hon'ble
766 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Supreme
Court
in
Civil
Appeal
Nos.8196-8197 of 2010 Sanjeeta Das
versus
Tapan
Kumar
Mohanty,
another judgment dated 27.2.2009
delivered in Civil Appeal No.1330 of
2009 Vishnu Dutt Sharma versus
Manju Sharma, (2004)7 SCC 747
Shyam Sunder Kohli versus Sushma
Kohli alias Satya Devi, [2002(46)ALR
465] Savitri Pandey versus Prem
Chandra Pandey, (2001)4 SCC 250
Chetan Dass versus Kamla Devi, AIR
2005 Bombay 278 Ajay Sayajirao
Desai versus Mrs. Rajashree Ajay
Desai, AIR 1989 Delhi 121 Ashok
Kumar
Bhatnagar
versus
Smt.
Shabnam
Bhatnagar,
AIR
1984
Allahabad 81 Satya Pal Sethi versus
Smt. Sushila Sethi, AIR 1964 MP 28
Narayan Prasad Choubey versus Smt.
Prabhadevi, (2009)4 SCC 366 Sipra
Bhattacharyya versus Dr. Apares
Bhattacharyya, (2005)3 SCC 313 B.P.
Achala Anand versus S. Appi Reddy
and another, (2005)10 SCC 299
Naresh Chandra Singhania versus
Deepika Alias Buby and (1997)7 SCC
7 Jasbir Kaur Sehgal(Smt) versus
District Judge, Dehradun and others.

28. In the case of Sanjeeta
Das(supra), Hon'ble Supreme Court has
set aside the Division Bench judgment
of Orissa High Court holding that a
Hindu marriage can be dissolved only
on any of the grounds plainly and
clearly enumerated under section 13 of
Hindu Marriage Act. A decree of
divorce cannot be granted with or
without consent of either side for
consideration. No court can assume
jurisdiction
to
dissolve
a
Hindu
marriage simply on the basis of the
consent of the parties de hors the
grounds enumerated under Section 13 of
the Act unless of course the consenting
parties proceed under section 13B of the
Act.

29. In the case of Vishnu Dutt
Sharma(supra), Hon'ble Supreme Court
declined to interfere where the Delhi
High Court had dismissed the appeal
filed by the husband whereby the trial
Court has declined to grant divorce on
the ground of cruelty. Since the husband
himself has imparted cruelty, it was not
found to be good ground to grant
divorce in the petition filed by the
husband.
Hon'ble
Supreme
court
observed that the wife has successfully
demonstrated that in fact, she suffered
cruelty
at
the
hands
of
husband
appellant. In such a situation to grant
divorce to the husband appellant only on
the ground of irretrievable breakdown
of marriage would not be proper.

30. In the case of Shyam Sunder
Kohli
(supra),
their
Lordships
of
Hon'ble Supreme Court held that it was
the husband who had been at fault and
had not allowed the marriage to break.
Therefore, the marriage could not be
dissolved on the ground of irretrievable
break down. To reproduce relevant
portion, to quote :-

"12. On the ground of irretrievable
breakdown of marriage, the court must
not lightly dissolve a marriage. It is only
in extreme circumstances that the court
may use this ground for dissolving a
marriage. In this case, the respondent, at
all stages and even before us, has been
ready to go back to the appellant. It is
the appellant who has refused to take
the respondent back. The appellant has
made baseless allegations against the
respondent. He even went to the extent
2 All] Ajay Lavania V. Smt. Shobhna Dubey
767
of filing a complaint of bigamy, under
Section 494 IPC against the respondent.
That complaint came to be dismissed.
As stated above, the evidence shows
that the respondent was forced to leave
the matrimonial home. It is the appellant
who has been at fault. It can hardly be
in the mouth of a party who has been at
fault and who has not allowed the
marriage to work to claim that the
marriage should be dissolved on the
ground of irretrievable breakdown. We,
thus,
see
no
substance
in
this
contention."

31. In the case of Savitri Pandey
(supra), Hon'ble Supreme Court held
that cruelty means the acts which are
dangerous to life, limb or health and
should
be
distinguished
from
the
ordinary wear and tear of family life.
The sanctity of marriage cannot be left
at the whims of one of the annoying
spouses.

32. In the case of Chetan
Dass(supra), Hon'ble Supreme Court
held that the principle of irretrievable
break down of marriage cannot be used
as a formula to gain relief of divorce
automatically. Hon'ble Supreme Court
ruled that where party seeking divorce
are found during the course of judicial
proceeding
to
have
committed
matrimonial offence and has been
unable to establish any allegation
against the spouse, a decree of divorce
on
the
ground
of
irretrievable
breakdown of marriage cannot be
granted.
Erring
party
cannot
be
permitted to break the marital bond by
taking advantage of his own wrong. It
shall be appropriate to reproduce para
14 of the judgment which is as under :

"14.
Matrimonial
matters
are
matters of delicate human and emotional
relationship. It demands mutual trust,
regard, respect, love and affection with
sufficient
play
for
reasonable
adjustments with the spouse. The
relationship has to conform to the social
norms as well. The matrimonial conduct
has now come to be governed by statute
framed, keeping in view such norms and
changed social order. It is sought to be
controlled
in
the
interest
of
the
individuals as well as in broader
perspective, for regulating matrimonial
norms for making of a well-knit, healthy
and not a disturbed and porous society.
The institution of marriage occupies an
important place and role to play in the
society, in general. Therefore, it would
not
be
appropriate
to
apply
any
submission of "irretrievably broken
marriage" as a straitjacket formula for
grant of relief of divorce. This aspect
has to be considered in the background
of the other facts and circumstances of
the case."

33. In the case of Ajay Sayajirao
Desai(supra), Hon'ble Supreme Court
held that where the wife at all stages has
been ready to go back to husband and it
is the husband who refused to take back
wife on baseless allegation to the extent
of filing false complaint against wife
with intention to create evidence against
wife, the marriage cannot be dissolved
on
the
ground
of
irretrievable
breakdown.

34. In the case of Ashok Kumar
Bhatnagar(supra), a Division Bench of
Delhi High Court held that where the
husband is harassing his wife for dowry
and abandoning her, he cannot be
permitted to take benefit of his own
768 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
wrong and claim divorce on the ground
of irretrievable break down of marriage.

35. In the case of Satya Pal
Sethi(supra), Hon'ble Single Judge of
Allahabad High Court has dismissed the
divorce petition where the husband took
the plea of cruelty and desertion, but,
failed to prove charges against wife and
on the other hand, the wife has proved
that the husband was living in adultery.

36. In the case of Narayan Prasad
Choubey (supra), a Division Bench of
M.P.