# Apoorva Gupta @ Apoorva Kumar Gupta 468 INDIAN LAW REPORTS ALLAHABAD SERIES v. Vandana Gupta

- **Citation:** (2024) 8 ILRA 467
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-30
- **Case number:** First Appeal No. 11 of 2023
- **Bench:** Rajan Roy, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/apoorva-gupta-apoorva-kumar-gupta-468-indian-law-reports-allahabad-series-v-54580
- **Pages:** 7

## Headnote

A. Family Law - Hindu Marriage Act, 1955
- Sections 13 - Divorce - Mental cruelty -
Desertion - Both parties were living
separately since more than a decade -
Several notice issued to wife, but she
failed to appear before the High Court -
Earlier attempt of mediation was failed in
Habeas Corpus proceeding - Effect - Held,
the parties are living separate from each
other for a period exceeding a decade and
the appellant has not been able to meet
his daughter even once during this period.
These facts are sufficient to cause acute
mental pain, agony and suffering to both
the
parties
and
it
would
make
it
impossible for the parties to live with each
other, which would come within the broad
parameters of mental cruelty - Aforesaid
facts are sufficient for grant of a decree of
divorce in favour of the plaintiff-appellant.
(Para 19, 20, 21 and 25)

Appeal allowed. (E-1)

List of Cases cited:

## Text

8 All. Apoorva Gupta @ Apoorva Kumar Gupta Vs. Vandana Gupta
467

7. Today, Shri Gaurav Mehrotra
informs the Court that the matter has been
examined by the High Court at the
competent level and according to the High
Court the amendment referred in the
aforesaid order is to have retrospective
effect and this was the intent behind the
amendment, as is evident from the
discussion and the notings in the file
preceding the said amendment. He has also
relied upon the decision in the case(s) of (i)
Om Prakash Agarwal since deceased
through legal representatives and others Vs.
Vishan Dayal Rajpoot and another, reported
in (2019) 14 SCC 526, (ii) ECGC Limited Vs.
Mokul Shriram EPC JV, I.A. No.99210 of
2021 in Civil Appeal No.1842 of 2021, (iii)
Ultratech Cement Ltd. & another Vs. State
of Rajasthan & others, (2021) 12 SCC 147,
(iv) Manujendra Dutt Vs. Purnedu Prosad
Roy Chowdhury & others, AIR 1967 SC
1419, (v) K. Kapen Chako Vs. Provident
Investment Company (P) Ltd. (1977) 1 SCC
593, (vi) Sudhir G. Angur & others Vs. M.
Sanjeev & others, (2006) 1 SCC 141, (vii)
Hitendra Vishnu Thakur & others Vs. State
of Maharashtra & others, (1994) 4 SCC 602,
(viii) Mohd. Idris & others Vs. Sat Narain &
others, AIR 1966 SC 1499, (ix) S. Sundaram
Pillai & others Vs. V.R. Pattabiraman &
others, (1985) SCC 591, which were
considered at that time by the High Court while
bringing the amendment.

8. We are also of the opinion that the
provision in which the amendment has been
made as referred hereinabove is a procedural
provision, therefore, normally any amendment
in such a provision even if it is a deletion it has
a retrospective effect and applies to pending
proceedings also. No appellant has any
vested right to have his appeal heard by a
Single Judge Bench. The only right is that the
appeal be heard by the High Court whether it
be heard by a Division Bench or by a Single
Judge Bench is immaterial. This does not
involve any change of forum also because the
forum remains the same, which is the High
Court. In either eventuality the next remedy
would be before Hon'ble the Supreme Court
and not before this Court. In taking this view,
we are supported by the law enumerated and
propounded
in
the
precedents
referred
hereinabove.

9. For all these reasons, we hold that the
amendment brought about by the notification
dated 23.05.2022 in Rule 2(ii)(b) of Chapter V
and Rule 2(ii)(d) of the same Chapter of the
Allahabad High Court Rules, 1952, by which
the words fifty lakh rupees etc. have been
deleted applies to pending appeals also except
of course those appeals where under the statute
which provides the remedy of appeal, it is to
be heard by a Division Bench, in that case of
course, the said Rules will not apply as there
would be no question of pecuniary jurisdiction
in maintaining such appeal.

10. Let the Registry take note of this
order and list the appeal accordingly. As a
consequence of the aforesaid, this appeal will
now be heard by Single Judge Bench which
may have been assigned such appeals.

11. List this appeal before the
appropriate Bench on 09.09.2024.
----------
(2024) 8 ILRA 467
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

First Appeal No. 11 of 2023

Apoorva Gupta @ Apoorva Kumar Gupta
 ...Appellant
468 INDIAN LAW REPORTS ALLAHABAD SERIES
Versus
Vandana Gupta ...Respondent

Counsel for the Appellant:
Akshat Kumar, Sanjay Kumar Srivastava

Counsel for the Respondent:
Sagar Singh, Jyoti Prakash, Shri Ram
Maurya

A. Family Law - Hindu Marriage Act, 1955
- Sections 13 - Divorce - Mental cruelty -
Desertion - Both parties were living
separately since more than a decade -
Several notice issued to wife, but she
failed to appear before the High Court -
Earlier attempt of mediation was failed in
Habeas Corpus proceeding - Effect - Held,
the parties are living separate from each
other for a period exceeding a decade and
the appellant has not been able to meet
his daughter even once during this period.
These facts are sufficient to cause acute
mental pain, agony and suffering to both
the
parties
and
it
would
make
it
impossible for the parties to live with each
other, which would come within the broad
parameters of mental cruelty - Aforesaid
facts are sufficient for grant of a decree of
divorce in favour of the plaintiff-appellant.
(Para 19, 20, 21 and 25)

Appeal allowed. (E-1)

List of Cases cited:

1. Rakesh Raman Vs Kavita, 2023 SCC OnLine
SC 497

2. Debananda Tamuli Vs Kakumoni Kataky:
(2022) 5 SCC 459

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. By means of the instant appeal filed
under Section 19 of the Family Courts Act,
the appellant has challenged the validity of
a judgment and decree dated 08.02.2022,
passed by the First Additional Principal
Judge, Family Court, Hardoi, in Regular
Suit No.607 of 2019: Apoorva Gupta
versus Vandana Gupta, under Section 13 of
Hindu Marriage Act, 1955.

2. In response to a notice issued by
this Court, the respondent had put in
appearance
by
filing
a
Vakalatnama
appointing three learned Advocates to
represent her before this Court. The appeal
was admitted by means of an order dated
13.01.2023 and the trial court's record was
summoned. Thereafter the following order
was passed on 07.08.2023:

"1. The appeal was mentioned by
leaned counsel for the appellant. A written
notice has also been served to learned
counsel for the respondent namely Sri Ram
Maurya.

2. Learned counsel for the
respondent has failed to appear when the
case was called out.

3. The case is ready for hearing.

4. List this matter for ex-parte
hearing. Let a notice be sent to the
respondent along-with a copy of this order
about the date fixed.

5. List in the week commencing
21.8.2023."

3. The office has reported on
13.12.2023 that the notice issued to the
respondent has been served through her
mother, which is sufficient service, but she
has not put in appearance before this court
to oppose the appeal and, therefore, the
appeal was heard ex-parte on 21.08.2024.

4. In the plaint filed on 06.08.2016
before the Principal Judge, Family Court,
Hardoi, the plaintiff-appellant pleaded that
the parties got married on 14.04.2012 at
Hardoi. The defendant stated that she
would not live in Mallawan town and will
8 All. Apoorva Gupta @ Apoorva Kumar Gupta Vs. Vandana Gupta
469
live at Delhi. The plaintiff kept her at Delhi
for some time but when a proper
arrangement for residence at Delhi could
not be made, he kept the defendant at
Mallawan with his parents. The defendant
did not cooperate in performance of the
house-hold chores and she went away with
her father and she took away all her clothes
and jewelry with her. The defendant had
lodged a false criminal case against the
plaintiff, his parents and both his sisters, in
which the plaintiff and his family members
were
acquitted
and
accepting
the
defendant's condition that she will not go
to Mallawan, the plaintiff started living
with her at Delhi. For this reason, the
plaintiff's parents severed their relations
with the plaintiff and they deprived him of
all the rights in their properties.

5. On 09.05.2014, the defendant went
to live with her parents and she delivered a
baby
girl
in
a
Nursing
Home
on
12.07.2014, in which the plaintiff rendered
his full cooperation, but some quarrel took
place there and the plaintiff was threatened
and turned away and he was not involved
in the ceremonies of his daughter. The
plaintiff used to send money-orders for
some time but later on the defendant
declined to accept the same and she did not
let the plaintiff meet his daughter.

6. The plaintiff further pleaded that
false complaints were made by the
defendant against him and the Women's
Commission held mediation between the
parties, but the defendant did not agree to
live with the plaintiff or to let him meet his
daughter.
The
defendant
treated
the
plaintiff in a cruel manner, she did not
cooperate in house-hold chores at Delhi,
she indulged into quarrel and beatings
almost on daily basis and she got the
plaintiff threatened for his life by her
brothers. The plaintiff also pleaded that the
defendant was living separate from him for
the past two years without any cause and
she was threatening to entangle him in a
false case.

7. The defendant filed a written
statement in the suit denying the plaint
allegations and she alleged that she was
harassed for demanding dowry and the
plaintiff left her at her father's residence on
09.05.2014 and since then he did not even
inquire about her well being. The defendant
stated that she was willing to perform her
conjugal obligations.

8. The Family Court framed the
following two issues: -

(1) Whether the plaintiff is
entitled to get his marriage dissolved on the
basis of averments made in the plaint?

(2) To what relief is the plaintiff
entitled?.

9. The plaintiff examined himself as
PW-1 by filing his affidavit as his
examination-in-chief, wherein he reiterated
the
plaint
averments.
In
his
crossexamination, the plaintiff stated that on
24.06.2013, the defendant had lodged an
F.I.R. under Sections 498-A, 323, 324, 504,
506 I.P.C. and Sections 3/4, Dowry
Prohibition Act against the plaintiff, his
parents and two sisters. He further stated
that the defendant had deserted him without
any reason for the past four years but as he
had a threat of his life and property from
the defendant, he did not want to live with
her.

10. One Sanjay, who works in a shop
situated near the plaintiff's house and who
claims to know the parties very well, was
examined as PW-2 and the plaintiff's father
470 INDIAN LAW REPORTS ALLAHABAD SERIES
Anup Kumar Gupta was examined as PW-3
and they also supported the plaintiff's
version. The plaintiff's father stated in his
cross-examination that the defendant's
father has filed a case under Sections 452,
323, 504, 506 I.P.C. in the year 2015
against him and the plaintiff.

11. The defendant examined herself as
OPW-1 and she declined all the plaintiff's
allegations and she further stated that although
the plaintiff used to beat her, she does not have
any life threat from him and she wants to live
with the plaintiff.

12. The defendant's father Umesh
Chandra Gupta was examined as OPW-2, who
stated in his examination-in-chief that as a
settlement had been arrived at during
mediation, the dowry case was got closed by
all the witnesses turning hostile. However, no
written settlement was entered into between
the parties. In his cross-examination. He stated
that there was some old relationship between
his family and the family of the plaintiff. He
admitted that the plaintiff had sent some
amount to the defendant through money-order,
but without disclosing the amount, he said that
it was a meager amount. He stated that he did
not understand the meaning of the word
'hostile' used in his affidavit filed as his
examination-in-chief.

13. In documentary evidence, the
plaintiff filed a copy of the complaint no. 3337
of 2015 filed by the defendant's father against
the plaintiff and his father under Section 452,
323, 504, 506 I.P.C. in the Court of the Chief
Judicial Magistrate, Hardoi, a copy of F.I.R.
relating to Case Crime No. 343 of 2013 under
Sections 452, 323, 504, 506 I.P.C. filed by the
plaintiff in Police Station Mallawan against the
defendant's father and three other persons and
a copy of the charge-sheet dated 29.07.2013
filed in respect of that F.I.R.
14. The Family Court dismissed the
suit for divorce by means of the impugned
judgment and decree dated 08.02.2022
holding that after the F.I.R. was lodged by the
defendant, the parties had entered into a
settlement and resumed cohabitation and,
therefore, the occurrences that had taken
place prior to it cannot be taken into
consideration for adjudicating whether the
defendant has treated the plaintiff with
cruelty. Cases have been lodged against each
other by persons of both the sides and,
therefore, filing of a false case cannot be a
ground for granting a decree of divorce.
Minor
differences
in
matrimonial
relationships are normal and the same cannot
be termed as cruelty.

15. Rejecting the claim of divorce on
the ground of desertion, the Family Court
held that the parties resided together happily
as husband and wife till 12.07.2014, the
plaintiff has not made any efforts for
resuming cohabitation thereafter whereas the
defendant has expressed willingness to
resume cohabitation with the plaintiff and,
therefore, the ground of desertion is not
established.

16. The following points arise for
determination in this appeal: -

a)
Whether
the
facts
and
circumstances of the case evidenced by the
material available on record make out the
grounds of cruelty and desertion?
 b) Whether the judgment and
decree passed by the Family Court
dismissing
the
suit
for
divorce
is
sustainable in law?

17. In Rakesh Raman v. Kavita,
2023 SCC OnLine SC 497, the Hon'ble
Supreme Court has explained the meaning
of the word "cruelty" used in Section 13 of
8 All. Apoorva Gupta @ Apoorva Kumar Gupta Vs. Vandana Gupta
471
the Hindu Marriage Act in the following
words: -

"18. Cruelty has not been defined
under the Act. All the same, the context
where it has been used, which is as a
ground for dissolution of a marriage would
show that it has to be seen as a 'human
conduct' and 'behavior" in a matrimonial
relationship. While dealing in the case
of Samar Ghosh [Samar Ghosh v. Jaya
Ghosh, (2007) 4 SCC 511] this Court
opined that cruelty can be physical as well
as mental:-

"46...If it is physical, it is a
question of fact and degree. If it is mental,
the enquiry must begin as to the nature of
the cruel treatment and then as to the
impact of such treatment on the mind of the
spouse. Whether it caused reasonable
apprehension that it would be harmful or
injurious to live with the other, ultimately,
is a matter of inference to be drawn by
taking into account the nature of the
conduct and its effect on the complaining
spouse.

19. Cruelty
can
be
even
unintentional:-

...The absence of intention should
not make any difference in the case, if by
ordinary sense in human affairs, the act
complained of could otherwise be regarded
as cruelty. Intention is not a necessary
element in cruelty. The relief to the party
cannot be denied on the ground that there
has been no deliberate or wilful illtreatment."

20. This
Court
though
did
ultimately give certain illustrations of
mental cruelty. Some of these are as
follows:

(i) On consideration of complete
matrimonial life of the parties, acute
mental pain, agony and suffering as would
not make possible for the parties to live
with each other could come within the
broad parameters of mental cruelty.

(xii)
Unilateral
decision
of
refusal to have intercourse for considerable
period without there being any physical
incapacity or valid reason may amount to
mental cruelty.

(xiii) Unilateral decision of either
husband or wife after marriage not to have
child from the marriage may amount to
cruelty.

(xiv) Where there has been a
long period of continuous separation, it
may
fairly
be
concluded
that
the
matrimonial bond is beyond repair. The
marriage
becomes
a
fiction
though
supported by a legal tie. By refusing to
sever that tie, the law in such cases, does
not serve the sanctity of marriage; on the
contrary, it shows scant regard for the
feelings and emotions of the parties. In
such like situations, it may lead to mental
cruelty."
(Emphasis
supplied
by
the
Supreme Court)

18. The appellant holds decrees of
Bachelor of Technology and Master of
Business Administration and is working as
a Software Engineer. He got married to the
respondent on 14.04.2012. It is evidence
from the material available on record that
both the parties belong to reputed families.
On 24.06.2013, the defendant had lodged
an F.I.R. under Sections 498-A, 323, 324,
504, 506 I.P.C. and Sections 3/4, Dowry
Prohibition Act against the plaintiff, his
parents and two sisters and the plaintiff and
his family members were acquitted in that
case by means of a judgment and order
dated 18.02.2014 passed by the learned
Additional Chief Judicial Magistrate, Court
No. 5, Hardoi. Thereafter the parties
resumed
cohabitation,
which
could
continue only for a brief period, as the
respondent had left the appellant's house at
472 INDIAN LAW REPORTS ALLAHABAD SERIES
Delhi on 09.05.2014 and she never returned
to him. The appellant last met the
respondent on 12.07.2014 at a nursing
home where she had delivered a baby girl.
On the last visit of the appellant, he was
assaulted by the family members of the
respondent and he had filed an application
under Section 156 (3) Cr.P.C. in this
regard,
which
was
registered
as
a
complaint, the accused persons were
summoned and bailable warrants were
issued against them due to their nonappearance and the case is still pending.
Since then, the respondent did not return to
live with the appellant and there has not
been any connect or communication
between
the
parties.
In
his
cross
examination, the appellant stated that the
parties resided together merely for about
one year in all and that the respondent had
deserted him for a period of about four
years without any reason. The appellant
also stated that he apprehends a life threat
in living with the respondent and he had
does not trust her.

19. The appellant had filed Writ
Petition No. 12317 of 2017 for issuance of
a Writ of Habeas Corpus for custody of his
daughter and the matter was referred to
mediation, but to no avail.

20. Now a period of more than a
decade has elapsed since the parties started
living separately. The respondent is not
contesting the appeal in spite of service on
notice having been issued by this Court
twice. The first notice was issued on the
application for condonation of delay in
filing the appeal, in response to which she
had appeared through Counsel, but she
preferred not to file any objection.
Thereafter the application for condonation
of delay in filing the appeal was condoned
and the appeal was admitted. When the
respondent's Counsel did not appear before
this Court, another notice was issued to the
respondent on 07.08.2013, which was also
served on her but she did not appear so as
to give this Court an opportunity to make
efforts for an amicable settlement between
the parties. She has not come forward to
oppose the pleas of the appellant.

21. When we examine the aforesaid
facts in light of the law explained in
Rakesh Raman (Supra), we find that the
parties are living separate from each other
for a period exceeding a decade and the
appellant has not been able to meet his
daughter even once during this period.
These facts are sufficient to cause acute
mental pain, agony and suffering to both
the parties and it would make it impossible
for the parties to live with each other,
which would come within the broad
parameters of mental cruelty. The long
period of continuous separation of a decade
establishes that the matrimonial bond is
beyond repair. The marriage between the
parties has become a fiction, though
supported by a legal tie. In such situation, it
leads to mental cruelty. Though the
respondent's refusal to live with the
appellant may be without any intention of
inflicting cruelty upon him, it would not
make any difference, as intention is not a
necessary element in cruelty. The appellant
cannot be denied relief on this ground. By
refusing to severe the tie between the
plaintiff and the defendant, the Family
Court has not served the sanctity of
marriage; on the contrary, it has shown
disregard for the feelings and emotions of
the parties, which are not affectionate
towards each other. Therefore, we are of
the considered view that the peculiar facts
and circumstances of the case make out a
case for grant of divorce on the ground of
cruelty.
8 All. Smt. Kajal Kiran Gupta @ Guddi Vs. Raj Kumar @ Golu
473

22. The term "desertion" has been
explained by the Hon'ble Supreme Court in
Debananda Tamuli v. Kakumoni Kataky:
(2022) 5 SCC 459, in the following words: -

"7. ...The law consistently laid down
by this Court is that desertion means the
intentional abandonment of one spouse by the
other without the consent of the other and
without a reasonable cause. The deserted
spouse must prove that there is a factum of
separation and there is an intention on the part
of deserting spouse to bring the cohabitation to
a permanent end. In other words, there should
be animus deserendi on the part of the deserting
spouse. There must be an absence of consent on
the part of the deserted spouse and the conduct
of the deserted spouse should not give a
reasonable cause to the deserting spouse to
leave the matrimonial home.

* * *

8. The reasons for a dispute between
husband and wife are always very complex.
Every matrimonial dispute is different from
another. Whether a case of desertion is
established or not will depend on the peculiar
facts of each case. It is a matter of drawing an
inference based on the facts brought on record
by way of evidence."

23. The respondent had left the
appellant's house on 09.05.2014 and she did not
return to live with him till date, i.e. for more
than a decade. The respondent is not contesting
the appeal, which shows that she has no interest
in her relation with the appellant and which
indicates that the respondent has abandoned the
relationship between herself and the appellant
and an animus deserendi on her part, which is
sufficient to constitute desertion.

24. In view of the aforesaid facts, we are
of the considered view that the respondent has
deserted the appellant.

25. The aforesaid facts are sufficient for
grant of a decree of divorce in favour of the
plaintiff-appellant. The Family Court has erred in
dismissing the plaintiff's suit for grant of divorce.

26. In view of the aforesaid discussion, our
decision of the points involved in this appeal is as
follows: -

a) The facts and circumstances of the
case evidenced by the material available on record
make out the grounds of cruelty and desertion.

b) The judgment and decree passed by
the Family Court dismissing the suit for divorce is
unsustainable in law.

27. Accordingly, the appeal is allowed. The
judgment and decree dated 08.02.2022, passed by
the First Additional Principal Judge, Family
Court, Hardoi, in Regular Suit No.607 of 2019:
Apoorva Gupta Versus Vandana Gupta, under
Section 13 of Hindu Marriage Act, 1955 is set
aside and the suit is decreed. A decree of divorce
is granted in favour of the plaintiff dissolving his
marriage with the defendant-respondent, which
was solemnized on 14.04.2012.

28. Costs of the litigation made easy.
----------
(2024) 8 ILRA 473
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.08.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 133 of 2012

Smt. Kajal Kiran Gupta @ Guddi
 ...Appellant
Versus
Raj Kumar @ Golu ...Respondent

Counsel for the Appellant: