The Allahabad High Court allowed a family Court appeal challenging the impugned dismissal order dated 28.11.2005, passed by Family Court, on a divorce petition filed by the appellant-husband in Marriage Petition, under Section 13 Hindu Marriage Act, 1955.

The Court observed that not allowing a spouse for a long time, to have sexual intercourse with his or her partner, without sufficient reason, itself amounts to mental cruelty to such spouse.

Brief Facts:

The plaintiff-appellant and defendant-respondent were married on 05.05.1979. According to the appellant, for some time, the behavior and conduct of the defendant-respondent was good but suddenly, she changed her gait and refused to live with him as wife. Apathy and her inhuman conduct towards the appellant became apparent in a short time. The plaintiff-appellant tried a lot to convince her but she did not establish a relationship with him.

According to the appellant, though they lived under the same roof for some time, the respondent voluntarily began to live separately after some time of her Gauna, at her parents' house. The plaintiff-appellant went to take his wife, but she refused to accompany him. She asked him to take divorce on consent, whereupon, the plaintiff-appellant told her parents about the proposal of the defendant/respondent to which they agreed.

On 04.07.1994, there was Panchayat in the village and according to community rituals, the parties agreed to divorce. According to the plaintiff-appellant, defendant-respondent no. 1 had contracted a second marriage with defendant-respondent no. 2, and two sons were born from their wedlock. According to the plaintiff-appellant, he sought a decree of divorce on the basis of mental cruelty, long desertion, and a divorce agreement dated 04.07.1994.

After examining the entire evidence led before the court below, it did not find the case of the plaintiff-appellant proved and the case was ordered to be dismissed ex-parte with cost. After examining the entire evidence led before the court below, it did not find the case of the plaintiff-appellant proved and the case was ordered to be dismissed ex-parte with cost.

Observations of the Court:

The Court noted that there is nothing on record to disbelieve the plaintiff-appellant's case as well his uncontroverted evidence. It is evident from the record that for a long time, the parties to the marriage have been living separately; according to the plaintiff-appellant, the defendant-respondent had no respect for the marital bond and denied to discharge the obligation of marital liability. There has been a complete breakdown of their marriage. The Court remarked that the court below has adopted a hypertechnical approach and passed the order of dismissal of the plaintiff-appellant's case. There is nothing on record to controvert the evidence of the plaintiff-appellant. 

Further, the Court observed that not allowing a spouse for a long time, to have sexual intercourse with his or her partner, without sufficient reason, itself amounts to mental cruelty to such spouse. The Court noted that since there is no acceptable view in which a spouse can be compelled to resume life with the consort, nothing is given by trying to keep the parties tied forever to a marriage than that has ceased to in fact.

The decision of the Court:

The Allahabad High Court, allowing the petition, quashed and set aside the impugned order of the Family Court and held that the marriage petition filed by the plaintiff-appellant stands allowed granting a decree of divorce.

Case Title: Ravindra Pratap Yadav vs Smt. Asha Devi And Ors.

Coram: Hon’ble Justice Suneet Kumar and Hon’ble Justice Rajendra Kumar

Case no.: FIRST APPEAL No. - 405 of 2013

Advocate for the Petitioner: Mr. Islam, Ahmad

Advocate for the Respondent: Mr. Azim Ahmad Kazmi

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Deepak