# Smt. Shashi Bala v. Rajendrapal Singh

- **Citation:** (2020) 1 ILRA 1463
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-10
- **Case number:** First Appeal No. 231 of 2015
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shashi-bala-v-rajendrapal-singh-45236
- **Pages:** 10

## Headnote

A. Family Courts Act, 1984 - Section 19 &
Hindu Marriage Act, 1955 - Section 13(1)
- appellant challenged the decree of
divorce-decree passed on the ground of
desertion-plaintiff
failed
to
establish
commission of physical or mental crueltycourt below made no attempt to find out
why appellant was forced to leave
matrimonial
home-plaintiff
never
discharged his liability towards his wife
and children-for a period of eleven long
years, plaintiff kept quiet-now plaintiff is
stopped from raising this plea-plaintiff
did not made any attempt for restitution
of conjugal rights nor he discharged his
liabilities-it is the plaintiff-husband who
has committed cruelty upon appellantwife-award of cost of Rs. 2 lacs to pe paid
to appellant by plaintiff-suit filed by
plaintiff is dismissed. (Para 7, 22 to 25)

First Appeal allowed. (E-6)

List of cases cited: -

## Text

1464 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C., pending appeal before the first
appellate court, challenging the order of
conviction and sentence under Section 138
of the N.I. Act, the appellate court is
conferred with the power to direct the
appellant to deposit such sum pending
appeal which shall be a minimum of 20%
of the fine or compensation awarded by
the trial Court."

23. In view of the above and for the
reasons stated above, I am of the view that
applicability
of
the provision
under
Section 148 of the N.I. Act is mandatory.
Deposit of fine not less than 20% is
condition precedent for admission of
appeal and provision under Section 357 (2)
Cr.P.C. are not made applicable during
admissibility and pendency of appeal.
Section 148 of the N.I. Act can be applied
to complaint filed prior to 1.9.2018. I see
no reason to interfere with the impugned
order dated 23.10.2019 passed by the
appellate sessions court directing the
Appellants to deposit 30% of the amount
of fine/compensation pending appeals. The
order of appellate court is perfectly legal.
There is no illegality or perversity in the
order dated 23.10.2019.

24. Revision filed by the revisionist is
devoid of merit and is liable to be dismissed.

25. Revision is dismissed..
----------
(2020)1ILR 1463

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2019

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

First Appeal No. 231 of 2015
Smt. Shashi Bala ...Appellant
Versus
Rajendrapal Singh ...Respondent

Counsel for the Appellant:
Sri Satyender Kumar Singh

Counsel for the Respondent:
Sri Pankaj Agarwal, Sri Tarun Agarwal

A. Family Courts Act, 1984 - Section 19 &
Hindu Marriage Act, 1955 - Section 13(1)
- appellant challenged the decree of
divorce-decree passed on the ground of
desertion-plaintiff
failed
to
establish
commission of physical or mental crueltycourt below made no attempt to find out
why appellant was forced to leave
matrimonial
home-plaintiff
never
discharged his liability towards his wife
and children-for a period of eleven long
years, plaintiff kept quiet-now plaintiff is
stopped from raising this plea-plaintiff
did not made any attempt for restitution
of conjugal rights nor he discharged his
liabilities-it is the plaintiff-husband who
has committed cruelty upon appellantwife-award of cost of Rs. 2 lacs to pe paid
to appellant by plaintiff-suit filed by
plaintiff is dismissed. (Para 7, 22 to 25)

First Appeal allowed. (E-6)

List of cases cited: -

1. Smt. Kavita Sharma Vs. Neeraj Sharma (First
Appeal No. 525 of 2006), para28

2. Ashwani Kumar Kohli Vs. Smt. Anita (First Appeal
No. 792 of 2008) para 7, 8, 10, 11, 12, 13

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

1. Present First Appeal under Section
19 of Family Courts Act 1984 (hereinafter
referred to as Act 1984) has been filed by
Appellant i.e. wife challenging judgement
dated
13.03.2015
and
decree
dated
27.03.2015 passed by Principal Judge,
Family Court, Ghaziabad in Suit No. 367
1 All. Smt. Shashi Bala Vs. Rajendrapal Singh
1465
of 2005 (Sri Rajendra Pal Singh Vs. Smt.
Shashi Bala) filed by Plaintiff i.e. husband
under Section 13 (I) of Hindu Marriage
Act 1955 (hereinafter referred to as Act
1955) whereby aforesaid Suit has been
decreed resulting in annulment of marriage
of parties held on 04.12.1996.

2. We have heard Mr. Satyendra
Kumar
Singh,
learned
counsel
for
Defendant-Appellant (hereinafter referred
to as Appellant) and Mr. Tarun Agarwal,
Advocate holding brief of Mr. Pankaj
Agarwal, learned counsel representing
Plaintiff-Respondent (hereinafter referred
to as Plaintiff).

3. Plaintiff filed Original Suit No.237
of 2004 (Sri Rajendra Pal Singh Vs. Smt.
Shashi Bala) under Section 13 (1) of Act
1955 for a decree of divorce on the ground
of 'cruelty' committed by Appellant.
According to plaint allegations, marriage
of Plaintiff was solemnized with Appellant
on 04.12.1996 at Aligarh in accordance
with Hindu Rites and Customs. From
aforesaid wedlock two children namely
Krishan Kant and Jatin Pal were born.
Appellant was working as a teacher in
Government Girls Inter College, Vijay
Nagar, Ghaziabad but on her request
transferred to Moradabad. Plaintiff is
working in Indian Navy and posted at
Sena Bhawan, New Delhi. Accordingly,
Plaintiff is getting handsome salary. As
such, Plaintiff can maintain his family
including
Appellant
and
himself.
Subsequently,
relationship
between
Plaintiff and Appellant became strained.
According to Plaintiff, it is Appellant, who
is responsible for such sorry state of
affairs; she is a short tempered lady with
bad character; her behaviour towards
Plaintiff as well as other relatives of
Plaintiff was never cordial; she is guilty of
telling lies and further uncareful to
maintain
good
relations;
she
was
completely under pressure of her parents;
not willing to keep good and cordial
relations
with
Plaintiff;
Parents
of
Appellant are greedy and want to extort
money earned by Plaintiff as well as
Appellant; she used to leave residence of
Plaintiff without informing him; used to
absent herself from School; went to some
unknown
place
without
informing
Plaintiff; when Plaintiff attempted to
enquire about such conduct, she became
furious and did not categorically reply to
the query made by Plaintiff. In such
circumstances, according to Plaintiff,
minor children were facing difficulty and
further their future was also said to be in
dark. Appellant left house of Plaintiff in
1999. However, due to intervention of
some respectable persons a compromise
was arrived at between parties on
22.04.1999. She committed breach of
aforesaid
compromise,
which
was
unbecoming
of
an
obedient
wife.
Appellant ultimately abandoned house of
Plaintiff
on
28.02.2004.
Since
then
Appellant is not residing with Plaintiff. On
the aforesaid factual premise, it was
prayed that suit filed for divorce be
decreed.

4. Suit was contested by Appellant.
She accordingly filed a written statement
dated
06.07.2005
denying
plaint
allegations. Additional pleas were also
raised by Appellant. Factum regarding
marriage and birth of two children from
wedlock of parties was admitted. She also
admitted of serving as Lecturer at
Government Girls Inter College, Vijay
Nagar, Ghaziabad but later on transferred
to Cantt. Moradabad. It was further
admitted that Plaintiff is working in Indian
Navy and posted at New Delhi. However,
1466 INDIAN LAW REPORTS ALLAHABAD SERIES
rest of the averments made in plaint were
denied. According to Appellant wild
allegations have been made by Plaintiff
against Appellant without there being any
cogent reason behind the same; charges
levelled against her character have caused
physical and mental cruelty upon her;
behavior of with her was rude and abusive;
it
was
Plaintiff,
who
has
tortured
physically and mentally for demand of
dowry; Plaintiff himself was of a shady
character as he frequently used to stay at
his Bhabhi's residence at Kavi Nagar,
Ghaziabad; when aforesaid conduct of
Plaintiff was objected by Appellant,
Plaintiff cooked a false story against her; it
is only when aforesaid conduct of Plaintiff
became unbearable that Appellant went to
Moradabad and is residing there since
then. On the aforesaid defence, Appellant
pleaded for dismissal of suit for divorce
filed by Plaintiff.

5. Court below upon consideration of
pleadings of parties framed following two
issues for consideration:

A. Whether Plaintiff is entitled
to decree of divorce on grounds mentioned
in the plaint.

B.
Any
other
relief,
if
admissible.

6. After issues were framed by Court
below, parties went to trial. Plaintiff in
support of his case adduced himself as
P.W.-1, V. P. Singh as P.W.-2, Smt. Ram
Saheli Sharma as P.W.-3 and Dr. Ramesh
Kumar Verma as P.W.-4. Further vide list
of documents (Paper No. 19 Ga), Plaintiff
filed
large
number
of
documentary
evidence in proof of his case. Appellant in
support of her defence adduced only
herself as D.W.-1. No other witness was
adduced
by
Appellant
nor
any
documentary evidence was filed by her in
support of her defence.

7. Court below upon consideration of
pleadings, oral and documentary evidence
on record decided issues framed by it. In
respect of Issue no.1, Court below
concluded that Plaintiff is clearly entitled
to grant of decree of divorce in terms of
Section 13 (1) (1b) of Act 1955 i.e. on the
ground
of
'desertion'.
Court
below
however concluded that Plaintiff has failed
to establish commission of any physical or
mental 'cruelty' upon him by Appellant. In
the opinion of Court below, from material
filed by Plaintiff it is apparent that it is
Plaintiff, who has committed mental
cruelty upon Appellant. However, since it
is an admitted position that Appellant has
'deserted' Plaintiff for the last 11 years and
aforesaid fact, is an admitted fact therefore
same is not required to be proved under
Indian Evidence Act. Consequently, suit
for divorce filed by Plaintiff was decreed
by Court below on the ground of
'desertion'
vide
judgement
dated
13.03.2015 and decree dated 27.03.2015.

8. Feeling aggrieved by aforesaid
judgement and decree passed Court below,
wife i.e. Appellant has now approached
this Court by means of present First
Appeal.

9. Mr. Satyendra Kumar Singh,
learned counsel for Appellant in challenge
to judgement and decree passed by Court
below submits that same are patently
illegal and in excess of jurisdiction.
According
to
learned
counsel
for
Appellant, Court below while passing
aforesaid judgement and decree has only
considered case of Plaintiff; no attempt has
been made to find out why Appellant was
forced to leave matrimonial home on
1 All. Smt. Shashi Bala Vs. Rajendrapal Singh
1467
28.02.2004 alongwith her two children;
Plaintiff was also under moral and legal
obligation to maintain his wife and minor
children;
There
did
not
exist
any
explanation on the part of Plaintiff for his
failure to discharge aforesaid moral and
legal obligation; In fact, there is complete
silence on the part of Plaintiff right from
28.2.204 in not taking any action for
restitution
of
conjugal
relationship
between parties or to discharge of his
moral and legal obligations; and the same
denote the clever attitude of Plaintiff.

10. Mr. Tarun Agarwal, Advocate
holding brief of Mr. Pankaj Agarwal,
learned counsel for Plaintiff submits that
Court below has decreed suit of Plaintiff
on the ground of proved 'desertion' which
is perfectly just and legal. He further
submits that parties have been living
separately since 28.02.2004 and therefore,
Court below has done justice to parties by
decreeing suit for divorce filed by
Plaintiff. He has further tried to support
impugned judgement and decree on the
strength of findings recorded therein as
well as observations made by Court below.

11. Varied arguments raised by
counsel for parties give rise to only
determination as under:

A.
Whether
judgement
and
decree passed by Court below on the
ground of 'desertion' on part of Appellant
can be sustained in law and fact.

12. Since the issue involved in
present appeal relates to Section 13 of Act
1955, it is appropriate to reproduce the
same for ready reference:

" 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

(i-a) has, after the solemnization
of the marriage, treated the petitioner with
cruelty; or

(i-b) 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) has been suffering from a
virulent and incurable form of leprosy; or

(v) has been suffering from
venereal disease in a communicable form;
or
1468 INDIAN LAW REPORTS ALLAHABAD SERIES

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

(vi) 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;

Explanation. In this sub-section,
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
wilful neglect of the petitioner by the other
party to the marriage, and its grammatical
variations and cognate expressions shall
be construed accordingly.

(1-A) Either party to a marriage,
whether solemnised 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
solemnised 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 solemnisation 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 solemnisation 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; or

(iv) that her marriage (whether
consummated or not) was solemnised
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
solemnised
before
or
after
the
commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976).
STATE AMENDMENT

Uttar
Pradesh.--
In
its
application to Hindus domiciled in Uttar
Pradesh and also when either party to the
marriage was not at the time of marriage
a Hindu domiciled in Uttar Pradesh, in
section 13--

(i) in sub-section (1), after
clause (i) insert (and shall be deemed
always to have been inserted) the
following

"(1-a)
has
persistently
or
repeatedly treated the petitioner with such
1 All. Smt. Shashi Bala Vs. Rajendrapal Singh
1469
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",
and

(ii) for clause (viii) (since
repealed) substituted and deem always to
have been so substituted for following.

"
(viii)
has
not
resumed
cohabitation after the passing of a decree
for judicial separation against that party
and--

(a) a period of two years has
elapsed since the passing of such decree,
or

(b) the case is one of exceptional
hardship to the petitioner or of exceptional
depravity on the part of other party; or"."

13. Section (1) (i-b) of Act of 1955
provides that a decree of divorce can be
granted in case after the solemnization of
marriage, the petitioner has been treated
with 'cruelty'. Similarly Section 13 (I) (i-b)
of Act 1955 provides for grant of decree of
divorce provided the other party has
'deserted' petitioner for a continuous
period of not less than two years
immediately preceding the presentation of
the petition.

14. Admittedly, Plaintiff filed above
mentioned suit for divorce on the grounds
of 'cruelty' as well as 'desertion'. Court
below upon consideration of pleadings as
well as oral and documentary evidence on
record concluded that Plaintiff has failed
to prove commission of physical or mental
'cruelty' by Appellant upon him. To the
contrary, Court below conluded that in fact
'cruelty' has been committed by Plaintiff
upon Appellant. Therefore, plea of 'cruelty'
raised by Plaintiff, as a ground of divorce,
stands negated by Court below. There is
no cross appeal by Plaintiff or a regular
appeal
challenging
aforesaid
finding
recorded by Court below. As such,
conclusion drawn by Court below that
Plaintiff has failed to establish commission
of
physical
or
mental
'cruelty'
by
Appellant upon him has become final.
Consequently, this Court cannot examine
correctness of aforesaid finding recorded
by Court below.

15. Court below has decreed suit of
Plaintiff on the ground of desertion. On
evaluation of pleadings and material on
record Court below has concluded that
Appellant
has
deserted
Plaintiff
on
28.02.2004 and since then parties are
living separately. Court below has further
observed that upto date of delivery of
judgement, more than 11 years have rolled
by and parties have not met each other.
Reference was also made to various other
pleadings showing intention of parties not
to live together. On aforesaid factual
premise, Court below concluded that there
is proved 'desertion' on the part of
Appellant and consequently decreed suit
for divorce filed by Plaintiff.

16. Mr. Satyendra Kumar Singh,
learned counsel for Appellant submits that
in order to decree a suit for divorce on the
ground
of
'desertion'
precondition
provided in Section 13 (I) (ib) of Act 1955
has to be fulfilled on the date of
presentation of plaint. According to
counsel for Appellant, date of 'desertion'
on the part of Appellant stated in plaint is
28.02.2004 whereas plaint itself was
presented on 07.03.2005. He thus submits
that on the date of presentation of plaint, a
period of two years had not rolled by and
therefore,
mandatory
requirement
of
Section 13(I) (ib) of Act 1955 was not
fulfilled. Consequenlty, Court below could
not have decreed suit of Plaintiff on the
1470 INDIAN LAW REPORTS ALLAHABAD SERIES
ground of 'desertion'. As such, judgement
and decree passed by Court below is
manifestly illegal and liable to be set aside
by this Court.

17. Mr. Tarun Agarwal, Advocate on
the other hand has supported impugned
judgement and decree passed by Court
below. According to counsel for Plaintiff,
irrespective of factual scenario that period
of two years had not elapsed on the date of
presentation of plaint, yet it is an
undisputed
fact
that
Appellant
has
remained in 'desertion' for the last 15
years. He has also referred to pleadings of
parties showing their disinclination for
residing together. He thus urged that even
if decree passed by Court below cannot be
sustained on the ground of proved
'desertion', still it can be maintained on the
ground of 'irretrievable break down' of
marriage. Forcing the parties to live
together after such a long period of self
imposed isolation would itself cause
injustice rather than doing justice to
parties.

18. Section 13(I) (ib) of Act 1955 is
a mandatory provision and therefore, if a
suit for divorce is filed on the ground of
'desertion', the precondition provided in
above Section for grant of decree of
divorce on the ground of desertion must be
fulfilled on the date of presentation of suit.
Admittedly,
date
of
desertion
by
Appellant, pleaded in plaint is 28.02.2004
whereas
plaint
was
presented
on
07.03.2005. Evidently, period of two years
of desertion on the part of Appellant had
not expired on the date of presentation of
plaint. Therefore, precondition provided in
Section 13(I) (i-b) of Act 1955 was not
fulfilled on the date of presentation of suit.
Subsequent events which have taken place
after the institution of suit are irrelevant as
same cannot be taken into consideration
under scheme of Act 1955. Therefore, we
have no hesitation to hold that decree
passed by Court below decreeing suit for
divorce filed by Plaintiff on ground of
'desertion' is manifestly illegal.

19. With regard to the argument
relating to irretrievable break down of
marriage, we find from perusal of plaint
that no such ground was pleaded in the
plaint. Therefore, question that crops up
for consideration is "whether a decree of
reversal can be passed on a ground which
was not the subject matter of adjudication
before the Court below."

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

"28.
The
above
findings
recorded by Court below could not be
shown perverse or contrary to record.
Having considered the fact that parties are
living separately from decades, we are
also of the view that marriage between two
is irretrievable and has broken down
completely. Irretrievable breakdown of
marriage is not a ground for divorce
under Act, 1955. But, where marriage is
beyond repair on account of bitterness
created by the acts of the husband or the
wife or of both, Courts have always taken
irretrievable breakdown of marriage as a
very weighty circumstance amongst others
necessitating severance of marital tie. A
marriage which is dead for all purposes
cannot be revived by the Court's verdict, if
the parties are not willing. This is because
marriage involves human sentiments and
1 All. Smt. Shashi Bala Vs. Rajendrapal Singh
1471
emotions and if they are dried-up there is
hardly any chance of their springing back
to life on account of artificial reunion
created by the Court's decree. On the
ground of irretrievable marriage, Courts
have allowed decree of divorce and
reference may be made to Naveen Kohli v.
Neelu Kohli (2006) 4 SCC 558 and
Rishikesh Sharma Vs. Saroj Sharma,
2006(12)
SCALE
282.
It
is
also
noteworthy that in Naveen Kohli v. Neelu
Kohli
(supra)
Court
made
recommendation to Union of India that
Act, 1955 be amended to incorporate
irretrievable breakdown of marriage as a
ground for grant of divorce. "

21. Similarly this Court in First
Appeal No. 792 of 2008 (Ashwani Kumar
Kohli Vs. Smt. Anita) decided on
17.11.2016 has also considered this
question and observed as follows in
paragraphs 7, 8, 10, 11, 12 and 13:-

"7.
Therefore,
point
for
adjudication in this appeal is "whether a
decree of reversal can be passed by
granting divorce to the appellant on the
ground which was not subject matter of
adjudication before the Court below and is
being raised for the first time in appeal".

8. Under the provisions of Act,
1955 there is no ground like any
"irretrievable breakdown of marriage",
justifying divorce. It is a doctrine laid
down by judicial precedents, in particular,
Supreme Court in exercise of powers
under Article 142 of the Constitution has
granted decree of divorce on the ground of
irretrievable breakdown of marriage.

10.
This
aspect
has
been
considered by this Court in Ram Babu
Babeley Vs. Smt. Sandhya AIR 2006 (All)
12 = 2006 AWC 183 and it has laid down
certain inferences from various authorities
of Supreme Court, which read as under:-

"(i)
The
irretrievable
break
down of marriage is not a ground for
divorce by itself. But while scrutinizing the
evidence on record to determine whether
the grounds on which divorce is sought
are made out, this circumstance can be
taken into consideration as laid down by
Hon'ble Apex Court in the case of Savitri
Pandey v. prem Chand Pandey, (2002) 2
SCC 73 and V. Bhagat versus D. Bhagat,
AIR 1994 SC 710.

(ii) No divorce can be granted
on the ground of irretrievable break down
of marriage if the party seeking divorce on
this ground is himself or herself at fault
for the above break down as laid down in
the case of Chetan Dass Versus Kamla
Devi, AIR 2001 SC 1709, Savitri Pandey v.
prem Chand Pandey, (2002) 2 SCC 73 and
Shyam Sunder Kohli v. Sushma Kohli,
(2004) 7 SCC 747.

(iii) The decree of divorce on the
ground that the marriage had been
irretrievably broken down can be granted
in those cases where both the parties have
levelled such allegations against each
other that the marriage appears to be
practically dead and the parties can not
live together as laid down in Chandra
Kala Trivedi versus Dr. SP Trivedi, (1993)
4 SCC 232.

(iv)The decree of divorce on the
ground that the marriage had been
irretrievably broken down can be granted
in those cases also where the conduct or
averments of one party have been so much
painful for the other party ( who is not at
fault) that he cannot be expected to live
with the offending party as laid down in
the cases of V. Bhagat versus D. Bhagat,
(supra), Ramesh Chander versus Savitri,
(1995) 2 SCC 7, Ashok Hurra versus Rupa
Bipin Zaveri, 1997(3) AWC 1843 (SC),
1472 INDIAN LAW REPORTS ALLAHABAD SERIES
1997(3)
A.W.C.
1843(SC)
and
A.
Jayachandra versus Aneel Kaur, (2005) 2
SCC 22.

(v) The power to grant divorce
on the ground of irretrievable break down
of marriage should be exercised with much
care
and
caution
in
exceptional
circumstances only in the interest of both
the parties, as observed by Hon'ble Apex
Court at paragraph No. 21 of the
judgment in the case of V. Bhagat and
Mrs. D. Bhagat, AIR (supra) and at para
12 in the case of Shyam Sunder Kohli
versus Sushma Kohli, (supra)."

11. The above authorities have
been followed by this Court in ''Pradeep
Kumar Vs. Smt. Vijay Lakshmi' in 2015 (4)
ALJ 667 wherein one of us (Hon'ble
Sudhir Agarwal,J.) was a member of the
Bench.

12. In Vishnu Dutt Sharma Vs.
Manju Sharma, (2009) 6 SCC 379, it was
held that under Section 13 of Act 1955
there is no ground of irretrievable
breakdown of marriage for granting
decree of divorce. Court said that it cannot
add such a ground to Section 13, as that
would amount to amendment of Act, which
is the function of legislature. It also
referred to some judgments of Supreme
Court in which dissolution of marriage
was allowed on the ground of irretrievable
breakdown but held that those judgments
do not lay down any precedent. Supreme
Court very categorically observed as
under:-

"If we grant divorce on the
ground of irretrievable breakdown, then
we shall by judicial verdict be adding a
clause to Section 13 of the Act to the effect
that irretrievable breakdown of marriage
is also a ground for divorce. In our
opinion, this can only be done by the
legislature and not by the Court. It is for
the Parliament to enact or amend the law
and not for the Court. Hence, we do not
find force in the submission of learned
counsel for the appellant."

13. The above view has been
followed in Darshan Gupta Vs. Radhika
Gupta (2013) 9 SCC 1. Similar view was
expressed
in
''Gurubux
Singh
Vs.
Harminder Kaur' (2010) 14 SCC 301. This
Court also has followed the above view in
Shailesh Kumari Vs. Amod Kumar Sachan
2016 (115) ALR 689."

22. In the case in hand, we find that
the parties have not been living separately
on account of their own free will. Record
shows that it is plaintiff, who has refused
to
keep
Appellant
alongwith
minor
children
with
him.
Appellant
has
categorically pleaded that intention of
Plaintiff since beginning was to spoil
matrimonial
life.
Plaintiff
never
discharged his liability towards Appellant
i.e. his wife nor paid attention towards his
children. In this view of matter, argument
raised by learned counsel for Appellant
that there has been an irretrievable break
down
of
marriage
has
no
factual
foundation. That apart, this Court in
Ashwani Kumar Kohli (supra) has held
that divorce cannot be granted on the
aforesaid ground particularly when such a
plea is raised by one party alone. In
addition to aforesaid, decree of divorce
was not prayed for on ground of
irretrievable break down of marriage as
parties are alleged to have been living
separately since 28.02.2004. Plaint of
above
mentioned
divorce
suit
was
presented in 2005 whereas divorce petition
was finally decided vide judgement dated
13.03.2015 and decree dated 27.03.2015
passed by Principal Judge (Family Court),
Ghaziabad in Suit No. 367 of 2005 (Sri
Rajendra Pal Singh Vs. Smt. Shashi Bala).
For a period of eleven long years, Plaintiff
1 All. Smt. Shashi Bala Vs. Rajendrapal Singh
1473
kept quiet and now for the first time, this
issue has been raised. Thus we are of the
considered
opinion
that
Plaintiff
is
estopped from raising this plea.

23. In the light of law laid down by Apex
Court and the facts of case, the following
undisputed position emerges. Appellant has left her
matrimonial
home
on
28.02.2004.
From
28.02.2004 till today, i.e. for more than fifteen years
parties, they have been living in isolation. There is
no evidence on record that Plaintiff made any
attempt for restitution of conjugal rights. There is
also no evidence showing action taken by Plaintiff
in discharge of his moral and legal obligations
towards his wife i.e. Appellant and minor children.
Court below has recorded conclusive finding that it
is Plaintiff who has committed physical / mental
'cruelty' upon Appellant and not vice-versa. In view
of aforesaid findings, it cannot be said that Appellant
has 'deserted' Plaintiff and that too without any
reasonable cause. On the contrary, she has been
forced to leave her matrimonial home.

24. In the aforesaid backdrop, we are
unable to uphold impugned judgement and
decree passed by Court below. The appeal
succeeds
and
is
allowed.
Impugned
judgement dated 13.03.2015 and decree dated
27.03.2015 passed by Principal Judge, Family
Court, Ghaziabad in Suit No. 367 of 2005 (Sri
Rajendra Pal Singh Vs. Smt. Shashi Bala) are
hereby set aside. Aforesaid suit filed by
Plaintiff shall stand dismissed.

25. Considering the facts and
circumstances of case, we quantify the
cost at Rs.2 Lakhs to be paid by Plaintiff
to Appellant within a period of one month
from today by means of an account payee
draft drawn in favour of Appellant, failing
which, Court below shall proceed to
recover same as if it is recovery pursuant
to an order passed by Court below itself.
----------
(2020)1ILR 1472

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2020

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Second Appeal No. 1045 of 2019

Dharmendra Yadav ...Appellant
Versus
Girish Kumar Sahni ...Respondent

Counsel for the Appellant:
Sri Manish Goyal, Sri Nikhil Mishra

Counsel for the Respondent:
Sri Sunil Dutt Kautilya, Sri H.N. Singh, Sri
Vineet Kumar Singh

A. Licence cannot be revoked, if the
licencee acting upon the licence had
executed a work of permanent character
as contemplated by section 60(b) of the
Easement Act. (Para 26)

B. Code of Civil Procedure, 1908 - Section
100
-
challenge
to-decree
of
suitappellant was in possession of the shop
as licencee-nature of licence whether
revocable or irrevocable was in issue
before the appellate court-fixture on the
wall of disputed shop is not at all an
improvement of permanent character-no
material on record to show that any
construction was made inside the shopraising of wall or removal of existing wall
may not amount to permanent structurethus, licence in favour of appellant
remains of revocable nature-conclusion
arrived at by the lower appellate court is
legally sustainable. (Para 12 to 17, 31 to 42)

C. Licence is merely for the use of the
licensed property by the grantee and it
does not create any interest in the
property and a licencee is not legally