# Bhavna Sharma v. Sri Sanjeev Sharma

- **Citation:** (2019) 2 ILRA 897
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-31
- **Case number:** First Appeal No. 51 of 2012
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhavna-sharma-v-sri-sanjeev-sharma-44792
- **Pages:** 10

## Headnote

A. Hindu Marriage Act, 1955 - Section 12
-Divorce - Irretrievable breakdown of
marriage.

Held:-Parties living separately for last 12
years - Court found that the marriage has
virtually become a dead marriage - clear case
of irretrievable breakdown - Also intention of
the parties to go in for divorce - Wife had filed
cases against the husband under Section 498A IPC and Domestic Violence Act and under
Section 125 Cr.P.C. and the husband had also
undergone about two years of incarceration -
Marriage between the parties was beyond
repair - No fruitful purpose would be served by
relegating the parties to the court below to file
fresh petition for divorce under Section 13 of
the Act, as more than 12 years has already
passed - Alternative relief of divorce under
Section 13 of the Act claimed before the Court
granted. (Para 26 & 27)

Decree of divorce between the parties passed.
Appeal dismissed (E-5)
List of cases cited: -

## Text

2 All. Bhavna Sharma Vs Sri Sanjeev Sharma
897
therefore liable to be dismissed. It is
accordingly dismissed with costs.
----------

(2019)10ILR A 897

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

First Appeal No. 51 of 2012
connected with
First Appeal No. 178 of 2012

Bhavna Sharma ...Appellant
Versus
Sri Sanjeev Sharma ...Respondent

Counsel for the Appellant:
Sri Ajay Kumar Singh, Sri A.K.S. Bais, Sri
Ashish Kumar Singh, Sri Ashok Kumar Singh,
Sri Dhiraj Kumar Pandey, Sri Narendra Kumar,
Sri Pratik J. Nagar

Counsel for the Respondent:
Sri Anurag Pathak

A. Hindu Marriage Act, 1955 - Section 12
-Divorce - Irretrievable breakdown of
marriage.

Held:-Parties living separately for last 12
years - Court found that the marriage has
virtually become a dead marriage - clear case
of irretrievable breakdown - Also intention of
the parties to go in for divorce - Wife had filed
cases against the husband under Section 498A IPC and Domestic Violence Act and under
Section 125 Cr.P.C. and the husband had also
undergone about two years of incarceration -
Marriage between the parties was beyond
repair - No fruitful purpose would be served by
relegating the parties to the court below to file
fresh petition for divorce under Section 13 of
the Act, as more than 12 years has already
passed - Alternative relief of divorce under
Section 13 of the Act claimed before the Court
granted. (Para 26 & 27)

Decree of divorce between the parties passed.
Appeal dismissed (E-5)
List of cases cited: -
1. Vinita Saxena Vs Pankaj Pandit (2006) 3 SCC 778
2. Sukhendu Das vs Rita Mukherjee (2017) 9
SCC 632
3. K. Srinivas Rao vs D.A. Deepa (2013) 5 SCC
226

(Delivered by Hon'ble Vivek Kumar
Birla, J.)

1. Heard Sri Pratik Nagar, learned
counsel appearing for the appellant in First
Appeal No. 51 of 2012 (Smt. Bhavna
Sharma vs. Sri Sanjeev Sharma) arising
out of Original Suit No. 1168 of 2008 filed
under Section 12 of the Hindu Marriage
Act, 1955 (hereinafter referred as the Act),
for declaring the marriage as void on the
ground of impotency of the defendantrespondent, who also appears for the
defendant-respondent in the connected
appeal and Sri Anurag Pathak, learned
counsel for the appellant-plaintiff in the
connected First Appeal No. 178 of 2012
(Sri Sanjeev Sharma Vs Smt. Bhavna
Sharma) arising out of the Original Suit
No. 88 of 2009 filed under Section 9 of the
Act for restitution of conjugal rights, who
also appears for the defendant-respondent
in the leading appeal.

2. Both the original suits were
consolidated and were dismissed by the
lower court by a common judgment.

3. With the consent of parties First Appeal
No. 51 of 2012 is taken as the leading appeal.
898 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The marriage between the parties
had taken place on 30.11.2007. An
Original Suit No. 1168 of 2008 under
Section 12 of the Act was filed by the
wife on 22.11.2008, i.e. within one year
of the marriage. The other suit being
Original Suit No. 88 of 2009 under
Section 9 of the Act was filed by the
husband on 9.1.2009.

5. The trial Court framed six issues
in O.S. No. 1168 of 2008 (Smt. Bhavna
Sharma vs. Sri Sanjeev Sharma). The first
issue was regarding impotency of the
husband and its impact; second issue
related to consummation of marriage
between the parties; third issue was as to
whether the marriage is liable to be
declared as null and void, fourth issue was
regarding relief to which the wife is
entitled; fifth issue was as to whether the
behaviour of opposite party (husband)
was cruel towards the plaintiff (wife) and
sixth issue was as to whether the opposite
party has fraudulently represented himself
as manager of a firm to marry the plaintiff
(wife).

6. In evidence copy of affidavits and
oral statements of Smt. Bhavna Sharma as
P.W.-1, Sri Rajeev Kumar as P.W.-2, Sri
Sanjeev Sharma as D.W.-1 and Smt.
Sarita Sharma as D.W.-2 have been filed.

7. In O.S. No. 88 of 2009 (Sri
Sanjeev Sharma vs. Smt. Bhavna Sharma)
filed under Section 9 of the Hindu
Marriage Act, 1955, five issues were
framed. First, whether the defendant is
legally wedded wife of plaintiff; second,
whether they are living separately without
any reasonable cause, third, whether the
proceedings of the case are liable to be
stayed under Section 10 of C.P.C.; fourth,
whether the sole plaintiff is entitled for
restitution of conjugal rights; and fifth
was regarding any other relief.

8. In evidence statements of witness
produced on behalf of the plaintiff as
P.W.-1
and
statements
of
witness
produced on behalf of defendant as D.W.-
1 have been filed.

9. The issue nos. 1 and 2 of both the
original suits were decided together.

10. The Trial Court recorded a
categorical finding that the plaintiff-wife
had failed to prove the impotency of the
defendant-husband and in this regard only
oral
statement
was
made
by
her.
Similarly, it was also recorded that she
has also failed to prove the ground of
cruelty. In O.S. No. 88 of 2009 it was
found that the husband has also failed to
prove his case and there is no cogent
evidence on record to substantiate his case
claiming restitution of conjugal rights as
he has failed to prove his case.

11. At the very outset, Sri Pratik
Nagar submits that he does not want to
press the ground of impotency. However,
he is pressing his alternative prayer for
divorce under Section 13 (1) (i-a) of the
Act and submits that the same is liable to
be allowed. In other words, learned
counsel for the appellant did not press his
relief for declaring marriage null and void
on the ground of impotency under Section
12 of the Act.

12. At this stage, Sri Harshit Pathak,
learned counsel holding brief of Sri
Anurag Pathak, learned counsel for the
respondent-defendant in the leading case
submitted
that
since
the
issue
of
impotency is no longer in dispute and
therefore, the suit under Section 9 of the
2 All. Bhavna Sharma Vs Sri Sanjeev Sharma
899
Act is liable to be allowed. He, further
opposed the prayer for divorce on the
ground that the wife has failed to prove
her case of cruelty.

13. I have considered the rival
submissions and perused the record.

14. In view of the statement made
by Sri Pratik Nagar, the issue regarding
impotency need not be gone into by this
Court and thus, challenge to the impugned
judgment to the extent of Section 12 of
the Act stands rejected. Now, only
alternative prayer for grant of divorce
under Section 13 (1) (i-a) of the Act falls
for consideration before this Court and the
question before this Court is as to whether
the same can be granted or not.

15. Admittedly, an agreement dated
19.8.2008 between the parties, paper no.
42C1, Annexure-1
to
the
affidavit,
whereby the parties have agreed to take
divorce and some amount was to be paid,
was filed before the court below. I have
perused the agreement as available on
record of the lower court and I find that
the same has been duly signed by both the
parties as well as by five other witnesses.
The affidavit and the agreement (paper
no. 42C1) is quoted as under:-

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900 INDIAN LAW REPORTS ALLAHABAD SERIES
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16. Insofar as the relief regarding
restitution of conjugal rights is concerned,
on perusal of the document at page 146 of
the appellants' paper book and annexure 1
thereof, which is an agreement entered
into between the parties, and of the
finding that has been returned at page 135
of the paper book by the trial Court that in
their statement both the parties have
admitted execution of the said agreement
and they have agreed to divorce, I do not
find any good ground to allow the OS No.
88 of 2004 and consider the prayer for
restitution
of
conjugal
rights.
The
agreement entered into between the
parties outside the court clearly indicates
that the defendant-respondent in the
leading appeal has, in fact, agreed for
divorce
between
the
parties.
Even
otherwise, the court below on the said
issue has also recorded a finding against
the husband. On perusal of the evidence, I
do not find any cogent reason to disagree
with the findings recorded by the trial
court.

17. Now the sole question remains
before this Court is regarding the claim of
divorce under Section 13 (1) (i-a) of the
Act on the ground of cruelty. The same
has been rejected on the ground that since
the petition was filed by the wife within a
period of one year from the date of
marriage, therefore, the petition under
Section 13 was not maintainable. Hence,
no relief was granted to the wife.

18. It is not in dispute that both
husband and wife are living separately for
about 12 years. On the last date, on
17.7.2019 both the learned counsel agreed
that the appeals be decided on merits. In
this view of the matter, I am not inclined
to relegate the parties to the court below
for filing fresh petition under Section 13
of the Act. Moreso, in view of the settled
law I find that it is a case where ground of
irretrievable
breakdown
between
the
parties is liable to be considered and thus,
prayer for the relief of divorce can be
considered by this Court.

19. Learned counsel for the
petitioner
has
placed
reliance
on
judgments of the Hon'ble Apex Court in
the case of Vinita Saxena Vs. Pankaj
Pandit, (2006) 3 SCC 778; Sukhendu Das
vs. Rita Mukherjee, (2017) 9 SCC 632;
and K. Srinivas Rao vs. D.A. Deepa,
(2013) 5 SCC 226 to contend that it is a
case of mental cruelty and the appellant
cannot be forced to stay in a dead
marriage. He, thus, submits that no
purpose would be served by compelling
the parties to live together in the
matrimony.

20. Paragraphs 41 and 49 of Vinita
Saxena (supra) are quoted as under:

"41. The Division Bench in Rita
Nijhawan v. Balkishan Nijhawan AIR
1973 Del 200 in AIR at p. 209, para 22
observed as follows:

"Marriage
without
sex
in
an
anathema. Sex is the foundation of
marriage and without a vigorous and
harmonious sexual activity it would be
impossible for any marriage to continue
for long. It cannot be denied that the
sexual activity in marriage has an
extremely favourable influence on a
2 All. Bhavna Sharma Vs Sri Sanjeev Sharma
901
woman's mind and body. The result being
that if she does not get proper sexual
satisfaction it will lead to depression and
frustration. It has been said that the
sexual
relations
when
happy
and
harmonious
vivifies
woman's
brain,
develops her character and trebles her
vitality. It must be recognised that nothing
is
more
fatal
to
marriage
than
disappointments in sexual intercourse."

"49. The observation made by this
Court in Shobha Rani vs. Madhukar
Reddi (1988) 1 SCC 105: 1988 SCC (Cri)
60: AIR 1988 SC 121 can be reproduced
to appreciate the facts and circumstances
of the case on hand. It reads as follows:

"There has been a marked change in
the life around us. In matrimonial duties
and responsibilities in particular, there is
a sea change. They are of varying degrees
from house to house or person to person.
Therefore,
when
a
spouse
makes
complaint about the treatment of cruelty
by the partner in life or relations, the
court should not search for standard in
life. A set of facts stigmatised as cruelty in
one case may not be so in another case.
The cruelty alleged may largely depend
upon the type of life the parties are
accustomed to or their economic and
social conditions. It may also depend
upon their culture and human values to
which they attach importance. The judges
and lawyers, therefore, should not import
their own notions of life. Judges may not
go in parallel with them. There may be a
generation gap between the judges and
the parties. It would better be if the judges
keep aside their customs and manners. It
would also be better if judges less depend
upon precedents."
(Emphasis supplied)

21. Paragraphs 7 and 8 of Sukhendu
Das (supra) are quoted as under:

"7. The Respondent, who did not
appear before the trial court after filing of
written statement, did not respond to the
request made by the High Court for
personal appearance. In spite of service
of Notice, the Respondent did not show
any interest to appear in this Court also.
This conduct of the Respondent by itself
would indicate that she is not interested in
living with the Appellant. Refusal to
participate in proceeding for divorce and
forcing the appellant to stay in a dead
marriage would itself constitute mental
cruelty (Samar Ghosh v. Jaya Ghosh
(2007) 4 SCC 511). The High Court
observed that no attempt was made by
either of the parties to be posted at the
same place. Without entering into the
disputed facts of the case, we are of the
opinion that there is no likelihood of the
Appellant and the Respondent living
together and for all practical purposes
there is an irretrievable breakdown of the
marriage.
8. This court in a series of judgments has
exercised its inherent powers under
Article 142 of the Constitution for
dissolution of a marriage where the Court
finds
that
the
marriage
is
totally
unworkable, emotionally dead, beyond
salvage
and
has
broken
down
irretrievably, even if the facts of the case
do not provide a ground in law on which
the divorce could be granted (Manish
Goel v. Rohini Goel (2010) 4 SCC 393).
Admittedly,
the
Appellant
and
the
Respondent have been living separately
for more than 17 years and it will not be
possible for the parties to live together
and there is no purpose in compelling the
parties to live together in 1 (2007) 4 SCC
511 [para101 (xiv)] 2 (2010) 4 SCC 393
[para 11] matrimony (Rishikesh Sharma
v. Saruoj Sharma (2007) 2 SCC 263). The
daughter of the Appellant and the
902 INDIAN LAW REPORTS ALLAHABAD SERIES
Respondent is aged about 24 years and
her custody is not in issue before us. In
the peculiar facts of this case and in order
to do complete justice between the
parties, we allow the Appeal in exercise of
our power under Article 142 of the
Constitution of India, 1950."

(Emphasis supplied)

22. Paragraphs 30, 31 and 32 of K.
Srinivas Rao (supra) are also quoted as
under:

"30. It is also to be noted that the
appellant husband and the respondent
wife are staying apart from 27-4-1999.
Thus, they are living separately for more
than ten years. This separation has
created an unbridgeable distance between
the two. As held in Samar Ghosh v. Jaya
Ghosh, (2007) 4 SCC 511, if we refuse to
sever the tie, it may lead to mental
cruelty."

"31. We are also satisfied that this
marriage has irretrievably broken down.
Irretrievable breakdown of marriage is
not a ground for divorce under the Hindu
Marriage Act, 1955. But, where marriage
is beyond repair on account of bitterness
created by the acts of the husband or the
wife or of both, the courts have always
taken
irretrievable
breakdown
of
marriage as a very weighty circumstance
amongst other necessitating severance of
marital tie. A marriage which is dead for
all purposes cannot be revived by the
court's verdict, if the parties are not
willing. This is because marriage involves
human sentiments and emotions and if
they are dried up there is hardly any
chance of their springing back to life on
account of artificial reunion created by
the court's decree.

"32. In V. Bhagat v. D. Bhagat,
(1994) 1 SCC 337, this Court noted that
divorce petition was pending for eight
years and a good part of the lives of both
the parties had been consumed in
litigation, yet the end was not in sight.
The facts were such that there was no
question of reunion, the marriage having
irretrievably
broken
down.
While
dissolving the marriage on the ground of
mental cruelty this Court observed that:

"21. ... Irretrievable breakdown of
the marriage is not a ground by itself.
But, while scrutinising the evidence on
record
to
determine
whether
the
ground(s) alleged is/are made out and in
determining the relief to be granted, the
said circumstance can certainly be borne
in mind."
(Emphasis supplied)

23. To consider the prayer for grant
of divorce I also would like to make a
reference to the judgements rendered in
the case of Naveen Kohli vs. Neelu Kohli,
(2006) SCC 558 and Smt. Mamta Dubey
vs. Rajesh Dubey, AIR 2009 Allahabad
141.

24. Paragraphs 57, 58, 59, 60, 66,
67, 72, 74, 75, 83, 84, 85, 86, 87, 88, 89
and 91 of Naveen Kohli (supra) are
quoted as under:

"57. In Sandhya Rani v. Kalyanram
Narayanan 1994 Supp (2) SCC 588 this
Court reiterated and took the view that
since the parties are living separately for
the last more than three years, we have no
doubt in our minds that the marriage
between the parties has irretrievably
broken down. There is no chance
whatsoever of their coming together.
Therefore, the Court granted the decree
of divorce.

58. In the case of Chandrakala
Menon v. Vipin Menon, reported in
2 All. Bhavna Sharma Vs Sri Sanjeev Sharma
903
(1993) 2 SCC 6, the parties had been
living separately for so many years. This
Court came to the conclusion that there is
no scope of settlement between them
because, according to the observation of
this Court, the marriage has irretrievably
broken down and there is no chance of
their coming together. This Court granted
decree of divorce.

59. In the case of Kanchan Devi v.
Promod Kumar Mittal, reported in (1996)
8 SCC 90, the parties were living
separately for more than 10 years and the
Court came to the conclusion that the
marriage between the parties had to be
irretrievably broken down and there was
no possibility of reconciliation and
therefore the Court directed that the
marriage between the parties stands
dissolved by a decree of divorce.

60. In Swati Verma v. Rajan Verma
(2004), reported in (2004) 1 SCC 123, a
large number of criminal cases had been
filed by the petitioner against the
respondent. This Court observed that the
marriage between the parties had broken
down irretrievably with a view to restore
good relationship and to put a quietus to
all litigations between the parties and not
to leave any room for future litigation, so
that they may live peacefully hereafter,
and on the request of the parties, in
exercise of the power vested in this Court
under Article 142 of the Constitution of
India, the Court allowed the application
for divorce by mutual consent filed before
it under Section 13-B of the Hindu
Marriage Act and declared the marriage
dissolved and granted decree of divorce
by mutual consent.

66.
Irretrievable
breakdown
of
marriage is not a ground for divorce
under the Hindu Marriage Act, 1955.
Because of the change of circumstances
and for covering a large number of cases
where the marriages are virtually dead
and unless this concept is pressed into
services, the divorce cannot be granted.
Ultimately, it is for the Legislature
whether
to
include
irretrievable
breakdown of marriage as a ground of
divorce or not but in our considered
opinion the Legislature must consider
irretrievable breakdown of marriage as a
ground for grant of divorce under the
Hindu Marriage Act, 1955.

67.The 71st Report of the Law
Commission of India briefly dealt with the
concept of Irretrievable breakdown of
marriage. This Report was submitted to
the Government on 7th April, 1978. We
deem it appropriate to recapitulate the
recommendation
extensively.
In
this
Report, it is mentioned that during last 20
years or so, and now it would around 50
years, a very important question has
engaged the attention of lawyers, social
scientists and men of affairs, namely,
should the grant of divorce be based on
the fault of the party, or should it be
based on the breakdown of the marriage?
The former is known as the matrimonial
offence theory or fault theory. The latter
has come to be known as the breakdown
theory.

72. Once the parties have separated
and the separation has continued for a
sufficient length of time and one of them
has presented a petition for divorce, it can
well be presumed that the marriage has
broken down. The court, no doubt, should
seriously make an endeavour to reconcile
the parties; yet, if it is found that the
breakdown is irreparable, then divorce
should not be withheld. The consequences
of preservation in law of the unworkable
marriage which has long ceased to be
effective are bound to be a source of
greater misery for the parties.
904 INDIAN LAW REPORTS ALLAHABAD SERIES

74.
We
have
been
principally
impressed by the consideration that once
the marriage has broken down beyond
repair, it would be unrealistic for the law
not to take notice of that fact, and it would
be harmful to society and injurious to the
interests of the parties. Where there has
been a long period of continuous
separation, it may fairly be surmised 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 do not
serve the sanctity of marriage; on the
contrary, it shows scant regard for the
feelings and emotions of the parties.

75. Public interest demands not only
that the married status should, as far as
possible, as long as possible, and
whenever possible, be maintained, but
where a marriage has been wrecked
beyond the hope of salvage, public
interest lies in the recognition of that fact.

83. Even at this stage, the respondent
does not want divorce by mutual consent.
From the analysis and evaluation of the
entire evidence, it is clear that the
respondent has resolved to live in agony
only to make life a miserable hell for the
appellant as well. This type of adamant
and callous attitude, in the context of the
facts of this case, leaves no manner of
doubt in our mind that the respondent is
bent upon treating the appellant with
mental cruelty. It is abundantly clear that
the marriage between the parties had
broken down irretrievably and there is no
chance of their coming together, or living
together again.

84. The High Court ought to have
appreciated that there is no acceptable
way in which the parties can be
compelled to resume life with the consort,
nothing is gained by trying to keep the
parties tied forever to a marriage that in
fact has ceased to exist.

85. Undoubtedly, it is the obligation
of the Court and all concerned that the
marriage status should, as far as possible,
as long as possible and whenever
possible, be maintained, but when the
marriage is totally dead, in that event,
nothing is gained by trying to keep the
parties tied forever to a marriage which
in fact has ceased to exist. In the instant
case, there has been total disappearance
of emotional substratum in the marriage.
The course which has been adopted by the
High Court would encourage continuous
bickering, perpetual bitterness and may
lead to immorality.

86. In view of the fact that the parties
have been living separately for more than
10 years and a very large number of
aforementioned
criminal
and
civil
proceedings have been initiated by the
respondent against the appellant and
some proceedings have been initiated by
the appellant against the respondent, the
matrimonial bond between the parties is
beyond repair. A marriage between the
parties is only in name. The marriage has
been wrecked beyond the hope of salvage,
public interest and interest of all
concerned lies in the recognition of the
fact and to declare defunct de jure what is
already defunct de facto. To keep the
sham
is
obviously
conducive
to
immorality
and
potentially
more
prejudicial to the public interest than a
dissolution of the marriage bond.

87.The High Court ought to have
visualized that preservation of such a
marriage is totally unworkable which has
ceased to be effective and would be
greater source of misery for the parties.

88. The High Court ought to have
considered that a human problem can be
properly resolved by adopting a human
2 All. Bhavna Sharma Vs Sri Sanjeev Sharma
905
approach. In the instant case, not to grant
a decree of divorce would be disastrous
for the parties. Otherwise, there may be a
ray of hope for the parties that after a
passage of time (after obtaining a decree
of
divorce)
the
parties
may
psychologically and emotionally settle
down and start a new chapter in life.

89. In our considered view, looking
to the peculiar facts of the case, the High
Court was not justified in setting aside the
order of the Trial Court. In our opinion,
wisdom lies in accepting the pragmatic
reality of life and take a decision which
would ultimately be conducive in the
interest of both the parties.

91. Before we part with this case, on
the consideration of the totality of facts,
this Court would like to recommend the
Union of India to seriously consider
bringing an amendment in the Hindu
Marriage Act, 1955 to incorporate
irretrievable breakdown of marriage as a
ground for the grant of divorce. A copy of
this judgment be sent to the Secretary,
Ministry of Law & Justice, Department of
Legal Affairs, Government of India for
taking appropriate steps."

(Emphasis supplied)

25. Paragraphs 36 and 39 of Smt.
Mamta Dubey (supra) are quoted as
under:

"36. Upon an overall assessment of
the facts and circumstances of the case
and the perusal of record, we are of the
opinion that the marriage between the
plaintiff and the defendant has broken
down
irretrievably.
The
defendantappellant is not willing to withdraw the
criminal prosecution which is pending
against the plaintiff and his family
members. On account of the filing of the
case under Section 498-A IPC by the
defendant against the plaintiff and his
family members, the plaintiff and his
father were sent to jail and they had to
remain there for a considerably long
period of time before they were enlarged
on bail. There has been no interaction
between the parties after 1999. The
parties admittedly have not cohabited for
the last 13 years. The defendant has
accused the plaintiff of having adulterous
relationship with his female colleagues
and Ms. Deepti Rawal and also made
these allegations public thereby seriously
damaging the plaintiff's reputation and
undermining his character. A husband
cannot be expected to live with his wife
under the same roof who distrusts him,
holds him responsible for the death of her
daughters and who is prosecuting a
criminal case against him and his entire
family. Admittedly, there has been a long
period of continuous separation in the
present case and it may fairly be
concluded that the matrimonial bond is
beyond repair. Thus we are of the view
that the marriage between the plaintiff
and the defendant is dead in all respects
and has broken down irretrievably.

39. The judgment and decree passed
by the trial court does not call for any
interference."
(Emphasis supplied)

26. Learned counsel for the
respondent though sought to support the
case of the husband, however, could not
dispute the fact that admittedly, both the
parties are living separately for last about
12 years. On the last date husband,
namely, Sri Sanjeev Sharma was present
in the Court and on pointed query, this
Court also found that the marriage has
virtually become a dead marriage and
there is a clear case of irretrievable
906 INDIAN LAW REPORTS ALLAHABAD SERIES
breakdown.
Apart
from
that,
the
agreement entered into between the
parties, which is on record bearing the
signature of the parties and is also not in
dispute, clearly reflects the intention of
the parties to go in for divorce. Apart
from that admittedly, the plaintiff wife
had filed cases against the defendant
under Section 498-A IPC and Domestic
Violence Act and under Section 125
Cr.P.C. and undisputedly, the defendant
had also undergone about two years of
incarceration.

27. Under such circumstances, I do not
find any good ground to set aside the
judgments passed by the court below
impugned in the leading appeal filed under
Section 12 of the Act, as well as in the
connected appeal passed filed under Section
19 of the Act. However, in view of the law as
discussed above, I find that it is a case of
irretrievable breakdown of marriage, where
marriage between the parties is beyond repair
and is dead, and no fruitful purpose would be
served by relegating the parties to the court
below to file fresh petition for divorce under
Section 13 of the Act, as more than 12 years
has already passed and the alternative relief
of divorce under Section 13 of the Act
claimed before the Court is liable to be
granted.

28. Accordingly, the relief claimed
by the wife in alternative in O.S. No.
1168 of 2008 is granted and a decree of
divorce between the parties is passed.

29. However, before parting with the
appeal I would like to put this on record
that on the last date, on 17.7.2019, in
order to settle the dispute between the
parties, when learned counsel for the
appellant (wife) in leading appeal was
pressing hard for grant of divorce, he was
pointedly asked to seek instructions from
his client (wife) if she is agreeable to forgo
any
kind
of
permanent
alimony/compensation, as the defendantrespondent (husband) present in the court
has narrated the pain of undergoing
imprisonment for about 2 years in a case
under Section 498-A IPC and stated that the
plaintiff (wife) is well of, today learned
counsel for the appellant Sri Pratik Nagar
on instructions from his client (wife) stated
that she is willing to forgo the same. I also
find that, in fact, there is no such prayer
also. There is yet another reason for the
same i.e., a compromise had already taken
place between the parties outside the court
as mentioned above.

30. No other point was pressed.

31.
For
the
discussions
made
hereinabove, the leading appeal being First
Appeal No. 51 of 2012 (Smt. Bhavna Sharma
vs. Sanjeev Sharma) stands partly allowed and
a decree of divorce is granted under Section
13 of the Hindu Marriage Act, 1955 and the
connected appeal being First Appeal No. 178
of 2012 stands dismissed.

32. Ordered accordingly.
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(2019)10ILR A 906

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2019

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE UMESH KUMAR, J.

Criminal Misc. Writ Petition No. 12281 of 2019

Raghvendra Singh & Ors. ...Petitioners
Versus