# Smt. Gayatri Mohapatra @ Smt. Gayatri Devi Defendant v. Ashit Kumar Panda Plaintiff

- **Citation:** (2022) 11 ILRA 560
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-03
- **Case number:** First Appeal No. 20 of 2007
- **Bench:** Surya Prakash Kesarwani, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-gayatri-mohapatra-smt-gayatri-devi-defendant-v-ashit-kumar-panda-plaintiff-47871
- **Pages:** 27

## Headnote

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13(1)(i-b) - Divorce - Desertion -
husband or wife would be entitled for a
dissolution of marriage by the decree of
divorce if the other parties had deserted
the parties seeking the divorce for a
continuous period of not less than two
years
immediately
preceding
the
presentation of the petition - desertion, in
its
essence,
means
the
intentional
permanent forsaking and abandonment of
one spouse by the other without that
other's consent, and without reasonable
cause - Court can draw an inference from
the proven facts and circumstances that
the deserting spouse had the intention to
bring cohabitation permanently to an end,
without the consent of the deserted
spouse - For the deserted spouse, it was
required to be proved that the act of
desertion was without his consent and
there was no such conduct of the deserted
spouse giving reasonable cause to the
spouse (deserting spouses) for leaving the
matrimonial home to form the necessary
intention
to
bring
cohabitation
permanently to an end - It is an unilateral
act of the deserting spouse, without the
consent of his/her partner and in absence
of any conduct of the deserted spouse
which may have lead to the act of the
deserting spouse. (Para 47, 51

B. Civil Law - Hindu Marriage Act, 1955,
Section 13(1)(i-b) - Divorce - Desertion -
Evidence on record insufficient, to come to
a conclusion even on probability that the
wife deserted her husband, with the
intention
to
bring
the
matrimonial
relationship to an end - Rather the wife
after leaving her matrimonial home on
23.11.2011 on account of the act of the
husband to throw her out of the house,
made efforts to resolve the matter - She
even went to the house of her parents-inlaw to reside there for three days in the
absence of the respondent, in order to
persuade them to bring the dispute to an
end
-
She
filed
restitution
petition,
participated in the mediation proceeding
showing her willingness to live with her
husband - the admission of the husband
that he never went to Meerut to bring
back his wife after 23.11.2011 and before
filing of the divorce suit, i.e. for a period of
two years, gave a clear indication of the
fact that the husband never wanted to
patch up with his wife and his version that
the wife had left her matrimonial home on
her own volition, is unbelievable - family
court wrongly concluded that since the
wife had admitted that she was living
separately
from
her
husband
from
21.11.2011, the period of two years of
desertion stood proved - Mere act of
withdrawal
of
the
wife
from
her
matrimonial home at the Air Force station,
Ambala and the factum of separation of
the wife for a period of two years from her
husband when she was making efforts to
pacify her husband with the help of the
family in order to bring matrimonial
harmony cannot lead to the conclusion
that the wife had no intention to lead a
normal married life

## Text

_Characters 0–39,600 of 94,822. This is a partial read: ask again with offset=39600 for what follows._

560 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings or a Charge Sheet is filed in a
Criminal Court it could be said that disciplinary
proceedings / criminal proceedings are pending
against the employee concerned. The pendency
of preliminary investigation prior to that stage
will not be sufficient to enable the authority to
adopt the Sealed Cover Procedure. The Court
also considered the contentions raised by the
Counsel for the appellant (Union of India) that
where there are serious allegations it takes time
to collect necessary evidence and to prepare and
issue a Charge Memo/ Charge Sheet and it
would not be in the interest of purity of
Administration to award the employee with the
promotion, increment etc., but observed that
such argument did not impress their Lordships.
It was observed as follows:-

"..........The
acceptance
of
this
contention would result in injustice to the
employees in many cases. As has been the
experience so far, the preliminary Investigations
take an inordinately long time and particularly
when they are initiated at the instance of the
interested persons, they are kept pending
deliberately. Many times they never result in the
issue of any charge-memo/charge-sheet. If the
allegations are serious and the authorities are
keen in investigating them, ordinarily it should
not take much time to collect the relevant
evidence and finalise the charges. What is
further, if the charges are that serious, the
authorities have the power to suspend the
employees under the relevant rules, and the
suspension by itself permits a resort to the
sealed cover procedure. The authorities thus
are not without a remedy......."

12. The judgement of the Supreme Court
in K. V. Janki Raman(Supra) has been
reinstated in Union of India Vs. Sangram
Keshari Nayak 2007(6) SCC 704 and Harsh
Kumar Sharma Vs. State of Punjab, 2017 (4)
SCC 366, where the Supreme Court has again
held that only after charge sheet is filed,
criminal proceedings can be said to be pending.

13. It is evident from the observations
made by the Supreme Court in the case of K.V.
Janki Raman(Supra) that either the employee
concerned should be suspended, or Charge
Sheet in disciplinary proceedings should have
been issued to him, or charge sheet in Criminal
Case should have been filed before the
competent trial court before Sealed Cover
Procedure could have been adopted.

14. In the case of the petitioner, till the
date of filing of the counter affidavit in
September, 2021, Charge Sheet had not been
filed by the Investigating Officer / Vigilance
Officer before the competent trial court, hence,
the orders impugned are set aside.

15. Let consequential orders be passed by
the Respondent No.2 within a period of six
weeks from the date a copy of this order is
produced before him.

16. The Writ Petition stands allowed.
----------
(2022) 11 ILRA 560
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

First Appeal No. 20 of 2007

Smt. Gayatri Mohapatra @ Smt. Gayatri
Devi ...Defendant-Appellant
Versus
Ashit Kumar Panda ...Plaintiff-Respondent

Counsel for the Appellant:
11 All. Smt. Gayatri Mohapatra @ Smt. Gayatri Devi Vs. Ashit Kumar Panda
561
Sri M.D. Singh Shekhar, Sri R.D. Tiwari, Sri
Vaibhav Goswami

Counsel for the Respondent:
Sri K.M. Mishra, Sri A.K. Singh, Sri A.K. Rai.
Sri H.R. Mishra, Sri V.K. Singh

A. Civil Law - Hindu Marriage Act, 1955 -
Section 13(1)(i-b) - Divorce - Desertion -
husband or wife would be entitled for a
dissolution of marriage by the decree of
divorce if the other parties had deserted
the parties seeking the divorce for a
continuous period of not less than two
years
immediately
preceding
the
presentation of the petition - desertion, in
its
essence,
means
the
intentional
permanent forsaking and abandonment of
one spouse by the other without that
other's consent, and without reasonable
cause - Court can draw an inference from
the proven facts and circumstances that
the deserting spouse had the intention to
bring cohabitation permanently to an end,
without the consent of the deserted
spouse - For the deserted spouse, it was
required to be proved that the act of
desertion was without his consent and
there was no such conduct of the deserted
spouse giving reasonable cause to the
spouse (deserting spouses) for leaving the
matrimonial home to form the necessary
intention
to
bring
cohabitation
permanently to an end - It is an unilateral
act of the deserting spouse, without the
consent of his/her partner and in absence
of any conduct of the deserted spouse
which may have lead to the act of the
deserting spouse. (Para 47, 51

B. Civil Law - Hindu Marriage Act, 1955,
Section 13(1)(i-b) - Divorce - Desertion -
Evidence on record insufficient, to come to
a conclusion even on probability that the
wife deserted her husband, with the
intention
to
bring
the
matrimonial
relationship to an end - Rather the wife
after leaving her matrimonial home on
23.11.2011 on account of the act of the
husband to throw her out of the house,
made efforts to resolve the matter - She
even went to the house of her parents-inlaw to reside there for three days in the
absence of the respondent, in order to
persuade them to bring the dispute to an
end
-
She
filed
restitution
petition,
participated in the mediation proceeding
showing her willingness to live with her
husband - the admission of the husband
that he never went to Meerut to bring
back his wife after 23.11.2011 and before
filing of the divorce suit, i.e. for a period of
two years, gave a clear indication of the
fact that the husband never wanted to
patch up with his wife and his version that
the wife had left her matrimonial home on
her own volition, is unbelievable - family
court wrongly concluded that since the
wife had admitted that she was living
separately
from
her
husband
from
21.11.2011, the period of two years of
desertion stood proved - Mere act of
withdrawal
of
the
wife
from
her
matrimonial home at the Air Force station,
Ambala and the factum of separation of
the wife for a period of two years from her
husband when she was making efforts to
pacify her husband with the help of the
family in order to bring matrimonial
harmony cannot lead to the conclusion
that the wife had no intention to lead a
normal married life with the husband or
her act of leaving her matrimonial home
was in absence of any conduct of the
husband giving the wife a reasonable
cause to form the necessary intention
aforesaid (Para 60)

C. Civil Law - Hindu Marriage Act, 1955,
Section 13(i)/(i-a) - Mental Cruelty /
Physical Cruelty - Criminal case lodged
by the wife cannot be a reason to grant
divorce on the ground of cruelty and the
Family Court acted illegally in holding
that even filing of the application for
maintenance under Section 125 Cr.P.C.
by the wife would come within the
meaning of cruelty - Family court was
swayed away by the fact that the
husband was a Fighter Pilot and any
kind of mental disturbance caused to
him would come in the way of the
dedicated services of the Nation, having
lost sight of the fact that the husband
cannot take benefit of his own wrong by
562 INDIAN LAW REPORTS ALLAHABAD SERIES
his mere position in service - Once he
had wronged his wife by not treating her
well and not trying to patch up the
marital discord by acting wisely in his
complete matrimonial life, no indulgence
can be given to the husband for the sole
fact of being posted as a fighter pilot in
the Indian Air Force - Conclusion drawn
by the family court that the acts of wife
had resulted in an act of 'cruelty' caused
upon her husband contrary to the
evidence on record - Findings returned
by the family court on issue of Cruelty in
favour of the husband set aside (Para
96)

D. Civil Law - Hindu Marriage Act, 1955,
Section 13(i-b) - Divorce - "irretrievable
breakdown of marriage" - High Court
concluded that the matrimonial bond
between the parties was beyond repair -
wife 35 years of age and the husband
about 39 years - Court of the view if at
that juncture of their life, they are not
given a second chance and are forced to
live together, their lives may become
miserable - matrimonial dispute which
has assumed that proportion on trivial
issues, seems to be beyond repairs on
account of bitterness created by the acts
of both the husband and the wife and
their family members - parties being well
educated
persons
if
free
from
the
matrimonial bond, may look forward to
settle in their life in a better and positive
way
which
may
make
them
happy
individuals and their lives would be
constructive to our society - In the
compelling circumstances of the present
case, in order to give a chance to the
parties to settle themselves and be
relieved of a marriage which is dead,
court dissolved the marriage between the
parties - Regard being had to the social
status and strata of the parties especially
the husband, the aspirations of the wife
to lead the life of the wife of an Air Force
Officer, court provided a sum of Rs.1
Crore (One Crore) as permanent alimony
to wife, excluding the amount already
paid to the appellant wife towards
interim maintenance. (Para 110, 113,
115, 117)
Allowed. (E-5)

List of Cases cited:

1. A. Jayachandra Vs Aneel Kaur AIR 2005 SC
534,

2. Vishwanath Sitram Agarwal Vs San. Sarle
Vishwanath Agarwal 2012 (7) SC 288

3. K. Srinivas Vs K. Deepa 2013 (5) SCC 226

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

5. Shamim Bano Vs Asraf Khan 2014 (7) SCC
740

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

7. Dinesh Nagda Vs Santibai AIR 2012 MP 40

8. Manisha Srivastava Vs Rohit Srivastava 2015
(2) ADJ 547

9. Devesh Yadav Vs Smt. Minal FAO-M 208 of
2013 P&H

10. Joydeep Majumdar Vs Bharti Jaiswal
Majumdar 2021 SCC 3 742

11. Savitri Pandey Vs Prem Chandra Pandey
2022 (2) SCC 73

12.Dr.(Mrs.) Malathi Ravi, M.D Vs Dr. B.V . Ravi
M.D

13. Vinit Saxena Vs Pankaj Pandit 2006 (3) SCC
778

14. Vishwanath Agrawal, s/o Sitaram Agrawal Vs
Sarla Vishwanath Agrawal 2012 SCC (7) 288

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri M.D. Singh Shekhar,
learned Senior Counsel, assisted by Sri
Vaibhav Goswami, learned counsel for the
defendant-appellant and Sri Vishnu Singh,
learned counsel for the plaintiff-respondent.
11 All. Smt. Gayatri Mohapatra @ Smt. Gayatri Devi Vs. Ashit Kumar Panda
563

Facts

2. Briefly stated facts of the present
case are that defendant - appellant/wife
married
with
the
plaintiff
-
respondent/husband on 10.06.1990 as per
Hindu
rites
and
rituals.
Plaintiff
-
respondent is an I.P.S. Officer while the
defendant - appellant is a Doctor holding
M.B.B.S. Degree. The father of the plaintiff
- respondent was in service of the Steel
Authority of India, Raurkela while father of
the defendant - appellant was Additional
Director General of Police, Orissa and her
mother has promoted a company known as
JBS Capacitors Pvt. Ltd., Bhubaneshwar.
Initially, the defendant - appellant joined
the service in Health Department, Aligarh,
but after three or four months she left it.
She became Director in the aforesaid
Company promoted by her mother. Son,
namely, Aparajita Issan Narayan was born
on 05.06.1991 from the wedlock of the
plaintiff and the defendant at SCB Medical
College, Cuttack.

3. It appears that dispute between the
plaintiff and the defendant arose even
before their son was born which led to
various incidents. Ultimately the plaintiff -
respondent filed case No.260 of 2000
(Ashit Kumar Panda Vs. Smt. Gayatri
Devi) under Section 13 of the Hindu
Marriage Act, 1955, in the Court of
Principal Judge Family Court, Meerut, for
divorce. In the plaint, amongst other
allegations; the plaintiff - respondent has
alleged in paras 5, 9, 10, 11, 14, 15, 16, 17,
18 and 19 as under:

"5. यह क्षक पैटीशिर व क्षवपिी के
पररवारो मे आचार व क्षवचारो को असमािता होिे के
कारर् भी शवपक्षी एवं उसके शपता पैर्ीिनर एवं
उसके पररवार कय अपने अनुशचत प्रभाव का िाभ
उिाकर तरह तरह से तंि व परेिान करते रहे है।
क्षजससे पैटीशिर अपिे दाम्पत्य जीवि के सुख से
विंक्षचत हो गया है।

9. यह क्षक शवपक्षी के शपता ने पैर्ीिनर
के शपता कय तंि व परेिान करने की िरज से
शदनांक 30.12.91 कय िुिे भेजकर ह िा
करवाया। क्षजसकी ररपोटण पैटीशिर के क्षपता िे
सैक्टर-3 राउरकेला के थािे मे पिंजीकृत करायी थी।

10. यह क्षक क्षवपिी िे पैटीशिर के पुत्र के
ना करण की रस्म भी कर्क े अपने शपता के
घऱ पर सम्पन्न करायी शजस े शवपक्षी पैर्ीिनर
अथवा उसके ाता शपता कय इस सम्बन्ध े कयई
सूचना नही दी।

11. यह क्षक क्षवपिी के क्षपता िे सि् 1991
के आन्धखर मे पैटीशिर के क्षपता के न्धखलाफ
सी०बी०आई० े ेि जयि हयने के कारण झूाँिे
 ुकद े काय कराने के शिये दबाव बनाया, उस
समय एस०पी० सी०बी०आई० भुविेश्वर श्री प्रकाश
क्षमश्रा तैिात थे। क्षजन्ोिे कोई सबूत ि पाते हुए
पैटीशिर के क्षपता जी के न्धखलाफ कोई कायणवाही
िही करी थी।

14. यह क्षक क्षवपिी िे वषण 1991 मे जब
पैटीशिर की तैिाती बतौर ए०एस०पी० थी। तब
कर्फ्ूण के दौराि क्षवपिी पैटीशिर के पास आयी और
एक रात रूककर पैटीशिर पर दबाव क्षदया क्षक
पैटीशिर उसे वाक्षपस उसके क्षपता के घऱ पर
छोडकर आये, पैटीशिर िे बामुन्धिल छुट्टी लेकर
क्षवपिी को उसके क्षपता के घर पर छोड़कर आया।

15. यह क्षक पैटीशिर अब मेरठ मे पुक्षलस
टरेक्षििंग सेन्टर हापुड़ रोड मेरठ मे तैिात है शदनांक
17.12.99 कय शवपक्षी िे पैटीशिर के मकाि से
समस्त सामाि डबल बेड, अलमारी , रीज , कूलर
आक्षद को टरक मे भरवाकर अपिे साथ क्षदल्ली न्धस्थत
मकाि ग्रेटर कैलाश मे ले गयी, टरक के साथ सामाि
चढवािे व उतरवािे मे कक्षवन्द्र गौतम हैड.
कािंस्टेक्षबल, तालेवर क्षसिंह, स्टैिो िेपाल क्षसिंह,
सी०एल०डी० राजि क्षसिंह व वीर क्षसिंह फोलोवर टरक
के साथ मे गये थे व पडौसी अिन्त अग्रवाल पुि क्षविय
अग्रवाल मकाि सिं० एल०-948 िे क्षवपिी को सामाि
टरक मे भरते व ले जाते हुए देखा है।

16. यह क्षक उपरोक्त पररन्धस्थक्षतयो मे
पैटीशिर का क्षवपिी के साथ साथ रहिा िामुमक्षकि
है। पैक्षटशिर व क्षवपिी के साथ रहिे पर क्षकसी भी
समय कोई भी दघणटिा घक्षटत हो सकती है।
564 INDIAN LAW REPORTS ALLAHABAD SERIES

17. यह शक शवपक्षी ने पैर्ीिनर तथा
उसके ाता शपता कय परेिान एवं बेईज्जती करने
की शनयत से शदनांक 27.03.2000 कय शहिा थाने,
सदर िखनऊ े एक ररपयर्व िाई नं० 17/2000
पर अ०धारा 498ए, 323, 506 आई०पी०सी० व 3⁄4
दहेज एक्ट दजव करायी शजस े शवपक्षी ने
पैर्ीिनर एवं ाता शपता पर झूाँिे बेबुशनयाद
आरयप ििाये। इस तथाकशथत ररपयर्व े शवपक्षी
ने पैर्ीिनर पर चररत्र हीनता का आरयप भी
ििाया जय शक सववथा िित बेबुशनयाद एवं कपयि
कल्लित है। क्षवपिी की इस ररपोटण से पैक्षटशिर एविं
उसके पररवार की समाज मे बहुत ही बेइज्जती हुयी है
एविं पैटीशिर तथा उसके पररवार को मािक्षसक
आघात भी पहुचा है। इस घटिा से पैटीशिर को
इतिा कष्ट हुआ क्षक अब पैटीशिर का क्षवपिी के
साथ रहिा कतई सिव िही है और क्षवपिी का यह
कृत् पैर्ीिनर के प्रशत ानशसक िूरता पूणव है।

18. यह क्षक क्षवपिी को पैर्ीिनर तथा
उसके पररवार के शवरूद्ध झूाँिी ररपयर्व क्षलखाकर
भक्षवष्य मे पैटीशिर के दाम्पत्य जीवि की एक माि
आशा को भी समाप्त कर क्षदया है। अब पैटीशिर एविं
क्षवपिी का एक साथ रहकर दाम्पत्य जीवि यापि
करिा िामुमक्षकि है अतः उपरोक्त पैटीशि प्रस्तुत
करिे की आवश्यकता पैदा हुयी है।

19. यह क्षक वाद का कारर् क्षदिािंक
10.06.90 मे क्षवपिी के साथ क्षववाह होिे उसके
उपरान्त शदनांक 13.12.99 े ेरि से पैर्ीिनर के
शनवास से स ि घर का सा ान िे जाना एवं
उसके बाद शदनांक 27.03.2000 कय शवपक्षी के
द्वारा पैर्ीिनर पर चररत्र हीनता व उत्पीडन के
झूिे आरयप ििाकर झूिी ररपयर्व दजव कराई एवं
पैर्ीिनर एवं शवपक्षी का ेरि िहर े अल्लन्त
स य पर एक साथ शनवास करने के कारण
 ाननीय न्यायािय के क्षेत्राशधकार ें आता है।
माििीय न्यायालय को उक्त वाद को सुििे एविं
क्षिस्तारर् करिे का पूर्णतया अक्षधकार है।"

4. The defendant - appellant filed
written statement in which she denied
allegations. The plaintiff - respondent filed
examination in chief. In his examinationin-chief he affirmed the plaint version. He
produced himself in evidence for cross -
examination and was cross examined by
the defendant - appellant. The plaintiff -
respondent also produced in evidence Sri
Golak Bihari Panda (PW 2), who is his
father. In his evidence on the point of
cruelty the PW 2, has stated as under :-

"8. यह क्षक मै शपथपूवणक कथि करता हूँ
क्षक उक्त क्षदिािंक- 12.06.1990 से लेकर क्षदिािंक-
14.06.1990 की तीि क्षदि की अवक्षध मे श्रीमती
गायिी िे अिेको बार शपथकताण एविं उसके
पररवारजि को यह ताना शदया शक तुम्हारे घर का
स्ट्ैणडव बहुत खराब है और आिीत कु ार का
वेतन भी बहुत क है इतने से कही अशधक तय
ह अपने क वचाररययं कय बांर् देते है। ऐसी न्धस्थक्षत
में उसका ससुराल मे रहिा क्षकसी भी हाल मे सिव
िही है ऐसे तािे सुिकर शपथकताण एविं उसकी पत्नी
एविं उसके पुि को बड़ा ही मािक्षसक कष्ट पहुूँचा
शपथकताण के पड़ोस मे भी शपथकताण की छक्षव
अत्यन्त खराब हो गयी।

9. यह क्षक मै शपथपूवणक बयाि करता हूँ
क्षक शपथकताण की पुि बधू श्रीमती गायिी
एम०बी०बी०एस० डाक्टर है और उसके क्षपता उडीसा
पुक्षलस के सेवाक्षिवृत्त एस०डी०जी०पी० है। श्रीमती
गायिी
अपिी
माता
जी
की
कम्पिी
जे०बी०एस०केपीक्षसटेस प्राईवेट क्षलक्षमटेड़ भुविेश्वर
न्धस्थत कम्पिी डायरेक्टर भी है। और श्रीमती गायिी
उक्त कम्पिी के समस्त कामकाज की देखभाल
करती है उक्त कम्पिी कम्यूटर के पाटणस बिािे का
कायण करती है। क्षववाह के पिात श्रीमती गायिी
अक्षधकतर समय अपिे मायके मे ही रही है।

10. यह क्षक मै शपथपूवणक बयाि करता ह
क्षक रेस्पोण्डेन्ट के अक्षधकतर समय अपिे मायके मे
रहिे से एविं क्रूरता पूर्ण व्यवहार के कारर् शपथकताण
का पुि दाम्पत्य सुख से विंक्षचत हो गया है और वह बड़े
ही मािक्षसक कष्टो मे अपिा जीवि गुजार रहा है।

11. यह क्षक मै शपथपूवणक बयाि करता ह
क्षक रेस्पोन्डेण्ट श्रीमती गायिी को अपिे मायके मे ही
रहते हुए एक पुि अपराक्षजत ईशाि िारायर् का जन्म
क्षदिािंक-05.06.1991 को हुआ था और जन्म से लेकर
आज तक उस पुि को पेक्षटसपर की इच्छा के क्षवरूद्ध
रेस्पोण्डेन्ट िे अपिे मायके मे ही रखा हुआ है और
उसकी पढाई क्षलखाई भी वही चल रही है रेस्पोण्डेन्ट
11 All. Smt. Gayatri Mohapatra @ Smt. Gayatri Devi Vs. Ashit Kumar Panda
565
िे शपथकताण एविं उसकी पत्नी को आज तक अपिे
एक मािा पोते का मुिंह भी देखिे िही क्षदया है क्षजसका
इतिा भारी दुख शपथकताण एविं उसकी पत्नी को है
क्षजसके शब्दो मे स्पष्ट करिा सिव िही है।

12. यह क्षक मै शपथपूवणक कथि करता हूँ
क्षक समस्त भारत मे क्षहन्फ्दू जाक्षत मे यह परम्परा है क्षक
पुि या पौि का िामकरर् एविं जिेऊ सिंस्कार उसके
क्षपता के घऱ मे सम्पन्न होता है क्षजसमे पररवार के सभी
इष्ट क्षमि एविं ररश्तेदार शाक्षमल होकर खुशी मिाते है।
परन्तु रेस्पोण्डेन्ट की क्रूरता की तब सीमा समाप्त हो
गयी जब रेस्पोण्डेन्ट िे शपथकताण एविं उसके
पररवारजिो को वगैर कोई सूचिा क्षदये शपथकताण के
पौि का जिेऊ सिंस्कार भी अपिे मायके मे ही मिा
क्षलया। ऐसी न्धस्थक्षत मे शपथकताण अपिे पौि का
सिंस्कार पूर्ण करिे एविं उसको अपिी गािंद मे
न्धखलाकर उसकी मीठी-मीठी बाते सुििे से पूर्णरूप
से विंक्षचत हो गया तथा पैक्षटसिर आशीत कुमार जो
उक्त बच्चे का प्राकृक्षतक क्षपता है वह रेस्पोण्डेन्ट के
उक्त क्रूरता पूर्ण व्यवहार से क्षपतृ सुख व दाम्य सुख
से भी विंक्षचत हो गया है।

13. यह क्षक मै शपथपूवणक बयाि करता हूँ
क्षक रेस्पोण्डेन्ट के क्षपता िे शपथकताण को परेशाि
करिे की िीयत से क्षदिािंक 30.12.1991 को गुण्डे
भेजकर शपथकताण पर हमला भी करवाया था
क्षजसकी ररपोटण शपथकताण िे सेक्टर -3 राउरकेला के
थािे मे पिंजीकृत करायी थी। इसके अक्षतररक्त
क्षदसम्बर 1991 मे ही रेस्पोण्डेन्ट के क्षपता िे
सी०बी०आईद्ध के जाि पहचाि होिे के कारर्
शपथकताण को झूठी कायणवाही मे फिंसािे के क्षलए
प्रयास क्षकया था उस समय एस०पी०सी०बी०आई०
भुविेश्वर श्री प्रकाश क्षमश्रा तैिात थे क्षजन्ोिे कोई
सबूत ि पाते हुये शपथकताण के क्षवरूद्ध कोई
कायणवाही िही की थी।

14. यह क्षक मै शपथपूवणक कथि करता हूँ
क्षक शपथकताण का पुि आशीत कुमार जब वषण 1999
मे मेरई मे तैिात था तब वह गिीर रूप से मुिंह के
कैन्सर से बीमार हो गया था तब रेस्पोण्डेन्ट को
उसकी पूर्ण देखभाल करिी चाक्षहए थी परन्तु
रेस्पोण्डेन्ट िे उसकी देखभाल करिे के स्थाि पर
उससे लड़ाई झगड़ा क्षकया और घर का समस्त घरेलू
सामाि जैसे डबल बेड, अलमारी, रीज , कूलर आक्षद
टरक मे भरवाकर क्षदिािंक 17.12.1999 को अपिे साथ
क्षदल्ली न्धस्थत मकाि ग्रेटर कैलाश मे ले गयी थी टरक
मे सामाि भरवािे मे कक्षवन्द्र गौतम हैड कान्स०,
तालेवर क्षसिंह, स्टैिो िेपाल क्षसिंह, सी०एल०डी० राजि
क्षसिंह व वीर क्षसिंह फालोवर टरक मे सामाि भरवाकर
क्षदल्ली साथ गये थे इिके अक्षतररक्त पडोसी अिन्त
अग्रवाल पुि श्री क्षविय अग्रवाल क्षिवासी एल० 948
शास्त्री िगर मेरठ क्षजिकी पुक्षलस टरेक्षििंग सेण्टर हापुड
रोड मेरठ शहर के पास पी०सी०ओ० की दुकाि थी िे
भी रेस्पोण्डेन्ट को टरक मे सामाि भरवाते व ले जाते
हुए देखा था।

15. यह क्षक मै शपथपूवणक कथि करता हूँ
क्षक रेस्पोण्डेन्ट िे क्षबिा कारर् तिंग व परेशाि करिे व
बेईज्जती करिे की िीयत से पैक्षटशिर एविं शपथकताण
एविं शपथकताण की पत्नी के िाम एक झूठी ररपोटण
क्षदिािंक- 27.03.2000 को मक्षहला थािा सदर लखिऊ
मे अन्तगणत धारा - 498ए०/323/506 आई०पी०सी० व
3⁄4 दहेज एक्ट की दजण करायी थी क्षजसमें रेस्पोण्डेन्ट
िे शपथकताण एविं उसके पररवारजिो पर झूिंठे,
बेबुक्षियाद, आरोप लगाये थे। उक्त ररपोटण मे
रस्पोण्डेन्ट िे अपिे पक्षत के क्षवरूद्ध चररिहीिता का
झूठा आरोप भी लगाया जो रेस्पोण्डेन्ट की क्रूरता को
स्पष्ट करता है। ऐसी न्धस्थक्षत में पेक्षटशिर व रेस्पोण्डेन्ट
का साथ सात पक्षत पत्नी के रूप मे रहिा सिव िही
रहा है।"

5. The plaintiff - respondent also filed
additional affidavit in evidence in which he
further narrated certain facts in paras 5 and
6 to support mental cruelty by the
defendant - appellant.

6. P.W. 1 and P.W. 2 both were cross
examined by the defendant - appellant on
various dates.

7. In evidence, copies of First
Information
Report
dated
27.03.2005
lodged by the defendant - appellant and
various other evidence were also filed by
the plaintiff - respondent. However, despite
specific allegation of mental cruelty on
various grounds including lodging of the
false First Information Report against the
plaintiff - respondent and his family
members, the evidence led in this regard by
566 INDIAN LAW REPORTS ALLAHABAD SERIES
him could not be disproved by the
defendant - appellant. Despite specific
allegations
of
lodging
false
first
information
report,
the
defendant
-
appellant/wife has chosen not to lead even
her oral evidence. Considering the facts and
evidences on record, the Principal Judge
Family Court, Meerut decreed the suit by
judgement dated 16.12.2006 dissolving the
marriage.

8. Aggrieved with the aforesaid
judgement and decree, the defendant - appellant
has filed the present appeal.

9. Perusal of the order sheet of the
aforesaid appeal shows that this Court made
serious efforts for amicable settlement between
the parties but it failed. In this regard, it would
be appropriate to reproduce the order dated
03.04.2014 as under :

"In pursuance of the order dated
24.02.2014, both the parties along with their
counsel are present.

We talked to them individually and in
presence of each other alongwith their counsel.
We are sorry to record that all our efforts for
amicable settlement between the parties have
failed. Thus there is no option left but to place
the appeal for adjudication on merits.

List the appeal in its turn."

Submissions of the defendant-appellant

10. (i) The plaintiff-respondent has not
taken any ground of cruelty in the plaint.
Therefore, the impugned judgment and decree
granted by the Court below on the ground of
cruelty and dissolving the marriage, is illegal.

(ii) The averments made in para
no.15 of the plaint does not amount to
cruelty.

(iii) The impugned order for
dissolving the marriage under Section 13 of
the Hindu Marriage Act, 1955 has been
passed without affording opportunity of
hearing to the defendant-appellant.

(iv) The application 20-Ga for
summoning several police officers and staff
in evidence was illegally rejected by the
Court by order dated 21.11.2006.

(v) Not adding the sur-name
"Panda" by the defendant-appellant, with
her name or with the name of her son, does
not amount to cruelty.

(vi) Even if the defendantappellant has not filed her oral evidence yet
it shall make no difference inasmuch as the
PWs 1 and 2 were examined by the
defendant.

Submissions
of
the
plaintiffrespondent

11. (i) The cruelty has been well
proved by the plaintiff-respondent and
finding recorded in this regard in the
impugned
judgement
are
based
on
consideration of relevant evidences on
record.

(ii) The plaintiff-respondent and
the defendant-appellant are undisputedly
living separately since 1999 and thus, more
than 23 years have passed and they are not
ready to live together. Therefore, in any
view of the matter, the parties cannot be
directed
to
live
together.
There
is
irretrievable break down and the tie of
marriage cannot be restored. The decree of
divorce itself was passed on 16.12.2006
and thus, about 16 years have already
passed from the date of decree of divorce.
Reliance is placed upon the judgment of
Supreme Court dated 13.09.2021 in Civil
Appeal
Nos.4984-4985
of
2021,
(Sivasankaran versus Santhimeenal).

(iii) In any view of the matter, no
order for the parties to live together, should
be passed on facts of the present case.
11 All. Smt. Gayatri Mohapatra @ Smt. Gayatri Devi Vs. Ashit Kumar Panda
567
Reliance is placed upon the judgment of
Supreme Court in the case of Naveen
Kohli versus Neelu Kohli, (2006) 4 SCC
558.

Discussion and Findings

12. Brief facts of the case and the
submissions of learned counsels for the parties
as noted above clearly shows that the grounds
for divorce taken by the plaintiff - respondent
was mainly "mental cruelty". The parties have
also led their evidences in this regard. It has
been admitted by the learned counsel for the
defendant - appellant and also as reflected
from his submission No.(vi) noted above, that
although the plaintiff - respondents led the oral
evidence of PW - 1 and PW -2 and were
crossed examined at length by the defendant -
appellant but the defendant - appellant has not
led any oral evidence. She has also not even
filed copies of the order/judgments of trial
Court in criminal cases lodged by her against
the plaintiff - respondent and his family
members. The plaintiff - respondent has led
evidences to prove that the first information
report lodged by the defendant - appellant,
were based on false allegations. The defendant
- appellant has not led any evidence to
disprove it or to prove that the first information
report lodged by her were not based on false
allegation. She has not even led her oral
evidence. The court below has considered the
evidence on record and framed five issues out
of which the issue Nos. 1 and 5 were crucial
for decision on the question of divorce which
are reproduced below :

"1- क्या प्रक्षतवाक्षदिी िे वादी के साथ क्रूरता
का व्यवहार क्षकया है? यक्षद हािं तो इसका प्रभाव?

5- क्या वादी के क्षपता द्वारा पिकारो के
वैवाक्षहक जीवि मे अिावश्यक हस्तिेप करिा व वादी के
द्वारा अपिे क्षपता के प्रभाव मे अपिे वैवाक्षहक जीवि मे
अपिे दाक्षयत्वो का सही प्रकार पालि ि करिे के कारर्
प्रक्षतवाक्षदिी को दाम्पत्य जीवि क्षिवाणह करिे मे अस्मथण
क्षकया गया जैसा क्षक प्रक्षतवाद पि मे कहा गया है। यक्षद हािं तो
इसका प्रभाव?"

13. The issue nos. 1 and 5 aforequoted
were collectively decided by the court below.
The issue no. 1 was decided in affirmative in
favour of the plaintiff. The conclusion was
recorded as under :

"उपरोक्त समीिा के आधार पर मै इस
क्षिष्कषण पर पहुिंचा हूँ क्षक याची के साथ क्षवपिी द्वारा
क्रूरतापूर्ण व्यवहार क्षकया गया है और याची के माता क्षपता
द्वारा याची और क्षवपिी के पररवाररक जीवि मे कोई
अिुक्षचत हस्तिेप िही क्षकया गया है तदािुसार यह वाद
क्षबन्फ्दु सिं० -1 सकारात्मक रूप मे एविं वाद क्षबन्फ्दु सिंख्या-5
िकारात्मक रूप से याची के पि मे क्षिक्षर्णत क्षकया जाता है।
"

14. The aforesaid conclusion in the
impugned judgment is based on the findings
recorded by the court below, briefly as under
:

(i) The plaintiff - husband has made
allegations that the defendant - wife expressed
her unwillingness to live with the plaintiff by
alleging and insulting him that the standard of
living of his and his family members is low and
the salary of the plaintiff is so low that more than
his salary, her parents used to distribute salary
to their employees. To prove this allegation, the
plaintiff - husband has filed affidavit 61 Ka, an
additional affidavit 104 ka and PW 2 filed
affidavit 62 Ka and additional affidavit 105 Ka
supporting the plaintiff's contention but the
defendant - wife neither submitted any reply to
the aforesaid evidences nor produce her
evidence and also could not prove the papers
filed by her by list 8 Ga.

(ii) The defendant wife firstly
joined service as physician in Uttar
Pradesh Health Department, Aligarh, but
left the service for reason that infact she
was having more interest in the business of
her mother. The plaintiff -respondent filed
568 INDIAN LAW REPORTS ALLAHABAD SERIES
habeas corpus Writ Petition No.22262 of
2001 (paper No.44 Ga) for custody of his
son Aparajit Ishan Narayan, in which the
father of the defendant - appellant filed an
affidavit
stating
that
he
has
better
resources for protection of future of the
aforesaid son and the plaintiff - respondent
has
not
extended
any
affection
or
protection to the aforesaid child.

(iii) The PW - 1 has filed
photographs 112 ka dated 19.8.1993, 43
Ka dated 06.09.1995, 114 Ka of the year
1993 and 115 Ka of the year 1995 to prove
that the allegation of the defendant -
appellant that the aforesaid child never
remained with the plaintiff and his family
members is incorrect. The aforesaid
photographs were not denied by the
defendant - appellant/wife.

(iv) On 17.12.1999, the defendant
wife has left her matrimonial house and
went to her parents home.

(v) The defendant - wife has
alleged that the plaintiff husband has
demanded in dowry Rs.5,00,000/- and a car
and on non fulfilment of the dowry demand
she was beaten by the plaintiff and for that
reason she lodged crime case No.17/2000
under Section 498 A, 323, 506 I.P.C. and 3⁄4
Dowry Prohibition Act on P.S. Mahila
Thana Sadar, Lucknow on 27.03.2000 but
she has not filed even copy of the FIR. The
plaintiff - husband has filed photo copy of
the aforesaid FIR and other papers 45 Ga,
78 Ga and 80 Ga which show that the
aforesaid case crime registered as case
no.210 of 2002 and is pending in the Court
of
3rd
Additional
Chief
Judicial
Magistrate, Lucknow and as such no
comment can be made on it.

(vi) The defendant - wife has
made allegation that the plaintiff - husband
is indulged in adultery with a lady Rita Rai.
The plaintiff - husband has denied the
allegation and got recorded his oral
evidence in this regard as PW 1 and his
denial was also supported by PW -2 in his
evidence, but the defendant - wife has not
produced any evidence. Thus, the plaintiff -
husband has been able to prove that the
allegation of his being characterless, made
by the defendant - wife, is false. Allegations
made by the defendant - wife against the
parents of the plaintiff - husband were
found to be incorrect.

(vii) The defendant - wife has
made false complaints 78 Ga against the
plaintiff - husband to his higher officers
and the Director General of Police Uttar
Pradesh, but she could not lead any
evidence to prove the allegations.

15. So far as the submissions Nos. (i),
(ii) and (v) of learned counsel for the
defendant - appellant is concerned, we find
that the averments made by plaintiff in
paras 5, 9, 10, 11, 17 and 19 of the plaint
clearly discloses the ground of cruelty.

16. So far as the submission No. (iii)
made by learned counsel for the defendant -
appellant that the impugned judgement for
dissolving the marriage under Section 13 of
the Hindu Marriage Act, 1955 (hereinafter
referred to as "the Act 1955") has been
passed without affording an opportunity of
hearing to the defendant - appellant, is
incorrect.
Perusal
of
the
impugned
judgment shows that the defendant -
appellant has appeared in the aforesaid case
before the court below and not only filed
her written statement but also cross
examined PW - 1 and PW - 2 at length.
Thus, the submission of learned counsel for
the
defendant
-
appellant
that
no
opportunity of hearing was afforded to the
defendant - appellant, is totally incorrect.

17. So far as the submission No. (iv)
is concerned, we find that the defendant -
11 All. Smt. Gayatri Mohapatra @ Smt. Gayatri Devi Vs. Ashit Kumar Panda
569
appellant has not taken any such specific
grounds in the grounds of appeal.

Cruelty

18. The word "cruelty" has not been
defined in the Act, 1955. It has been used
in Section 13(i) (i-a) of the Act 1955 in the
context of human conduct or behaviour in
relation to or in respect to matrimonial
duties or obligations. It is a course of
conduct of one which is adversely affecting
the other. The cruelty may be mental or
physical.
It
may
be
intentional
or
unintentional. If it is physical, it is question
of fact and degree. If it is mental, the
inquiry must begin as to the nature of cruel
treatment and then as to the impact of such
treatment on the mind of the spouse as to
whether it caused reasonable apprehension
that it would be harmful or injurious to live
with the other. It is a matter of inference to
be drawn by considering the nature of the
conduct and its effect on the complaining
spouse. These principles find mention in
the law laid down by Hon'ble Supreme
Court in the case of Shobha Rani Vs.
Madhukar Reddi (1988) 1 SCC 105
(paras 4, 5, 6, 7 and 18).

19. Expressing similar view as
aforesaid and following the decision in the
case of Shobha Rani (supra), Hon'ble
Supreme Court in the case of V. Bhagat v
D. Bhagat (1994) 1 SCC 337 (para 16)
broadly defined mental cruelty, as under :

16. Mental cruelty in Section
13(1)(i-a) can broadly be defined as that
conduct which inflicts upon the other
party such mental pain and suffering as
would make it not possible for that party
to live with the 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 the other
party. It is not necessary to prove that the
mental cruelty is such as to cause injury to
the health of the petitioner. While arriving
at such conclusion, regard must be had to
the social status, educational level of the
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 a matter to be
determined in each case having regard to
the facts and circumstances of that case. If
it is a case of accusations and allegations,
regard must also be had to the context in
which they were made.

(Emphasis supplied by us)

20. In the aforesaid judgement in the
case of V. Bhagat (supra) (paras 18 & 19)
Hon'ble Supreme Court has referred to its
earlier
judgment
in
the
case
of
Chanderkala Trivedi Vs. Dr S.P. Trivedi
(1993) 4 SCC 232 (paras 2 & 3), which
appears to be relevant for the purposes of
controversy involved in the present appeal.

21. Paras 18 and 19 of the judgement
in the case of V. Bhagat (supra) is
reproduced below :

18. In Chanderkala Trivedi v. Dr
S.P. Trivedi [(1993) 4 SCC 232 : 1993 SCC
(Cri) 1154 : (1993) 3 Scale 541] the
husband sued for divorce on the ground of
cruelty by wife. The wife filed a written
statement wherein she attributed adultery
to the husband. In reply thereto the
husband put forward another allegation
570 INDIAN LAW REPORTS ALLAHABAD SERIES
against the wife that she was having
undesirable association with young boys.
Considering the mutual allegations, R.M.
Sahai, J. speaking for Division Bench,
observed: (SCC p. 233, para 2)

"Whether the allegation of the
husband that she was in the habit of
associating with young boys and the
findings recorded by the three courts are
correct or not but what is certain is that
once such allegations are made by the
husband and wife as have been made in
this case then it is obvious that the
marriage of the two cannot in any
circumstance be continued any further.
The marriage appears to be practically
dead as from cruelty alleged by the
husband it has turned out to be at least
intimacy of the husband with a lady
doctor and unbecoming conduct of a
Hindu wife."

19. It was argued on behalf of the
husband that the wife has failed to establish
the charge of adultery levelled against him
and that the charge of adultery must be
proved beyond reasonable doubt. Dealing
with the argument, the learned Judge
observed: (SCC pp. 233-34, para 3)

"But we do not propose to
examine it as we are satisfied that the
marriage is dead and the findings of fact
cannot be set aside by this Court except
that the appeal can be sent back to the
Division Bench to decide it again which
would mean another exercise in futility
leading to tortuous litigation and continued
agony of the parties."

(Emphasis supplied by us)

22. In the case of Savitri Pandey v.
Prem Chandra Pandey, (2002) 2 SCC 73
Hon'ble Supreme Court has explained the
word "cruelty" and "desertion" used in
Section 13(1)(i) (i-a) of the Act, 1955 as
under :

"6. Treating the petitioner with
cruelty is a ground for divorce under
Section 13(1)(i-a) of the Act. Cruelty has
not been defined under the Act but in
relation to matrimonial matters it is
contemplated as a conduct of such type
which endangers the living of the petitioner
with the respondent. Cruelty consists of
acts which are dangerous to life, limb or
health. Cruelty for the purpose of the Act
means where one spouse has so treated the
other and manifested such feelings towards
her or him as to have inflicted bodily
injury, or to have caused reasonable
apprehension of bodily injury, suffering or
to have injured health. Cruelty may be
physical or mental. Mental cruelty is the
conduct of other spouse which causes
mental
suffering
or
fear
to
the
matrimonial life of the other. "Cruelty",
therefore, postulates a treatment of the
petitioner with such cruelty as to cause a
reasonable apprehension in his or her
mind that it would be harmful or injurious
for the petitioner to live with the other
party. Cruelty, however, has to be
distinguished from the ordinary wear and
tear of family life. It cannot be decided on
the basis of the sensitivity of the petitioner
and has to be adjudged on the basis of the
course of conduct which would, in general,
be dangerous for a spouse to live with the
other. In the instant case both the trial
court as well as the High Court have found
on facts that the wife had failed to prove
the allegations of cruelty attributed to the
respondent. Concurrent findings of fact
arrived at by the courts cannot be disturbed
by this Court in exercise of powers under
Article 136 of the Constitution of India.
Otherwise also the averments made in the
petition and the evidence led in support
thereof clearly show that the allegations,
even if held to have been proved, would
only show the sensitivity of the appellant
11 All. Smt. Gayatri Mohapatra @ Smt. Gayatri Devi Vs. Ashit Kumar Panda
571
with respect to the conduct of the
respondent which cannot be termed more
than ordinary wear and tear of the family
life.

8."Desertion", for the purpose of
seeking divorce under the Act, means the
intentional
permanent
forsaking
and
abandonment of one spouse by the other
without that other's consent and without
reasonable cause. In other words it is a
total repudiation of the obligations of
marriage. Desertion is not the withdrawal
from a place but from a state of things.
Desertion, therefore, means withdrawing
from the matrimonial obligations i.e. not
permitting or allowing and facilitating the
cohabitation between the parties. The
proof of desertion has to be considered by
taking into consideration the concept of
marriage which in law legalises the sexual
relationship between man and woman in
the society for the perpetuation of race,
permitting lawful indulgence in passion to
prevent licentiousness and for procreation
of children.