# Krishna Murarri v. Sangeeta

- **Citation:** (2020) 2 ILRA 967
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** First Appeal No. 451 of 2016
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-murarri-v-sangeeta-45327
- **Pages:** 9

## Headnote

A. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(i) - Divorce - 'Adultery' -
difficult to prove same by direct evidence
-
'adultery'
can
be
inferred
from
circumstances - burden is upon person,
who alleges adultery (Para 8)

B. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(i) - Divorce - Ground of
adultery - Allegations that wife has extra
marital physical relationship with her
brother-in-law - Held - Witness silent
with regard to day, date and timing of
alleged act of 'adultery' on part of wife -
Husband failed to prove adultery on the
part of wife - Husband not entitled to
decree of divorce (Para 8)

C. Civil Law-Hindu Marriage Act (25 of
1955) S.13 - Divorce - Irretrievable
breakdown of marriage - Cannot be
granted - when such a plea is raised by
one party alone (Para 18)

D. Civil Law-Hindu Marriage Act (25 of
1955) - S.13 - Divorce - Irretrievable
breakdown of marriage - Husband not
prayed
divorce
on
the
ground
of
irretrievable
breakdown
of
marriage
before Family court - For the first time
before High Court prayed to grant decree
of divorce on ground of irretrievable
break down of marriage - Held - Conduct
of the Husband forced the wife to live
separately - wife pleaded that she wants
to live with husband but he refused to
keep her - Husband failed to lay factual
foundation that there
has been an
irretrievable break down of marriage
(Para 18)

First Appeal dismissed. (E-5)

List of cases cited :

## Text

2 All. Krishna Murarri Vs. Sangeeta
967
Plaintiff-appellant, Defendant-respondent
has been forced to live separately. On the
facts as noted above, it cannot be said that
marriage between parties has broken down
irretrievably. Consequently, we have no
hesitation to hold that finding recorded by
Court below that marriage between parties
has not broken down irretrievably, does
not suffer from any illegality, perversity or
being erroneous. Defendant-respondent is
legally wedded wife of plaintiff-appellant.
As such, plaintiff-appellant is legally and
morally bound to maintain his wife.
Record shows that plaintiff-appellant has
miserably failed in discharging his moral
and legal obligation.

28. In view of discussion made
herein-above, appeal fails and is liable to
be dismissed. It is accordingly dismissed.
Cost made easy.
----------
(2020)02ILR A967

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 451 of 2016

Krishna Murarri ...Appellant
Versus
Sangeeta ...Respondent

Counsel for the Appellant:
Sri Uday Bhan Singh, Sri Uday Bhan Singh

Counsel for the Respondent:
Sri Atul Kumar Tiwari

A. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(i) - Divorce - 'Adultery' -
difficult to prove same by direct evidence
-
'adultery'
can
be
inferred
from
circumstances - burden is upon person,
who alleges adultery (Para 8)

B. Civil Law-Hindu Marriage Act (25 of
1955) - S.13(1)(i) - Divorce - Ground of
adultery - Allegations that wife has extra
marital physical relationship with her
brother-in-law - Held - Witness silent
with regard to day, date and timing of
alleged act of 'adultery' on part of wife -
Husband failed to prove adultery on the
part of wife - Husband not entitled to
decree of divorce (Para 8)

C. Civil Law-Hindu Marriage Act (25 of
1955) S.13 - Divorce - Irretrievable
breakdown of marriage - Cannot be
granted - when such a plea is raised by
one party alone (Para 18)

D. Civil Law-Hindu Marriage Act (25 of
1955) - S.13 - Divorce - Irretrievable
breakdown of marriage - Husband not
prayed
divorce
on
the
ground
of
irretrievable
breakdown
of
marriage
before Family court - For the first time
before High Court prayed to grant decree
of divorce on ground of irretrievable
break down of marriage - Held - Conduct
of the Husband forced the wife to live
separately - wife pleaded that she wants
to live with husband but he refused to
keep her - Husband failed to lay factual
foundation that there
has been an
irretrievable break down of marriage
(Para 18)

First Appeal dismissed. (E-5)

List of cases cited :

1. Smt. Kavita Sharma Vs Neeraj Sharma First
Appeal No. 525 of 2006 dt. 7.2.2018

2. Ashwani Kumar Kohli Vs Smt. Anita First
Appeal No. 792 of 2008 dt. 17.11.2016

(Delivered by Hon'ble Rajeev Misra, J).)

1. The present first appeal under
section 19 of Family Courts Act, 1984
(hereinafter referred to as 'Act 1984') has
968 INDIAN LAW REPORTS ALLAHABAD SERIES
been filed by Krishna Murari Plaintiffappellant
(hereinafter
referred
to
as
'Plaintiff') challenging judgement dated
17.11.2015 and decree dated 27.11.2015,
passed by Principal Judge, Family Court,
Kanpur Dehat in Suit No. 11 of 2009
(Krishna Murari Vs. Sangeeta) under
section 13 of Hindu Marriage Act, 1955
(hereinafter referred to as 'Act 1955')
whereby suit filed by Plaintiff for grant of
decree of divorce on the ground of
adultery, which is recognized as a ground
of divorce under section 13 (1) (i) of Act
1955 has been dismissed.

2. We have heard Mr. Udhay Bhan
Singh, learned counsel for Plaintiff and
Mr. Atul Kumar Tiwari, learned counsel
representing
Defendant-respondent
(hereinafter referred to as 'Defendant')

3. According to plaint allegations
marriage of Plaintiff was solemnized with
Defendant on 17.6.2005 at Hindupur in
accordance with Hindu Rites and Customs.
After marriage, Defendant came to her
matrimonial home at village Nasirapur. It
is alleged by Plaintiff that after some time,
Defendant insisted that they should live in
Bilhour. However Plaintiff resisted the
desire of Defendant on the ground that he
is the only son of his parents and father of
Plaintiff has died long ago. As such,
Mother of Plaintiff will be left alone at
Naserpur. Therefore, it is not advisable to
live in Bilhour. However, it is alleged by
Plaintiff that after some time again
pressure was exerted by Defendant to live
at Bilhour. Ultimately, Plaintiff acceded to
the insistence of defendant and started
residing at Bilhour. It is further alleged by
Plaintiff that on 28.9.2005, when he
returned after closing his shop found of his
residence locked. On inquiry, it was
gathered that Defendant has gone to house
of her Jija, namely, Mahesh Chand, who is
also living in Bilhour. According to
Plaintiff, he reached house of Mahesh
Chand at arround 6:00 pm and found
Defendant in compromising position with
Mahesh. Plaintiff is alleged to have words
with Defendant but she refused to pay any
heed. After the aforesaid incident, Plaintiff
is alleged to have pursuaded Defendant to
abstain from visiting her Jija's place but
she refused. On complaint being made to
father and brother of Defendant Sangeeta,
they also did not pay any heed, but to the
contrary supported her. They are also
alleged to have threatened Plaintiff of his
life. Relationship between parties became
strained.
On
20.4.2006,
father
of
Defendant came to Bilhour, and stating
that there is some function in village and
Sangeeta shall return after one week.
Accordingly, Sangeeta wife of Plaintiff
went with her father on 20.4.2006 to her
parental home. After one week, Plaintiff
went to Hindupur to bring back Sangeeta
but father and brother of Defendant
refused to send her along with Plaintiff. It
is also alleged that on 5.6.2006, when
Plaintiff was at his shop, his friend Girish
Chand informed that his wife has arrived
at her Jija's house, since yesterday.
Plaintiff closed his shop and retuned to his
home waiting for Defendant. However, as
Defendant did not return up to 8:00 pm,
Plaintiff went to the house of Jija of
Defendant and there he saw his wife
Sangeeta in compromising position with
Mahesh Chand, her Jija. Inspite of
aforesaid, wife of Mahesh i.e. Ranu and
Mahesh abused Plaintiff, as such, Plaintiff
returned to his home. Defendant lodged an
F.I.R. against Plaintiff in which Plaintiff
surrendered before Court on 20.7.2006 and
enlarged on bail on 20.7.2006. It is also
alleged that on 4.8.2006, Pappu, brotherin-law of Plaintiff and Mahesh Chand,
2 All. Krishna Murarri Vs. Sangeeta
969
Sadhu of Plaintiff are alleged to have
assaulted Plaintiff and also took away Rs.
10,000/- from the person of Mahesh.
Inspite of all attempts made by relatives of
Plaintiff, to have a compromise, Defendant
did not accede to the same. To the
contrary,
she
initiated
criminal
proceedings against Plaintiff. As such,
except for divorce there is no other way to
resolve the deadlock.

4. Suit filed by Plaintiff was
contested by Defendant. She accordingly
filed a written statement whereby, not only
plaint allegations were denied but also
additional pleas were raised. Defendant
pleaded that her mother-in-law and sisterin-law have harassed her for demand of
dowry.
Consequently,
criminal
case
regarding demand of dowry was initiated
by
Defendant,
which
is
pending
consideration. In respect of incident which
was alleged to have occurred on 4.8.2006,
in which Plaintiff was alleged to have been
assaulted by Pappu, brother-in-law and
Mahesh Chand (Sadhu) it was stated that
Police upon investigation has submitted a
final report, as the incident was found to
be false. It is the Plaintiff-husband,
mother-in-law
and
sister-in-law
of
Defendant, who have caused physical and
mental cruelty upon defendant and have
also harassed defendant for money. No
attempt was made by Plaintiff to apologize
for his previous mistakes or give an
undertaking for good behaviour in future.
Defendant categorically pleaded that in
case Plaintiff is ready to remove the cause
of agony and gives an undertaking that he
will
keep
Defendant
properly
then
Defendant is ready to live with Plaintiff
and to discharge her marital obligations as
wife of Plaintiff. Allegations made against
Mahesh Chand, Jija of Defendant, were
categorically denied.

5. After exchange of pleading,
parties went to trial. Court below upon
consideration of pleadings of parties,
framed following issues:

(a) Whether plaintiff is entitled
to decree of divorce on grounds mentioned
in the plaint.

(b) Whether plaintiff is entitled
to any other relief.

6. Plaintiff in support of his case,
adduced himself as P.W.-1 and One Surjit
as P.W.-2. No documentary evidence was
filed by Plaintiff in support of his case.
Defendant, in support of her defence
adduced herself as D.W.1 and one Rani as
D.W.-2. Defendant also filed documentary
evidence, in proof of her defence. She
accordingly filed copy of formal order
passed in Misc. Case No. 20/74/10 Smt.
Sangeeta Vs. Krishna Murari.

7. Court below examined pleadings
and evidence of parties. It accordingly
concluded that Plaintiff has instituted suit
for divorce on the ground of adultery but
Plaintiff could not prove the same. In
support of aforesaid finding, Trial Court
observed that in order to prove adultery,
following
three
questions
must
be
answered in affirmative:

(a)
Whether
after
marriage,
Defendant had extra marital intercourse
with any other person.

(b) Whether Defendant had extra
marital intercourse with any other person
on account of fraud, force or under
influence
of
some
psychotherapeutic
substance,
as
such,
she
could
not
understand what is being committed upon
her and therefore, no offence can be said
to be committed by her. It is only when
such crime is committed with a guilty
970 INDIAN LAW REPORTS ALLAHABAD SERIES
mind that decree of divorce can be
granted.

(c) With which person other than
husband or wife has defendant entered into
extra marital physical relationship.

8. Court below before proceeding to
answer aforesaid three questions guarded
itself with the parameters by which
jurisdiction of Courts while deciding issue
of 'adultery' is circumferenced. Court
below rightly observed that question of
'adultery' cannot be decided like other
grounds for dissolution of marriage.
'Adultery' is normally committed in
secrecy and therefore, it is difficult to
prove
same
by
direct
evidence.
Consequently, 'adultery' can be inferred
from circumstances. However, burden is
upon person, who alleges adultery.

9. Court below examined above
mentioned three questions in the backdrop
of
limitation
as
stated
above
and
concluded that Plaintiff has failed to prove
'adultery' on the part of Defendant. In view
of finding recorded on Issue-1, Court
below further held that Plaintiff is not
entitled to any other relief. Consequently,
Court below dismissed suit of Plaintiff for
grant of decree of divorce on ground of
'adultery' vide judgement dated 17.11.2015
and decree dated 27.11.2015. Feeling
aggrieved, Plaintiff has now approached
this Court by means of present first appeal.

10. Mr. Uday Bahan Singh, learned
counsel for Plaintiff in challenge to
impugned judgement and decree passed by
Court below has submitted that impugned
judgement and decree passed by Court
below are manifestly illegal and in excess
of jurisdiction, hence same are liable to be
set aside by this Court. He next submits
that from the statement of P.W.-1 and
P.W.-2, it is proved beyond doubt that
Defendant
is
guilty
of
committing
'adultery'.
He
lastly
submits
that
irrespective of findings recorded by Court
below crux of matter is that parties have
been living separately since 20.04.2006.
As such, for all practical purposes,
marriage of parties has broken down
irretrievably. Therefore, this Court in
exercise of powers under section 19 of Act
1984, can still reverse the decree passed by
Court below and decree suit of plaintiffrespondent by granting decree of divorce
on ground of irretrievable break down of
marriage.

11. Before proceeding to consider the
correctness of judgement and decree
passed by Court below, it would be
appropriate to understand meaning of term
'Adultery' as same has not been defined in
Act, 1955.

(i) In Philips Divorce Practice
4th Edition "Adultery" has been defined as
voluntary sexual connection between two
person of opposite sex who are not
married to each other but of whom one
alreat is married to third person"

(ii) In Halsbury's Laws of
England, Adultery for the purpose of relief
in matrimonial jurisdiction has been
defined to mean "consensual sexual
intercourse during the subsistence of the
marriage between one spouse and a person
of the opposite sex not the other spouse."

(iii) In Divorce 14th Edition
1952, adultery in relation to matrimonial
matters has been held to mean "willing
sexual intercourse between a husband or
wife and on the opposite sex while the
marriage subsists"

(iv) In RAYDON on divorce,
10th Edition, adultery has been held to be
a matrimonial offence. It has been defined
2 All. Krishna Murarri Vs. Sangeeta
971
as "Consensual sexual intercourse between
a married person and a person of opposite
sex not the spouse, during the subsistence
of the marriage."

(v) In Webster's New English
Dictionary, 1888, adultery has been
defined to mean "Violation of marriage
bed; voluntary sexual intercourse of a
marrried person with one of the opposite
sex, whether unmarried or married to
another; (the former case being technically
designated
single,
the
latter
double
adultery)."

(vi) In Fowler's Concise Oxford
Dictionary, adultery has been defined as
"Voluntary sexual intercourse of married
person with one of opposite sex married
(double adultery) or not (single adultery)."

(vii) Adultery has been defined
in Section 497 I.P.C. as follows:-

"
whoever
has
a
sexual
intercourse with a person who is and
whom he knows or has a reason to
believe to be the wife of the another
man, without the consent or connivance
of that man, such sexual intercourse not
amounting to the offence of rape, is
guilty of the offence of the adultery, and
shall be punished with imprisonment of
either description for a term which may
extend to five years, or with fine or with
both."

(viii) The term 'adultery' has
not been defined in Act, 1955. What has
been stated in Section 13 (1) (i) of Act,
1955 only provides as to what would
constitute adultery i.e. "has after the
solemnisation of the marriage, had
voluntary sexual intercourse with any
person other than his or her spouse."

12. Having noted the definition of
'adultery' as defined in various texts, the Court
now proceeds to examine, whether Plaintiff
has been able to prove 'adultery' on the part of
Defendant so as to entitle him to a decree of
divorce as prayed for.

13. From perusal of judgement, passed
by Court below, it is apparent that Court below
upon appreciation of oral and documentary
evidence and pleadings of parties, concluded
that Plaintiff has failed to establish 'adultery' on
party of defendant-appellant. Court below
concluded that there is clear contradiction in
the statement of P.W.-1 and P.W.-2. It further
observed that Plaintiff has alleged that
Defendant was in adulterous relationship with
husband of Poonam D.W.-2. sister of
Defendant. Rani D.W.-2 wife of Mahesh has
deposed before Court below and in her
statement in chief has clearly supported
Defendant. P.W.-2 Surjit Singh in his
statement in chief has alleged that he saw
Defendant in the company of Mahesh husband
of D.W-2 Rani in compromising position.
Court below disbelieved the testimony of
P.W.-2. Statement in chief of P.W.-2 is
completely silent with regard to day, date and
timing of alleged act of 'adultery' on part of
Defendant in the company of Mahesh,
husband of D.W.-2. Thus, having considered
the impugned judgement and decree in the
light of material on record, we find that Court
below did not commit any illegality or
irregularity in disbelieving case set up by
Plaintiff. Consequently, the conclusion drawn
by Court below refusing to grant decree of
divorce to Plaintiff, on ground of 'adultery'
which is ground for divorce, recognized under
section 13 (1)(i) of Act 1955, cannot be said to
be illegal or erroneous.

14. On the issue of irretrievable
breakdown of marriage, learned counsel
for Plaintiff submitted that marriage of
parties was solemnized on 17.6.2005 in
accordance with Hindu Rites and Customs.
However, Defendant, has deserted Plaintiff
on 20.04.2006 without any valid reason.
972 INDIAN LAW REPORTS ALLAHABAD SERIES
As such, since 20.04.2006 Plaintiff has
been denied the happiness and pleasure of
marital relationship with wife, causing
physical and mental pain and agony to
Plaintiff. It is also submitted that inspite of
efforts made by Plaintiff to bring back
Defendant to her matrimonial home, no
heed was paid by Defendant. So much so,
that on 15.11.2008, relatives of Plaintiff
made an attempt to resolve the dead lock
and
bring
back
Defendant
to
her
matrimonial home, but same also failed.
On the aforesaid factual premise, learned
counsel
for
Plaintiff
submits
that
admittedly
parties
have
been
living
separately since 20.04.2006 without any
attempt by either side after 15.11.2008 to
re-establish marital relationship between
the two. This deadlock/stalemate, between
the parties, clearly proves that parties have
given up each other and there are no
chances of reunion between them. As such
marriage of parties has broken down
irretrievably. Counsel for Plaintiff further
submitted that Plaintiff has categorically
pleaded in plaint that in spite of repeated
efforts made by him, Defendant has
chosen not to reside with Plaintiff. In such
state of affairs asking the parties to live
together will itself amount to injustice
rather
than
doing
justice
to
them.
Therefore, in the light of aforesaid facts, it
is vehemently urged that decree of divorce
be granted to do complete justice between
parties.

15. From perusal of plaint, we
find that decree of divorce was not
prayed
for
on
the
ground
of
irretrievable breakdown of marriage.
Therefore, the question that arises for
our consideration is:

"Whether a decree of reversal
can be passed on a ground which was
not the subject matter of adjudication
before Court below."

16.

The
issue
relating
to
irretrievable break down of marriage
has been considered by a Division
Bench of this Court in First Appeal No.
525 of 2006 (Smt. Kavita Sharma Vs.
Neeraj Sharma) decided on 7.2.2018,
wherein it has been observed as
follows in paragraph 28:-

"28.
The
above
findings
recorded by Court below could not be
shown perverse or contrary to record.
Having considered the fact that parties are
living separately from decades, we are
also of the view that marriage between two
is irretrievable and has broken down
completely. Irretrievable breakdown of
marriage is not a ground for divorce
under Act, 1955. But, where marriage is
beyond repair on account of bitterness
created by the acts of the husband or the
wife or of both, Courts have always taken
irretrievable breakdown of marriage as a
very weighty circumstance amongst others
necessitating severance of marital tie. A
marriage which is dead for all purposes
cannot be revived by the Court's verdict, if
the parties are not willing. This is because
marriage involves human sentiments and
emotions and if they are dried-up there is
hardly any chance of their springing back
to life on account of artificial reunion
created by the Court's decree. On the
ground of irretrievable marriage, Courts
have allowed decree of divorce and
reference may be made to Naveen Kohli v.
Neelu Kohli (2006) 4 SCC 558 and
Rishikesh Sharma Vs. Saroj Sharma,
2006(12)
SCALE
282.
It
is
also
noteworthy that in Naveen Kohli v. Neelu
Kohli
(supra)
Court
made
recommendation to Union of India that
2 All. Krishna Murarri Vs. Sangeeta
973
Act, 1955 be amended to incorporate
irretrievable breakdown of marriage as a
ground for grant of divorce."

17. Similarly this Court in First
Appeal No. 792 of 2008 (Ashwani Kumar
Kohli Vs. Smt. Anita) decided on
17.11.2016
has
also
considered
the
question posed by us 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
974 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

18. In the case in hand, we find that
parties have not been living separately on
account of their own free will. Defendant
has been forced to live separately on
account of conduct of Plaintiff and other
in-laws. Record further shows that it is
Plaintiff, who has refused to keep
Defendant with him as he failed to initiate
any proceedings for restitution of conjugal
relationship. Defendant has continuously
and consistently pleaded that she wants to
live with Plaintiff. In this view of the
matter, argument raised by learned counsel
for Plaintiff that there has been an
irretrievable break down of marriage has
no factual foundation. That apart this
Court in Ashwani Kumar Kohli (supra)
has clearly held that divorce cannot be
granted on aforesaid ground, particularly
when such a plea is raised by one party
alone. In addition to aforesaid, decree of
divorce was not prayed for, on ground of
irretrievable break down of marriage also
as parties are alleged to have been living
separately since 20.04.2006. Plaint was
presented in the year 2009, whereas
divorce petition was finally decided vide
judgement dated 17.11.2015 and decree
dated 27.11.2015 passed by Principal
Judge (Family Court), Kanpur Dehat in
Suit No. 11 of 2009 (Krishna Murari Vs.
Sangeeta). For a period of six long years,
Plaintiff kept quiet and now for the first
time, this issue is being raised. In our
opinion, it is half hearted attempt on the
part of learned counsel for Plaintiff to raise
this plea without there being any factual
foundation for the same.

19. In view of discussion made
above, present appeal fails and is,
2 All. Sri Naresh Kumar & Ors. Vs. Smt. Chawli & Ors.
975
therefore, liable to be dismissed. It is
accordingly, dismissed. Cost made easy.
----------
(2020)02ILR A975

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 590 of 1993

Sri Naresh Kumar & Ors. ...Appellants
Versus
Smt. Chawli & Ors. ...Respondents

Counsel for the Appellants:
Sri Amit Krishna, Sri B. Dayal, Sri Chetan
Chatterjee, Sri N.K. Srivastava, Sri Neeraj
Agarwal

Counsel for the Respondents:
Sri N.K. Srivastava, Sri Amit Krishna, Sri
Ravi Kant, Sri Syed Wajid Ali

A. Civil Law-Civil Procedure Code (5 of
1908)
-
S.100
-
Second
appeal
-
Substantial
question
of
law
-
Interpretation of any document including
its
contents
or
its
admissibility
in
evidence or its effect on the rights of the
parties to the Lis constitutes a substantial
question(s) of law within the meaning of
Section 100 of the Code.

Substantial question of law involved in the
second
appeal
was
about
the
correct
interpretation of the sale deeds relied upon by
the defendants, to establish that the suit
property is not part of Khasra no.113, but a
part and parcel of Khasra no.111. (Para 20)

B. Deed-Construction-Conveyance of land
- though boundaries given in the deeds of
title are the most reliable evidence about
the identity of adjoining properties, but
the rule have no application to a situation
where physical features about the
property suffer change in course of time

Plaintiff suit for possession of land, part of
Khasra no.113 - Suit property came into
existence owing to the construction of a brickworked road (kharanja) across plaintiff Khasra
no.113 in the year 1956 - Defendant relied
upon description of boundaries in sale deeds of
the year 1896 to establish that the property is
not part of Khasra no.113 but a part of Khasra
no.111- Trial dismissed the suit - Lower
Appellate court reversed the decree Held -
Appellate Court rightly held the suit property to
be a subdivision that came into existence on
account of the laying of a brick-worked road,
across Khasra no.113 after looking into
evidence that brought about certain changes to
the boundaries of Khasra nos.111 and 113,
much later in point of time than execution of
the defendants' sale deeds, dated 03.06.1896,
04.06.1896 and 26.03.1920 - description of
boundaries in the two sale deeds of the year
1896 would not have a decisive impact upon
the rights of parties to the suit property (Para
41)

Second Appeal dismissed. (E-5)

List of cases cited: -

1. Uma Pandey & Ors Vs Munna Pandey & Ors
AIR 2018 SC 9 1930

2. Rajendra Lalitkumar Agrawal Vs Smt. Ratna
Ashok Muranjan (2019) 3 SCC 378

3. Gurnam Singh (D) by LRs. Vs Lehna Singh
(D) by LRs. AIR 2019 SC 1441

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendants' Second
Appeal from a decree of possession passed
by the Lower Appellate Court, reversing
the Trial Court.

2. Nanu Singh brought Original Suit
no.101 of 1971 against Bhupeshwar
Prasad, Rajeshwar Prasad, Ishwar Prasad,