# Rajesh Kumar Chaudhary Plaintiff v. Smt. Sarita Defendant

- **Citation:** (2019) 2 ILRA 852
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-19
- **Case number:** First Appeal No. 276 of 2012
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-chaudhary-plaintiff-v-smt-sarita-defendant-44766
- **Pages:** 34

## Headnote

A. Hindu Marriage Act, 1955 - Section 13 -
Divorce on the ground of irretrievable
breakdown of marriage - Irretrievable
breakdown of marriage not a ground for
divorce in the Act 1955 - But, where
marriage is beyond repair - a marriage
which is dead for all purposes - Courts
have taken irretrievable breakdown of
marriage as a very weighty circumstance
amongst others necessitating severance of
marital tie.
B. Hindu Marriage Act, 1955 - Irretrievable
breakdown of marriage - Divorce cannot
be granted on the ground of irretrievable
break down of marriage particularly when
such a plea is raised by one party alone -
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.
Held: - Husband prayed for the first time in
appeal before High Court that since parties
have been living separately since 02.07.2004
and therefore, the marriage has broken down
irretrievably - High Court held Parties have not
2 All. Rajesh Kumar Chaudhary Vs Smt. Sarita
853
been living separately on account of their own
free will. It is the husband, who has refused to
keep wife with him. Wife has continuously and
consistently pleaded that she wants to live
with husband. Further before family court
decree of divorce was not prayed for on the
ground of irretrievable break down of marriage
- Husband Appeal dismissed. (Para 38)
C. Hindu Marriage Act, 1955 - Section 24 -
Interim maintenance during the pendency
of the appeal - So long as defendant
continues to be the legally wedded wife of
plaintiff the plaintiff has a legal as well as
moral obligation to maintain her.
Held: - Husband directed by High Court to
pay interim maintenance @ Rs. 5,000/- per
month from April, 2012 till July 2019 - failing
which Court below shall proceed to recover
the same. (Para 39)
D. Hindu Marriage Act, 1955 - DNA test -
Divorce petition-To substantiate allegations
of wife's infidelity.
Held:-A matrimonial court has the power to
order a person to undergo medical test and it
would not be in violation of the right to
personal liberty under Article 21 - However,
the Court should exercise such a power if the
applicant has a strong prima facie case and
there is sufficient material before the Court -
once the order for D.N.A. Test has been
passed and D.N.A test has been conducted,
the result of D.N.A. Test cannot be brushed
aside and same will have to be given effect to
even if the circumstances justifying attraction
of presumption as contemplated under section
112 of Indian Evidence Act exists. (Para 31,
33)
E. Practice and Procedure - Decree of
reversal cannot be passed on a ground
which was not the subject matter of
adjudication before the Court below.
(Para 35, 38)
First Appeal fails (E-5)
Cases relied upon: -
1.Naveen Kohli Vs Neelu Kohli (2006) 4 SCC
558

## Text

_Characters 0–39,861 of 115,485. This is a partial read: ask again with offset=39861 for what follows._

852 INDIAN LAW REPORTS ALLAHABAD SERIES
was acquired. The acquisition notification
under section 4 of Act 1894 was
published on 20.4.1988 under section 6 of
Act 1894 was published on 18.8.1989 and
compensation at the rate of Rs. 49.35 per
sq-yard pursuant to the award of SLAO
was deposited in the office of SLAO. Due
to interim order passed by Court on
4.10.2001, in Writ Petition No. 32851 of
2001, BKDA was not able to proceed
with the development work on the
acquired land and therefore, from Gata
No. 385 it agreed to lease out 3001.84 sqyard
land
i.e.
2509.90
sq-meter.
Therefore, on payment of Rs. 1,48,140 as
compensation deposited by BKDA in
SLAO's office, acquisition cost of Rs.
14814/- and further payment of Rs. 115/-
per
sq-meter
towards
development
charges and further payment of free hold
charges, land was allotted on lease to Smt.
Amir Kunwar. Thus, it is not an
agreement for the purpose of payment of
compensation but a compromise executed
by BKDA with Amir Kunwar in different
circumstances since it was not able to
proceed with development activities of
acquired land. The aforesaid document
therefore, is wholly irrelevant for the
purpose of determining market value of
acquired land in the case in hand and that
has rightly been rejected by Reference
Court.

117. In view of above discussions,
we do not find any manifest error in both
the judgements as well as awards of
Reference Court. Since the points for
determinations
have
rightly
been
answered against appellants, we do not
find any merit in these appeals.

118. Both are accordingly dismissed
with cost.
----------
(2019)10ILR A 852

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2019

BEFORE

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

First Appeal No. 276 of 2012

Rajesh Kumar Chaudhary
 ...Plaintiff-Appellant
Versus
Smt. Sarita ...Defendant-Respondent

Counsel for the Appellant:
Sri S.N. Pandey, Sri Ashok Nath Tripathi,
Sri Havaldar Verma

Counsel for the Respondent:
Sri Namwar Singh, Sri Sanjiv Singh

A. Hindu Marriage Act, 1955 - Section 13 -
Divorce on the ground of irretrievable
breakdown of marriage - Irretrievable
breakdown of marriage not a ground for
divorce in the Act 1955 - But, where
marriage is beyond repair - a marriage
which is dead for all purposes - Courts
have taken irretrievable breakdown of
marriage as a very weighty circumstance
amongst others necessitating severance of
marital tie.
B. Hindu Marriage Act, 1955 - Irretrievable
breakdown of marriage - Divorce cannot
be granted on the ground of irretrievable
break down of marriage particularly when
such a plea is raised by one party alone -
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.
Held: - Husband prayed for the first time in
appeal before High Court that since parties
have been living separately since 02.07.2004
and therefore, the marriage has broken down
irretrievably - High Court held Parties have not
2 All. Rajesh Kumar Chaudhary Vs Smt. Sarita
853
been living separately on account of their own
free will. It is the husband, who has refused to
keep wife with him. Wife has continuously and
consistently pleaded that she wants to live
with husband. Further before family court
decree of divorce was not prayed for on the
ground of irretrievable break down of marriage
- Husband Appeal dismissed. (Para 38)
C. Hindu Marriage Act, 1955 - Section 24 -
Interim maintenance during the pendency
of the appeal - So long as defendant
continues to be the legally wedded wife of
plaintiff the plaintiff has a legal as well as
moral obligation to maintain her.
Held: - Husband directed by High Court to
pay interim maintenance @ Rs. 5,000/- per
month from April, 2012 till July 2019 - failing
which Court below shall proceed to recover
the same. (Para 39)
D. Hindu Marriage Act, 1955 - DNA test -
Divorce petition-To substantiate allegations
of wife's infidelity.
Held:-A matrimonial court has the power to
order a person to undergo medical test and it
would not be in violation of the right to
personal liberty under Article 21 - However,
the Court should exercise such a power if the
applicant has a strong prima facie case and
there is sufficient material before the Court -
once the order for D.N.A. Test has been
passed and D.N.A test has been conducted,
the result of D.N.A. Test cannot be brushed
aside and same will have to be given effect to
even if the circumstances justifying attraction
of presumption as contemplated under section
112 of Indian Evidence Act exists. (Para 31,
33)
E. Practice and Procedure - Decree of
reversal cannot be passed on a ground
which was not the subject matter of
adjudication before the Court below.
(Para 35, 38)
First Appeal fails (E-5)
Cases relied upon: -
1.Naveen Kohli Vs Neelu Kohli (2006) 4 SCC
558
2. Shyam Sunder Kohli Vs Sushma Kohli
(2004) 7 SCC 747
3. Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511
4. Dipanwita Roy Vs Ronobroto Roy (2015) 1
SCC 365.
5. Smt. Sarita Devi Vs Sri Ashok Kumar Singh
(2018) 3 AWC 2328
6. Goutam Kundu Vs St. of W.B. & anr. (1993)
3 SCC 418
7. Raghunath Vs Shardabai 1986 AIR Bombay 388
8. Sharda Vs Dharmpal (2003) 4 SCC 493
9. Bhabani Prasad Jena Vs Convenor Secretary,
Ori. St. Commission for Women (2010) 8 SCC 633
10.Smt. Kavita Sharma Vs Neeraj Sharma)
First Appeal No. 525 of 2006 decided on
7.2.2018
11. Ashwani Kumar Kohli Vs Smt. Anita First
Appeal No. 792 of 2008 decided on 17.11.2016
(Delivered by Hon'ble Rajeev Misra, J.)

1. This plaintiff's Appeal under
Section 19 of Family Courts Act 1984
(hereinafter referred to as the Act of
1984) filed by Rajesh Kumar Chaudhary
(husband) challenging judgement dated
27.03.2012 and decree dated 10.04.2012
passed by the Principal Judge (Family
Court), Varanasi in Petition No. 360 of
2004 (Rajesh Kumar Chaudhary Vs.
Savita) whereby aforesaid petition for
divorce filed by the plaintiff-appellant
under Section 13 (1) of Hindu Marriage
Act 1955 (hereinafter referred to as the
Act of 1955) has been dismissed.

2. We have heard Mr. Ashok Nath
Tripathi, learned counsel for plaintiffappellant and Mr. Sanjiv Singh, learned
854 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel
representing
defendantrespondent.

3. The plaint case set up by plaintiffappellant is that marriage of plaintiffappellant was solemnized with defendantrespondent on 03.06.1994 in accordance
with
Hindu
Rites
and
Customs.
Defendant-respondent came to the house
of plaintiff once or twice and again back
to her parental home. The defendantrespondent never established conjugal
relationship with plaintiff-appellant at her
marital home. According to plaintiffappellant it was disclosed by defendantrespondent to him that her marriage has
been solemnized with plaintiff-appellant,
forceably, and contrary to her wishes,
whereas she has already surrendered
physically and mentally to another person.
Whenever defendant-respondent came to
her marital home, she never stayed for
more than three or four days nor
established conjugal relationship with
plaintiff-appellant. In order to make
married life happy plaintiff-appellant
made many efforts to resolve deadlock
but in vain. However, looking at the
prestige of his family, plaintiff-appellant
kept quiet. The defendant-respondent
came to her marital home on 04.06.1994
and after staying about three days, went to
her parental home on 07.04.1994 in the
company of her brother and relatives.
Thereafter, plaintiff-appellant and his
family members made continuous efforts
to bring her back. Ultimately, after expiry
of a period of three years, defendantrespondent came to her marital home on
10.03.1997. After staying for about three
or four days with the family of plaintiffappellant, she again went to her parental
home. All this time she did not discharge
her obligations as wife of the plaintiffappellant and while returning to her
parental home, she took away all jewelry
and stridhan. A letter was sent by father
of defendant-respondent to father of
plaintiff-appellant that a daughter has
been born to defendant-respondent on
01.03.1998 who has been named as
Vibhushita @ Prachi. On recipt of this
information,
plaintiff-appellant
was
astonished as no child could be born out
of the wedlock of plaintiff-appellant with
defendant-respondent as there was no
conjugal relationship between the two.
However, considering the prestige and
grace of the family and himself, he did
not raise voice and kept quiet. Plaintiffappellant,
inspite
of
the
aforesaid,
requested
defendant-respondent
to
improve her conduct but she failed. The
family of plaintiff-appellant did not want
to
leave
defendant-respondent
as
defendant-respondent was blessed with a
girl child who is loved by all. Plaintiffappellant and his family members were
unaware of the truth and inspite of the
humiliation faced by them at the behest of
defendant-respondent, they kept quiet.
Ultimately, as per the wishes of his family
members,
plaintiff-appellant
met
defendant-respondent and her family
members again on 02.07.2004 to bring her
back to her marital home but she refused.
She again stated that she has wrongly
been married to the plaintiff-appellant. On
account
of
aforesaid
conduct
of
defendant-respondent,
plaintiff
has
suffered physical and mental cruelty at the
hands of the defendant-respondent and
hence the suit for divorce.

4. The suit for divorce filed by
plaintiff-appellant
was
contested
by
defendant-respondent. Accordingly, she
filed a written statement (Paper No. 25
Ka.) whereby she not only denied plaint
allegations but also raised additional
2 All. Rajesh Kumar Chaudhary Vs Smt. Sarita
855
pleas. According to defendant-respondent,
the divorce petition was filed only to
harass
defendant-respondent
and her
family members and further to solemnize
second marriage. As such the divorce
petition was liable to be dismissed. The
defendant-respondent further stated that
after marriage, she came to her marital
home and stayed at her marital home in a
cordial atmosphere with the plaintiffappellant and other family members.
After
sometime,
defendant-respondent
came to her parental home. However,
plaintiff-appellant as well as his family
members refused to bring back defendantrespondent on the ground that they want
to take defendant-respondent to Bombay.
However, as the Flat in Bombay was too
small they were making every effort to
purchase a new Flat for which there was a
deficiency of Rs.5 lacs. As such, it was
stated by plaintiff-appellant and his
family members that either the parents of
defendant-respondent should give a sum
of Rs.5 lacs immediately or wait for such
time till new Flat is purchased in Bombay.
After expiry of a period of two and a half
years no information regarding the
purchase of a Flat in Bombay was given
nor any attempt was made to bring back
defendant-respondent
to
her
marital
home. In the aforesaid circumstances,
parents of defendant-respondent started
exerting pressure upon Mahendra Pratap
Singh (the mediator of the marriage),
Samar Bahadur Singh and other relatives
to pressurize plaintiff-appellant and his
family members to take back defendant
respondent to her marital home. On this
plaintiff-appellant and his father brought
defendant-respondent to their home in
Village Barahi Kalan, District-Varanasi
and started exerting pressure upon the
defendant-respondent for the payment of
Rs. 5 Lacs by her father. The defendantrespondent spent a period of one month
with plaintiff-appellant in a cordial
atmosphere.
Consequently,
conjugal
relationship between the parties was
established. Out of the cohabitation of
defendant-respondent
and
plaintiffappellant, she came in family way.
Ultimately, defendant-respondent gave
birth to a daughter namely Vibhushita @
Prachi on 01.03.1998.

5. The entire family of plaintiffappellant resides in Bombay. At Village
Barahi Kalan only family of the uncle of
plaintiff-appellant resides and looks after the
house and agriculture fields of the plaintiffappellant. The family of plaintiff-appellant
comes to Village-Barahi Kalan twice or
thrice in a year and after staying about a
week or ten days they used to go back to
Bombay. Whenever plaintiff-appellant used
to come to Village-Barahi Kalan, he used to
go to the house of defendant-respondent to
meet her and also to look at his daughter.
With the permission of father of defendantrespondent, plaintiff-appellant used to take
defendant-respondent alongwith her daughter
to Varanasi for a joyride and used to stay at
Varanasi in a Hotel. In spite of the aforesaid
cordial relations, plaintiff-appellant never
agreed to take defendant-respondent to
Bombay and the only reason assigned was
shortage of space at Bombay. It was also
stated that till a Flat is purchased in Bombay,
defendant-respondent cannot be taken to
Bombay. As defendant-respondent or her
parents could not pay a sum of Rs. 5 Lakhs
to plaintiff-appellant as such out of
vengeance, they started levelling false and
frivolous allegations against defendantrespondent and her family members. As the
marriage of younger sister of defendantrespondent was scheduled to be held on
11.02.2005, therefore in order to create
obstruction in the marriage and to tarnish
856 INDIAN LAW REPORTS ALLAHABAD SERIES
image of the defendant-respondent and her
family members, various uncalled for and
baseless allegations were levelled. According
to the defendant-respondent the plaintiffappellant resides at Bombay where he has a
laundary, Hotel and Beer Bar from which he
has substantial income. Plaintiff-appellant
wants to marry a fashionable girl and in
pursuit of the aforesaid desire, he has filed
divorce suit on unfounded and baseless
allegations, which are wholly untruthfull. The
defendant-respondent was always ready to
reside with plaintiff-appellant and even on
date she is ready to live with plaintiffappellant. The defendant-respondent never
refused to live with the plaintiff-appellant.
Only because the demand of Rs. 5 Lakhs
raised by plaintiff-appellant could not be
satisfied by defendant-respondent or her
parents, the plaintiff-appellant is not keeping
defendant-respondent
with
him.
The
defendant-respondent was and is ready to
reside with plaintiff-appellant alongwith her
daughter and lead a happy married life. The
defendant-respondent came to her parental
home on five or six occasions and also went to
her marital home, but ultimately came to her
parental home in February 2005. Since then
no effort has been made by the plaintiffappellant to take her back and his daughter nor
any proposal to that effect was made. Since no
cause of action arises, the suit for divorce filed
by the plaintiff-appellant is liable to be
dismissed.

6. On the pleadings of the parties,
Court below framed following issues for
adjudication:

"i. Whether the defendant-respondent
has not discharged her spousal obligations
with the plaintiff-appellant, as averred in the
plaint?

ii. Whether the defendant-respondent
went to her father's place against the
wishes of the plaintiff-appellant, as
averred in the plaint?

iii. Whether the daughter born to the
defendant-respondent
is
out
of
the
wedlock of the parties and on account of
cohabitation of the parties, as averred in
the plaint?

iv. Whether the plaintiff-appellant
demanded
Rs.
5
Lakhs
from
the
defendant-respondent to purchase a Flat
and for that, subjected her to cruelty by
harassing her, as stated in the written
statement?

v. Whether the plaintiff-appellant
subjected the defendant-respondent to
cruelty by levelling false charges against
her and by indulging in loose talks with
her, with an intent to create hurdles in the
marriage of her younger sister and to
tarnish her social prestige?

vi. Whether the plaintiff-appellant is
entitled to get any relief?"

7. After the issues were framed,
parties led evidence in support of their
respective case. Plaintiff-appellant in
order to prove his case adduced himself as
P.W.-1, one Hira Lal as P.W.-2 and
Vindhyavasini as P.W.-3. While P.W.-2
Hira Lal is the father of plaintiff-appellant
P.W.-3 Vindhyavasini is a resident of
Village
of
plaintiff-appellant.
The
plaintiff-appellant
also
adduced
documentary evidence as is evident from
page 11 of the certified copy of impugned
judgement.

8. Similarly defendant-respondent in
order to prove her defence, adduced
herself as D.W.-1, Bindu Kanaujiya as
D.W.-2,
Baljeet
as
D.W.-3,
Samar
Bahadur Singh as D.W.-4 and Om
Prakash Lal Srivastava as D.W.-5. D.W-2
Bindu Kannaujia is the daughter of the
Mausi of defendant-respondent (sister of
2 All. Rajesh Kumar Chaudhary Vs Smt. Sarita
857
the mother of defendant respondent).
D.W.4 Samar Bahadur Singh is the
mediator of the marriage. Defendantrespondent also adduced documentary
evidence to establish her defence. The
same is learly recorded at page 11 of the
certified copy of impugned judgement.

9. Court below on the basis of
pleadings of the parties and evidence
adduced, decided the issues so framed.
Issue no.1 relates to the failure on the part
of
the
defendant-respondent
in
establishing marital relationship with the
plaintiff-appellant. Issue no.2 was framed
to the effect as to whether defendantrespondent has gone with her father to her
parental home contrary to the wishes of
the plaintiff-appellant. Both the issues
were decided together. The said issues
were essentially framed to find out
whether
defendant-respondent
has
committed physical and mental cruelty
upon plaintiff-appellant by her conduct.
Court below concluded that as per
testimony of D.W.-1 Sarita, it has been
categorically established that after her
marriage on 03.06.1994, she came to her
marital home on 04.06.1994. While
residing at her marital home, she duly
discharged her obligations as wife and
while she stayed at her marital home,
there was not only cohabitation of the
plaintiff-appellant and the defendantrespondent but there also established
conjugal relationship between the two.
Defendant-respondent
came
to
her
parental home only when she was sent
(Vidai) by her in-laws. The defendantrespondent never came to her parental
home out of her free will. Defendantrespondent in her testimony has deposed
before Court below in a very natural
manner and there is no such element in
her testimony on the basis of which it
could be discarded or the witness himself
could be disbelived on account of being
incredible. The manner in which this
witness has detailed the chain of events
which occurred from 04.06.1994 do not
leave any room, to doubt her testimony.
Apart
from
above,
D.W.-2,
Bindu
Kannaujia, who is the daughter of the
sister of mother of defendant-respondent
has also supported the testimony of D.W.-
1, Smt. Sarita. None of the family
members of plaintiff-appellant has come
forward to support the case of plaintiffappellant or deposed before Court below
in his favour. Apart from the aforesaid,
Court below further found that in case the
conduct of defendant-respondent was so
unnatural as alleged by plaintiff-appellant,
then, in that event, suit for divorce would
not have been filed after about ten years
from
the
date
of
marriage.
This
circumstance also reamined unexplained
before Court below. On the aforesaid
premise Court below concluded that
plaintiff-appellant has failed to establish
that
defendant-respondent
failed
to
establish
marital
relationship
with
plaintiff-appellant
and
defendantrespondent went to her parental home
contrary to the wishes of the plaintiffappellant. Consequently, the said issues
were decided against plaintiff-appellant.

10. Issue no.3 relating to the birth of
the
girl
child
from
the
conjugal
relationship of the plaintiff-appellant and
defendant-respondent was decided against
plaintiff-appellant. The necessity to frame
this issue arose since plaintiff-appellant
filed an application (Paper No. 42 Ga) for
getting D.N.A test of minor girl. This
application filed by the plaintiff-appellant
was contested by defendant-respondent
and accordingly, she filed her objections
(Paper No. 5. Ga). On this application,
858 INDIAN LAW REPORTS ALLAHABAD SERIES
Court below passed an order dated
28.10.2006 whereby it directed that the
application (Paper NO. 42-Ga) shall be
decided after oral evidence of parties is
over.
Subsequently,
plaintiff-appellant
filed another application dated 20.3.2012
praying therein that the application (Paper
No. 42 Ga) be decided in the light of the
order 28.10.2006. At this stage plaintiffappellant appears to have approached this
Court and this Court directed that the
applicaion (Paper No. 42 Ga) be decided
within
a
period
of
one
month.
Consequently, the aforesaid application
was decided alongwith the divorce
petition.

11. The basis of the application (Paper
No. 42 Ga) was the pathological reports
filed by plaintiff-appellant before Court
below namely (Paper No. 32 Ga) and
(Paper No. 34 Ga) vide list of documents
which is (Paper No. 31 Ga). The said
pathological reports show that the blood
group of the plaintiff-appellant is A
positive, that of the defendant-respondent
is also A positive but the blood group of
minor child is B positive. Drawing legal
support
from
Modi's
Medical
Jurisprudence, it was urged before Court
below that the same is impossible. He has
referred to Table-2 occurring under
Chapter-VII (Examination of Biological
Stains and Hair) of Modi's Medical
Jurisprudence, 21st Edition at page 108,
which is quoted hereunder:-

Phenotype
s
of
parents
Phenotypes
of
Children

Possible
Impossible
AxA
A and O
B, and AB
AxB
A,B, O and AB None
AxAB
A, B, and AB
O
AxO
A and O
B and AB
BxB
B and O
A and AB
BxAB
A, B and AB
O
BxO
B and O
A and AB
ABxAB
A, B, and AB
O
ABxO
A and B
A, B, and O
OxO
O
A, B, and AB

12. Thus on the aforesaid premise, it
was contended before Court below that
the girl child has not been born out of the
cohabitation and conjugal relationship of
the parties and therefore, the necessity of
getting a D.N.A. Test of the daughter
namely Vibhushita @ Prachi.

13. The application Paper No. 42 Ga
was objected to by defendant respondent.
According to defendant-respondent, as
per the provisions of Section 4 and 112 of
Indian Evidence Act, the application
(Paper No. 42 Ga) filed by plaintiffappellant is liable to be rejected. There is
no explanation by the plaintiff-appellant
as to how the said pathological reports
have been received by him when it is
admitted case of plaintiff-appellant that
the daughter was born on 01.03.1998 and
prior to her birth plaintiff-appellant has
not met defendant-respondent nor the
defendant-respondent came to her marital
home. Court below thus concluded that
there is no such material on the basis of
which D.N.A. Test of minor girl could be
directed. Court below on the aforesaid
factual premise, and coupled with the fact
that the evidence on the record show that
there was cohabitation of the parties and
also
establishment
of
conjugal
relationship, the presumption arising out
112 of Indian Evidence Act was drawn
against plaintiff-appellant. On facts, Court
below further found that there is no such
2 All. Rajesh Kumar Chaudhary Vs Smt. Sarita
859
material on record to establish that after
the marriage of parties, they were unable
to meet each other and consequently,
defendant-respondent could not have
come in family way due to cohabitation of
the plaintiff-appellant. Apart from the
above, Court below further held that no
D.N.A. Test can be directed to be held
without the consent of the affected person
who admittedly in this case was a minor
and therefore, it was consent of the
mother which was necessary. Court below
further observed that plaintiff-appellant
has
not
alleged
any
extra
marital
relationship
of
defendant-respondent,
therefore, in the absence of any such
allegation, application for getting D.N.A
test of minor girl cannot be allowed. On
the aforesaid premise, issue No.3 was
decided against plaintiff-appellant.

14. Issue no.4 which was in respect
of additional plea raised by defendantrespondent in her written statement
alleging therein that the plaintiff-appellant
demanded a sum of Rs. 5 lacs from
defendant-respondent for purchase of Flat
and the consequential cruel behavior on
the part of plaintiff-appellant towards
defendant-respondent. Issue no.5 related
to the conduct of the plaintiff-appellant at
the time of marriage of younger sister of
defendant-respondent so as to malign her
social status and thereby committing
cruelty upon the defendant-respondent by
making false and frivolous allegations
against defendant-respondent. The said
issues were decided in favour of plaintiffappellant. Court below came to the
conclusion that from the pleadings of
parties, it is established that apart from the
present litigation, a case under Sections
498A, 323, 504, 506 I.P.C. and Section 3⁄4
Dowry Prohibition Act, P.S. Phoolpur,
has come into existence pursuant to an
F.I.R. Apart from the above, a case under
Protection of Women from Domestic
Violence Act has also been initiated
which is pending. No application under
order 41 Rule 27 C.P.C. has been filed
bringing
on
record
the
subsequent
developments in the aforesaid cases nor
any statement of fact regarding the same
has been made in the affidavit filed in
support of the stay application. However,
Court below on account of the deficiency
in
evidence
of
defendant-respondent
concluded that even though criminal
proceedings are pending but upto this
stage it is not established that the
plaintiff-appellant demanded a sum of Rs.
5 Lakhs for purchasing a Flat and in
pursuit thereof committed cruelty upon
the defendant-respondent. Apart from the
above Court below relied upon the
testimony of D.W.-1 that in the marriage
of her younger sister no obstruction was
made by the brothers of the plaintiffappellant. As such both the issues came to
be decided against defendant-respondent.

15. Issue no.6 was in respect of the
relief which can be granted to the
plaintiff-appellant. Court below upon
appreciation of pleadings, oral and
documentary
evidence
on
record,
concluded that plaintiff-appellant is not
entitled to any relief and consequently suit
of plaintiff-appellant for a decree of
divorce was dismissed.

16.
Feeling
aggrieved
by
the
judgement dated 27.03.2012 and decree
dated 10.04.2012 passed by Principal Judge,
Family Court, Varanasi, plaintiff-appellant
has now approached this Court by means of
present Family Court Appeal.

17. Mr. Ashok Nath Tripathi,
learned counsel for plaintiff-appellant, in
860 INDIAN LAW REPORTS ALLAHABAD SERIES
support of appeal, has vehemently urged
before us that cruelty on the part of
defendant-respondent
against
plaintiffappellant
was
duly
established
and
therefore, Court below has erred in law and
fact in dismissing suit for divorce filed by
plaintiff-appellant.
To
buttress
his
submission he has relied upon the
judgement in Samar Ghosh Vs. Jaya
Ghosh, 2007 (4) SCC 511. He further
contends that the findings recorded by
Court below on issue no.3 which related to
the birth of a female child from the alleged
conjugal relationship and cohabitation of
plaintiff-appellant
and
the
defendantrespondent was wrongly decided as inspite
of an specific application filed by plaintiffappellant for DNA test of female child, the
same has not been allowed by Court
below. The procedure so adopted by Court
below has resulted in miscarriage of
justice. He further contends that as per
Modi's Medical Jurisprudence, female
child could not have been born out of the
cohabitation of the plaintiff-appellant and
defendant-respondent as the blood group
of plaintiff-appellant is A positive and that
of the defendant-respondent is also A
positive whereas blood group of female
child is B positive. According to learned
counsel for plaintiff-appellant, D.N.A test
alone could have decided parentage of
minor daughter. To lend support his
submission, he has relied upon the
judgement
in
Dipanwita
Roy
Vs.
Ronobroto Roy, 2015 (1) SCC 365. He
lastly submits that the parties have been
living separately since 02.07.2004 and
therefore, the marriage has broken down
irretrievably. He thus concludes that in
view of the above the impugned judgement
and decree passed by the Court below is
liable to be set aside and the suit of the
plaintiff-appellant for the grant of decree of
divorce is liable to be decreed.

18. Sri Sanjiv Singh, learned counsel
for respondent refuted above submissions
and sought to support judgement of Court
below on the findings recorded therein.

19. On the basis of the submissions
urged by the learned counsel for the
plaintiff-appellant, the following points of
determination arise in the present appeal:

(a) Whether plaintiff-appellant has
been able to establish cruelty on the part
of defendant-respondent and therefore
entitled to decree of divorce as prayed for
in terms of Section 13 (1) (i-a) of the Act
of 1955.

(b) Whether finding recorded by
Court below on issue no.3 relating to the
birth of the female child from the wedlock
and cohabitation of the plaintiff-appellant
and
defendant-respondent
is
illegal
perverse and erroneous.

(c)
Whether
there
has
been
irretrievable break down of marriage as
according to plaintiff-appellant, parties
are living separately since 02.07.2004.

20. The term 'cruelty' has not been
defined in Hindu Marriage Act 1955
(hereinafter referred to as "Act 1955").
Consequently, this term has been the
subject matter of debate for long.
However, recently a Division Bench of
this Court in the case of Smt. Sarita Devi
Vs. Sri Ashok Kumar Singh reported in
2018 (3) AWC 2328 has considered the
question of cruelty in detail in paragraphs
16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27
and 29 which reads as under:-

"16. In Samar Ghosh vs. Jaya Ghosh
(2007) 4 SCC 511 Court considered the
concept of cruelty and referring to Oxford
Dictionary defines 'cruelty' as 'the quality
of being cruel; disposition of inflicting
2 All. Rajesh Kumar Chaudhary Vs Smt. Sarita
861
suffering; delight in or indifference to
another's
pain;
mercilessness;
hardheartedness'.

17. In Black's Law Dictionary, 8th
Edition, 2004, term "mental cruelty" has
been defined as, "a ground for divorce,
one spouse's course of conduct (not
involving actual violence) that creates
such anguish that it endangers the life,
physical health, or mental health of the
other spouse."

18. The concept of cruelty has been
summarized
in
Halsbury's
Laws
of
England, Vol.13, 4th Edition Para 1269,
as under:

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

19. In 24 American Jurisprudence
2d, the term "mental cruelty" has been
defined as under:

"Mental Cruelty as a course of
unprovoked conduct toward one's spouse
which
causes
embarrassment,
humiliation, and anguish so as to render
the
spouse's
life
miserable
and
unendurable. The plaintiff must show a
course of conduct on the part of the
defendant
which
so
endangers
the
physical or mental health of the plaintiff
as to render continued cohabitation
unsafe or improper, although the plaintiff
need not establish actual instances of
physical abuse. "

20. One of the earliest decision
considering "mental cruelty" we find is,
N.G. Dastane v. S. Dastane (1975) 2 SCC
326, wherein Court has said:

"The enquiry therefore has to be
whether the conduct charges as cruelty is
of such a character as to cause in the
mind of the petitioner a reasonable
apprehension that it will be harmful or
injurious for him to live with the
respondent. "

21.
In
Sirajmohmedkhan
Janmohamadkhan
v.
Haizunnisa
Yasinkhan and Anr. (1981) 4 SCC 250
Court said that a 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
862 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

22. In Shobha Rani v. Madhukar
Reddi, (1988) 1 SCC 105, Court observed
that word 'cruelty' has not been defined in
Act, 1955 but legislature, making it a
ground
for
divorce
under
Section
13(1)(i)(a) of Act, 1955, has made it clear
that conduct of party in treatment of other
if amounts to cruelty actual, physical or
mental or legal is a just reason for grant
of divorce. Cruelty may be mental or
physical, intentional or unintentional. If it
is physical, it is a question of fact about
degree. If it is mental, the enquiry must
begin as to the nature of 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 conduct
and its effect on the complaining spouse.
There may, however, be cases where
conduct complained of itself is bad
enough and per se unlawful or illegal.
Then the impact or injurious effect on the
other spouse need not be enquired into or
considered. In such cases, cruelty will be
established if 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.

23. In V. Bhagat v. D. Bhagat (Mrs.),
(1994) 1 SCC 337 considering the
concept of "mental cruelty" in the context
of Section 13(1)(i)(a) of Act, 1984, Court
said that it can be defined as conduct
which inflicts upon the other party such
mental pain and suffering as would make
it not possible for that party to live with
other. In other words, mental cruelty must
be of such a nature that the parties cannot
reasonably be expected to live together.
The situation must be such that the
wronged party cannot reasonably be
asked to put up with such conduct and
continue to live with other party. It is not
necessary to prove that mental cruelty is
such as to cause injury to the health of
other party. While arriving at such
conclusion, regard must be had to the
social status, educational level of parties,
the society they move in, the possibility or
otherwise of the parties ever living
together in case they are already living
apart and all other relevant facts and
circumstances which it is neither possible
nor desirable to set out exhaustively.
What is cruelty in one case may not
amount to cruelty in another case. It is
thus has to be determined in each case
having
regard
to
the
facts
and
circumstances of each case.

24. In Chetan Dass v. Kamla Devi,
(2001) 4 SCC 250, Court observed that
matrimonial matters relates to delicate
human and emotional relationship. It
demands mutual trust, regard, respect,
love and affection with sufficient play for
reasonable adjustments with spouse. The
relationship has to conform to the social
norms as well. There is no scope of
applying the concept of "irretrievably
broken
marriage"
as
a
straitjacket
formula for grant of relief of divorce but it
has to be considered in the backdrop of
facts and circumstances of the case
concerned.

25. In Savitri Pandey v. Prem
Chandra Panadey, (2002) 2 SCC 73,
Court held that mental cruelty is the
2 All. Rajesh Kumar Chaudhary Vs Smt. Sarita
863
conduct of other spouse which causes
mental suffering or fear to matrimonial
life of other. Cruelty postulates a
treatment of party to marriage with such
conduct as to cause a reasonable
apprehension in his or her mind that it
would be harmful or injurious to live with
other
party.
Cruelty
has
to
be
distinguished from ordinary wear and
tear of family life.

27. In Vinita Saxena v. Pankaj
Pandit, (2006) 3 SCC 778 Court held that
complaints and reproaches, sometimes of
ordinary nature, may not be termed as
'cruelty'
but
their
continuance
or
persistence over a period of time may do
so which would depends on the facts of
each case and have to be considered
carefully by the Court concerned.

29. In Samar Ghosh vs. Jaya Ghosh
(supra) Court said that though no uniform
standard can be laid down but there are
some instances which may constitute
mental
cruelty
and
the
same
are
illustrated as under:

"(i) On consideration of complete
matrimonial life of the parties, acute
mental pain, agony and suffering as
would not make possible for the parties to
live with each other could come within the
broad parameters of mental cruelty.

(ii) On comprehensive appraisal of
the entire matrimonial life of the parties,
it becomes abundantly clear that situation
is such that the wronged party cannot
reasonably be asked to put up with such
conduct and continue to live with other
party.

(iii) Mere coldness or lack of
affection cannot amount to cruelty,
frequent rudeness of language, petulance
of manner, indifference and neglect may
reach such a degree that it makes the
married
life
for
the
other
spouse
absolutely intolerable.

(iv) Mental cruelty is a state of mind.
The
feeling
of
deep
anguish,
disappointment, frustration in one spouse
caused by the conduct of other for a long
time may lead to mental cruelty.

(v) A sustained course of abusive and
humiliating
treatment
calculated
to
torture, discommode or render miserable
life of the spouse.

(vi) Sustained unjustifiable conduct
and behavior of one spouse actually
affecting physical and mental health of
the
other
spouse.
The
treatment
complained of and the resultant danger or
apprehension
must
be
very
grave,
substantial and weighty.

(vii)
Sustained
reprehensible
conduct, studied neglect, indifference or
total departure from the normal standard
of conjugal kindness causing injury to
mental
health
or
deriving
sadistic
pleasure can also amount to mental
cruelty.

(viii) The conduct must be much
more
than
jealousy,
selfishness,
possessiveness, which causes unhappiness
and dissatisfaction and emotional upset
may not be a ground for grant of divorce
on the ground of mental cruelty.