# Charu Chug @ Charu Arora v. Madhukar Chugh

- **Citation:** (2024) 2 ILRA 80
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-10
- **Case number:** First Appeal No. 177 of 2017
- **Bench:** Vivek Kumar Birla, Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/charu-chug-charu-arora-v-madhukar-chugh-51483
- **Pages:** 9

## Headnote

Civil Law - The Hindu Marriage Act, 1955 -
Section 13(1)(ia) -Divorce Upheld on Ground
of Mental Cruelty The Allahabad High Court
upheld the divorce decree granted under
Section 13(1)(ia) of the Hindu Marriage Act,
1955, finding that the appellant-wife's false
allegations of dowry demand, physical assault,
and extramarital affair by the respondenthusband constituted mental cruelty. No cogent
evidence supported the wife's claims, and her
admissions in cross-examination disproved the
allegations. (Paras 9, 12, 17)

Irretrievable Breakdown as a Facet of Cruelty
The court recognized the marriage's irretrievable
breakdown, with the parties living separately for
over 13 years, as a facet of cruelty under
Section 13(1)(ia). Despite the absence of
desertion under Section 13(1)(ib), the prolonged
separation and lack of cohabitation rendered the
marital bond unviable, justifying divorce. (Paras
13-14)

Failure
of
Conciliation
and
Procedural
Compliance The court rejected the appellant's
claim that conciliation under Section 9 of the
Family Courts Act, 1984, was not attempted,
noting
that
both
parties
participated
in
2 All. Charu Chug @ Charu Arora Vs. Madhukar Chugh
81
conciliation on 31.03.2014, but the appellant
failed to attend further proceedings, indicating
disinterest. The trial court's findings on cruelty
were supported by cogent evidence and
reasoning. (Paras 5, 10)

Judicial Precedents on Cruelty and Marriage
Dissolution Relying on Samar Ghosh Vs Jaya
Ghosh (2007), Rakesh Raman Vs Kavita (2023),
and Rajib Kumar Roy Vs Sushmita Saha (2023),
the court held that mental cruelty, including
false accusations and long-term separation,
justifies divorce. The Supreme Court's power
under Article 142 to dissolve marriages on
irretrievable
breakdown
was
noted
as
persuasive. (Paras 15-16, 17)

Cases Cited:

## Text

80 INDIAN LAW REPORTS ALLAHABAD SERIES
claim under Section 166 of the Motor
Vehicles Act 1988.

7. The provisions of Section 140
which formed a part of Chapter 10 of the
Motor Vehicles Act, 1988 were omitted by
Act 32 of 2019. Simultaneously, Chapter 11
was substituted of which Section 164
provides for payment of compensation in
the case of death in the amount of Rs.5
lakhs and in the case of grievous hurt of
Rs.2.5 lakhs.

8. We are inclined to give the
appellants the benefit of the beneficial
provisions which have been enacted by
Parliament. Hence, in modification of the
order of the High Court, we direct that the
appellants shall be entitled to an amount of
Rs.5 lakhs as compensation. However, if the
amount of Rs.50,000 which has been
awarded by the High Court has already
been paid over, the balance (or the entirety
of 5 lakhs if no amount has been paid) shall
be paid over to the appellants by
30.11.2022."

20. Accordingly, this Court awards
Rs.5,00,000/-
in
lump-sum
to
the
claimants/appellants. Out of the said
amount, all the claimants are awarded equal
amount i.e. 1,25,000/-. It is further
provided
that
enhanced
amount
of
compensation shall carry 7% simple
interest from the date of institution of claim
petition till the amount is deposited.

21. Thus, for the reasons given above,
the appeal is partly allowed and the award
of the Tribunal is modified to the extent
indicated above. The insurance company is
directed to pay the awarded amount of
compensation to the claimants/appellants
within a period of three months from the
date of production of a certified copy of
this order. There shall be no order as to
costs.
----------
(2024) 2 ILRA 80
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

First Appeal No. 177 of 2017

Charu Chug @ Charu Arora ...Appellant
Versus
Madhukar Chugh ...Respondent

Counsel for the Appellant:
Sri Vinay Kumar Mishra, Sri Vishesh
Rajvanshi

Counsel for the Respondent:

Civil Law - The Hindu Marriage Act, 1955 -
Section 13(1)(ia) -Divorce Upheld on Ground
of Mental Cruelty The Allahabad High Court
upheld the divorce decree granted under
Section 13(1)(ia) of the Hindu Marriage Act,
1955, finding that the appellant-wife's false
allegations of dowry demand, physical assault,
and extramarital affair by the respondenthusband constituted mental cruelty. No cogent
evidence supported the wife's claims, and her
admissions in cross-examination disproved the
allegations. (Paras 9, 12, 17)

Irretrievable Breakdown as a Facet of Cruelty
The court recognized the marriage's irretrievable
breakdown, with the parties living separately for
over 13 years, as a facet of cruelty under
Section 13(1)(ia). Despite the absence of
desertion under Section 13(1)(ib), the prolonged
separation and lack of cohabitation rendered the
marital bond unviable, justifying divorce. (Paras
13-14)

Failure
of
Conciliation
and
Procedural
Compliance The court rejected the appellant's
claim that conciliation under Section 9 of the
Family Courts Act, 1984, was not attempted,
noting
that
both
parties
participated
in
2 All. Charu Chug @ Charu Arora Vs. Madhukar Chugh
81
conciliation on 31.03.2014, but the appellant
failed to attend further proceedings, indicating
disinterest. The trial court's findings on cruelty
were supported by cogent evidence and
reasoning. (Paras 5, 10)

Judicial Precedents on Cruelty and Marriage
Dissolution Relying on Samar Ghosh Vs Jaya
Ghosh (2007), Rakesh Raman Vs Kavita (2023),
and Rajib Kumar Roy Vs Sushmita Saha (2023),
the court held that mental cruelty, including
false accusations and long-term separation,
justifies divorce. The Supreme Court's power
under Article 142 to dissolve marriages on
irretrievable
breakdown
was
noted
as
persuasive. (Paras 15-16, 17)

Cases Cited:

1. Rakesh Raman Vs Kavita, AIR 2023 SC 2144
(Para 15)

2. Samar Ghosh Vs Jaya Ghosh, (2007) 4 SCC
511 (Paras 15, 17)

3. Rajib Kumar Roy Vs Sushmita Saha, 2023
SCC OnLine SC 1221 (Para 16)

4.
Joydeep
Majumdar
Vs
Bharti
Jaiswal
Majumdar, 2021 (1) ARC 505 (SC) (Para 17)

5. Shilpa Sailesh Vs Varun Sreenivasan, 2023
SCC OnLine SC 544 (Para 16)

6. R. Srinivas Kumar Vs R. Shametha, (2019) 9
SCC 409 (Para 15)

7. Munish Kakkar Vs Nidhi Kakkar, (2020) 14
SCC 657 (Para 15)

8. Neha Tyagi Vs Lieutenant Colonel Deepak
Tyagi, (2022) 3 SCC 86 (Para 15)

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

1. Heard Sri Vishesh Rajvanshi,
learned counsel for the appellant-defendant
(wife) and perused the record.

2. Vide order dated 9.3.2017 present
appeal was admitted and notices were
issued to the sole respondent-plaintiff
(husband) by registered post/speed post. As
per
office
report
dated
15.12.2017,
'unserved
notice
returned
due
to
unclaimed'. Subsequently, the appeal was
dismissed for want of prosecution on
17.10.2022
and
on
a
restoration
application, the same was restored on
22.5.2023. In view of the fact that the
appeal had been dismissed for want of
prosecution, fresh notices were issued on
1.11.2023. According to the office report
dated 9.3.2023 in respect of ordinary
process, it is reported that notice not
received back after service and in respect of
speed post, it is reported that undelivered
notice received with remark. In such
circumstances, notice of service on sole
respondent is deemed to be sufficient.

3. No one has turned up on behalf of
the sole respondent (plaintiff-husband),
therefore, we proceed to hear the counsel
for the appellant on merits.

4. Present appeal has been filed
challenging the impugned judgement and
order dated 21.1.2017 passed by the
Principal Judge, Family Court, Meerut in
Divorce
Petition
No.
643
of
2013
(Madhukar Chugh vs. Charu Chug) filed
under Section 13 (1) (ia) and (ib) of the
Hindu Marriage Act.

5. Submission of learned counsel for
the appellant is that respondent-plaintiff
(husband)
has
himself
deserted
the
appellant-defendant (wife) as he wanted to
perform re-marriage with another lady. It is
submitted that the Court below failed to
record any finding that the alleged
desertion/separation by the appellant was
unreasonable, unexplained and has not
82 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded any finding regarding relation
between
the
parties
having
become
irretrievable. It is further submitted that
appellant-defendant clearly pleaded her
willingness to live with her husband to lead
a peaceful and successful matrimonial life,
which has not been considered by the Court
below. It was next submitted that cruelty
under Section 13 (1)(ia) and (ib) of the
Hindu Marriage Act has to be proved
beyond all reasonable doubt on the basis of
cogent evidence, but in the present case the
requirement of provisions have not been
fulfilled and therefore, the judgement
impugned herein is bad in the eye of law. It
is also submitted that the issue of cruelty
has been decided in a superficial manner
without discussing the evidence on record.
Attention was drawn to the stand taken by
the appellant in her written statement and
the statement of respondent no. 1 recorded
as PW-1 as well as statement of PW-2.
Specific attention was drawn to the crossexamination of DW-1 in support of the
arguments to show that cruelty was
committed on the appellant and not on the
respondent-plaintiff (husband). It is also
submitted that the Court below did not
initiate conciliation proceedings between
the parties as per Section 9 of the Family
Court Act, 1984.

6.

We
have
considered
the
submissions of leaned counsel for the
appellant and have gone through the
judgement of the Court below impugned
herein.

7. Admitted facts of the case as
reflected from the judgement are that the
marriage between the plaintiff (respondenthusband) and the defendant (appellantwife) was performed on 15.4.2002 as per
hindu rites and rituals after the offer having
been
accepted
through
matrimonial
advertisement in a newspaper in the year
2001. It is also admitted that after marriage
they had gone to Dalhousie (Himachal
Pradesh) for honeymoon and after return
from honeymoon, the husband (respondent)
had gone to Bhopal to join his services. It is
alleged that the appellant (wife) had gone
to
Meerut
to
her
parental
house.
Subsequently, she came to Bhopal. In
September, 2002 she had returned to her
parents and the husband was informed by
his
mother-in-law
that
she
had
a
miscarriage in November, 2002. In July,
2003 the appellant got a job in Bhopal and
joined the services. Subsequently, she had
joined the services at different places,
admittedly, away from the place of
employment of her husband. Thereafter, the
husband was transferred to Mumbai in
February, 2004 where she had also come
after leaving her job and remained with her
husband for a short period till 2005. It is
also not in dispute that right ovary of the
appellant (wife) was operated before
marriage in the year 1999 and was
removed. Another admitted fact remains
that out of the said wedlock, the couple is
not having any child.

8. In the divorce petition, it was stated
that on the unfortunate incident of death of
father of the husband (respondent) on
17.2.2010, she came to Pune at matrimonial
house and remained there for two days
where according to the husband, she was
requested to remain with him but she did
not stay and go back. In April, 2010 the
husband was transferred to Mumbai again
and she was requested to accompany him
but she did not agree and therefore, these
facts as reflected from the judgement
impugned herein are not in dispute. It was
also asserted that the husband was
subjected to mental and physical cruelty
and torture and he was deserted by her and
2 All. Charu Chug @ Charu Arora Vs. Madhukar Chugh
83
now it is not possible for them to live under
one roof as no physical or matrimonial
relationship is left and it is a case of cruelty
as well as irretrievable breakdown and
divorce was prayed for.

9. We may also place on record this
fact that although written statement was
filed stating several facts, however, these
specific facts noticing the details are not in
dispute and this fact is clearly reflected that
after marriage, they lived together for a
short period only and they never lived
together continuously for a long period.
Apart from this admitted fact, the stand
taken by the appellant (wife) in her written
statement that on 27.11.2003 she was
subjected to beating and torture and her
head was smashed on the wall and retina of
left eye was hemorrhaged and there was a
demand of dowry of Rs. 20,00,000/- as
well. She had also taken a stand that the
husband
was
having
an
intimate
relationship with one female friend Barnali
Mitra and she had come to know about this
during honeymoon itself in the year 2002.

10. Insofar as the ground regarding
conciliation proceedings is concerned, we
find that in the impugned judgement, it has
been clearly noticed that on 31.3.2018 both
the parties were present in the Court and
they talked each other for conciliation and
shared their problems and asked for next
date for further hearing whereon 7.4.2014
was fixed as the next date. It has been
further noticed that on 7.4.2014 the
husband was present, however, the wife
(appellant) was not present and therefore, it
was recorded that she is not interested in
conciliation
proceedings
or
any
compromise in the matter, therefore, the
Court below proceeded further wherein the
statement of the plaintiff (husband) was
recorded as PW-1 and was cross-examined
and PW-2 Pradeep Kumar was also crossexamined. Certain documents were filed by
the plaintiff (respondent-husband), that is,
photographs of marriage, original wedding
card, two photos, copy of degree of Ph.D.,
copy letter of Radharaman Institute of
Technology, copy of medical prescription
of eye operation, copy of appointment letter
dated
3.1.2004
and
certain
other
documents.

11. Two issues were framed by the
Court below: (i) whether defendant has
deserted the husband two years before from
the date of filing of the petition; (ii)
whether the defendant has committed any
cruelty with the plaintiff; and (iii) to what
relief the plaintiff is entitled to.

12. While discussing the issue no. (ii)
first, it was found that the appellant never
lived continuously with the husband
throughout the period after filing of the
divorce petition and this fact was admitted
by her. Insofar as the demand of dowry is
concerned, it was found that the allegations
levelled against the husband were false and
no evidence whatsoever was produced in
this regard; no complaint or FIR was
lodged in this respect with any authority or
concerned police officer. Insofar as the
injury caused to the appellant is concerned,
it was found that she was having eyeproblem even before marriage, which was
admitted and no report etc. in respect of the
injury having been caused was placed on
record and even no complaint or FIR in
respect of alleged beating or smashing head
of the appellant on wall was ever reported
to anyone. Therefore, it was found that it
was a case of false allegations and thus,
mental cruelty was committed. Insofar as
intimate relationship of husband with one
female friend Barnali Mitra is concerned,
she had admitted in her cross-examination
84 INDIAN LAW REPORTS ALLAHABAD SERIES
that the documents being paper no. 9Ga/1
upto 9Ga/7 are concerned, messages
allegedly sent may contain forwarded
messages and may not be the message in
original. On a pointed query in respect of
paper no. 96Ga/6, which was to the effect
that Barnali Mitra had written that she had
a boyfriend and therefore, he (Madhukar
Chugh) should not remain attracted to her
and that she is not fit for Madhukar and she
had even called him 'Pagal'. In that reply,
she had admitted this fact and therefore,
even e-mail communication copy whereof
were filed by the appellant clearly reflects
that the allegation levelled against the
husband having extra-marital relationship
with Barnali Mitra was false and is not
reflected
or
corroborated
from
the
evidence. The Court below recorded a
finding that she had clearly failed to prove
such allegations of extra-marital affair. On
that ground, it was found that mental
cruelty was caused to the husband.

13. Insofar as the desertion is
concerned, it was recorded that the petition
was filed on 3.5.2012 whereas the finding
has been recorded that the period for
desertion would be counted from June,
2011 and therefore, issue no. (i) in respect
of desertion was decided against the
husband and decree of divorce was granted
on the ground of cruelty. Insofar as the
cruelty is concerned, the law is very well
settled that it need not be physical in nature
only and that there may be mental cruelty
as well to the extent that it becomes
impossible for the other spouse to continue
in the marital relationship. We find that the
issue no. 2 has been decided by the Court
below by giving cogent reasons. It is a case
of mental cruelty where false allegations of
serious nature having intimate relationship
with a female friend Barnali Mitra and
causing physical injury to the appellant
were found to be false. Apart from this, the
admitted facts as reflected from the crossexamination annexed as Annexure 5 of the
typed copy of the paper book that since
2012 after marriage the appellant was not
living continuously with the husband. She
had worked at different places in different
States, that is, Vanasthali (Rajasthan),
Gurgaon, Bombay, Bhopal and at present
she is working Guru Ghasidas Central
University, Bilaspur as Associate Professor.
She had also admitted that from 2008 she
had been visiting the husband off and on,
but she does not remember the dates or the
period or the duration of such living with
her husband.

14. We, therefore, find that apart from
issue no. 2 of cruelty the Court below
appreciated that it is a case of irretrievable
breakdown even if the desertion is not
proved as per definition of Section 13
(1)(ia) and (ib). Admittedly at least 13
years have passed since both are living
separately, which by itself amounts to
cruelty under Section 13 (1)(ia) of the Act.

15. A reference may be made to the
judgement of Hon'ble Apex Court in
Rakesh Raman vs. Smt. Kavita, AIR 2023
Supreme Court 2144, paragraphs 12 to 18
whereof are quoted as under:

"12. Other aspect which we must
consider is the fact that for the last 25
years the appellant and respondent, are
living separately, and have not cohabitated.
There
is
absolutely
no
scope
of
reconciliation between the parties. There is
in fact no bond between the two and as the
Law Commission in its 71st report said
about such a marriage, which is a
marriage which has de facto broken down,
and only needs a de jure recognition by the
2 All. Charu Chug @ Charu Arora Vs. Madhukar Chugh
85
law. The same was reiterated by the Law
Commission in its 217th report.

13. Under similar circumstances,
this Court in R. Srinivas Kumar v. R.
Shametha (2019) 9 SCC 409, Munish
Kakkar v. Nidhi Kakkar, (2020) 14 SCC
657 and Neha Tyagi v. Lieutenant Colonel
Deepak Tyagi, (2022) 3 SCC 86 has held
that an irretrievable marriage is a
marriage where husband and wife have
been living separately for a considerable
period and there is absolutely no chance of
their living together again. In all the above
cited three cases, this Court in exercise of
its power under Article 142 of the
Constitution of India has dissolved the
marriage on the ground of irretrievable
breakdown as a ground, which otherwise
does not exist under the Hindu Marriage
Act.

14. In Naveen Kohli: (AIR 2006
SC 1675)(supra), a strong recommendation
has been made by this Court to the Union
of India to consider adding irretrievable
breakdown down of a marriage as a ground
for divorce under the Hindu Marriage Act.

15. The multiple Court battles
between them and the repeated failures in
mediation and conciliation is at least
testimony of this fact that no bond now
survive between the couple, it is indeed a
marriage
which
has
broken
down
irretrievably.

16. Matrimonial cases before the
Courts pose a different challenge, quite
unlike any other, as we are dealing with
human relationships with its bundle of
emotions, with all its faults and frailties. It
is not possible in every case to pin point to
an act of "cruelty" or blameworthy conduct
of the spouse. The nature of relationship,
the general behaviour of the parties
towards each other, or long separation
between the two are relevant factors which
a Court must take into consideration. In
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC
511 a three judge Bench of this Court had
dealt in detail as to what would constitute
cruelty under Section 13 (1) (ia) of the Act.
An important guideline in the above
decision is on the approach of a Court in
determining cruelty. What has to be
examined here is the entire matrimonial
relationship, as cruelty may not be in a
violent act or acts but in a given case has
to be gathered from injurious reproaches,
complaints, accusations, taunts, etc. The
Court relied on the definition of cruelty in
matrimonial relationships in Halsbury's
Laws of England (Vol 13, 4th Edn, Para
1269, Pg 602) which must be reproduced
here:

"The general rule in all cases of
cruelty is that the entire matrimonial
relationship must be considered, and that
rule is of special value when the cruelty
consists not of violent acts but of injurious
reproaches, complaints, accusations or
taunts. In cases where no violence is
averred, it is undesirable to consider
judicial pronouncements with a view to
creating certain categories of acts or
conduct as having or lacking the nature or
quality which renders them capable or
incapable
in
all
circumstances
of
amounting to cruelty; for it is the effect of
the conduct rather than its nature which is
of paramount importance in assessing a
complaint of cruelty. Whether one spouse
has been guilty of cruelty to the other is
essentially a question of fact and previously
decided cases have little, if any, value. The
court should bear in mind the physical and
mental condition of the parties as well as
their social status, and should consider the
impact of the personality and conduct of
one spouse on the mind of the other,
weighing
all
incidents
and
quarrels
between the spouses from that point of
view; further, the conduct alleged must be
86 INDIAN LAW REPORTS ALLAHABAD SERIES
examined in the light of the complainant's
capacity for endurance and the extent to
which that capacity is known to the other
spouse.
Malevolent
intention
is
not
essential to cruelty but it is an important
element where it exists."

The view taken by the Delhi High
Court in the present case that mere filing of
criminal cases by the wife does not
constitute cruelty as what has also to be
seen are the circumstances under which
cases were filed, is a finding we do not wish
to disregard totally, in fact as a pure
proposition of law it may be correct, but
then we must also closely examine the
entire facts of the case which are now
before us. When we take into consideration
the facts as they exist today, we are
convinced
that
continuation
of
this
marriage would mean continuation of
cruelty, which each now inflicts on the
other.
Irretrievable
breakdown
of
a
marriage may not be a ground for
dissolution of marriage, under the Hindu
Marriage Act, but cruelty is. A marriage
can be dissolved by a decree of divorce,
inter alia, on the ground when the other
party "has, after the solemnization of the
marriage
treated
the
petitioner
with
cruelty". In our considered opinion, a
marital relationship which has only become
more bitter and acrimonious over the years,
does nothing but inflicts cruelty on both the
sides. To keep the facade of this broken
marriage alive would be doing injustice to
both the parties. A marriage which has
broken down irretrievably, in our opinion
spells cruelty to both the parties, as in such
a relationship each party is treating the
other with cruelty. It is therefore a ground
for dissolution of marriage under Section
13 (1) (ia) of the Act.

17. 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: (AIROnline 2007 SC 377)
(supra) 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. 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."

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
2 All. Charu Chug @ Charu Arora Vs. Madhukar Chugh
87
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)

18. We have a married couple
before us who have barely stayed together
as a 12. Other aspect which we must
consider is the fact that for the last 25
years the appellant and respondent, are
living separately, and have not cohabitated.
There
is
absolutely
no
scope
of
reconciliation between the parties. There is
in fact no bond between the two and as the
Law Commission in its 71st report said
about such a marriage, which is a
marriage which has de facto broken down,
and only needs a de jure recognition by the
law. The same was reiterated by the Law
Commission in its 217th report.

16. Another reference may also be
made to the judgement of Hon'ble Apex
Court in Rajib Kumar Roy vs. Sushmita
Saha,
2023
SCC
Online
SC
1221,
paragraphs 7 to 11 whereof are quoted as
under:

"7. We have heard the learned
counsel for the petitioner as well as the
learned counsel for the respondent (wife) at
length. Today, the parties are also before us
through virtual mode, and we had a chance
to interact with both. Considering the
entire gamut of facts which are there before
us, we have absolutely no doubt in our
mind that this is a case of irretrievable
breakdown of marriage.

8. The husband and wife have
been living separately, the wife is at
Udaipur (district Gomati), Tripura and
husband at Agartala, Tripura for the last 12
years. Nothing would give us more
satisfaction if the two could work out their
differences and decide to live together, if
only for the sake of their child. But under
the circumstances, with the rigid attitude of
both the parties, who have failed to
appreciate the beauty of compromise, we
have been forced to convince ourselves,
albeit regrettably, that the two cannot now
live together. Twelve years of separation, is
a sufficiently long period of time to have
sapped all emotions which the two perhaps
may have had once for each other. We
therefore cannot take the same hopeful view
as that of the High Court, which still
believes that the matrimonial bond between
the two has not ruptured beyond repair or
that the two cannot still give a new lease of
life to their relation. Frankly, no matter
how much we would have liked this to
happen but in reality, this is a possibility,
which under the facts and circumstances of
the case, can only be called wishful.

9. Continued bitterness, dead
emotions and long separation, in the given
facts and circumstances of a case, can be
construed as a case of "irretrievable
breakdown of marriage", which is also a
facet of "cruelty". In Rakesh Raman v.
Kavita reported in 2023 SCC OnLine SC
497, this is precisely what was held, that
though in a given case cruelty as a fault,
may not be attributable to one party alone
and hence despite irretrievable breakdown
of marriage keeping the parties together
amounts to cruelty on both sides. Which is
precisely the case at hand.

10.
Whatever
may
be
the
justification for the two living separately,
88 INDIAN LAW REPORTS ALLAHABAD SERIES
with so much of time gone by, any marital
love or affection, which may have been
between the parties, seems to have dried
up. This is a classic case of irretrievable
breakdown of marriage. In view of the
Constitution Bench Judgment of this court
in Shilpa Sailesh v. Varun Sreenivasan,
2023 SCC OnLine SC 544 which has held
that in such cases where there is
irretrievable breakdown of marriage then
dissolution of marriage is the only solution
and this Court can grant a decree of
divorce in exercise of its power under
Article 142 of the Constitution of India.

11. We therefore declare the
marriage to have broken down irretrievably
and therefore in exercise of our jurisdiction
under Article 142 of the Constitution of
India we are of the considered opinion that
this
being
a
case
of
irretrievable
breakdown of marriage must now be
dissolved by grant of decree of divorce."

17. Hon'ble Apex Court in Joydeep
Majumdar vs. Bharti Jaiswal Majumdar,
2021 (1) ARC 505 (SC) making reference
to the Hon'ble Apex Court in the case of
Samar Ghosh vs. Jaya Ghosh, (2007) 4
SCC 511 has granted divorce on the ground
mental cruelty. In the present case, undue
harassment and thus, mental cruelty has
been clearly established, therefore, the
husband was rightly granted divorce by the
Court below.

18. In view of the discussion made
hereinabove, we do not find any good
ground
to
set
aside
the
judgement
impugned herein.

19. Present appeal lacks merit and is
accordingly dismissed.
----------
(2024) 2 ILRA 88
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Habeas Corpus Writ Petition No. 330 of 2022

Malav Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shobh Nath Pandey

Counsel for the Respondents:
G.A., Dr. Manoj Kumar Dubey

Civil Law - Constitution of India,1950-
Article
226
-
Hindu
Minority
and
Guardianship Act, 1956 - Section 6 -
Guardians and Wards Act, 1890 - Petitioner
(mother) sought habeas corpus for custody of
minor
son
(detenue)
detained
by
father
(respondent No. 4) and relatives, alleging illegal
detention post-marital discord. Court held: (1)
Habeas corpus maintainable for child custody
where detention is unlawful or welfare demands
change; paramount consideration is child's best
interest, not parental legal rights (Nithya Anand
Raghavan Vs St. (NCT of Delhi), (2017) 8 SCC
454). (2) Child's welfare includes psychological,
emotional, and developmental needs; custody
with father (natural guardian under Section 6 of
Hindu Minority and Guardianship Act) lawful, as
no
illegality
or
imminent
harm
shown
(Dhanwanti Joshi Vs Madhav Unde, (1998) 1
SCC 112). (3) Marital discord and FIRs (Case
Crime No. 560/2022 under Sections 323, 498-A,
504, 506 I.P.C. and Dowry Prohibition Act) do
not justify disrupting child's stable custody with
father; mother entitled to visitation rights
(Tejaswini Gaud Vs Shekhar Jagdish Prasad
Tewari, Criminal Appeal No. 838 of 2019). (4)
No evidence of mother's financial stability or
capacity for child's welfare; father's resources
adequate. (5) Child to remain with father;
mother granted visitation every third Sunday
(10:30 A.M.-2:30 P.M.) with prior notice, and
daily video calls (7:00-7:30 P.M.); liberty to seek