# Smt. Prabhpreet Kaur v. Jitendra Pal Singh

- **Citation:** (2024) 5 ILRA 2007
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** First Appeal No. 44 of 2021
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-prabhpreet-kaur-v-jitendra-pal-singh-51919
- **Pages:** 11

## Headnote

Narendra Kumar Kashyap, Ratnoja @ Ratna
Singh, Sunita

Matrimonial
dispute-Hindu
Marriage
Act,
1955
-Section13-Love
marriagebickering between the parties-wife left the
matrimonial house-under police pressurecompromise-mutual divorce- but husband did
not appeared in the suit for divorce on mutual
consent-instead filed a suit u/s 9 of HMArestitution of conjugal rights-wife further filed
a petition seeking divorce u/s 13 of HMA on
ground of cruelty- such unilateral withdrawal
from divorce from mutual consent by husband
added to cruelty-parties living separately for
more than 11 years-matrimonial bond is
beyond repair- divorce granted on the ground
of cruelty.

Appeals allowed. (E-9)
List of Cases cited:

## Text

5 All. Smt. Prabhpreet Kaur Vs. Jitendra Pal Singh
2007
under Sections 409 and 420 I.P.C., Police
Station- Colonelganj, District- Prayagraj, is
hereby quashed.

22. Accordingly, the writ petition
is allowed.
----------
(2024) 5 ILRA 2007
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2024

BEFORE

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

First Appeal No. 44 of 2021
Connected with
First Appeal No. 43 of 2021

Smt. Prabhpreet Kaur ...Appellants
Versus
Jitendra Pal Singh ...Respondent

Counsel for the Appellant:
Alok Verma, Prabh Jot Kaur, Ramesh
Chandra Pathak

Counsel for the Respondents:
Narendra Kumar Kashyap, Ratnoja @ Ratna
Singh, Sunita

Matrimonial
dispute-Hindu
Marriage
Act,
1955
-Section13-Love
marriagebickering between the parties-wife left the
matrimonial house-under police pressurecompromise-mutual divorce- but husband did
not appeared in the suit for divorce on mutual
consent-instead filed a suit u/s 9 of HMArestitution of conjugal rights-wife further filed
a petition seeking divorce u/s 13 of HMA on
ground of cruelty- such unilateral withdrawal
from divorce from mutual consent by husband
added to cruelty-parties living separately for
more than 11 years-matrimonial bond is
beyond repair- divorce granted on the ground
of cruelty.

Appeals allowed. (E-9)
List of Cases cited:

1. Rajiv Chikkara Vs Sandhya Mathur : 2016 SCC
OnLine Del 6224

2. Beena M.S. Vs Shino G. Babu , 2022 (2) KHC
11 :

3. Shreedharan Vs Asha (MAT Appeal No.c578 of
2015, decided on 18.09.2023),

4. Vidhyadhar Vs Manikrao: AIR 1999 SC 1441

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

6. Rajib Kumar Roy Vs Sushmita Saha : 2023
SCC OnLine SC 1221

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

(1) Heard Ms. Prabh Jot Kaur, learned
Counsel representing the appellant/wife
and Ms. Ratna Singh, learned Counsel
representing the respondent/ husband.

(2) Since these two appeals arise
out of a common order dated 22.02.2021
passed by the learned Additional Principal
Judge, Family Court-I, Lucknow based on
a common factual matrix, they have been
heard together and are being disposed of by
this common judgment.

(3) Both these appeals have been
filed under Section 19 (1) of the Family
Court Act, 1984 by the appellant/wife, inert
alia as follows:

 (A) First Appeal No. 44 of 2021
has been filed challenging the order passed
by Additional Principal Judge, Family
Court-I, Lucknow dated 22.02.2021 by
which Regular Suit No. 3300 of 2014 filed
by the husband/respondent under Section 9
of the Hindu Marriage Act, 1955 has been
allowed and learned Family Court has
directed the wife/Appellant for restitution
2008 INDIAN LAW REPORTS ALLAHABAD SERIES
of
conjugal
rights
with
her
husband/respondent herein.

(B) First Appeal No. 43 of 2021
has been filed challenging the dismissal of
Regular Suit No. 2335 of 2015 filed by the
wife/appellant
seeking
divorce
under
Section 13 of the Hindu Marriage Act,
1955.

(4) The factual exposition of these two
appeals can be summarized as herein under
:-

(i) The parties claim to have been
in love, culminating into their marriage on
20.06.2010
in
Arya
Samaj
Mandir.
Obviously there had been no exchange of
dowry etc. and records reveal that parties
also got their marriage registered in the
office of Registrar, Hindu Marriage, U.P.
on 23.06.2010. After marriage, both, the
appellant
and
the
respondent,
had
apprehended some risk, danger and threat,
therefore, they filed Writ Petition No. 6298
(M/B) of 2010 before this Court, wherein
father of wife/appellant had put in
appearance and had stated before the Court
that he had no grudge against both of them
and
their
apprehension
is
only
a
misconception. Noting this statement of the
father of the wife/appellant herein and the
fact that both of them were major, the said
writ petition was disposed of vide order
dated 12.07.2010 with a direction to the
Station House Officer, Alambagh to
provide due protection as required to them
and their married life would not be
interfered with or obstructed to in any
manner.

(ii) Apparently, both of them
lived as husband and wife at matrimonial
house after marriage and the record reveals
that no child was born out of the said
wedlock.

(iii) The story further unfolds by
the allegation of the husband/respondent,
wherein
according
to
him,
the
appellant/wife, after couple of years and
due to certain bickering between them at
the instance of parent of his wife, left the
matrimonial home and went to stay at her
parental house (maika) on 20.01.2013.
After that he and his family had made
frequent efforts to persuade her wife to
return to her matrimonial house but all in
vain. Ultimately, under the pressure of the
police, a compromise was entered between
them, according to which, both of them
would seek divorce on mutual consent
before the competent Court. For this
purpose, a suit, bearing No.631 of 2014,
under Section 13 (B) of the Hindu Marriage
Act, 1955 for divorce on mutual consent
was filed before the Family Court,
Lucknow, however, as claimed, when the
husband realized that he could not live
without his wife, then, he, instead of
appearing in the said suit for divorce on
mutual consent, filed Regular Suit No.
3300 of 2014 under Section 9 of the Hindu
Marriage Act, 1955 for restitution of
conjugal rights.

(iv) Notice was issued in the
aforesaid suit. In response thereof, the
wife/appellant herein had put in appearance
before the Family Court and had filed
written
statement
denying
all
the
allegations
made
by
her
husband/
respondent and as counter version it was
said that she had solemnized love marriage
with the respondent but after marriage, his
behaviour towards her was very bad. Her
husband
harassed
and
tortured
her
physically and mentally. Her husband,
while consuming alcohol and drugs in
excessive quantity, had behaved in a very
inhuman and unnatural manner with her
and also burnt her with cigarette butts, on
account of which there was threat to her life
5 All. Smt. Prabhpreet Kaur Vs. Jitendra Pal Singh
2009
from her husband itself and as such she left
the house of her husband on 20.01.2013 and
since then she is living with her parents.
She had also stated that she does not wish
to live with her husband any longer. She is
living separately since 20.01.2013 and ever
since has acclimatized to her matrimonial
status. She also stated that since her
husband did not appear before the Family
Court in the said suit filed under Section 13B of Act, 1955, instead her husband had
filed a suit for restitution of conjugal rights,
therefore, that suit filed under Section 13-B
of the Hindu Marriage Act was dismissed
on 08.07.2015. Various other allegations as
levelled against her in the plaint were also
denied by her.

(v) On the basis of pleadings and
documents, the learned Family Court
framed following two issues in Regular
Suit No. 3300 of 2014 filed by the
respondent/husband under Section 9 of the
Hindu Marriage Act, 1955 (hereinafter
referred to as 'First Suit') :-

(a) Whether on the basis of the
pleadings of the plaint, the plaintiff is
entitled to get decree of restitution of
conjugal rights?

(b) Whether plaintiff is entitled to
get any other reliefs?

(5) Besides the contest in aforesaid
suit for restitution of conjugal rights filed
under Section 9 of the Hindu Marriage Act,
1955 by the husband/respondent, during its
pendency, the wife/appellant herein also
filed a petition seeking divorce under
Section 13 of the Hindu Marriage Act, 1955
in the year 2015 on the grounds of cruelty
and desertion, which was numbered as
Regular Suit No. 2335 of 2015 (hereinafter
referred to as 'Second Suit'). In this suit,
notice was also issued and in response
thereof, husband/respondent had also put in
appearance and filed written statement
denying the allegations levelled against him
and reiterated his stand made by him in the
first suit filed by him under Section 9 of the
Hindu Marriage Act, 1955.

(6) On the basis of the pleadings and
documents, the learned Family Court
framed following two issues in the "second
suit" filed by the wife under Section 13-B
of the Hindu Marriage Act, 1955 :-

(a) Whether on the basis of the
pleadings of the plaint, the plaintiff is
entitled to get decree of divorce?

(b) Whether plaintiff is entitled to
get any other reliefs ?

(7) Both the aforesaid suits were
put
for
trial,
wherein
the
husband/respondent, examined himself as
P.W.1 and also exhibited two documents
viz. (i) copy of the Marriage Certificate of
Arya Samaj Mandir as annexure no.1; and
(ii) copy of the statement made by his
wife/appellant before the High Court as
Annexure no.2. On the other hand, in
support of her case, the wife/appellant
examined herself as D.W.1. No other
witness was examined by the parties in
support of their case.

(8) The Family Court has noted that
despite ample opportunity being granted to
the husband/respondent, none responded on
his behalf to argue both the suits, as such,
the Family Court proceeded to consider the
issues, as noted hereinabove, and heard the
counsel
for
the
wife/appellant
and
appraised the evidence available on record.

(9) The learned Family Court took
issue no.1 framed in both the suits together
for the sake of convenience of discussion
and decision. The Family Court considered
the series of so-called gross misdemeanor
2010 INDIAN LAW REPORTS ALLAHABAD SERIES
and misconduct resulting in physical as
well as mental torture upon the wife by
husband as alleged by the wife/appellant
and
returned
a
finding
that
the
appellant/wife did not mention any specific
date or incident when the alleged cruelty
was
committed
upon
her
by
the
respondent/husband. The learned Family
Court also observed that the appellant/wife
was unable to prove bad conduct of the
respondent/husband which could give rise
to an apprehension in the mind of the
appellant that living with the respondent
was unsafe and harmful. The learned
Family Court had also returned a finding
that the appellant/wife had failed to bring
on record any witness such as her father,
mother etc. or any other witness or
evidence in support of her allegation of
torture by her husband. In this backdrop,
the
Family
Court
opined
that
the
appellant/wife has failed to establish
"cruelty" and "desertion" claimed to be
perpetrated by her husband against her.
Accordingly, issue no.1 was decided in
affirmative
in
favour
of
the
respondent/husband
and
against
the
appellant/wife.

(10) So far as issue no.2, as referred
above, framed in both the suits is
concerned, the Family Court had returned a
finding that the appellant/wife had failed to
bring
home
the
ingredients
which
constituted desertion on the part of the
respondent and the appellant/wife had
voluntarily and for her own left the in-laws'
house and went to her parental house on
20.01.2013, hence issue no.2 was also
decided in favour of the husband and
against the wife.

(11) By deciding the aforesaid two
issues in favour of the respondent/husband,
the Family Court has dismissed the divorce
petition filed by the wife under Section 13
of the Hindu Marriage Act, 1955 and has
allowed the suit for restitution of conjugal
rights filed by the husband under Section 9
of the Hindu Marriage Act, 1955 by means
of
the
impugned
judgment
dated
22.02.2021. It is this common order passed
by the Additional Principal Judge, Family
Court-I, Lucknow, which has been sought
to be interdicted by the appellant by filing
these two appeal before this Court.

(12) During the course of arguments,
learned
Counsel
representing
the
appellant/wife
did
not
advance
any
argument nor attempted to demonstrate as
to how the finding of Family Court on the
question of desertion is perverse or
erroneous in any manner.

(13) However, learned Counsel
representing
the
appellant/wife
has
submitted that learned Family Court
proceeded in a very cursory manner in
allowing suit for restitution of conjugal
right filed by the husband/respondent and
dismissing the suit for divorce filed by the
appellant/wife
by
recording
perverse
findings on the issue of cruelty. She has
submitted that the appellant in her
statement had stated before the Family
Court that after couple of years of marriage,
the
family
members
including
her
husband/respondent had started torturing
her mentally and physically and sometime
even her husband burnt her with Cigarette
butts. It has been submitted by the learned
counsel for the appellant that inspite of the
pain and agony having faced by her almost
every day of her marital life, she tried her
best to adjust with the respondent but
behaviour of her husband continued to be
cruel day by day. On being upset on
account of day to day physical and mental
cruelty of her husband, the appellant had
5 All. Smt. Prabhpreet Kaur Vs. Jitendra Pal Singh
2011
made a complaint before the police,
whereinafter a compromise was arrived
between the parties by which both the
parties agreed to dissolve the marriage by
instituting a suit under Section 13 (B) of the
Hindu
Marriage
Act,
1955.
As
a
consequence of which, the said suit for
divorce by mutual consent was filed under
Section 13 (B) of the Hindu Marriage Act,
1955 before the Family Court, however,
even after putting his signature/consent on
the said suit by the respondent, the husband
failed to appear before the Family Court for
recording of statements etc. and instead, he
filed a suit for restitution of conjugal rights
before the Family Court. Ultimately, the
said suit under Section 13 (B) of the Act,
1955 was dismissed on 08.07.2015 on
account of absence of the respondent.

(14) Placing reliance upon the
decision of the Hon'ble Delhi High Court
in Rajiv Chikkara Vs. Sandhya Mathur :
2016 SCC OnLine Del 6224 as well as the
decisions of Hon'ble Kerala High Court
reported in 2022 (2) KHC 11 : Beena M.S.
Vs. Shino G. Babu and Shreedharan Vs.
Asha (MAT Appeal No. 578 of 2015,
decided on 18.09.2023), learned Counsel
has
submitted
that
unilaterally
not
appearing in the suit filed for seeking
Divorce by mutual consent under Section
13 (B) of the Hindu Marriage Act, 1955
would itself amount to cruelty, however,
the learned Family Court has erred in not
considering this aspect of the matter and
erred in dismissing the suit filed by the
appellant/wife.

(15) Learned Counsel for the
appellant/wife, thus, has submitted that the
facts and circumstances being what they
are, it is neither possible nor desirable for
the parties to live as husband and wife
because the marriage has not only
irretrievably broken down but both of them
have been admittedly living apart for more
than 11 years. Thus, it was argued that
dissolving the marriage was the only right
solution to the problem and the learned
Family Court was not justified in not
granting a decree of divorce to the
wife/appellant and has erred in allowing the
suit for restitution of conjugal right.

(16) On the other hand, learned
Counsel
representing
the
respondent/husband has submitted that the
ld. Family Court is absolutely justified both
in law and fact in coming to the conclusion
about the cruelty, physical and mental, as
alleged by the appellant/wife. According to
the learned Counsel, the wife had
intentionally left his house leaving the
appellant. Thus, the wife/appellant cannot
take advantage of her own wrong to seek a
decree for divorce on the ground of cruelty
and desertion which is not established on
facts. Moreover, she has further submitted
that it is a lame excuse on the part of the
wife to pile up unfounded allegations of
mental and physical torture and then to
allege that it is not possible under the facts
and circumstances to live with her
husband/appellant.
According
to
the
learned Counsel, impugned judgment and
order passed by the learned Family Court
was in accordance with law, hence both the
appeals are liable to dismissed.

(17)

We
have
gone
through
statements of the appellant/wife and
respondent/husband
recorded
by
the
Family Court; other evidence on record; the
impugned judgment; and have heard the
learned counsel for the parties at length.

(18) This Court would first like to deal
with the evidence of husband/respondent
(P.W.1). His statement was recorded by the
2012 INDIAN LAW REPORTS ALLAHABAD SERIES
Family Court on 22.10.2019, wherein in his
examination-in-chief, he had reiterated the
fact that his marriage was solemnized with
the appellant on 20.06.2010 in the Arya
Samaj Mandir. After marriage, both of
them were living together as husband and
wife. After 11/2-2 months of marriage, his
wife (appellant herein) went to her maika
(parental house). The reason for dispute
between them was on account of interference
of his in-laws (parents of his wife). He denied
the factum of fighting (maar peet) had ever
taken place between them, however, he stated
that wrangling had been a common feature of
their relationship.. He further stated that his
wife was residing at her parental house and
she did not come back to his house and she
submitted an application at police station. He
denied the factum of any quarrel with his inlaws (parents of his wife). He admitted that at
the police station, it was decided that both of
them would part their ways by decree of
divorce by mutual consent. It has come on
record that both of them had preferred a suit
for divorce on mutual consent.

(19) It is pertinent to mention that
after aforesaid examination-in-chief of
husband/respondent herein (P.W.1), he
never turned up before the learned Family
Court for further examination and as such,
the learned Family Court closed his
evidence and proceeded further to decide
the claim of the parties.

(20) The relevancy of a party who
does not appear into the witness box to
cross examination was dealt with by the
Apex Court in Vidhyadhar vs. Manikrao:
AIR 1999 SC 1441, wherein the Apex
Court has categorically observed that:

"16. Where a party to the suit
does not appear into the witness box and
states his own case on oath and does not
offer himself to be cross examined by the
other side, a presumption would arise that
the case set up by him is not correct as has
been held in a series of decisions passed by
various High Courts and the Privy Council
beginning from the decision in Sardar
Gurbakhsh Singh v. Gurdial Singh and
Anr.. This was followed by the Lahore High
Court in Kirpa Singh v. Ajaipal Singh and
Ors. AIR (1930) Lahore 1 and the Bombay
High Court in Martand Pandharinath
Chaudhari
v.
Radhabai
Krishnarao
Deshmukh AIR (1931) Bombay 97. The
Madhya Pradesh High Court in Gulla
Kharagjit
Carpenter
v.
Narsingh
Nandkishore Rawat also followed the Privy
Council decision in Sardar Gurbakhsh
Singh's case (supra). The Allahabad High
Court in Arjun Singh v. Virender Nath and
Anr. held that if a party abstains from
entering the witness box, it would give rise
to an inference adverse against him.
Similarly, a Division Bench of the Punjab
& Haryana High Court in Bhagwan Dass
v. Bhishan Chand and Ors., drew a
presumption under Section 114 of the
Evidence Act against a party who did not
enter into the witness box."

(21) Thus, the statement recorded by
the husband could not have been the
relevant consideration for decision by the
learned Family Court. However, having
gone
through
the
statement
of
respondent/husband (P.W.1), what we find
that
P.W.1
admitted
the
fact
that
compromise had entered between the
appellant/wife and respondent/husband at
police station to the effect that both of them
would file a suit for divorce on mutual
consent, in pursuance of which, both of
them had actually filed a suit for divorce on
mutual consent. It is borne out from the
evidence of P.W.1/husband that he had no
pressure or coercion in making compromise
5 All. Smt. Prabhpreet Kaur Vs. Jitendra Pal Singh
2013
at police station in regard to moving a suit
for divorce on mutual consent under
Section 13-B of the Act, 1955. Therefore,
the assertion of the husband/respondent in
a suit filed by him under Section 9 of the
Act, 1955 that on the pressure of parents,
his wife preferred suit under Section 13-B
of the Act, 1955 and he put his signature
thereon in Court on 12.03.2024 for the
happiness of his wife, is not acceptable
inasmuch as that P.W.1, in his statement,
himself had stated that on the basis of
compromise entered between them at
police station, a suit for divorce on mutual
consent under Section 13-B of the Act,
1955 was filed before the Court. Moreover
the husband did not appear for further
examination in the said suit under Section 9
of the Act, 1955 and his evidence was
closed. This conduct of his is also relevant.

(22) Now, coming to the evidence of
wife/appellant (D.W.1). Her statement was
recorded on 19.12.2019, wherein she had
stated that she solemnized love marriage
with the respondent out of her own sweetwill and prior to six months of marriage,
she had love affairs with the respondent.
She further stated that her parents had never
filed any case against her husband/
respondent, but her husband had filed a
case against her parents in High Court,
wherein she stated that she would live with
her husband. She further stated that as her
life was in danger and she could not trust
and believe any further on her husband, as
she was assaulted grievously, she left her
matrimonial home and does not want to live
with her husband any more. She had further
stated that in her plaint, she stated the
factum of cigarette and consuming alcohol
by her husband and, as such, she did not
want to live with her husband. On being
confronted as to whether she was willing to
live with her husband, if he improves
himself, she stated that she will not live
with her husband. From the evidence of the
D.W.1, it transpires that she reiterated the
version of her suit filed under Section 13 of
the Act, 1955 and has stated that her
husband/respondent had burnt her by
Cigarette butts and consumed drugs and
also assaulted her.

(23) The Family Court declined to
believe the evidence of D.W.1 by recording
its finding that there is only sole testimony
of D.W.1/wife and evidence in the present
case in which neither the basis of bitterness
has been revealed by her nor any date or
description of incident has been given nor
any medical report has been presented nor
any witness has been produced to prove the
factum of burning with Cigarette or
assaulting
her
by
her
husband
by
consuming excessive liquor. However, on a
close scrutiny of the facts of the case and
evidence on record specially the conduct of
the husband, we see no reason to disbelieve
it.

(24) On a conjoint reading of the
statement of the wife/appellant (D.W.1)
and husband/respondent (P.W.1) and other
materials/evidence on record, what we find
is that both the parties have admitted certain
facts, which are very essential for deciding
the present appeals. Apparently, the
appellant/wife and husband admit going to
the Police Station in connection with some
complaint filed by the wife where a
compromise has arrived at to seek divorce
by mutual consent and a suit for divorce on
mutual consent under Section 13-B of the
Act, 1955 was filed by the parties, which
was dismissed on account of nonappearance/non-cooperation
of
the
husband/respondent
(D.W.1)
on
08.07.2015. If the husband was serious in
filing the suit under Section 9 of the Act,
2014 INDIAN LAW REPORTS ALLAHABAD SERIES
1955, he would not have absented for
further examination in the said suit as
already noticed. The plea of the husband in
the suit under Section 9 of the Act, 1955
that he was forced to enter into such
compromise, is not believable in view of
subsequent filing of a suit for divorce by
mutual consent as there would have been no
coercion or pressure before a Court of law.

(25) That being the position, now
the
question
which
falls
for
our
determination is as to whether unilaterally
non-appearance of the husband/respondent
in a suit for divorce by mutual consent filed
under Section 13-B of the Act, 1955 added
to cruelty thereby entitling her to a divorce;
and whether the long separation of 11 years
coupled with the conduct of the husband
amounts to irretrievable breakdown of
marriage.

(26) Section 13 of the Act, 1955 reads
as under :-

"13. Divorce.-(1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband or
the wife, be dissolved by a decree of
divorce on the ground that the other party-

 (i) has, after the solemnization of
the
marriage,
had
voluntary
sexual
intercourse with any person other than his
or her spouse; or

(ia) has, after the solemnization
of the marriage, treated the petitioner with
cruelty; or

(ib) has deserted the petitioner for
a continuous period of not less than two
years
immediately
preceding
the
presentation of the petition; or

(ii) has ceased to be a Hindu by
conversion to another religion; or

(iii) has been incurably of
unsound mind, or has been suffering
continuously or intermittently from mental
disorder of such a kind and to such an
extent that the petitioner cannot reasonably
be expected to live with the respondent.

Explanation.-In this clause,-

(a)
the
expression
"mental
disorder" means mental illness, arrested or
incomplete
development
of
mind,
psychopathic disorder or any other disorder
or disability of mind and includes
schizophrenia;

(b) the expression "psychopathic
disorder" means a persistent disorder or
disability of mind (whether or not including
sub-normality of intelligence) which
results
in
abnormally
aggressive
or
seriously irresponsible conduct on the part
of the other party, and whether or not it
requires or is susceptible to medical
treatment; or

(iv) * * * * *

(v) has been suffering from
venereal disease in a communicable form;
or

(vi) has renounced the world by
entering any religious order; or

(vii) has not been heard of as
being alive for a period of seven years or
more by those persons who would naturally
have heard of it, had that party been alive;

(viii) ***

(ix) ***

Explanation.-In
this
subsection, the expression "desertion" means
the desertion of the petitioner by the other
party to the marriage without reasonable
cause and without the consent or against the
wish of such party, and includes the willful
neglect of the petitioner by the other party
to the marriage, and its grammatical
variations and cognate expressions shall be
construed accordingly.
5 All. Smt. Prabhpreet Kaur Vs. Jitendra Pal Singh
2015

(1A) Either party to a marriage,
whether solemnized before or after the
commencement of this Act, may also
present a petition for the dissolution of the
marriage by a decree of divorce on the
ground-

(i) that there has been no
resumption of cohabitation as between the
parties to the marriage for a period of one
year or upwards after the passing of a
decree
for judicial
separation in a
proceeding to which they were parties; or

(ii) that there has been no
restitution of conjugal rights as between the
parties to the marriage for a period of one
year or upwards after the passing of a
decree for restitution of conjugal rights in a
proceeding to which they were parties.

(2) A wife may also present a
petition for the dissolution of her marriage
by a decree of divorce on the ground,-

(i) in the case of any marriage
solemnized before the commencement of
this Act, that the husband had married again
before such commencement or that any
other wife of the husband married before
such commencement was alive at the time
of the solemnization of the marriage of the
petitioner:

Provided that in either case the
other wife is alive at the time of the
presentation of the petition; or

(ii) that the husband has, since the
solemnization of the marriage, been guilty
of rape, sodomy or bestiality; or

(iii) that in a suit under section 18
of the Hindu Adoptions and Maintenance
Act, 1956 (78 of 1956), or in a proceeding
under section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) (or under the
corresponding section 488 of the Code of
Criminal Procedure, 1898 (5 of 1898), a
decree or order, as the case may be, has
been passed against the husband awarding
maintenance to the wife notwithstanding
that she was living apart and that since the
passing
of
such
decree
or
order,
cohabitation between the parties has not
been resumed for one year or upwards;

(iv) that her marriage (whether
consummated or not) was solemnized
before she attained the age of fifteen years
and she has repudiated the marriage after
attaining that age but before attaining the
age of eighteen years.

Explanation.-This
clause
applies
whether
the
marriage
was
solemnized
before
or
after
the
commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976).

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

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

(28) It is apparent that Section 13 of
the Act, 1955 provides for grant of divorce
and enumerates various grounds on which
the same may be granted. It enacts that
"any marriage solemnized whether before
or after the commencement of this Act' may
be dissolved on petition presented either by
the husband or by the wife or any of the
grounds specified therein. Clause (i-a) of
sub section (1) of section 13 of the Act,
1955 declares that a decree of divorce may
be granted by a court on the ground that
after solemnization of marriage, the
opposite party has treated the petitioner
with
cruelty,
however,
the
State
amendment qualifies the extent and nature
of such cruelty by stating that the said
cruelty has been persistent and repeatedly
meted out to one party, which would cause
2016 INDIAN LAW REPORTS ALLAHABAD SERIES
a reasonable apprehension in the mind of
the one party that it would be harmful or
injurious for the one party to live with the
other party.

(29) It is well-settled that the
expression 'cruelty' includes both (i)
physical cruelty; and (ii) mental cruelty. It
is true that the bond of a marriage is built
on the mutual respect, trust and love of the
partners. There is a fine line separating
'cruelty' and misbehavior.

(30) Dealing with the almost
identical issue, the Delhi High Court in the
case of Rajiv Chikkara (supra) observed
that where a divorce by Mutual Consent
was agreed to by both the parties, the
subsequent
unilateral
withdrawal
of
consent by a spouse without any sufficient
or just cause, would add to the cruelty
meted out to the other spouse. In another
judgment, the Kerala High Court in the case
of Shreedharan (supra) dealing with the
issue that the offer of settlement failed on
account of the wife refusing to accept the
offer made by the husband, observed that
the mutual consent for divorce failed in this
matter as the bargaining could not meet the
level of expectation. The idea of 'No-FaultDivorce' is to make the parties realize that
there is sensible way of parting on the
agreed terms. Withholding mutual consent
in a failed marriage is nothing but cruelty.
In the decision of the Kerala High Court in
Beena M.S. (supra), it has been observed
that withholding of consent for mutual
separation in itself would cause mental
agony and cruelty to the spouse who
demands separation.

(31) Keeping in mind the aforesaid
decisions, what we find from perusal of the
record is that the conduct of the respondent/
husband in driving the appellant/wife to believe
that their disputes were about to be "put to an
end" and then to withdraw from the attempted
settlement can cause disquiet, cruelty and
uncertainty in the mind of the appellant. It is
evident that the quarrel inter se between the
parties was not on any justifiable grounds, but
was a war of the egos prompted by the desire to
wreak vengeance against the spouse. Thus,
such unilateral withdrawal from divorce by
mutual consent added to cruelty.

(32) For the aforesaid reasons, we are
unable to subscribe to the findings of the Family
Court relating to the issue of unilateral nonappearance of the husband/respondent in a suit
filed under Section 13-B of the Act, 1955 being
not a cruelty. Rather, this court is of the view
that such unilateral withdrawal from divorce by
mutual consent under Section 13-B of the Act,
1955 added to cruelty.

(33) The other significant factor for
determination as posed hereinabove is that
whether the long separation of 11 years coupled
with the conduct of the husband amounts to
irretrievable breakdown of marriage. The Apex
Court in Samar Ghosh Vs. Jaya Ghosh :
(2007) 4 SCC 511, has held that: -

"Where there has been a long period
of continuous separation, it may fairly be
concluded that the matrimonial bond is beyond
repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to serve
that tie, the law in such cases, does not serve the
sanctity of marriage; on the contrary, it shows
scant regard for the feelings and the emotions
of parties. In such like situations, it may lead to
mental cruelty."

(34)

In
the
instant
case,
admittedly, both the parties have been
living separately since 20.01.2013 i.e
almost more than 11 years. Time and again,
the Apex Court as well as this Court has
5 All. Amit Kumar Singh Vs. Gola & Anr.
2017
held that where there has been a long period
of continuous separation, it may fairly be
concluded that the matrimonial bond is
beyond repair. The marriage becomes a
fiction though supported by a legal tie. By
refusing to sever that tie, the law in such
cases, does not serve the sanctity of
marriage; on the contrary, it shows scant
regard for the feelings and emotions of the
parties, which leads to cruelty. Recently,
the Apex Court in the case of Rajib Kumar
Roy Vs. Sushmita Saha : 2023 SCC
OnLine SC 1221 observed as under :-

 "Continued
bitterness,
dead
emotions and long separation, in the given
facts and circumstances of a case, can be
construed as a case of "irretrievable
breakdown of marriage", which is also a
facet of "cruelty". In Rakesh Raman v.
Kavita reported in 2023 SCC OnLine SC
497, this is precisely what was held, that
though in a given case cruelty as a fault,
may not be attributable to one party alone
and hence despite irretrievable breakdown
of marriage keeping the parties together
amounts to cruelty on both sides. Which is
precisely the case at hand."

(35) For all the aforesaid reasons, both
the appeals are allowed. The impugned
judgment dated 22.02.2021 is hereby setaside. The appellant/wife is granted divorce
on the ground of cruelty under Section
13(1)(i-a) of the Hindu Marriage Act, 1955.
Suit No. 2335 of 2015 is allowed. Suit No.
3300 of 2014 is dismissed.

(36) There shall be no order as to
cost.
----------
(2024) 5 ILRA 2017
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.05.2024
BEFORE
THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 1417 of 2010

Amit Kumar Singh ...Petitioner
Versus
Gola & Anr. ...Opposite Parties

Counsel for the Petitioner:
Rajeev Singh, Akhilesh Kumar Mishra, Alok
Singh, Vijay Kumar

Counsel for the Opposite Parties:
Govt. Advocate, Anurag Singh Chauhan

The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act,
1989-Sections 3 (1) (Dha) & 3 (1) (s)-
Applicant is a student of Hotel Management in
Sydney, Australia- first complaint was lodged by
the
opposite
party-found
fake-proceeding
dropped-after
nine
months-he
filed
an
Application u/s 156(3) Cr.P.C. on the same factsApplicant has not abused the opposite party by
caste name in any place within the public viewsec.3 (1) (Dha) or sec. 3(1) (s) of the Act, 1989
not attracted-incidence took place inside the
house of the complainant -not a place with
public view-no outsider was sitting in the room
-nor anyone has seen the alleged incident-from
nature of evidence-contents of complaintincident does not appear to happen-summoning
order quashed.

Application allowed. (E-9)

List of Cases cited:

1. St. of Har. Vs Bhajanlal, 1992 SCC (Crl.)426

2. Mohd. Allauddin Khan Vs St. of Bihar & ors.
reported in (2019) 6 SCC 107

3. Masumsha Hasanasha Musalman v. St. of
Mah., reported in AIR 2000 SC 1786

4. Hitesh Verma Vs St. of Uttarakhand, (2020)
10 SCC 710

5. Ramesh Chandra Vaishya Vs St. of U.P. & anr.;
(2023) SCC OnLine SC 668