Gauhati High Court
Mat.App./22/2023 on 28 August, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
GAHC010078402019
2025:GAU-AS:11505-DB
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MAT APPEAL NO. 22/2023
Sri Tanay Talukdar,
Son of Marmeswar Talukdar,
Resident of House No. 07,
Japarigog, Manik Nagar,
P.O - Japarigog,
P.S.- Dispur,
District- Kamrup (Metro), Assam.
.......Appellant
-Versus-
Smt. Karbi Das
Wife of Tanay Talukdar,
Daughter of Khagen Das,
Resident of House No. 07,
Japarigog, Manik Nagar,
P.O - Japarigog,
P.S.- Dispur,
District- Kamrup (Metro),
Assam.
.......Respondent
-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant : Mr. K Bhattacharjee, Ms. B Talukdar,
Advocate.
For the Respondent : Ms. B Bhuyan, Amicus Curiae for the
sole respondent.
Date of Hearing : 19.08.2025.
Date of Judgment : 28.08.2025.
JUDGMENT & ORDER (CAV)
KAUSHIK GOSWAMI, J
Heard Mr. K Bhattacharjee, learned counsel for
the appellant. Also heard Ms. B Bhuyan, learned Amicus
Curiae/Senior counsel assisted by Ms. R Das, learned
counsel appearing for the sole respondent.
2. This appeal is presented under Section 28 of the
Hindu Marriage Act, 1955 [hereinafter referred to as the
„said Act‟] against the judgment and decree dated
17.12.2018 passed by the learned Principal Judge, Family
Court-I, Kamrup (Metro) at Guwahati in F.C.(Civil) Case
No. 496/2015, whereby the appellant‟s petition for
dissolution of the marriage by a decree of divorce under
Section 13 (1) (ia) of the said Act with the respondent/wife
was dismissed.
3. The brief facts are that the appellant/husband
and the respondent/wife were married according to Hindu
rites and customs on 08.02.2012 at Guwahati and
thereafter, they were living together in the house of the
appellant/husband at Japorigog, Guwahati.
4. It is the specific case of the appellant/husband
before the Trial Court that after marriage, the
respondent/wife subjected him to mental and physical
cruelty, including frequent quarrels, denial of physical
relation and unusual behavior on the first day of the
wedding, abusive language and misbehaving with the in-
laws, persistent demand for staying separately, baseless
allegations of illicit relations, public humiliation, frequently
coming home late at the night, denial of conjugal life and
lodging of false criminal complaint after receiving divorce
notice. Despite attempts at reconciliation, the
respondent/wife continued her hostile and insulting
conduct, making it impossible for the appellant/husband to
live with her and ultimately he had to take a rented house
in the month of January, 2015 and lived separately from
the respondent/wife. It is the further case of the
appellant/husband that since then there has been no
cohabitation between them and that there is also no
possibility of reconciliation, their marriage is liable to be
dissolved.
5. Accordingly, the appellant/husband presented a
petition for a decree of divorce before the jurisdictional
Family Court.
6. The respondent/wife contested the petition by
denying the allegations and asserting that it was the
appellant/husband who treated her with neglect and that
he was having an extra-marital affair with another woman.
However, she was willing to live with him.
7. The learned Family Court, upon appreciation of
evidence by judgment and decree dated 17.12.2018, held
that cruelty was not established and accordingly, dismissed
the said petition for divorce.
8. Aggrieved by the aforesaid judgment and decree,
the present appeal has been preferred.
9. Mr. K. Bhattacharjee, learned counsel for the
appellant/husband submits that the appellant/husband has
proved that their marriage is nothing but a dead marriage,
as admittedly since 2015 they have been living separately.
He accordingly, submits that the same deserves to be
given a descent quietus.
10. In support of the aforesaid submission, he relies
upon the following judgment of the Hon‟ble Apex Court in
the case of Ramanuj Kumar -Vs- Priyanka, reported
in 2025 (0) Supreme (S.C) 688.
11. He further submits that a case of cruelty having
clearly been established on the face of the materials
available on record, the judgment and order impugned is
totally erroneous and perverse. That apart, he submits that
it has also clearly come out from the evidence that the
respondent has been refusing to severe the marriage ties
and as such, there has been an irretrievable breakdown of
their marriage and hence, the same amounts to mental
cruelty.
12. In support of the above submissions, he relies
upon the following decisions -
(i) Ramanuj Kumar -Vs- Priyanka, reported in
2025 (0) Supreme (S.C) 688.
(ii) Narendra -Vs- K. Meena, reported in 2016 (9)
SCC 455.
(iii) Samar Ghosh -Vs- Jaya Ghosh, reported in
2007 (4) SCC 511.
(iv) Manisha Kumar -Vs- Kakkar, reported in 2020
AIR SC 111.
(v) Renju -Vs- Vijayata, reported in 2020 (0)
Supreme (Kerela) 558.
(vi) Charu Chug @ Charu Arora -Vs- Madhukar
Chug, reported in 2024 (0) Supreme (Allahabad)
78.
13. Per contra, Ms. B Bhuyan, learned Amicus Curiae
submits that in a petition for divorce on the grounds of
cruelty, the burden of proving the same lies on the person
who asserts it. In the instant case, she submits that the
appellant/husband had failed to probabilize the plea of
cruelty and hence, the impugned judgment and decree
warrants no interference from this appellate Court. In
support of the same, she relies upon the decision of the
Hon‟ble Apex Court in the case of Smt. Roopa Soni -Vs-
Kamalnarayan Soni reported in AIR 2023 SC 4186.
14. She further submits that in such a dispute, it is
the duty of the Court to take into account a host of factors
and the most important being whether the marriage can be
saved and the husband and wife can live together happily.
She further submits that in the instant case, it is clearly
evident from the evidence of the respondent adduced
before the Family Court that she does not want the divorce
and prefers to stay with the appellant/husband and
continue the conjugal relationship thereof. In support of
the same, she relies upon the decision of the Apex Court in
the case of Sujata Uday Patil -Vs- Uday Madhukar
Patil reported in (2006) 13 SCC 272.
15. She further submits that the respondent/wife
admittedly was not working during the time of the trial.
Hence, the appellant/husband is liable to be directed to
pay permanent alimony and maintenance to the
respondent/wife under Section 25 of the said Act.
16. We have given our prudent considerations to the
arguments advanced by the learned counsel for both the
contending parties and have carefully perused the material
available on record. We have also duly considered the case
laws cited at the bar.
17. On careful scrutiny of the pleadings and evidence,
it emerges that the appellant/husband has specifically
pleaded and deposed instances of humiliation, assault,
unfounded allegations of character assassination, denial of
companionship and instituted criminal litigation post receipt
of divorce notice.
18. The testimony of the appellant/husband as PW-1
reads as under -
"1. That the marriage between myself and the
respondent named above was solemnized on
08/02/2012 according to Hindu rites and rituals .
After the marriage both of us started out conjugal
life as husband and wife at my paternal home.
From the very beginning of our married life, I
always treated the respondent with love and
affection and my other paternal famıly members
particularly my mother always treated her as her
own daughter.
2. That after solemnization of marriage the
respondent did not show any love and affection to
me and did not show any respect to my parents.
The respondent shows her disobediences, evil
character with me and my paternal family
members. After a passage of time the respondent
even started quarrel with me as well as with my
parents and other paternal family members on any
small house hold petty matters and also demanded
and pressurized me to be separated from my
parents though I promised not to say any one
above non happening mensuration from the
marriage till January, 2014. The petitioner told her
to go with him near doctor for treatment but she
refused.
3. That on the first night itself respondent refused
to have any physical relation with me and did not
even allow me to touch her. She was not even
willing to talk with me and she in fact continued
roaming inside the room and did not sleep the
whole night. I somehow tried to console her and
requested her to sleep on the bed and I had to
sleep on the floor. I along with my paternal family
members tried our best to understand the
respondent the meaning of married life and told
her that it was not possible for me to fulfill her
undué demand to make separation with my
parents for which she misbehave me by using
slang languages. Sometimes she assaulted me also
But afterwards only to keep family peace and as
per advice of my parents I used to live separately
from my parents in same campus. I was very much
hurt at the said inhuman behavior of the
respondent and silently tolerated all the tortures
inflicted upon me and my paternal family members
with a hope that one day she would realize her
mistakes and would behave us properly but all in
vain.
4. That the respondent even did not look after my
paternal family members and used to misbehave
for no fault on their part. Thereafter the respondent
did not perform the household obligations as a
married wife and on one pretext or the other used
to leave her matrimonial home.
5. That firstly the respondent was working as
HR manager in Volkswagen Guwahati which is
situated at Maligaon and she used to spend all her
salary for her luxuries. I tried my best to reform the
respondent and told her not to waste money in
excess but all the time she denied my saying. Day
by day the respondent used to come lately at night
by showing official excess work and most of the
times she took dinner outside and I had to remain
in empty Stomach. On2 0/01/2014 when the
respondent reached home lately at night at about
10 PM 1 asked the reason for so late but all of a
sudden, the respondent became violent and
slabbed me by her sandal. For the very next day I
started to stay separately from the respondent and
in the month of January 2015 I took rented house
at Jalukbarı with my cousin. Later on the
respondent worked on Mittal Auto Zone and now I
heard from a reliable source that she is working in
TATA MOTOR'S which is situated at Kamakhya
gate, Guwahati.
6. That after receiving Divorce notice from Your
Honourable court the respondent lodged an FIR
before Dispur PS and accordingly a case was
registered under section 498(A)/494/507/34 IPC
But I immediately filed a bail application u/s 438
CrPC and after hearing this application and
granted bail to me. On March 2015 the respondent
left my paternal house and never came back to my
house.
7. That since 21/01/2014 there is not co-
habitation between me and the respondent. There
is no possibility of conciliation between me and the
respondent, as I lost all her faith and inclination
towards the respondent.
8. That the statement made in this paragraph are
true to the best of my knowledge and belief."
19. During cross-examination, the appellant/husband
/PW-1 clarified that due to frequent quarrels, his mother
and other family members asked them to live separately.
He further clarified that during the time of testimony, the
respondent/wife did not have any job. He further clarified
that he has been paying the interim maintenance
allowance regularly in connection with the subject criminal
litigation.
20. The testimony of the appellant/husband /PW-1
has been corroborated by his mother, PW-2 and PW-3, i.e.,
an independent witness, who was staying as a tenant in
the house of the appellant‟s father during the relevant
point of time.
21. It is worthwhile to mention that the
respondent/wife during her deposition as DW-1 has
admitted that she filed an FIR on 24.08.2015 in Latasil
Police Station alleging physical torture on her by the
appellant/husband and the same after being transferred to
Dispur Police Station, was registered as Dispur Police
Station Case No. 1779/2015. It further appears from her
testimony that she admitted the fact that the
appellant/husband left his own residence sometime in
April, 2015 and was staying alone in a rented house. It
further appears that the respondent/wife has further
admitted that in the month of December, 2015, she went
to her parent‟s house and started staying there.
22. Thus, what transpires from the evidence on
record is that the appellant/husband and the
respondent/wife have not been living together as husband
and wife since 2015. It is further evident that there used to
be regular quarrels between them and that the
respondent/wife used to misbehave with the
appellant/husband as well as his family members. It is
further evident that the respondent/wife forced him to live
separately from his parents and also assaulted him. It is
further evident that the respondent/wife used to
continuously suspect the appellant/husband of having illicit
relationship with one Thunu Baishya. It is further evident
that the respondent/wife used to frequently come home
late and upon being questioned one day, i.e., 20.01.2014,
she assaulted him with her Sandal. It is further evident
that the respondent/wife also went to live with her parents
and filed a criminal complaint against the
appellant/husband and his family members after she
received divorce notice from the appellant/husband. The
short question is thus whether cruelty as alleged has been
established by the appellant/husband or not.
23. Apt to refer to Section 13 (1) (ia) of the said Act,
which reads as hereunder -
"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 -
(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty, or"
24. Reading the above, it is apparent that the word
„cruelty‟ in the aforesaid provision has not been defined
and therefore, the same is to be construed liberally and
contextually. It is settled law that cruelty under the Act
need not necessarily be physical; mental cruelty, if of such
a nature that it causes deep anguish, frustration or renders
continuation of marital life insupportable, constitutes valid
ground for divorce. In short, the expression „cruelty‟ has to
be understood in the context of the social strata of the
parties involved, meaning thereby, their way of life,
relationship, temperament and emotions that have been
conditioned by their social status. Reference in this regard
is made to the decision of the Apex Court in the case of
Samar Ghosh -Vs- Jaya Ghosh reported in (2007) 4
SCC 511, wherein the Apex Court has held as hereunder:
"99. Human mind is extremely complex and human
behaviour is equally complicated. Similarly human
ingenuity has no bound therefore to assimilate the
entire human behaviour in one definition is almost
impossible. What is cruelty in one case may not
amount to cruelty in other case. The concept of
cruelty differs from person to person depending
upon his upbringing level of sensitivity, educational
family and cultural background, financial position,
social status, customs, traditions, religious beliefs
human values and their value system.
100. Apart from this, the concept of mental cruelty
cannot remain static; it is bound to change with the
passage of time, impact of modern culture through
print and electronic media and value system, etc
etc. What may be mental cruelty now may not
remain a mental cruelty after a passage of time or
vice versa. There can never be any straitjacket
formula or fixed parameters for determining mental
cruelty in matrimonial matters. The prudent and
appropriate way to adjudicate the case would be to
evaluate it on its peculiar facts and circumstances
while taking aforementioned factors in
consideration.
101. No uniform standard can ever be laid down
for guidance, yet we deem it appropriate to
enumerate some instances of human behaviour
which may be relevant in dealing with the cases of
"mental cruelty". The instances indicated in the
succeeding paragraphs are only illustrative and
not exhaustive:
(i) On consideration of complete matrimonial
life of the parties, acute mental pain, agony
and suffering as would not make possible for
the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that the
wronged party cannot reasonably be asked to
put up with such conduct and continue to live
with other party.
(iii) Mere coldness or lack of affection cannot
amount to cruelty, frequent rudeness of
language, petulance of manner, indifference
and neglect may reach such a degree that it
makes the married life for the other spouse
absolutely intolerable.
(iv) 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.
(v) A sustained course of abusive and
humiliating treatment calculated to torture,
discommode or render miserable life of the
spouse.
(vi) Sustained unjustifiable conduct and
behaviour of one spouse actually affecting
physical and mental health of the other
spouse. The treatment complained of and the
resultant danger or apprehension must be very
grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied
neglect, indifference or total departure from the
normal standard of conjugal kindness causing
injury to mental health or deriving sadistic
pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than
jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and
emotional upset may not be a ground for grant
of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal
wear and tear of the married life which
happens in day-to-day life would not be
adequate for grant of divorce on the ground of
mental cruelty.
(x) The married life should be reviewed as a
whole and a few isolated instances over a
period of years will not amount to cruelty. The
ill conduct must be persistent for a fairly
lengthy period, where the relationship has
deteriorated to an extent that because of the
acts and behaviour of a spouse, the wronged
party finds it extremely difficult to live with the
other party any longer may amount to mental
cruelty.
(xi) If a husband submits himself for an
operation of sterilisation without medical
reasons and without the consent or knowledge
of his wife and similarly, if the wife undergoes
vasectomy or abortion without medical reason
or without the consent or knowledge of her
husband, such an act of the spouse may lead
to mental cruelty.
(xii) Unilateral decision of refusal to have
intercourse for considerable period without
there being any physical incapacity or valid
reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or
wife after marriage not to have child from the
marriage may amount to cruelty.
(xiv) 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. In such like situations,
it may lead to mental cruelty."
25. Reference is also made to the decision of the
Apex Court in the case of Bhagat -Vs- D. Bhagat (Mrs.)
reported in (1994) 1 SCC 337, wherein the Apex Court
has held as hereunder -
"16. Mental cruelty in Section 13(1)(i-a) can broadly
be defined as that conduct which inflicts upon the
other party such mental pain and suffering as
would make it not possible for that party to live
with the other In other words, mental cruelty must
be of such a nature that the parties cannot
reasonably be expected to live together. The
situation must be such that the wronged party
cannot reasonably be asked to put up with such
conduct and continue to live with the other party. It
is not necessary to prove that the mental cruelty is
such as to cause injury to the health of the
petitioner. While arriving at such conclusion, regard
must be had to the social status, educational level
of the parties, the society they move in, the
possibility or otherwise of the parties ever living
together in case they are already living apart and
all other relevant facts and circumstances which it
is neither possible nor desirable to set out
exhaustively. What is cruelty in one case may not
amount to cruelty in another case. It is a matter to
be determined in each case having regard to the
facts and circumstances of that case. If it is a case
of accusations and allegations, regard must also
be had to the context in which they were made.
26. Reference is also made to the decision of the
Apex Court in the case of Sobha Rani -Vs- Madhukar
Reddy reported in 1988 Vol 1 SCC 105, wherein the
Apex Court has held as hereunder -
"5. It will be necessary to bear in mind that there has
been marked change in the life around us. In
matrimonial duties and responsibilities in particular,
we find a sea change. They are of varying degrees
from house to house or person to person. Therefore
when a spouse makes complaint about the treatment
of cruelty by the partner in life or relations, the Court
should not search for standard in life. A set of facts
stigmatised as cruelty in one case may not be so in
another case. The cruelty alleged may largely depend
upon the type of life the parties are accustomed to or
their economic and social conditions. It may also
depend upon their culture and human values to which
they attach importance. We, the Judges and lawyers,
therefore, should not import our own notions of life.
We may not go in parallel with them. There may be a
generation gap between us and the parties. It would
be better if we keep aside our customs and manners.
It would be also better if we less depend upon
precedents. Because as Lord Denning said in Sheldon
v. Sheldon, (1966) 2 All ER 257 (259) "the categories
of cruelty are not closed." Each case may be-different.
We deal with the conduct of human beings who are
not generally similar. Among the human beings there
is no limit to the kind of conduct which may constitute
cruelty. New type of cruelty may crop up in any case
depending upon the human behaviour, capacity or
incapability to tolerate the conduct complained of.
Such is the wonderful/realm of cruelty. "
27. Reading the aforesaid authorities, it is clear that
mental cruelty can take various forms, such as constant
humiliation, verbal abuse, harassment, neglect, threats, or
persistent indifference towards the well-being of the other
spouse. In other words, the concept of mental cruelty is
subjective and depends on the facts and circumstances of
each case. In the present case, the consistent evidence of
the appellant/husband, clearly shows that the conduct of
the respondent/wife caused grave mental pain and made it
impossible for the appellant/husband to reasonably be
expected to live with her. That being so, it is established
that the conduct of the respondent/wife is such that it
causes deep anguish, frustration and renders continuation
of the appellant/husband and the respondent‟s marital life
insupportable. Hence, the appellant/husband has
established the plea of cruelty within the meaning of
Section 13 (1) (ia) of the said Act. That apart, their
marriage appears to be practically dead and the parties
have also moved away and have been living separately
since 2015. It is clear from the materials available on
record that there is no possibility of the appellant/husband
and the respondent/wife to live together happily as
husband and wife, hence, it defies our conscience to allow
such a dead marriage to continue inasmuch as the same
shall not serve any useful purpose, rather perpetuate
anguish and hardship.
28. Apt at this juncture to refer to the decision of the
Apex Court in the case of Smt. Roopa Soni (Supra),
wherein the Apex Court has held that in the event parties
had moved away and settled in their respective lives, there
is no need to continue the agony of a mere status without
their living together. Relevant Paragraphs of the aforesaid
judgment is reproduced hereunder for ready reference -
"17. For a decade and half, the parties have been
living separately. As fairly stated at the Bar, the
marriage does not survive any longer, and the
relationship was terminated otherwise except by a
formal decree of divorce. The status quo continues,
awaiting an approval from this Court.
18. The aforesaid facts would certainly make out a
case for divorce and thus, the ratio laid down by a
Constitution Bench of this Court in Shilpa Sailesh v
Varun Sreenivasan, 2023 (6) SCALE 402 (AIR 2023
SC (Civ) 2212) would be applicable on all fours:
"26. V Bhagat v D Bhagat [(1994) 1 SCC 337
(AIR 1994 SC 710)], which was pronounced
in 1993, 18 years after the decision in N.G.
Dastane [(1975) 2 SCC 326 (AIR 1975 SC
1534)), gives a life-like expansion to the term
'cruelty.' This case was between a husband
who was practicing as an Advocate, aged
about 55 years, and the wife, who was the
Vice President in a public sector undertaking,
aged about 50 years, having two adult
children. a doctor by profession and an MBA
degree holder working abroad, respectively.
Allegations of an adulterous course of life,
lack of mental equilibrium and pathologically
suspicious character were made against
each other. This Court noticed that the
divorce petition had remained pending for
more than eight years, and in spite of the
directions given by this Court, not much
progress had been made. It was highlighted
that cruelty contemplated under Section
13(1)(i-a) of the Hindu Marriage Act is both
mental and physical, albeit a comprehensive
definition of what constitutes cruelty would
be most difficult. Much depends upon the
knowledge and intention of the defending
spouse, the nature of their conduct, the
character and physical or mental weakness
of the spouses, etc. The sum total of the
reprehensible conduct or departure from
normal standards of conjugal kindness that
causes injury to health, or an apprehension
of it, constitutes cruelty. But these factors
must take into account the temperament and
all other specific circumstances in order to
decide that the conduct complained of is
such that a petitioner should not be called to
endure it. It was further elaborated that
cruelty, mental or physical, may be both
intentional or unintentional. Matrimonial
obligations and responsibilities vary in
degrees. They differ in each household and
to each person, and the cruelty alleged
depends upon the nature of life the parties
are accustomed to, or their social and
economic conditions. They may also depend
upon the culture and human values to which
the spouses assign significance. There may
be instances of cruelty by unintentional but
inexcusable conduct of the other spouse.
Thus, there is a distinction between intention
to commit cruelty and the actual act of
cruelty, as absence of intention may not, in a
given case, make any difference if the act
complained of is otherwise regarded as
cruel. Deliberate and willful intention,
therefore, may not matter. Paragraph 16 of
the judgment in V Bhagat (supra) reads as
under:
"16. Mental cruelty in Section 13(1)(i-a) can
broadly be defined as that conduct which
inflicts upon the other party such mental
pain and suffering as would make it not
possible for that party to live with the other.
In other words, mental cruelty must be of
such a nature that the parties cannot
reasonably be expected to live together. The
situation must be such that the wronged
party cannot reasonably be asked to put up
with such conduct and continue to live with
the other party. It is not necessary to prove
that the mental cruelty is such as to cause
injury to the health of the petitioner. While
arriving at such conclusion, regard must be
had to the social status, educational level of
the parties, the society they move in, the
possibility or otherwise of the parties ever
living together in case they are already living
apart and all other relevant facts and
circumstances which it is neither possible
nor desirable to set out exhaustively. What is
cruelty in one case may not amount to
cruelty in another case. It is a matter to be
determined in each case having regard to the
facts and circumstances of that case. If it is
a case of accusations and allegations,
regard must also be had to the context in
which they were made"
XXXXXXXXXX
33. Having said so, we wish to clearly state
that grant of divorce on the ground of
irretrievable breakdown of marriage by this
Court is not a matter of right, but a discretion
which is to be exercised with great care and
caution, keeping in mind several factors
ensuring that 'complete Justice' is done to
both parties. It is obvious that this Court
should be fully convinced and satisfied that
the marriage is totally unworkable,
emotionally dead and beyond salvation and,
therefore, dissolution of marriage is the right
solution and the only way forward. That the
marriage has irretrievably broken down is to
be factually determined and firmly
established. For this, several factors are to
be considered such as the period of time the
parties had cohabited after marriage when
the parties had last cohabited; the nature of
allegations made by the parties against each
other and their family members, the orders
passed in the legal proceedings from time to
time, cumulative impact on the personal
relationship, whether, and how many
attempts were made to settle the disputes by
intervention of the court or through
mediation, and when the last attempt was
made, etc. The period of separation should
be sufficiently long, and anything above six
years or more will be a relevant factor. But
these facts have to be evaluated keeping in
view the economic and social status of the
parties, including their educational
qualifications, whether the parties have any
children, their age, educational qualification,
and whether the other spouse and children
are dependent, in which event how and in
what manner the party seeking divorce
intends to take care and provide for the
spouse or the children. Question of custody
and welfare of minor children, provision for
fair and adequate alimony for the wife, and
economic rights of the children and other
pending matters, if any, are relevant
considerations. We would not like to codify
the factors so as to curtail exercise of
jurisdiction under Article 142(1) of the
Constitution of India, which is situation
specific. Some of the factors mentioned can
be taken as illustrative, and worthy of
consideration."
19. The Trial Court and the High Court adopted a
hyper-technical and pedantic approach in declining
the decree of divorce. It is not as if the respondent-
Husband is willing to live with the appellant-Wife.
The allegations made by him against her are as
serious as the allegations made by her against
him. Both the parties have moved away and
settled in their respective lives. There is no need to
continue the agony of a mere status without them
living together".
29. For the reasons aforesaid, we are of the
considered view that the marriage between the
appellant/husband and the respondent/wife has
irretrievably broken down and subsists wholly in name,
besides the appellant having established the plea of cruelty
within the meaning of Section 13 (1) (ia) of the said Act.
That being so, their marriage needs to be put to a final rest
by granting the divorce.
30. Insofar as the question of permanent alimony is
concerned, it is noted that no formal application under
Section 25 of the Hindu Marriage Act, 1955 has been filed
by the respondent/wife. However, in the written arguments
submitted during the course of arguments before the
Family Court, a prayer was advanced for grant of
permanent alimony.
31. The appellant/husband during the course of
hearing has submitted an affidavit sworn before the Notary
Officer, Kamrup (Metro), Guwahti on 19.08.2025,
disclosing his monthly income to be Rs.13,055/- (Rupees
Thirteen Thousand Fifty Five). The aforesaid affidavit is
kept on record and marked as „X‟. The record further
shows that the respondent/wife was appointed as H.R.
Executive in a Car Dealership Company. She has alleged
that she resigned from her job on account of the pendency
of the present proceedings. However, there is no credible
material to substantiate that she is incapable of resuming
employment, considering her qualification and previous
engagement.
32. Significantly, despite issuance of notice to the
address disclosed before the Trial Court and substituted
service of notice on the respondent/wife by advertisement
in one Assamese daily, „Asamiya Pratidin‟ Edition dated
18.02.2024, the respondent/wife has chosen not to appear
before this Court to contest this appeal. Consequently, this
Court by order dated 25.04.2024 appointed Ms. B Bhuyan,
learned Senior counsel as Amicus Curiae to represent the
respondent/wife in the present appeal.
33. It also transpires from the records of the DV Case
No. 153/2015 filed by the respondent/wife before the
learned Chief Judicial Magistrate, Kamrup (Metro),
Guwahati that though the appellant/husband had
deposited the monthly maintenance amount in the Court
by Cheque No. 424763 amounting to Rs. 63,000/- only
dated 17.10.2023, for clearing the outstanding
maintenance amount, the respondent/wife has not
appeared before the Court till date for collecting the same.
Relevant orders passed in said DV Case No. 153/2015 are
reproduced hereunder for ready reference -
Present : Smt. S Khanikar, AJS
07.11.2023
The case record is put up today on strength of pet No.
6925/23 wherein it has been stated that after
passing of judgment/final order in the instant case,
the respondent was depositing the maintenance
amount in the SBI account of the aggrieved person.
But, thereafter, due to Covid-19 pandemic, the
respondent was unable to deposit the maintenance
amount to the aggrieved.
It has been further stated therein that after Covid-19
pandemic, the respondent on several occasions tried
to deposit the maintenance amount in the account of
the aggrieved person but the system could not accept
the deposited amount due to which the respondent
ahs appeared before this Court for depositing the
maintenance amount in the Court vide cheque No.
424763 amounting to Rs. 63,000/- only dated
17.10.2023 for clearing the outstanding maintenance
amount.
Let the said cheque No. 424763 dated 17.10.2023 be
kept in the safe custody of the B.A.
Issue notice to the aggrieved person for her
appearance in the Court.
B.A. is to do the needful.
Fixing 16.12.2023 for appearance of the aggrieved
person.
16.12.2023
The respondent is present along with is Ld. Counsel.
Notice to the aggrieved has returned unserved with
report her address falls under the jurisdiction of
Dispur PS and Geetanagar P.S.
Issue fresh notice to the aggrieved for her appearance
in the Court through the O/C, Dispur PS.
B.A. is to do the needful.
Fixing 29.01.2024 for appearance of the aggrieved
person.
29.01.2024
The respondent is present along with his Ld. Counsel.
The aggrieved has not appeared.
Issue fresh notice to the aggrieved for her appearance
through the O/C, Dispur P.S.
B/A is to do the needful.
Fixing 02.03.2024 for appearance of the aggrieved
person/report.
16.12.2024
The instant case record is put up today as the Bench
Assistant of this Court failed to put up the same on
the previous date fixed i.e., 02.03.2024.
Issue fresh notice to the aggrieved person for her
appearance in this Court through the O/C, Dispur P.S.
Bench Assistant is to do the needful immediately.
Fixing 21.01.2025 for appearance/report."
34. Thus from the above, it is clear that the
respondent/wife has not been appearing before the
criminal Court and has also not collected the said
maintenance amount.
35. In view of the above circumstances and having
regard to the modest income of the appellant/husband, we
find no justification to award any substantial amount of
permanent alimony. However, in order to balance equity,
liberty is reserved to the respondent/wife to approach the
competent Court under Section 25 of said Act, if so
advised, for seeking permanent alimony, which may then
be considered on its own merits.
36. Accordingly, the judgment and decree dated
17.12.2018 passed by the learned Principal Judge, Family
Court-I, Kamrup (Metro) at Guwahati in F.C.(Civil) Case
No. 496/2015 is set aside.
37. Resultantly, the marriage between the
appellant/husband and the respondent/wife solemnized on
08.02.2012 at Guwahati is hereby dissolved by decree of
divorce under Section 13(1)(ia) of the Hindu Marriage Act.
Decree be drawn accordingly.
38. Appeal stands allowed.
39. Return the TCR.
40. In appreciation of the service rendered by Ms. B
Bhuyan, learned Amicus Curiae/Senior counsel appearing
on behalf of the respondent/wife, her fees shall be paid by
the Assam State Legal Services Authority.
JUDGE JUDGE
Comparing Assistant
