# Smt. Shruti Bhatnagar v. Sri Mayank Bhatnagar

- **Citation:** (2021) 9 ILRA 718
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-12
- **Case number:** First Appeal No. 627 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker, Subash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shruti-bhatnagar-v-sri-mayank-bhatnagar-47387
- **Pages:** 6

## Headnote

A. Civil Law-Code of Civil Procedure, 1908Section 96 & Hindu Marriage Act, 1955Section 13(1)(i-a)-challenge to-dismissal
of divorce petition by Family court-wife
subjected to cruelty, both physical and
mental, under the guise of the demand of
cash-respondent
remained
absent
for
three years though served-husband has
not come forward to contest the appeal
nor stepped into the witness box-adverse
inference not drawn by the trial court
against the respondent/husband caused
injury to the appellant/wife-no animus of
cohabitation-no
endeavour
for
reconciliation
which
clearly
establish
animus deserendi-conduct adopted by
husband proved cruelty-it amounted to
wilful neglect of wife-decree of divorce
granted.(Para 1 to 14)

B. Once the parties have separated and
the
separation
has
continued
for
a
sufficient length of time and one of them
has presented a petition for divorce, it can
well be presumed that the marriage has
broken down. The Court, no doubt, should
seriously make an endeavour to reconcile
the parties, yet, if it is found that the
breakdown is irreparable, then divorce
should not be withheld. The consequences
of preservation in law of the unworkable
which has long ceased to be effective are
bound to be a source of greater misery for
the parties.(Para 9, 10)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

718 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)09ILR A718
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBASH CHAND, J.

First Appeal No. 627 of 2019

Smt. Shruti Bhatnagar ...Appellant
Versus
Sri Mayank Bhatnagar ...Respondent

Counsel for the Appellant:
Sri Ashok Shankar Bhatnagar, Sri Harsh
Bhatnagar

Counsel for the Respondent:

A. Civil Law-Code of Civil Procedure, 1908Section 96 & Hindu Marriage Act, 1955Section 13(1)(i-a)-challenge to-dismissal
of divorce petition by Family court-wife
subjected to cruelty, both physical and
mental, under the guise of the demand of
cash-respondent
remained
absent
for
three years though served-husband has
not come forward to contest the appeal
nor stepped into the witness box-adverse
inference not drawn by the trial court
against the respondent/husband caused
injury to the appellant/wife-no animus of
cohabitation-no
endeavour
for
reconciliation
which
clearly
establish
animus deserendi-conduct adopted by
husband proved cruelty-it amounted to
wilful neglect of wife-decree of divorce
granted.(Para 1 to 14)

B. Once the parties have separated and
the
separation
has
continued
for
a
sufficient length of time and one of them
has presented a petition for divorce, it can
well be presumed that the marriage has
broken down. The Court, no doubt, should
seriously make an endeavour to reconcile
the parties, yet, if it is found that the
breakdown is irreparable, then divorce
should not be withheld. The consequences
of preservation in law of the unworkable
which has long ceased to be effective are
bound to be a source of greater misery for
the parties.(Para 9, 10)

The appeal is allowed. (E-6)

List of Cases cited:

1. V.Bhagat Vs D. Bhagat (1994) 1 SCC 337

2. G. Padmini Vs G.Sivananda Babu, (2000) AIR
A.P. 176

3. Jitendra Kumar Vs Ankita Sharma @ Thakur

4. Naveen Kohli Vs Neelu Kohli (2006) 3 GLR
2182

5. Geeta Jagdish Mangtani Vs Jagdish Mangtani
(2005) AIR SC 3508

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Subash Chand, J.)

1. Heard Shri Harsh Bhatnagar,
learned counsel holding brief of Shri Ashok
Shankar Bhatnagar, learned counsel for the
appellant. Though served respondent for
three years has absented here as also before
the family court

2. This appeal, has been filed by the
appellant to set aside the judgment dated
29.07.2019 passed by Principal Judge,
Family Court, Ghaziabad in O.S. No. 158
of 2018 and allow the petition of the
appellant under Section 13(1)(i-a) of Hindu
Marriage Act, 1955.

3. The short brief facts as culled out
from the record are that the appellant was
married with respondent on 11.02.2012 by
9 All Smt. Shruti Bhatnagar Vs. Sri Mayank Bhatnagar
719
performing all the Hindu rituals. There is
no dispute to this fact. Immediately after
the wedding, the husband and his family
members started harassing the appellant
who was at the matrimonial home in
Udaipur in the State of Rajasthan. The
husband lost his job and therefore, started
demanding money from the father of the
appellant who showed his inability to pay a
sum of Rs. 20 lakhs. After this incident the
husband and the family members started
abusing
and
insulting
the
appellant,
however, she tolerated all this so as to save
her matrimony, during this period she
conceived a child but because of the
unhappiness and because her parents was
unable to pay Rs. 20 lakhs, she was forced
to abort the child and the child aborted.
Looking to this unhappy incident, the father
of the appellant paid a sum of Rs. 10 lakhs.
The husband after procuring the money
from the appellant he was in debt and was
running here and there. The appellant
herein gave birth to a female child which
infuriated the respondent more than what
he was before the incident. He was
indebted to people to the tune of Rs. 40
lakhs, his cruelty day and day out had
started physically assaulting her. The
appellant's father who lived in a rented
house in Ghaziabad and therefore in the
year 2017 when she was driven out of the
house and when the husband went away
and absconded, she was also thrown out of
the house with her daughter. All this was
tolerated by the wife and much later in the
year 2018 she filed the suit for divorce
which
was
conducted
ex-parte.
The
judgement spells out in:

3." प्रनतवादी को दावे की सूचना भेजी
गयी। कई बार पिंजीकृत डाक से सूचना भेजी
गयी। अखबार में प्रकाशन कराया, लेनकन दावे
की खबर होने के बावजूद उसने जानबूझकर
उपन्तस्थत होकर जवाब दावा नहीिं लगाया।
प्रनतवादी के द्वारा जानबूझकर न्यायालय में
उपन्तस्थत न होने की पररन्तस्थनतयोिं में उनके
नवरूद्ध नदनािंक 21.01.2019 को एकपक्षीय
कायावाही का आदेश हुआ।

4. याचनी को एकपक्षीय साक्ष्य का
अवसर नदया गया, नजस पर याचनी द्वारा साक्ष्य
में अपना साक्ष्य शपथ-पत्र दान्तखल नकया गया है।
अन्य नकसी साक्षी का साक्ष्य शपथ-पत्र दान्तखल
नहीिं नकया गया है। दस्तावेजी साक्ष्य के रूप में
शादी की र्ोटो, शादी का काडा, आधार हेतु
नकये गये आवेदन की र्ोटोप्रनत, एकनकता रेंट
एग्रीमेंट व शादी व पुत्री के जन्म के समय नदये
गये सामान की सूची दान्तखल की गयी है।

6. अब देखना यह है नक क्या याचनी
अपनी केस एकपक्षीय रूप से सानबत करने में
सर्ल रही है? अपने केस के समथान में याचनी
द्वारा अपना साक्ष्य शपथ-पत्र दान्तखल नकया गया
है। अन्य नकसी साक्षी का साक्ष्य शपथ-पत्र
दान्तखल नहीिं नकया गया है। प्रनतवादी द्वारा की
गयी िूरता की बाबत कोई अनभलेख साक्ष्य
याचनी द्वारा प्रस्तुत नहीिं की गयी है।"

4. Despite this the learned Judge
dismissed the application for decree for
divorce on the ground that:-

".... प्रस्तुत प्रकरण में याचनी की
साक्ष्य से यह कतई स्पि नहीिं होता है नक याचनी
का प्रनतवादी के साथ रहने की न्तस्थनत में जीवन
खतरे में है। अतः केस के तथ्ोिं एविं पररन्तस्थतयोिं
के आलोक में मयिंक भटनागर ने कोई भी िूरता
याचनी के प्रनत की हो ऐसा आरोप याचनी
सानबत करने में पूरी तरह से असर्ल रहा है।

याची के द्वारा जनपद गानजयाबाद में
ननवास के सिंबिंध में केवल नोटेरी नकरायानामा
दान्तखल नकया है, परिु उि नकरायानामा को
720 INDIAN LAW REPORTS ALLAHABAD SERIES
सम्पनत्त मानलक को न्यायालय में परीनक्षत कर
सत्यानपत नहीिं कराया है।...." and has rejected
the application. It is this order which has
given rise to this appeal.

5. By way of this appeal the
appellant who had moved the Family
Court for seeking divorce from her
husband has moved this Court contending
that despite the above mentioned facts the
matter
was
not
contested
by
the
respondent-husband. The court on two
counts
dismissed
the
Family Court
petition for divorce, one of the grounds
on which the petition was dismissed that
the appellant herein could not prove that
she was resident of Ghaziabad. For that
the appellant has contended that she had
applied for Aadhar Card after been
thrown away from the matrimonial home
she was moved to Ghaziabad and was
residing there when Family Court when
the application for divorce was filed, she
has filed the application in Ghaziabad.
She is daughter of late. Sanjay Bhatnagar
and she used to stay in tehsil " 710C
Pinakel Towers Ahinsa Khand, Dwitiya
Tehsil,
Ghaziabad"
which
she
has
maintained also in 2021, this is the
submission of the learned counsel of the
appellant and the appellant has not
changed the address.

6. The provisions of Section 19 of the
Hindu Marriage Act, 1955 relates to
jurisdiction. The petition was filed under
Section 13 of the Hindu Marriage Act and
Section 19 of the Hindu Marriage Act, 1955
reads as follows:-

"19. Court to which petition shall
be presented.- Every petition under this Act
shall be presented to the district court within
the local limits of whose ordinary original
civil jurisdiction-

(iiia) in case the wife is the
petitioner, where she is residing on the date
of presentation of the petition, or..."

7. The facts reveal that at the time of
filing of the petition the appellant proved
that the residence was falling in territorial
jurisdiction of the family court , as per
provisions of Act the petition can be filed
where the residence of petitioner was
disclosed and no rebuttal evidence came on
record to contend that the petitioner was
not giving correct facts. The another
ground to dismiss the petition is that
petitioner failed to prove cruelty by cogent
evidence that husband had perpetuated
mental cruelty though she has condoned the
same once the court has lost sight of the
fact that cruelty has to be decided on facts
it might have been condoned once but that
is not conclusive that it was not revisited
and was again repeated. The learned
counsel for the appellant has taken us to the
record and has referred to, page 15 which
narrates the genesis of all the events which
the learned counsel for the appellant has
requested us to go through which would go
to show that the chain is complete and the
behaviour of the husband has been such
which shows that he has not only deserted
but before deserting the wife he has forced
her to leave Rajasthan and move to
Ghaziabad disowning the wife after the
birth of a female child is the highest kind of
cruelty and therefore in the case on hand
the matter will have to be decided based on
the facts emerging are (a) desertion (b)as
well as cruelty. We are fortified by the
judgements in the case of V. Bhagat Vs. D.
Bhagat, (1994) 1 SCC 337, G.Padmini
Vs.
G.Sivananda
Babu,
AIR
2000
Andhra Pradesh 176 and Jitendra
Kumar Vs. Ankita Sharma @ Thakur,
on which heavy reliance is placed by the
learned counsel for the appellant.
9 All Smt. Shruti Bhatnagar Vs. Sri Mayank Bhatnagar
721

8. There is not even a whisper on
record to show that ever the husband tried to
carry the wife and maintain her. The
evidence of the wife clearly shows that on
account of subjecting cruelty, both physical
and mental, under the guise of the demand
of cash, ornament etc.The respondent
husband has persistently remained absent for
more than 3 years though he have been
served with summons of both the courts
namely the family court and court of appeal
namely in this appeal . The respondent has
not appeared before this Court. The
evidence reveals three facts: (1) that the
husband has no animus of cohabitation;
(2)the petitioner has substantiated her say
with evidence and even she has in her oral
testimony proved the facts alleged .
Moreover, the petitioner has proved the facts
averred about residential proof . Even if the
decree be not granted on the ground of
desertion but on the ground of irretrievably
breaking down of marriage and on the
ground of cruelty a decree was required to
be passed in favour of the petitioner
appellant as the facts also shows that the
respondent and his family members have
caused mental cruelty to the petitioner.

9. We would take assistance from a the
judgment reported in 2006 (3) GLR 2182
between Naveen Kohli vs. Neelu Kohli,
wherein it has been held as follows:

"Irretrievable
breakdown
of
marriage is not a ground for divorce under
the Hindu Marriage Act, 1955. Because of
the change of circumstances and for covering
a large number of cases where the marriages
are virtually dead and unless this concept is
pressed into service, the divorce cannot be
granted. Ultimately, it is for the legislature
whether to include irretrievable breakdown
of marriage as a ground of divorce or not,
but the legislature must consider irretrievable
breakdown of marriage as a ground for grant
of divorce under the Hindu Marriage Act,
1955.

Once the parties have separated
and the separation has continued for a
sufficient length of time and one of them has
presented a petition for divorce, it can well be
presumed that the marriage has broken
down. The Court, no doubt, should seriously
make an endeavour to reconcile the parties,
yet, if it is found that the breakdown is
irreparable, then divorce should not be
withheld. The consequences of preservation
in law of the unworkable marriage which has
long ceased to be effective are bound to be a
source of greater misery for the parties."

It would be necessary to refer to
the provisions of Section 13 (1) (i-a) and (iii)
of the Hindu Marriage Act, 1955 which
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) XXX
 XXX

 XXX

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

(i-b) XXX

 XXX

XXX

(ii) XXX
XXX

XXX

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

XXX

XXX

XXX

10. So considering the above
provisions of Section 13 (1) of the Hindu
Marriage Act, and in light of the facts and
in light of the findings that the marriage is
not only irretrievably broken, the wife was
treated by the husband with mental cruelty
without any reason and there was no
animus of cohabiting shown by the
husband .We find support In decision titled
K. Srinivas Rao Vs. D.A. Deepa A.I.R.
2013 SC 2176 where the Court held
"cruelty is evident where one spouse has so
treated the other and manifested such
feelings towards her or him as to cause in
her or his mind reasonable apprehension
that it will be harmful or injurious to live
with the other spouse.Cruelty may be
physical or mental. A sustained course of
abusive
and
humiliating
treatment
calculated to torture, discommode orrender
miserable life of the spouse is cruelty.
Mental cruelty is a state of mind. The
feeling
of
deep
anguish,
disappointment,frustration in one spouse
caused by the conduct of other for a long
time
may
lead
to
mental
cruelty.
Accusations of unchastity and indecent
familiarity with a neighbour were made in
the written statement support the allegation
of mental cruelty caused to husband by
wife. Humiliation by leveling allegation o
fillicit relations of husband with some other
ladies
that
too
unproved
and
unsubstantiated, humiliation of parents of
husband, complaint to police authorities
against husband for such unfounded
allegations collectively do constitute a clear
case of mental cruelty justifying divorce
under Section 13 of Act,1955."

11. As stated earlier, the
respondent-husband has not come forward
before this Court to contest this appeal and
has
chosen
to
remain
absent.The
respondent has not cross-examined the
petitioner before the trial court and has not
stepped into the witness box. The say of the
petitioner in her petition as well as in her
affidavit,
has
therefore,
remained
unchallenged
and
uncontroverted
and
stands proved and adverse inference should
have been drawn against the respondent but
non considering by trial court has caused
injury to appellant wife . This Court has
also no reason to disbelieve the say of the
petitioner/appellant on oath as she has
proved her averments by stepping into the
witness-box.
The
petitioner
has
categorically stated in the way in which she
was treated with mental and physical
cruelty
and
was
deserted
by
the
respondent.It is an admitted position of fact
that there is a desertion of more than two
years. Thus it goes without saying that the
ingredients of the Section 13 of Hindu
Marriage Act 1955 have been proved by
the wife. The averments of the plaint and
the facts proved by the wife shows that the
husband has perpetrated cruelty on the
wife. The averments of the wife stated in
the petition and this appeal have gone
uncontroverted and unchallenged and from
the evidence it emerges that the petitioner
has been subjected to the cruelty and is
deserted, and therefore, this is a clear case
of cruelty and desertion for the following
reasons:

11. There is no cohabitation by and
between
the
parties.
The petitioner's
allegations are not refuted or controverted
9 All Ishwar Saran (since deceased) & Ors. Vs. Vijai Kumar Kushwaha & Ors.
723
by the respondent, as he has not stepped
into the witness box;

12. The respondent has not made any
endeavour of reconciliation and has also
not appeared before this Court and has
chosen to remain absent though served.

13. The petitioner was subjected to
the mental and physical cruelty as alleged
in the petition. So, from the above said
reasons, the marriage seems to have turned
into deadlock as they have no cohabitation
with each other since last more than two
years. Therefore, the petitioner has been
successful in establishing that she was
treated with cruelty and has been deserted
by
the
husband
and
hence
the
petitioner/appellants entitled to a decree of
divorce as prayed for therefore, in view of
the above, a decree of divorce requires to
be granted to this petitioner/appellant. .It is
proved that she was driven out of the
matrimonial house and neglected by the
husband, which is obviously proved and
thus, she is entitled to divorce.We are also
fortified in our view by placing relence on
the decision in The judgment reported in
AIR 2005 SC 3508 in the case of Geeta
Jagdish
Mangtani
v.
Jagdish
Mangtani,which also helps the petitioner's
case as there where thefacts show " the
wife left matrimonial home in Mumbai
only after about 4 months of marriage and
started living with her parents in Gujarat
where she gave birth to child and then
continued with her teaching job. No
attempt was made by her to stay with
husband which clearly established animus
deserendi. The course of conduct adopted
by the respondent proved desertion on her
part without reasonable cause. The Hon'ble
Supreme Court has held that it amounted to
willful neglect of husband and he, is
therefore, entitled to divorce decree".

14. The appeal is allowed.

15. The marriage dated 11.02.2012
are ordered to be dissolved. The Marriage
Petition No. 518 of 2018 (Smt. Shruti
Bhatnagar Vs. Mayank Bhatnagar) under
Section 13 (1)(A)of Hindu Marriage
Act1955 is allowed .The judgment and
decree are reversed. The family court to
draw modified decree in consonance with
this judgment within eight weeks from
today. Record be sent to the concerned
Family Court.

16. We are thankful to young counsel
who argued the matter and has assisted the
Court ably.
----------
(2021)09ILR A723
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2021

BEFORE

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

Second Appeal No. 1169 of 2018

Ishwar Saran (since deceased) & Ors.
 ...Defendant/Appellants
Versus
Vijai Kumar Kushwaha & Ors.
 ...Plaintiff/Respondents

Counsel for the Appellants:
Manjari Singh, Sri Ashotosh Guota, Sri
Kunal Ravi Singh

Counsel for the Respondents:

A.
Civil
Law
-
Code
of
Civil
Procedure,1908-Section
100-plaintiff
instituted a suit for partition-the suit
was
dismissed-this
decree
was
challenged belatedly by an appeal u/s
96 accompanied by an application u/s 5
of the limitation Act, seeking the delay