# Dr. Bijoy Kundu v. Smt. Piu Kundu

- **Citation:** (2024) 5 ILRA 1022
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Case number:** First Appeal No. 31 of 2021
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-bijoy-kundu-v-smt-piu-kundu-51932
- **Pages:** 10

## Headnote

Hindu Marriage Act, 1955 - Section 13 -
Divorce - S. 13 provides for grant of divorce
and enumerates various grounds on which
the same may be granted. Each of those
grounds are independent of each other.
Each of those grounds are mutually
exclusive of each other, which is evident by
the use of the disjunctive 'or' to separate
each ground from the other, and there is no
reason to read 'or' conjunctively as it will
lead to absurdity. In the instant case, the
Family Court, after returning a finding that
"cruelty"
has
been
inflicted
by
the
respondent-wife
on
the
appellanthusband, refused to grant divorce to the
husband on the ground that the ground of
"desertion" could not be proved by the
appellant-husband. Held: - Cruelty can by
itself be a ground for dissolution of
marriage. Once cruelty was proved, the
suit for divorce had to be decreed. (Paras
25, 26, 27)

Allowed. (E-5)

List of Cases cited:

## Text

1022 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared at the instance of PW-1 same in
available on record as Ext Ka-23. However
PW-1 has denied any animosity on this
count between the too.

59. As discussed above PW-1 and
PW-3 are the real nephews of the deceased
while PW-2 is his wife. In the facts of the
circumstances of the case Harsh son of the
deceased was alleged to be present at the
spot, but prosecution did not examined him.
It may be mentioned that he was an
important eye witness as per statement of
PW-1 and PW-2., motive of hot altercation
between Harsh and appellant Saurabh
resulting in nurturing animus and grudge
against Dr. Narendra .

60. Thus, appellant was not named
in first information report. His name find no
place even after due investigation by the I.O.
in the police report/ charge sheet . Name of
the accused arraigned only in an application
moved by the complainant under section
319 Cr.P.C. No active participation is
established
against
the
appellant.
Prosecution has failed to establish evidence
of conspiracy of the appellant with coaccused Bhanu. There is no recovery of any
incriminating article or weapon from the
appellant or at his instance or pointing out.
In these circumstances prosecution could
not establish its case beyond reasonable
doubts. The truthfulness of the prosecution
case in itself is highly doubtful and against
the material on record.

61. From the prolix and verbose
discussions, we arrives at the conclusion that
the findings of guilt recorded by the Trial
Court is not based on correct and proper
appreciation and appraisal of evidence. The
life and liberty of any person cannot be
downsized on the touchstone of doubt.
Regard being had to the given facts and
circumstances of the case in its entirety and
upon hearing the learned counsel for the
parties, the conviction and sentence of the
appellant on the basis of present set of
evidence cannot sustain. Consequently the
conviction and sentence of the appellant
under section 302/34 IPC deserves to be set
aside.

62. Resultantly, the appeal is
ALLOWED and the judgment and order
dated 03.10.2018 passed by the trial court in
Session Trial No.105 of 2016 to the extent
of appellant Saurabh is hereby set-aside. The
appellant-Saurabh Kumar is on bail. He
need not surrender, rather the appellant is set
at liberty. The appellant who is on bail, shall
stand discharged from his liabilities of bail
bonds.

63. The copy of the judgment be
sent to the trial court to incorporate entry
with respect to result of this appeal in the
relevant register. The compliance be
recorded, under intimation to this Court
within two months.

64. Trial Court Record be remit
back.
----------
(2024) 5 ILRA 1022
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.05.2024

BEFORE

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

First Appeal No. 31 of 2021
Connected with
First Appeal No. 33 of 2021

Dr. Bijoy Kundu ...Appellant
Versus
Smt. Piu Kundu ...Respondent
5 All. Dr. Bijoy Kundu Vs. Smt. Piu Kundu
1023
Counsel for the Appellant:
Rohit Tripathi, Syed Zulfiqar Husain Naqv

Counsel for the Respondent:
Saurabh Misra, Ajeet Kumar Singh, Ved Prakash
Verma

Hindu Marriage Act, 1955 - Section 13 -
Divorce - S. 13 provides for grant of divorce
and enumerates various grounds on which
the same may be granted. Each of those
grounds are independent of each other.
Each of those grounds are mutually
exclusive of each other, which is evident by
the use of the disjunctive 'or' to separate
each ground from the other, and there is no
reason to read 'or' conjunctively as it will
lead to absurdity. In the instant case, the
Family Court, after returning a finding that
"cruelty"
has
been
inflicted
by
the
respondent-wife
on
the
appellanthusband, refused to grant divorce to the
husband on the ground that the ground of
"desertion" could not be proved by the
appellant-husband. Held: - Cruelty can by
itself be a ground for dissolution of
marriage. Once cruelty was proved, the
suit for divorce had to be decreed. (Paras
25, 26, 27)

Allowed. (E-5)

List of Cases cited:

1. K. Srinivas Vs K. Sunita 2014 (16) SCC 34

2. Mangayakarasi Vs M. Yuvraj 2020 (3) SCC 786

3. Ravi Kumar Vs Julmi Devi 2010 (4) SCC 476

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Mr. Rohit Tripathi,
learned counsel for appellant and Mr. D.P.
Singh Somvanshi, learned counsel for the
respondent.

(2) These appeals under Section 19
(1) of the Family Court Act, 1984 read with
Section 28 of the Hindu Marriage Act, 1955
have been filed by the appellant/husband,
assailing the judgment and decree dated
15.02.2021
passed
by
the
Principal
Judge/District
Judge,
Family
Court,
Lucknow, whereby Regular Suit No. 886 of
2012 filed by the appellant/husband under
Section 13 of the Hindu Marriage Act, 1955
for dissolution of marriage was dismissed
and Regular Suit No. 29 of 2013 filed by the
respondent/wife under Section 9 of the
Hindu Marriage Act, 1955 for restitution of
conjugal right was decreed in favour of the
respondent/wife.

(3)
Since
the
above-captioned
appeals arise out of a common factual matrix
and judgment, hence they are being decided
by a common order.

FACTS

(4) Shorn of unnecessary details,
the facts, in brief, which give rise to the
appeals herein are as follows :-

In both these appeals, the appellant
is the husband and the respondent is the
wife. Appellant got married with respondent
on 27th November, 1986. Two sons were
born out of the wedlock of the parties.
According to the appellant, after conceiving
both sons, his wife (respondent herein) was
not interested in him at all and started
misbehaving with him in front of servants
and other members of the family. It has been
alleged by the appellant that on one day, his
wife (respondent herein) locked him in
toilet; his wife used to connect/co-relate him
with a lady residing next door; she abused
his parents in front of his children; after
2003, she stopped even giving food to him;
though he took her to U.S.A. for 18
months/Europe for 4 months; in the year
2008, he arranged for a visit to Kerala with
his entire family but the respondent strictly
refused for it; since 2003, only course of
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
communication between them was either
through sons or SMS or handwritten notes,
which even spilled over at the time of
offering tea/lunch etc.; and since 2003,
respondent is living separately with the
appellant under the same roof. According to
the version of the appellant, in compelling
circumstances, he instituted a suit, bearing
Regular Suit No. 886 of 2012 (hereinafter
referred to as 'First Suit'), under Section 13
of the Hindu Marriage Act, 1955 for
declaring his marriage with the respondent
as null and void.

(5) After filing the aforesaid suit on
28.04.2012, the respondent-wife had lodged
four cases against the appellant/husband,
namely, (a) case under provisions of the
Domestic Violence Act; (b) case for
Maintenance under Section 125 Cr.P.C.; (c)
Criminal
Case
under
Sections
498A/323/504/506/406 I.P.C.; and (d) under
provisions of Dowry Prohibition Act, for
which Police Complaint was lodged in
November,
2012.
Subsequently,
the
defendant/respondent/wife
had
also
instituted a suit, bearing Regular Suit No. 29
of 213 (hereinafter referred to as the
'Second Suit'), under Section 9 of the
Hindu Marriage Act, 1955 for restitution of
conjugal rights. Both suits were clubbed
together and heard analogously by the
Family Court.

(6) The respondent/defendant/wife
had filed his written statement in the
aforesaid suits and denied the allegations
made by the appellant/plaintiff/husband.
She set up her own version of the case in as
much as she has stated that she conceived
two male children, namely, Vishwendu
Kundu and Diyendu Kundu and after their
birth, she had to take care of her children as
well as had to fulfill her own duties and
responsibilities; she never ignored her own
duties and responsibilities towards her
husband/appellant; she never locked the
plaintiff/appellant; all the decisions with
respect to the children were taken by the
plaintiff/appellant; appellant himself wanted
the children to study in convent school,
therefore, he got them admitted at St.
Francis College, Lucknow; he also wanted
the children to become Engineers and she
only used to help the children in doing daily
chores;
the
relation
between
the
plaintiff/appellant
and
defendant/wife
continued as usual, they cohabited as and
when the plaintiff/appellant wanted; and the
defendant as a wife took care of the plaintiff
in all possible ways.

(7) On the basis of pleadings and
documents, the Family Court framed
following issues in the First Suit filed by the
appellant for dissolution of marriage :-

"1. Whether as asserted in the plaint
defendant behaved with the plaintiff with
cruelty and deserted him ?
2. Whether the defendant forbade
the plaintiff from conjugal relationship ?
3. Whether the suit is legally
tenable ?
4. Whether the plaintiff is entitled
for any relief ?"

(8) However, since no issues were
framed in the Second Suit filed by the
respondent/wife for restitution of conjugal
right, therefore, the Family Court framed
following issues for proper adjudication of
the
Second
Suit
filed
by
the
respondent/wife :-

"1. Whether the defendant has
withdrawn himself from the society of the
plaintiff ?
2. Whether the plaintiff is entitled to
restitution of conjugal rights ?
5 All. Dr. Bijoy Kundu Vs. Smt. Piu Kundu
1025
3. Whether the plaintiff is entitled to
any other relief ?"

(9) In support of their respective
cases, both appellant and respondent got
examined themselves as P.W.1 and D.W.1,
respectively. Except them, no one was
examined to prove their case as set up by
either of them. Documentary evidence was
also led, details of which are mentioned in
the impugned judgment.

(10) The Family Court stated that
many a times efforts have been made for an
amicable settlement, but on the basis of
allegations which have been levelled by
both the parties against each other,
mediation between the parties was not
successful.

(11) The Family Court, after
appraising both, oral as well as documentary
evidence, decided the issues framed in both
the suits.

A. As far as the First Suit filed by
the husband/appellant for dissolution of
marriage, the issue were decided in the
following manner :-

Issu
e
Nos.
Issues
Decision
of
the
Family Court
Issue
No.1
Whether
as
asserted
in
the
plaint
defendan
t behaved
with the
plaintiff
with
cruelty
and
The said issue was
decided
in
affirmative in part in
favour of the plaintiff
/appellant
by
returning a finding
that the husband had
succeeded in bringing
home the charge of
cruelty against the
defendant/respondent
. So far as the issue of
deserted
him ?
desertion, the Family
Court had decided it
against the appellant/
husband. Thus, issue
no.1 has been partly
answered in favour of
the appellant/plaintiff
so far as it relates to
the ground of cruelty.
Issue
No.2
whether
the
defendan
t forbade
the
plaintiff
from
conjugal
right ?
The said issue was
decided
by
the
Family
Court
in
negative and against
the
plaintiff/appellant.
Issue
No.3
whether
the suit is
legally
tenable ?
The said issue was
decided
in
affirmative in favour
of
the
plaintiff/appellant.
Issue
No.4
whether
the
plaintiff
is entitled
for
any
relief ?
The said issue was
decided
by
the
Family
Court
in
negative against the
appellant.

B. As far as the Second Suit filed by
the wife/respondent for restitution of
conjugal rights, the issues were decided in
the following manner:

Issue
Nos.
Issues
Decision of the
Family Court
Issue
No.1
Whether
the
defendant
has
withdrawn
himself
from
the
The said issue
was decided in
favour of the
respondent and
against
the
appellant.
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
society
of
the plaintiff
Issue
No.2
Whether
the plaintiff
is
entitled
to
restitution
of conjugal
rights,
The said issue
was decided by
the
Family
Court
in
affirmative and
in favour of
respondent and
against
the
Appellant/
Husband.
Issue
No.3
whether the
plaintiff is
entitled to
any
other
relief,
The said issue
was decided in
favour of the
respondent by
recording
finding that the
respondent
would
be
entitled to get
costs.
(12) In this backdrop, the Family
Court had dismissed the First Suit filed by
the appellant and decreed the Second Suit
filed by the respondent and passed a decree
for restitution of conjugal rights in favour of
the respondent vide judgment and decree
dated 15.02.2021. It is this judgment and
decree dated 15.02.2021, which have been
challenged in the above-captioned appeals.

SUBMISSIONS

(13) Assailing the impugned
judgment/decree, learned Counsel for the
appellant submitted that cruelty by the
respondent/wife towards the appellant
having been found to be proved by the
Family Court, the only logical corollary of
its finding was to order dissolution of
marriage even if desertion was not proved
but surprisingly the Court below dismissed
the suit for divorce and has allowed the suit
of
respondent/wife
for
restitution
of
conjugal
rights,
which
is
apparently
erroneous and perverse both on facts and
law. The finding of the Court below on the
issue of cruelty has not been challenged by
the respondent, therefore, the appeal is liable
to be allowed on this count itself.

(14) The appellant cannot be forced
to live with the respondent once cruelty
meted out by her to the appellant is proved
and this by itself disentitled her to relief but
the Court below has missed out on this
relevant and apparent aspect.

(15) Appellant's Counsel did not
advance any argument nor attempted to
demonstrate as to how the finding of the
Family Court on the question of desertion
was perverse or erroneous in any manner.

(16) Learned Counsel for the
petitioner further submitted that parties are
staying separately since March, 2012 i.e.
prior to three weeks from the date of filing
of divorce petition by the appellant/husband
and during that period, no attempt was ever
made
by
the
respondent/wife
for
reconciliation and even when the appellant
tried to make the issue settled, it all went in
vain, therefore, the marriage having been
irretrievably broken down, the appellant is
entitled for a decree of Divorce on the
ground of Cruelty. In this regard, he has
relied upon the decision of the Apex Court
in Inderjeet Singh Grewal Vs. State of
Punjab and another : (2011) 12 SCC 588
and Sureshtha Devi Vs. Om Prakash :
(1991) 2 SCC 25.

(17) Per contra, the learned
Counsel representing the respondent/wife
could not putforth any argument much less
an acceptable one as to how the suit for
divorce could have been dismissed once a
finding favourable to the appellant/plaintiff
5 All. Dr. Bijoy Kundu Vs. Smt. Piu Kundu
1027
had been recorded on the issue of cruelty. He
submitted that the respondent had made all
efforts to respect the sacred relationship
between the parties all through out and is
still ready to look after the appellant with the
assistance of her sons. According to him,
mere long period of separation could not
tantamount to irretrievable break down of
marriage. He lastly submitted that there is no
perversity or illegality in the impugned
judgment/decree passed by the Family
Court.

ANALYSIS

(18) We have carefully perused the
pleadings and documents on record and
heard the respective learned Counsel
representing the parties at length.

(19) The point which falls for our
determination as to whether, in view of the
finding of cruelty by the respondent/wife
towards the appellant/husband as returned
by the Family Court in the context of issue
no.1 framed by it, the appellant/plaintiff is
entitled to a decree of divorce and the suit of
the respondent under Section 9 of the Hindu
Marriage Act, 1955 is liable to be dismissed;
whether the Family Court has erred in
dismissing the suit of the appellant and
allowing the suit of the respondent in spite
of the finding in favour of the appellant on
the issue of cruelty in terms of Section 13 (1)
(i-a) of the Act, 1955 as amended by U.P.
Act No. 13 of 1962.

(20) The Family Court after
considering
the
pleadings,
oral
and
documentary evidence on record, has
categorically recorded a finding that cruelty
as a ground for seeking divorce has been
proved by the appellant/plaintiff. Relevant
extract of the judgment containing his
conclusions on the issue is quoted below :-
"Since issue no.1 takes in its fold
allegations of cruelty, hence in this regard
observations of this Court are a must. Apart
from the pleadings of the plaint regarding
cruelty perpetrated by the defendant,
admission of the defendant herself is
relevant in this regard. The plaintiff has filed
documents per list C-71/1 to C-71/26 and
has also got it substantiated by his oral
testimony as rendered at page 1 and 2 of his
statement-in-chief. The defendant has been
subjected to a lengthier cross-examination
and as D.W.-1 she has stated at page-10 of
her cross-examination that it is true that she
has filed a reply in the case instituted under
Domestic Violence Act and whatever she has
written in paragraph 4 of it, all they are
correct.................Thereby the defendant
has stated, that it is the respondent, (plaintiff
in the first suit) who is of a promiscuous
virtue he has had several long relationships
and undesirable association with other
woman and the respondent had several
times contacted sexually transmitted disease
which could be discerned by the fact that the
respondent
was
regularly
under
the
treatment
of
Dr.
S.K.
Jain,
Sexologist......................That
the
respondent is illegitimate son of his father
Late Dr. B.N. Kundu, who at the age of 50
years deserted his legally wedded wife with
whom he had a legitimate son and without
valid and legal divorce started to live with
another woman named Late Kamla Kundu
inheriting such immoral values from his
unmarried parents the respondent is now
revealing his genetic traits.
Apart from it also it has been
mentioned herein before that after filing of
instant divorce case, the defendant filed
several cases in quick succession against the
plaintiff including criminal case U/S 498A,
323, 504, 506 IPC with false and absurd
allegations which was quashed by the
Hon'ble High Court in Criminal Misc.
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
Application No. 5246/2013. Accordingly all
the allegations of demand of dowry, cruelty
and mis-appropriation of property and
breach of trust etc. were found baseless. This
fact is further
substantiated by the
documents filed by the plaintiff namely C71/39 to C-71/47. Also it has been stated by
the plaintiff that the defendant locked him in
toilet from inside and this statement of the
plaintiff
could
not
have
been
got
controverted even by his cross-examination.
All these facts sufficiently indicate that the
defendant has behaved with cruelty with the
plaintiff and these instances cannot be
termed as stray incidents of day to day life."

(21) This finding on the issue of
cruelty has not been challenged by the
respondent/wife nor even in this appeal in
terms of Order XLI Rule 22 of the Code of
Civil Procedure. This finding has, therefore,
attained finality. It being so one fails to
understand as to how the appellant's suit for
divorce could have been dismissed. The fact
the
other
ground
taken
by
the
appellant/plaintiff which was of desertion
referable to Clause (ib) of sub-section (1) of
section 13 of the Act, 1955 could not be
proved, was immaterial.

(22) Although the findings of the
Family Court on the issue of cruelty has not
been challenged, we have also gone
through the pleadings and evidence on
record including oral and documentary
evidence keeping in mind the decision of
Hon'ble the Supreme Court in case of K.
Srinivas Vs. K. Sunita :. 2014 (16) SCC
34, Mangayakarasi Vs. M. Yuvraj : 2020
(3) SCC 786 as also in the case of Ravi
Kumar Vs. Julmi Devi 2010 (4) SCC 476
and the judgments referred in the
impugned judgment and we do not find
any perversity or illegality in the said
findings.
(23) Section 13 of the Act, 1955
reads as under :-

"13. Divorce.-(1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband or
the wife, be dissolved by a decree of divorce
on the ground that the other party-
(i) has, after the solemnization of the
marriage, had voluntary sexual intercourse
with any person other than his or her spouse;
or
(ia) has, after the solemnization of
the marriage, treated the petitioner with
cruelty; or
(ib) has deserted the petitioner for a
continuous period of not less than two years
immediately preceding the presentation of
the petition; or
(ii) has ceased to be a Hindu by
conversion to another religion; or
(iii) has been incurably of unsound
mind, or has been suffering continuously or
intermittently from mental disorder of such
a kind and to such an extent that the
petitioner cannot reasonably be expected to
live with the respondent.
Explanation.-In this clause,-
(a) the expression "mental disorder"
means mental illness, arrested or incomplete
development
of
mind,
psychopathic
disorder or any other disorder or disability
of mind and includes schizophrenia;
(b) the expression "psychopathic
disorder" means a persistent disorder or
disability of mind (whether or not including
sub-normality of intelligence) which
results in abnormally aggressive or seriously
irresponsible conduct on the part of the other
party, and whether or not it requires or is
susceptible to medical treatment; or
(iv) * * * * *
(v) has been suffering from venereal
disease in a communicable form; or
5 All. Dr. Bijoy Kundu Vs. Smt. Piu Kundu
1029
(vi) has renounced the world by
entering any religious order; or
(vii) has not been heard of as being
alive for a period of seven years or more by
those persons who would naturally have
heard of it, had that party been alive;
(viii) ***
(ix) ***
Explanation.-In this sub-section,
the expression "desertion" means the
desertion of the petitioner by the other party
to the marriage without reasonable cause
and without the consent or against the wish
of such party, and includes the willful
neglect of the petitioner by the other party to
the marriage, and its grammatical variations
and cognate expressions shall be construed
accordingly.
(1A) Either party to a marriage,
whether solemnized before or after the
ommencement of this Act, may also present
a petition for the dissolution of the marriage
by a decree of divorce on the ground-
(i) that there has been no resumption
of cohabitation as between the parties to the
marriage for a period of one year or upwards
after the passing of a decree for judicial
separation in a proceeding to which they
were parties; or
(ii) that there has been no restitution
of conjugal rights as between the parties to
the marriage for a period of one year or
upwards after the passing of a decree for
restitution of conjugal rights in a proceeding
to which they were parties.

(2) A wife may also present a
petition for the dissolution of her marriage
by a decree of divorce on the ground,-
(i) in the case of any marriage
solemnized before the commencement of
this Act, that the husband had married again
before such commencement or that any
other wife of the husband married before
such commencement was alive at the time of
the solemnization of the marriage of the
petitioner:
Provided that in either case the other
wife is alive at the time of the presentation
of the petition; or
(ii) that the husband has, since the
solemnization of the marriage, been guilty
of rape, sodomy or bestiality; or
(iii) that in a suit under section 18 of
the Hindu Adoptions and Maintenance Act,
1956 (78 of 1956), or in a proceeding under
section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) (or under the
corresponding section 488 of the Code of
Criminal Procedure, 1898 (5 of 1898), a
decree or order, as the case may be, has been
passed against the husband awarding
maintenance to the wife notwithstanding
that she was living apart and that since the
passing of such decree or order, cohabitation
between the parties has not been resumed for
one year or upwards;
(iv) that her marriage (whether
consummated or not) was solemnized before
she attained the age of fifteen years and she
has repudiated the marriage after attaining
that age but before attaining the age of
eighteen years.
Explanation.-This clause applies
whether the marriage was solemnized before
or after the commencement of the Marriage
Laws (Amendment) Act, 1976 (68 of 1976).

(24) U.P. Amendment to Section 13
(1) (i-a) is as under :-

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

(25) It is apparent that Section 13 of
the Act, 1955 provides for grant of divorce
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
and enumerates various grounds on which
the same may be granted. It enacts that "any
marriage solemnized whether before or after
the commencement of this Act' may be
dissolved on petition presented either by the
husband or by the wife or any of the grounds
specified therein. Clause (i-a) of sub section
(1) of section 13 of the Act, 1955 declares
that a decree of divorce may be based by a
court on the ground that after solemnization
of marriage, the opposite party has treated
the petitioner with cruelty subject to the
State amendments to Section 13 (1) (i-a) in
this regard. There are other grounds also
mentioned in the said sub section (i) of
section 13 of Hindu Marriage Act and each
of these grounds are independent of each
other. It has to be understood that each of
these grounds are mutually exclusive to each
other which is evident by use of the
disjunctive 'or' to separate each ground
from the other and there is no reason to read
'or' conjunctively as it will lead to absurdity.
Thus, cruelty can by itself be a ground for
dissolution of marriage. However, it seems
that learned Family Court, after returning a
finding that "cruelty" has been inflicted by
the respondent-wife on the appellanthusband, refused to grant divorce to the
husband presumably on the ground that the
ground of "desertion" could not be proved
by the appellant-husband.

(26) Interestingly, instead of
allowing the suit for divorce, it has decreed
the suit of the respondent for restitution of
conjugal
rights
which
is
apparently
incongruous and irreconcilable with finding
on the issue of cruelty recorded in the
context of the suit for divorce in favour of
the appellant/husband and against the wife.
This finding itself constituted a valid ground
and a reasonable cause within the meaning
of Section 9 of the Act, 1955 for the husband
not to live with the respondent and for the
Family Court to dismiss the suit of the wife
under Section 9 of the Act, 1955, but this
material aspect has been omitted from
consideration.

(27) In view of the above
discussion, we have no hesitation in
determining that once cruelty was proved,
the suit for divorce had to be decreed and the
suit of the wife had to be dismissed, subject
of course to the provision of Section 13A of
Act, 1955, but, the Family Court has erred
on facts and law in not doing so. The point
of determination is answered accordingly.

(28) We have not expressed any
opinion on the issue of desertion as recorded
by the Family Court because the appellant's
Counsel did not press the said ground.

(29) At this juncture, it would be apt
to mention that this case has travelled from
the Family Court to this Court. The suit for
divorce was filed in 2012, whereas suit
under Section 9 of the Act, 1955 was filed in
2013. The decision of the Family Court is of
15.02.2021. The records reveal that both the
appellant and respondent are now living
separately for the last more than a decade i.e.
since 2012. Even prior to 2012 i.e. from
2003 till three weeks prior to filing of the
suit in 2012, though they were living in a
house under the same roof, there was no
communication between them and they
communicated only through SMS/calls.
Two sons were borne out of their wedlock
prior to 2003, both of whom are well
educated. Both sons are living with
respondent/wife. Repeated efforts by the
Courts for reconciliation or settlement have
resulted in failure. At the very initial stage,
the Family Court had sent the parties for
mediation, which did not succeed. This
Court had also sent them for mediation,
which also failed. On the last date, this Court
5 All. State Vs. Khajan
1031
had also requested the parties to explore the
possibility of them living together, but
nothing materialized. This Court had also
made an effort by asking the parties to come
with some mutual settlement, but in vain,
meaning thereby that every single effort of
the Court and the mediators, towards the
compromise or settlement has led to a blind
alley.

(30) The husband and wife, who
are before us, have been living separately
since the last more than a decade. There
are bitter allegations of cruelty from both
the sides and multiple litigations have
taken place between the two in the last
more than a decade. This embittered
relationship between the appellant and
respondent which has not witnessed any
moment of peace for the last more than a
decade or more is a martial relationship
only on paper. The fact is that this
relationship has broke down irretrievably
long back.

(31)

In
the
facts
and
circumstances of this case also, it is not a
fit case for grant of alternative relief of
judicial separation under Section 13A of
the Act, 1955.

(32)

Although
there
are
allegations
and
counter
allegations
between the parties about their financial
status,
however,
we
find
that
the
respondent did not seek permanent
alimony under Section 25 of the Act, 1955
presumably because she was seeking
restitution
of
conjugal
relationship,
though she could have done so as an
alternative relief in the suit for divorce but
we find that before us also there is no such
pleading by parties nor any prayer made
nor any evidence on record, therefore, we
leave it open to the respondent to initiate
separate proceedings in this regard as per
law.

(33) Based on the discussions
made hereinabove, without interfering
with the findings of the Family Court with
regard to issue nos. 1 and 2, its findings
and conclusions with regard to relief no. 3
in Regular Suit No. 886 of 2012 filed
under Section 13 of the Act, 1955 are set
aside. Consequently, the judgment and
decree
dated
15.02.2021
dismissing
Regular Suit No. 886 of 2023 for divorce
is also set-aside, Regular Suit No. 886 of
2012 is decreed. The marriage between the
appellant and respondent is dissolved.
Liberty is granted to the respondent to
initiate
separate
proceedings
under
Section 25 of the Act, 1955 as per law.

(34) The judgment and decree
15.02.2021 allowing the Regular Suit No. 29
of 2013 is set-aside. Regular Suit No. 29 of
2013 filed under Section 9 of the Hindu
Marriage Act, 1955 is dismissed.

(35) Both the appeals are allowed in
the aforesaid terms.

(36) Parties to bear their own costs.
----------
(2024) 5 ILRA 1031
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 1202 of 1984

State ...Appellant
Versus
Khajan ...Respondent