# Dr. Vinod Kumar Gupta v. Smt. Deepa Gupta

- **Citation:** (2010) 2 ILRA 769
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-12
- **Case number:** Second Appeal No. 38 of 2005
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-vinod-kumar-gupta-v-smt-deepa-gupta-41693
- **Pages:** 4

## Headnote

Code of Civil Procedure-Section-100Second
Appeal-Hindu
Marriage
ActSection 13(1)(a)-Divorce Petition- on
ground
of
cruelty-spouse
living
separately for the last 17 years without
any
valid
reason-Trial
Court
rightly
granted decree for divorce-1st Appellate
Court
committed
great
illegality
by
reversing the same and totally ignored
the guideline of Apex Court-set-a-sideAppeal Allowed.

Held: Para 13

For all the reasons stated above, the
second
appeal
is
allowed
and
the
judgment
and
order
of
the
lower
appellate court is set aside and that of
the trial court is confirmed. No order as
to costs.
Case law discussed:
AIR 2005, SC-3297; (2002) (48) ALR-485;
(2007) 4 SCC-511.

## Text

2 All] Dr. Vinod Kumar Gupta V. Smt. Deepa Gupta
769
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2010

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Second Appeal No. 38 of 2005

Dr. Vinod Kumar Gupta
 ...Appellant
Versus
Smt. Deepa Gupta
 ...Respondents

Counsel for the Appellant:
Sri Ratnesh Kumar Pandey
Sri P.K. Singh
Sri S.S. Shukla

Counsel for the Opposite Party:
Sri A.K. Sharma

Code of Civil Procedure-Section-100Second
Appeal-Hindu
Marriage
ActSection 13(1)(a)-Divorce Petition- on
ground
of
cruelty-spouse
living
separately for the last 17 years without
any
valid
reason-Trial
Court
rightly
granted decree for divorce-1st Appellate
Court
committed
great
illegality
by
reversing the same and totally ignored
the guideline of Apex Court-set-a-sideAppeal Allowed.

Held: Para 13

For all the reasons stated above, the
second
appeal
is
allowed
and
the
judgment
and
order
of
the
lower
appellate court is set aside and that of
the trial court is confirmed. No order as
to costs.
Case law discussed:
AIR 2005, SC-3297; (2002) (48) ALR-485;
(2007) 4 SCC-511.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. The case peremptorily listed
today. List has been revised. Heard
learned counsel for the appellant and
perused the record. Sri A.K. Sharma,
learned counsel for the respondent is not
present.

2. The appellant filed Original Suit
No. 447 of 1995, Dr.Vinod Kumar Gupta
versus Smt. Deepa Gupta, under Section
13 of Hindu Marriage Act for divorce
against the respondent. The suit was
decreed vide judgment and order dated
29.8.1998 passed by the Ist Additional
Civil
Judge
(Senior
Division),
Muzaffarnagar.

3. Aggrieved by the judgment and
order dated 29.8.1998 the respondent filed
Civil Appeal No. 333 of 1998, Smt.
Deepa Gupta versus Dr. Vinod Kumar
Gupta before first lower appellate Court
which was allowed vide judgment and
order dated 25.10.2000.

4. It appears from the order-sheet
dated 9.9.2009 that the Court had granted
opportunity to the learned counsel for the
parties as to whether there is any
possibility of husband and wife stay and
live together. Thereafter, the case was
listed on 22.2.2010 when it was directed
to be listed in the next cause list on the
prayer of learned counsel for the parties.
Since then, learned counsel for the
respondent has not appeared before this
Court. On 11.5.2010, learned counsel for
the respondent was also not present and
on 26.5.2010 he sought adjournment of
the case on the ground of illness slip.
Learned counsel for the appellant states
that the matter may be decided as the
adjournments sought are deliberate. The
case has been directed to be listed
peremptorily. Today also, learned counsel
for the respondent is not present. It
appears from the order sheet that
continuously for the last 3 days the case is
770 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

being adjourned at the behest of learned
counsel for the respondent.

5. The contention of learned counsel
for the appellant is that the appellant is
posted as Doctor in Madhya Pradesh.
However, the wife is employed as teacher
in Government Girls College, Kichha,
Nainital, Uttarakhand.

6. It appears that husband and wife
are not living together since 1993. The
suit for divorce had been granted and the
decree for divorce had been reversed in
appeal.

7. Learned counsel for the appellant
states that the wife is not ready to live
with husband at his place of posting
despite several attempts by him and his
relatives. The judgment and decree of the
first lower appellate Court is assailed on
the ground that it has acted with material
irregularity of law and jurisdiction in
setting aside the judgment and decree of
the trial Court without reversing the
findings recorded by it on individual
issues. He submits that the behaviour of
the wife with the appellant amounts to
cruelty and that the lower appellate court
has committed an error in holding that her
not living with the husband in the facts
and circumstances of the case, did not
amount to cruelty within the meaning of
term as defined under Section 13(1)(1a)
of the Hindu Marriage Act. It is stated
that from the facts and circumstances of
the case as available from the pleading
and evidence on record it is established
from conduct of the wife that marriage
had broken irretrievably due to cruelty
which was a valid ground for dissolution
of marriage under the Act and that the
decree for divorce ought to have been
passed on basis of record as the husband
and wife have been living separately for
the last so many years as such the
judgment of the lower appellate Court
being against the evidence on record and
misinterpretation of the provisions of law
can not be sustained and is liable to be
quashed.

8. In support of his submission,
learned counsel for the appellant has
relied upon the judgment rendered in AIR
2005,SC-3297,
Durga
Prasanna
Tripathy versus Arundhati Tripathy in
which it has been held that where the
spouses had been living separately for
almost 14 years and wife was not
prepared to lead conjugal life with
husband and in that backdrop an attempt
was made by husband and his relatives in
getting back wife to matrimonial home
failed. It was found to be a fit case for
decree of divorce on the ground desertion
as record showed that there was no
chances
of
reconciliation
and
was
irretrievable breakdown of marriage.

9. He has also placed reliance upon
paragraphs 21 and 22 of the judgment
rendered
in
(2002)(48)
ALR-485,
Praveen Mehta versus Inderjit Mehta
wherein
the
Court
considered
the
definition of 'cruelty' within the meaning
of section 13(1)(1a) of the Act. It was
held that mental cruelty is a state of mind.
In this case also the court came to the
conclusion that despite several attempts
by
relatives
and
well-wishers
no
conciliation between husband and wife
was
possible,
the
petition
for
the
dissolution of the marriage was filed in
the year 1996. In the mean time, so many
years have elapsed since the spouses
parted company as such it can reasonably
be inferred that the marriage between the
parties has broken down irretrievably
2 All] Dr. Vinod Kumar Gupta V. Smt. Deepa Gupta
771
without any fault on the part of the
husband, hence the decree for divorce was
not liable to be repaired.

10. He then submits that in the
instant case the husband and wife are
living separately since 1993. There is no
plausible reason for the wife not to live
with the husband, who is a Doctor in
Madhya Pradesh and her insistence to
leave service for living along with her at
Nainital, Uttarakhand was unreasonable
and amounts to desertion. The trial Court
has rightly granted decree for divorce
which has been reversed by the lower
appellate
court
on
irrelevant
consideration.

11. After perusal of the judgment it
is noted that the parties are not cohabiting
together for almost 17 years. Since there
has been a long period of continuous
separation, it may fairly be concluded that
in the facts and circumstances of this case
that the matrimonial bond is beyond
repair and the marriage has become a
fiction as has been held by the Apex
Court in (2007) 4 SCC-511, Samar
Ghosh versus Jaya Ghosh. The Court in
that case held that-

"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. In present case,
trial Court had rightly concluded that the
various instances in their matrimonial life,
and led to grave mental cruelty to the
appellant husband. Further, the High
Court failed to take into consideration the
most important aspect of the case that the
parties
had
admittedly
been
living
separately for more than 16-1/2 years.
The entire substratum of marriage had
already disappeared."

12. The law laid down by the Apex
Court in the aforesaid cases squarely
applies to the facts and circumstances of
this case where the spouses have been
living separately for a long long period of
time. It appears that their bond of
marriage can not be repaired which has
been extensively damaged by passage of
separation. The parties are in their mid's
40. The wife is not ready to cohabit and
inspite repeated efforts made by him and
their relatives. Every person has a right to
live healthy sexual life; hence love and
affection from his or her partner in the
marriage which has completely vanished
in the instant case. It appears that the
lower appellate Court has lost sight of this
important factor and the guide lines laid
down by the Apex Court from time to
time through their Lordships' judgments.
The marriage in the instant case cannot
continue. Ground realities have to be
considered before allowing the parties to
continue their relationship of married
couple till they become too old to have
any biological need. Parties are already in
their med forty's and if a new lease to
their life is to be granted then matter has
to be settled now.

13. For all the reasons stated above,
the second appeal is allowed and the
judgment and order of the lower appellate
court is set aside and that of the trial court
is confirmed. No order as to costs.
---------
772 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2010

BEFORE
THE HON'BLE FERDINO INACIO REBELLO, C.J.
THE HON'BLE RAJIV SHARMA, J.

Special Appeal No.64 of 2006

State of U.P. and others ...Petitioners
Versus
Prabhu Narain Sharma and others

 ...Respondents

Constitution of India Art.226-Dearness
allowance-whether
the
work
charge
employee working on consolidated Pay
entitled benefit of Dearness Allowance
With
same
rate
as
per
regular
employee?-held- 'No'-state can classify
its-employee
considering
nature
of
appointment-consolidate
pay
consist
basic Pay, Dearness Allowance, special
Pay
and
leave
encashment-state
government not bound to treat all
employees alike for purpose of wagesorder passed by single judge modifiednot
to
recover
excess
amount
of
Dearness Allowance Already paid-these
retiring within 5 years-50% amount be
deducted from in easy instalment-those
who have not been paid arrears of
Dearness Allowance Be paid in revise pay
in 6th pay commission report within 3
month.

Held: Para 21 & 23

The principle, therefore, is well settled
that the State need not, in exercise of its
executive power or otherwise, treat all
employees alike merely because they are
in its employment. The State can classify
the employees, based on the nature of
employment, and pay them differently. If
so done, it can not be said to be
arbitrary. In the case in hand, after going
into the issue, the State Government
fixed
a
consolidated
pay
for
work
charged
employees.
This,
therefore,
cannot be said to be arbitrary. This
principle has also been referred to in a
Constitution Bench judgment of the
Supreme Court in Secretary, State of
Karnataka & Ors. Vs. Uma Devi (3) &
Ors., (2006) 4 SCC 1.

In view of the above discussion, it is not
possible to hold that the action of
respondents was arbitrary and/or that
the work charged employees are entitled
to
be
treated
alike,
like
regular
employees for the purpose of dearness
allowance. The Judgment of the learned
Single Judge, therefore, is liable to be
set aside and is, accordingly set aside.

At this stage, learned Chief Standing
Counsel submitted that as this Court has
set-aside the judgment of the learned
Single Judge and as such, liberty may be
granted to recover the amount of arrears
and
difference
of
wages
from
the
respondents-employees. Counsel for the
respondents-petitioners submitted that it
will be too harsh to recover the amount
which has already been paid to them
pursuant to the judgment of this Court.
They further added that it is not the case
of the appellants that they have been paid
the
amount
on
account
of
misrepresentation of facts. Moreover,
there are large number of employees who
have
already
attained
the
age
of
superannuation or going to attain the age
of superannuation very soon and recovery
of amount, which has already paid to
them, will cause serious prejudice apart
from
adverse
affect
on
the
family.
Considering
the
peculiar
facts
and
circumstances of the case, we with the
consent of the parties' counsel evolved a
formula in respect of recovering the
amount, which should be adopted by the
appellants. The formula so evolved with
the consensus of the parties, is as
follows:-

(i) There will be no recovery from the
persons who have already superannuated
or are going to attain the age of
superannuation within five years from
today