# Col. Manoj Kumar Gupta v. Smt. Sangeeta

- **Citation:** (2024) 3 ILRA 291
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-29
- **Case number:** First Appeal No. 819 of 2019
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/col-manoj-kumar-gupta-v-smt-sangeeta-51664
- **Pages:** 18

## Headnote

A. Family Law - Hindu Marriage Act, 1955
- S. 13(1) (ia) and (ib) - Divorce -
Desertion - Irretrievable break down -
It's recognition as ground of divorce -
Wife-respondent is staying away from the
husband-appellant for six years before
divorce petition filed in the year 2015 -
Effect - Long period of separation, when
constitute mental cruelty - Held, when the
period of separation should be sufficiently
long, and it is relevant factor to consider
under mental cruelty continued long
separation with dead emotions used to be
construed as a case of irretrievable break
down of marriage, which is also a facet of
mental cruelty - Desertion necessarily
includes separate living of the husband
and wife and therefore, in other words,
two years continuous separation, can be
taken as a ground for divorce and has
been statutorily provided - The marriage
has
irretrievably
been
broken
down.
Hence, as held by the Apex Court,
certainly this case has to be construed as
a case of 'mental cruelty' on the appellant
as the marriage is totally unworkable and
emotionally dead. (Para 15, 28, 32, 33 and
39)

B. Family Law - Hindu Marriage Act, 1955
- S. 13(1) (ia) and (ib) - Desertion -
Meaning
-
Held,
desertion
means
intentional abandonment of one spouse by
the other without the consent of the other
and without a reasonable cause. (Para 15)
292 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal allowed. (E-1)

List of cases cited :-

## Text

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3 All. Col. Manoj Kumar Gupta Vs. Smt. Sangeeta
291
court had power to entertain any dispute in
regard to the land declared as reserve forest
under Section 20 in view of Section 27(A)
as added by U.P. Act No.23 of 1965,
therefore, the suit under Section 229-B of
the Act of 1950, that too without
impleading the Forest department or
concerned Officer of the forest department,
was not maintainable and in any case, no
effective relief could have been granted
without its impleadment and the orders
passed on the back of him cannot be
applicable on it. Thus, the suit for
permanent injunction, claiming right and
title on the said basis was not maintainable
and could not have been decreed. Even
otherwise, the respondents have failed to
prove their case. Thus, the substantial
questions of law, formulated by this Court,
are answered accordingly.

41. In view of above, this Court is of
the view that the judgment and order
passed by the trial court as well as the first
appellate court are not sustainable in the
eyes of law. Thus, the appeal is liable to be
allowed.

42. The second appeal is, accordingly,
allowed. The judgment and decree dated
16.04.1982 passed by the 1st Additional
District Judge Kheri in Civil Appeal
No.152/1980, by means of which the
appeal has been dismissed upholding the
judgment and decree passed by the trial
court and judgment and decree dated
09.09.1980 passed by the VIth Additional
Munsif, Lakhimpur Kheri in Regular Suit
No.154/1977(Surjan Singh & 3 Ors. Versus
Divisional Forest Officer, North Kheri) are
hereby set aside. No order as to costs.
----------
(2024) 3 ILRA 291
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

First Appeal No. 819 of 2019

Col. Manoj Kumar Gupta ...Appellant
Versus
Smt. Sangeeta ...Respondent

Counsel for the Appellant:
Sri Pankaj Agarwal, Sri Tarun Agarwal

Counsel for the Respondent:

A. Family Law - Hindu Marriage Act, 1955
- S. 13(1) (ia) and (ib) - Divorce -
Desertion - Irretrievable break down -
It's recognition as ground of divorce -
Wife-respondent is staying away from the
husband-appellant for six years before
divorce petition filed in the year 2015 -
Effect - Long period of separation, when
constitute mental cruelty - Held, when the
period of separation should be sufficiently
long, and it is relevant factor to consider
under mental cruelty continued long
separation with dead emotions used to be
construed as a case of irretrievable break
down of marriage, which is also a facet of
mental cruelty - Desertion necessarily
includes separate living of the husband
and wife and therefore, in other words,
two years continuous separation, can be
taken as a ground for divorce and has
been statutorily provided - The marriage
has
irretrievably
been
broken
down.
Hence, as held by the Apex Court,
certainly this case has to be construed as
a case of 'mental cruelty' on the appellant
as the marriage is totally unworkable and
emotionally dead. (Para 15, 28, 32, 33 and
39)

B. Family Law - Hindu Marriage Act, 1955
- S. 13(1) (ia) and (ib) - Desertion -
Meaning
-
Held,
desertion
means
intentional abandonment of one spouse by
the other without the consent of the other
and without a reasonable cause. (Para 15)
292 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal allowed. (E-1)

List of cases cited :-

1. Sukhendu Das Vs Rita Mukherjee; AIR 2017
SC 5092

2. Dr. Nirmal Singh Panesar Vs Mrs. Paramjit
Kaur Panesar @ Ajinder Kaur Panesar; 2023 (3)
ARC 244

3. Transfer Petition (Civil) No. 1118 of 2014;
Shilpa Shailesh Vs Varun Sreenivasan decided
on 01.05.2023

4. Shashi Bala Vs Rajendrapal Singh; 2020(2)
ADJ 745

5. Naveen Kohli Vs Neelu Kohli; AIR 2006 SC
1675

6. Samar Ghosh Vs Jaya Ghosh; 2007 (4) SCC
511

7. Rajib Kumar Roy Vs Sushmita Saha; 2023
SCC Online SC 1221

8. Rakesh Raman Vs Kavita; AIR 2023 SC 2144

9.
Prakashchandra
Joshi
Vs
Kuntal
Prakashchandra Joshi alias Kuntal Visanji; 2024
SCC Online SC 68

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

1. Heard Sri Tarun Agarwal, holding
brief of Sri Pankaj Agarwal, learned
counsel for the appellant.

2. Present appeal has been filed
against the judgment and order dated
18.10.2019 passed by Principal Judge,
Family Court, Moradabad in Case No. 492
of 2015.

3. The plaintiff is the appellant herein.
He filed an application under Section 13 (1)
(ia) (ib) of the Hindu Marriage Act, 1955
before the court of Principal Judge, Family
Court, Moradabad, numbered as Complaint
Case No. 492 of 2015. The said petition
was dismissed vide order dated 18.10.2019.
Aggrieved by the same, present appeal has
been filed.

4. The plaintiff-appellant solemnized
first marriage with Anuradha on 15.11.1989
as per Hindu Customs and Rites. The said
marriage was dissolved on 31.05.2007.
After that plaintiff solemnized his second
marriage
on
21.11.2007
with
the
respondent herein. The first husband of the
respondent herein had died and she has two
children out of the wedlock with the first
husband. During the marriage, the first
husband has adopted one girl child namely,
Astha, she is living with the plaintiffappellant. Both the appellant and the
respondents were doctors and they lived in
District Budaun and the appellant has
served in the Indian Army about 30 years.
The defendant-respondent is also a senior
doctor and she is presently posted at
Ghaziabad and she is also running a private
nursing
home
at
Buddhi
Vihar
in
Moradabad.

5. After marriage, the defendantrespondent has deserted the appellant and
lived separately at Moradabad, that she
deserted the appellant for six years before
filing the suit and has stated that no
physical relationship has been established
between the appellant and the respondent.
Further, she is accusing plaintiff as well as
the adopted daughter and subjected to
mental cruelty and misbehaved with the
appellant
and
there
is
no
cordial
relationship with the adopted daughter of
the appellant and she called Astha as a
orphan and illegitimate child and she
should be thrown out of the house. Due to
3 All. Col. Manoj Kumar Gupta Vs. Smt. Sangeeta
293
the above said behaviour of the defendantrespondent,
mental
condition
of
the
appellant's
daughter
Astha
started
deteriorating. The respondent behaved
indecently and insulted the appellant in
front of his friends and relatives, which
caused great embarrassment to him. She
used to quarrel with the appellant's
daughter over small issues and hates her.
More so, she assassinated the character of
the appellant without any proper reason and
also alleged that he was involved in illegal
activities in his house at Greater Noida.

6. The respondent has filed her
objections to the above said allegations by
denying the statements and allegations and
she has stated that she married the appellant
by knowing the former wife had adopted a
girl
child
Astha
as
the
defendantrespondent is also having two children
namely,
Pallavi
Swaroop
and
Rijul
Swaroop from her former husband. The
respondent was a doctor in Central Police
Hospital, Moradabad, but is currently
working
in
the
District
Hospital,
Ghaziabad. Eight years have passed since
her marriage with the appellant. Whenever
the respondent got leave she kept visiting
the appellant and the appellant also keep
coming to her from time to time. She has
denied that she never misbehaved with the
appellant and she always had good
relations with the appellant and adopted
daughter Astha as well. In fact, the
marriage of the respondent's sister's
daughter took place on 20.02.2015, in
which the adopted daughter Astha was also
present and had good relationship with the
respondent.

7. Based on the above averments, the
court below has framed following issues:

"1- क्य प्रत्यथी के द्व र य ची के स थ क्रूरत
पूवाक व्यवह र दकय गय ?

2- क्य प्रत्यथी के द्व र य दचक प्रथतुत दकये ि ने
के िो वषा पूवा से य ची क पररत्य ग दकय हुआ है ?

3- य ची दकस अनुतोष को प्र प्त करने क अदधक री
है ?"

8. In response to the above issues, the
court below has answered that the plaintiffappellant has stated regarding his adopted
daughter Astha for having cruely treated by
the defendant-respondent. As per plaintiff,
defendant
used
to
call
Astha
as
orphan/illicit child and used to say to throw
her in dustbin. It has also been stated by
plaintiff that defendant used to treat Astha
cruely and used to quarrel with her for
minor issues. The defendant has denied the
said allegations in her defence as the
plaintiff and defendant both are doctors by
profession and it is an admitted fact that
adopted daughter Astha, who is adult and
eligible for marriage and Astha is an
intelligent girl, but Astha has not got
examined by the plaintiff during recording
of statements, who is corroborating the
misbehaviour done and filthy language
used by defendant towards her and no
statement has been given by the Astha in
the corroboration of statements of plaintiff
by appearing in court and the plaintiff had
not proved the statement from his evidence.
No such evidences have been produced by
the appellant which confirms ill-treatment,
insulting behaviour and filthy words used
by the respondent to his adopted daughter
Astha.

9. In view of the said circumstances,
appellant filed the petition against the
respondent for dissolution of marriage on
the ground of cruelty, but the appellant
could not prove the cruelty, hence, this
issue is disposed of negatively.

10. As far as issue no. 2 is concerned,
both the appellant and respondent got
294 INDIAN LAW REPORTS ALLAHABAD SERIES
married on 21.11.2007 with consent and
admitted that both the parties were already
married before this marriage and at the time
of marriage, the respondent being lady
doctor was working as Medical Officer in
Central
Hospital,
Moradabad.
The
statement
of
the
appellant
that
the
respondent has deserted the appellant for
more than six years before the date of filing
the petition i.e. on 19.05.2015. As per the
statement of the respondent, on 10.02.2015,
her
daughter
Pallavi's
marriage
was
solemnized in Mumbai and the appellant
attended
the
pre-marriage
rituals
in
Moradabad and also attended the wedding
in Mumbai. The statement of the appellant
that the respondent has deserted him has
not been proved by the appellant. Hence,
the issue is disposed of negatively.

11. The said appeal was admitted by
this Court vide order dated 3.12.2019. As
per the office report dated 23.01.2020,
notices issued to the sole respondent
through ordinary post fixing 24.01.2020
were not returned and nobody has put in
appearance. Subsequent office report dated
4.9.2021 reflects that the sole respondent
has
been
served
by
ordinary
post
personally. This fact was noticed by this
Court
in
its
order
dated
6.9.2021.
Apparently in the interest of justice, vide
order dated 1.10.2021 fresh notices were
issued to the respondent by way of
publication
in
the
newspaper.
After
publication, the appellant has filed affidavit
of service dated 1.11.2021 and annexed
therewith original copy of newspapers
'Times Nation', 'Hindustan', 'Hindu' and
'Times of India' dated 16.10.2021. In such
view of the matter, the Court find that the
service on sole respondent is deemed to be
sufficient.

12. Based on the above findings of the
court below, Sri Tarun Agarwal, learned
counsel for the appellant has submitted that
the court below has not appreciated the
facts in perspective manner, in fact, the
respondent has made allegations against the
appellant in her written statement and the
cruelty made by the appellant was not
specifically controverted in the defence
statement filed by the respondent, and in
fact, in paragraph 40 and 41 of the said
reply, she has made character assassination
of the appellant, the said aspect has not
been considered by the court below while
deciding the application filed by the
appellant under Section 13 (1) (ia) (ib) of
the Hindu Marriage Act, 1955. The court
below while giving finding with regard to
issue no. 1 has travelled beyond the
pleadings of the parties and totally ignored
the relevant statements as well as crossexamination of DW-1.

13. He further submitted that despite
service of notice, the respondent has not
chosen to appear before this Court and in
fact, admittedly even after the date of filing
of the suit till today, she is living separately,
that itself shows that the respondent is not
interested to live with the appellant, even
on this ground alone, the suit filed by the
appellant has to be decreed by granting
divorce. He further submitted that it is well
accepted proposition that 'cruelty' is a
course or conduct of one party, which
adversely affects the others. The 'cruelty'
may be mental or physical, intentional or
unintentional.

14. In the instant case, admittedly the
respondent is staying away from the
appellant since long, that comes under
mental cruelty as held by the Apex Court in
catena of judgments. The cruelty has to be
construed and interpreted considering the
type of life the parties are accustomed to or
their economic and social conditions and
3 All. Col. Manoj Kumar Gupta Vs. Smt. Sangeeta
295
their culture and human values to which
they attach importance. In the instant case,
both the appellant and respondent are
doctors and they are living a high profile
life. She is not interested to live with the
appellant and she is living separately.

15. As decided by the Apex Court
consistently in various judgments that the
desertion means intentional abandonment
of one spouse by the other without the
consent of the other and without a
reasonable cause. In the instant case, that
could be taken into consideration that the
wife deserted the husband or treated him
with cruelty. When the period of separation
should be sufficiently long, and it is
relevant factor to consider under mental
cruelty continued long separation with dead
emotions used to be construed as a case of
irretrievable break down of marriage,
which is also a facet of mental cruelty.

16. In support of his contentions,
learned counsel for the appellant relied on
the judgments of the Apex Court in
Sukhendu Das Vs. Rita Mukherjee, AIR
2017 SC 5092, Dr. Nirmal Singh Panesar
Vs. Mrs. Paramjit Kaur Panesar @
Ajinder Kaur Panesar, 2023 (3) ARC
244,
Shilpa
Shailesh
Vs.
Varun
Sreenivasan, Transfer Petition (Civil) No.
1118 of 2014. He also relied upon the
judgment of this Court passed in Shashi
Bala Vs. Rajendrapal Singh, 2020(2)ADJ
745.

17. Relevant paragraph of Sukhendu
Das (supra) is as under:

"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. 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 matrimony
[Rishikesh Sharma v. Saroj Sharma]. The
daughter
of
the
Appellant
and
the
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."

18. Relevant paragraphs of Dr.
Nirmal Singh Panesar (supra) is as under:

"2. The appellant is a qualified
doctor, and was Commissioned Air Force
Officer. He retired on 30.04.1990 as Wing
Commander. The respondent is also a
qualified teacher, who was working in a
Central School, and has retired now. The
appellant had filed the Divorce proceedings
on 12.03.1996 before the District Court,
Chandigarh on two grounds, namely
'cruelty' and 'desertion' as contemplated in
Section 13(1)(ia) and 13(1)(ib) respectively
of
the
Hindu
Marriage
Act
1955
(hereinafter referred to as the said Act)."

8.
Per
contra,
the
learned
advocate Ms. Madhurima Tatia for the
respondent submitted that the respondent
being an aged lady does not want to die
with the stigma of a "Divorcee." According
to her, the respondent had made all efforts
to respect the sacred relationship between
the parties all through out and is still ready
296 INDIAN LAW REPORTS ALLAHABAD SERIES
to look after the appellant with the
assistance of her son. Mere long period of
separation
could
not
tantamount
to
irretrievable break down of the marriage.
She lastly submitted that the appellant
having failed to make out any ground either
of cruelty or desertion, the Court may not
interfere with the concurrent findings
recorded by the Single Bench and the
Division Bench of the High Court in this
regard.

9. We have given anxious thought
and consideration to the submissions made
by the learned advocates for the parties in
the light of the evidence on record. There
could not be any disagreement with the
proposition of law canvassed by the
learned counsel for the appellant that the
allegations of 'cruelty' and 'desertion' are
legitimate grounds for seeking a decree of
divorce under Section 13(1) of the said Act.
It is well accepted proposition that
"cruelty" is a course or conduct of one
party which adversely affects the other. The
"cruelty" may be mental or physical,
intentional, or unintentional. This court in
Naveen Kohli (supra) has summarised the
principles of law on "cruelty" as under: -

"46. The principles of law which
have been crystallised by a series of
judgments of this Court are recapitulated
as under:

In
Sirajmohmedkhan
Janmohamadkhan
v.
Hafizunnisa
Yasinkhan [(1981) 4 SCC 250 : 1981 SCC
(Cri) 829] this Court stated that the
concept of legal cruelty changes according
to the changes and advancement of social
concept and standards of living. With the
advancement of our social conceptions, this
feature
has
obtained
legislative
recognition, that a second marriage is a
sufficient ground for separate residence
and maintenance. Moreover, to establish
legal cruelty, it is not necessary that
physical
violence
should
be
used.
Continuous
ill-treatment,
cessation
of
marital
intercourse,
studied
neglect,
indifference on the part of the husband, and
an assertion on the part of the husband that
the wife is unchaste are all factors which
lead to mental or legal cruelty.

47. In Shobha Rani v. Madhukar
Reddi [(1988) 1 SCC 105 : 1988 SCC (Cri)
60] this Court had an occasion to examine
the concept of cruelty. The word "cruelty"
has not been defined in the Hindu Marriage
Act. It has been used in Section 13(1)(i-a)
of the Act in the context of human conduct
or behaviour in relation to or in respect of
matrimonial duties or obligations. It is a
course of conduct of one which is adversely
affecting the other. The cruelty may be
mental
or
physical,
intentional
or
unintentional. 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. There may, however, be cases
where the conduct complained of itself is
bad enough and per se unlawful or illegal.
Then the impact or the injurious effect on
the other spouse need not be enquired into
or considered. In such cases, the cruelty
will be established if the conduct itself is
proved or admitted. 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
3 All. Col. Manoj Kumar Gupta Vs. Smt. Sangeeta
297
ground that there has been no deliberate or
wilful ill-treatment.

48. The cruelty alleged may
largely depend upon the type of life the
parties are accustomed to or their
economic and social conditions and their
culture and human values to which they
attach importance. Each case has to be
decided on its own merits.

49. ........

50. .......

51. .......

52. This Court in Savitri Pandey
v. Prem Chandra Pandey [(2002) 2 SCC
73] stated that mental cruelty is the conduct
of other spouse which causes mental
suffering or fear to the matrimonial life of
the other. "Cruelty", therefore, postulates a
treatment of the petitioner with such cruelty
as to cause a reasonable apprehension in
his or her mind that it would be harmful or
injurious for the petitioner to live with the
other party. Cruelty, however, has to be
distinguished from the ordinary wear and
tear of family life. It cannot be decided on
the basis of the sensitivity of the petitioner
and has to be adjudged on the basis of the
course of conduct which would, in general,
be dangerous for a spouse to live with the
other."

10. The crux of the various
decisions of this Court on the interpretation
of the word "cruelty" is that it has to be
construed and interpreted considering the
type of life the parties are accustomed to;
or their economic and social conditions
and their culture and human values to
which they attach importance. Each case
has to be decided on its own merits.

11. Similarly, the law is also well
settled as to what could be said to be
"Desertion" in the divorce proceedings
filed under Section 13 of the said Act. The
expression "Desertion" had come up under
the judicial scrutiny of this Court in Bipin
Chandra Jai Singh Bai Shah vs. Prabhavati
AIR 1957 SC 176, which was again
considered in case of Lachman Utam
Chand Kirpalani vs. Meena alias Mota,
AIR 1964 SC 40. This Court collating the
observations made in the earlier decisions,
stated its view as under: -

"Collating
the
aforesaid
observations, the view of this Court may be
stated thus: Heavy burden lies upon a
petitioner who seeks divorce on the ground
of desertion to prove four essential
conditions, namely, (1) the factum of
separation; (2) animus deserendi; (3)
absence of his or her consent; and (4)
absence of his or her conduct giving
reasonable cause to the deserting spouse to
leave the matrimonial home."

13. Coming back to the facts of
the present case, the Single Bench of the
High Court holding that the appellantpetitioner had failed to prove the grounds
of
"cruelty"
and
"desertion"
as
contemplated in Section 13(1) of the said
Act, had reversed the decree of divorce
passed by the Trial Court. The Division
Bench vide the impugned order confirmed
the order passed by the Single Bench and
observed by holding as under: -

"16. Coming now to the facts of
the present case, it is undisputed that the
wife continued to live with the husband
without any grievance for 21 years and
gave birth to three children. She looked
after the children. One daughter was
married in the year 1984 before separation.
The grievance put-forward by the husband
for the first time was that the wife did not
join him when he was transferred to
Madras. The parties were settled at
Amritsar and lived there for 21 years where
children and parents of the appellant were
also living. Case of the wife is that the
husband got himself transferred of his own
volition. At this stage of life when there
298 INDIAN LAW REPORTS ALLAHABAD SERIES
were three grown up children and the wife
had been living with the husband for 21
years, if unilateral decision was taken by
the husband and the wife expressed her
opposition, could it be held that the wife
deserted the husband or treated him with
cruelty. We have already referred to the
settled principles on the subject. If the wife
did not agree to have herself transferred to
Madras, in the given situation, it could not
be held that the wife wanted to bring
cohabitation permanently to an end without
reasonable cause. This did not show any
animus deserendi nor it could be held that
the wife was cruel to the husband. Taking
an overall view of the matter, it cannot be
held that the view taken by the learned
Single Judge is not a possible view so as to
call for interference in an appeal under
Letters Patent. The fact remains that the
wife continued to look after the children
and arrange their marriages. There is
nothing to show that the husband made any
effort to join the wife, who was living in the
matrimonial home or to look after any of
the children. The burden of proof is on the
appellant to prove desertion and cruelty."

"17. Learned counsel for the
appellant refers to Exh.A-8, which is a
letter addressed to the wife, in response to
her representation for maintenance. The
contents of the letter are as under: -

"2. lt is informed that we have
tried our best to help you both to reconcile
in the long-term interest of the welfare of
the family and children. Accordingly, it is
learnt that Wg Cdr. N.S. Panesar, in good
faith and on our counsel signed for 15
reconciliation. But it seems that you are not
ready to reconcile even in the interest of
children. Under the circumstances, there is
no other alternative for this HQ except to
advice you to redress your grievance, if
any, in the Court of law. However, on moral
and
humanitarian
grounds
we
have
counselled your husband to continue
remitting Rs.800/- p.m. till the matter is
settled to mutual satisfaction."

He also refers to Exh.A-17, which
is letter written by the son of the appellant,
asking the appellant to send money to the
Court."

"18. Next contention raised is
that the jewellery should not be given to the
wife. Learned counsel for the appellant
suggested that a grand-daughter of the
appellant should visit the appellant, in
which case, the appellant will have no
objection to the jewellery being given to the
grand daughter. Learned counsel for the
wife states that the grand-daughters will
visit the appellant as often as possible and
also depending on desire and attitude of the
appellant but not as a condition for finding
of learned Single Judge to be upheld.
Finding of learned Single Judge in this
regard is as under: -

" ... This is a fit case to hand over
the jewellery which was given to appellant
(wife) at the time of marriage and thus, I
direct the Manager, Bank of Baroda, Sector
22, Chandigarh to hand over all the
jewellery to the appellant lying in the
locker ... "

19. Relevant paragraph of Shilpa
Shailesh (supra) is as under:

"33. Having said so, we wish to
clearly state that grant of divorce on the
ground of irretrievable breakdown of
marriage by this Court is not a matter of
right, but a discretion which is to be
exercised with great care and caution,
keeping in mind several factors ensuring
that 'complete justice' is done to both
parties. It is obvious that this Court should
be fully convinced and satisfied that the
marriage
is
totally
unworkable,
emotionally dead and beyond salvation
3 All. Col. Manoj Kumar Gupta Vs. Smt. Sangeeta
299
and, therefore, dissolution of marriage is
the right solution and the only way
forward.
That
the
marriage
has
irretrievably broken down is to be factually
determined and firmly established. For this,
several factors are to be considered such as
the period of time the parties had cohabited
after marriage; when the parties had last
cohabited; the nature of allegations made
by the parties against each other and their
family members; the orders passed in the
legal proceedings from time to time,
cumulative
impact
on
the
personal
relationship; whether, and how many
attempts were made to settle the disputes by
intervention of the court or through
mediation, and when the last attempt was
made, etc. The period of separation should
be sufficiently long, and anything above six
years or more will be a relevant factor. But
these facts have to be evaluated keeping in
view the economic and social status of the
parties,
including
their
educational
qualifications, whether the parties have any
children,
their
age,
educational
qualification, and whether the other spouse
and children are dependent, in which event
how and in what manner the party seeking
divorce intends to take care and provide for
the spouse or the children. Question of
custody and welfare of minor children,
provision for fair and adequate alimony for
the wife, and economic rights of the
children and other pending matters, if any,
are relevant considerations. We would not
like to codify the factors so as to curtail
exercise of jurisdiction under Article 142(1)
of the Constitution of India, which is
situation specific. Some of the factors
mentioned can be taken as illustrative, and
worthy of consideration."

20. Relevant paragraphs of Shashi
Bala (supra) is as under:

7.
Court
below
upon
consideration of pleadings, oral and
documentary evidence on record decided
issues framed by it. In respect of Issue no.1,
Court below concluded that Plaintiff is
clearly entitled to grant of decree of
divorce in terms of Section 13 (1) (1b) of
Act 1955 i.e. on the ground of 'desertion'.
Court below however concluded that
Plaintiff has failed to establish commission
of any physical or mental 'cruelty' upon
him by Appellant. In the opinion of Court
below, from material filed by Plaintiff it is
apparent that it is Plaintiff, who has
committed mental cruelty upon Appellant.
However, since it is an admitted position
that Appellant has 'deserted' Plaintiff for
the last 11 years and aforesaid fact, is an
admitted fact therefore same is not required
to be proved under Indian Evidence Act.
Consequently, suit for divorce filed by
Plaintiff was decreed by Court below on the
ground of 'desertion' vide judgement dated
13.03.2015 and decree dated 27.03.2015.

18. Section 13(I) (ib) of Act 1955
is a mandatory provision and therefore, if a
suit for divorce is filed on the ground of
'desertion', the precondition provided in
above Section for grant of decree of divorce
on the ground of desertion must be fulfilled
on the date of presentation of suit.
Admittedly, date of desertion by Appellant,
pleaded in plaint is 28.02.2004 whereas
plaint was presented on 07.03.2005.
Evidently, period of two years of desertion
on the part of Appellant had not expired on
the
date
of
presentation
of
plaint.
Therefore, precondition provided in Section
13(I) (i-b) of Act 1955 was not fulfilled on
the date of presentation of suit. Subsequent
events which have taken place after the
institution of suit are irrelevant as same
cannot be taken into consideration under
scheme of Act 1955. Therefore, we have no
hesitation to hold that decree passed by
Court below decreeing suit for divorce filed
300 INDIAN LAW REPORTS ALLAHABAD SERIES
by Plaintiff on ground of 'desertion' is
manifestly illegal.

21. Similarly this Court in First
Appeal No. 792 of 2008 (Ashwani Kumar
Kohli
Vs.
Smt.
Anita)
decided
on
17.11.2016
has
also
considered
this
question and observed as follows in
paragraphs 7, 8, 10, 11, 12 and 13:-

"7.
Therefore,
point
for
adjudication in this appeal is "whether a
decree of reversal can be passed by
granting divorce to the appellant on the
ground which was not subject matter of
adjudication before the Court below and is
being raised for the first time in appeal".

8. Under the provisions of Act,
1955 there is no ground like any
"irretrievable breakdown of marriage",
justifying divorce. It is a doctrine laid down
by judicial precedents, in particular,
Supreme Court in exercise of powers under
Article 142 of the Constitution has granted
decree of divorce on the ground of
irretrievable breakdown of marriage.

10.
This
aspect
has
been
considered by this Court in Ram Babu
Babeley Vs. Smt. Sandhya AIR 2006 (All)
12 = 2006 AWC 183 and it has laid down
certain inferences from various authorities
of Supreme Court, which read as under:-

"(i) The irretrievable break down
of marriage is not a ground for divorce by
itself. But while scrutinizing the evidence
on record to determine whether the grounds
on which divorce is sought are made out,
this circumstance can be taken into
consideration as laid down by Hon'ble
Apex Court in the case of Savitri Pandey v.
prem Chand Pandey, (2002) 2 SCC 73 and
V. Bhagat versus D. Bhagat, AIR 1994 SC
710.

(ii) No divorce can be granted on
the ground of irretrievable break down of
marriage if the party seeking divorce on
this ground is himself or herself at fault for
the above break down as laid down in the
case of Chetan Dass Versus Kamla Devi,
AIR 2001 SC 1709, Savitri Pandey v. prem
Chand Pandey, (2002) 2 SCC 73 and
Shyam Sunder Kohli v. Sushma Kohli,
(2004) 7 SCC 747.

(iii) The decree of divorce on the
ground that the marriage had been
irretrievably broken down can be granted
in those cases where both the parties have
levelled such allegations against each other
that the marriage appears to be practically
dead and the parties can not live together
as laid down in Chandra Kala Trivedi
versus Dr. SP Trivedi, (1993) 4 SCC 232.

(iv)The decree of divorce on the
ground that the marriage had been
irretrievably broken down can be granted
in those cases also where the conduct or
averments of one party have been so much
painful for the other party ( who is not at
fault) that he cannot be expected to live
with the offending party as laid down in the
cases of V. Bhagat versus D. Bhagat,
(supra), Ramesh Chander versus Savitri,
(1995) 2 SCC 7, Ashok Hurra versus Rupa
Bipin Zaveri, 1997(3) AWC 1843 (SC),
1997(3)
A.W.C.
1843(SC)
and
A.
Jayachandra versus Aneel Kaur, (2005) 2
SCC 22.

(v) The power to grant divorce on
the ground of irretrievable break down of
marriage should be exercised with much
care
and
caution
in
exceptional
circumstances only in the interest of both
the parties, as observed by Hon'ble Apex
Court at paragraph No. 21 of the judgment
in the case of V. Bhagat and Mrs. D.
Bhagat, AIR (supra) and at para 12 in the
case of Shyam Sunder Kohli versus Sushma
Kohli, (supra)."

11. The above authorities have been
followed by this Court in ''Pradeep Kumar
Vs. Smt. Vijay Lakshmi' in 2015 (4) ALJ
3 All. Col. Manoj Kumar Gupta Vs. Smt. Sangeeta
301
667 wherein one of us (Hon'ble Sudhir
Agarwal,J.) was a member of the Bench.

12. In Vishnu Dutt Sharma Vs.
Manju Sharma, (2009) 6 SCC 379, it was
held that under Section 13 of Act 1955
there is
no ground of irretrievable
breakdown of marriage for granting decree
of divorce. Court said that it cannot add
such a ground to Section 13, as that would
amount to amendment of Act, which is the
function of legislature. It also referred to
some judgments of Supreme Court in which
dissolution of marriage was allowed on the
ground of irretrievable breakdown but held
that those judgments do not lay down any
precedent.
Supreme
Court
very
categorically observed as under:-

"If we grant divorce on the
ground of irretrievable breakdown, then we
shall by judicial verdict be adding a clause
to Section 13 of the Act to the effect that
irretrievable breakdown of marriage is also
a ground for divorce. In our opinion, this
can only be done by the legislature and not
by the Court. It is for the Parliament to
enact or amend the law and not for the
Court. Hence, we do not find force in the
submission of learned counsel for the
appellant."

13. The above view has been
followed in Darshan Gupta Vs. Radhika
Gupta (2013) 9 SCC 1. Similar view was
expressed
in
''Gurubux
Singh
Vs.
Harminder Kaur' (2010) 14 SCC 301. This
Court also has followed the above view in
Shailesh Kumari Vs. Amod Kumar Sachan
2016 (115) ALR 689."

21. We would also like to make
reference to some old landmark judgments
and some latest judgments on the issue
involved.

22. Reference may be made to the
judgments of Naveen Kohli Vs. Neelu
Kohli, AIR 2006 Supreme Court 1675,
Samar Ghosh Vs. Jaya Ghosh, 2007 (4)
SCC
511,
Rajib
Kumar
Roy Vs.
Sushmita Saha, 2023 SCC Online SC
1221, Rakesh Raman Vs. Kavita, AIR
2023 SC 2144 and Prakashchandra Joshi
Vs. Kuntal Prakashchandra Joshi alias
Kuntal Visanji, 2024 SCC Online SC 68.

23. Relevant paragraphs of Naveen
Kohli (supra) are as under:

"78. 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.

79. 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.

80. Since there is no acceptable
way in which a spouse can be compelled to
resume life with the consort, nothing is
gained by trying to keep the parties tied for
ever to a marriage that in fact has ceased
to exist.

81. Some jurists have also
expressed
their
apprehension
for
introduction of irretrievable breakdown of
marriage as a ground for grant of the
302 INDIAN LAW REPORTS ALLAHABAD SERIES
decree of divorce. In their opinion, such an
amendment in the Act would put human
ingenuity at a premium and throw wide
open the doors to litigation, and will create
more problems then are sought to be
solved.

82. The other majority view,
which is shared by most jurists, according
to the Law Commission Report, is that
human life has a short span and situations
causing misery cannot be allowed to
continue indefinitely. A halt has to be called
at some stage. Law cannot turn a blind eye
to such situations, nor can it decline to give
adequate response to the necessities arising
therefrom.

83. When we carefully evaluate
the judgment of the High Court and
scrutinize its findings in the background of
the facts and circumstances of this case,
then it becomes obvious that the approach
adopted by the High Court in deciding this
matter is far from satisfactory.

90.
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.

91. 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.