Sri Sandeep Sankhla vs Smt Vandana Saini
2021 Latest Caselaw 3743 Kant

                                                  ®
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                       PRESENT

          THE HON'BLE MR. JUSTICE B. VEERAPPA

                         AND

        THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

  MISCELLANEOUS FIRST APPEAL No.2767/2020 (FC)


BETWEEN:

SRI SANDEEP SANKHLA,
AGED ABOUT 36 YEARS
S/O SRI GHANSHYAM SANKHLA
R/AT NO.336, 1ST MAIN ROAD,
JAYANAGAR 7TH BLOCK,
BANGALORE-560082.

PRESENTLY RESIDING AT NO.M-207,
MEGHANASHALINI APARTMENT,
12TH FLOOR, RING ROAD,
BANASHANKARI II STAGE,
BANGALORE-560070.
                                          ...APPELLANT
(BY SRI PRABHULING K NAVADGI, SENIOR COUNSEL
ALONG WITH SRI K. S. BHEEMAIAH, ADVOCATE)

AND:

SMT. VANDANA SAINI,
AGED ABOUT 32 YEARS,
D/O PARAMESHWAR LAL SAINI,
                            -2-


W/O SRI SANDEEP SANKHLA
R/AT NO. 336,
1ST MAIN ROAD, JAYANAGAR 7TH BLOCK,
BANGALORE-560082.
PRESENTLY RESIDENT OF SURAJ BHAVAN,
WARD NO 3,
BHADRA HANUMANGARH,
RAJASTHAN-335501.
                                             ...RESPONDENT

(BY SRI H. MALLAN GOUD, ADVOCATE)

                         ****
     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF FAMILY COURT ACT, AGAINST THE
JUDGEMENT AND DECREE DATED 13.03.2020 PASSED IN
M.C.NO.5209/2015 ON THE FILE OF THE I/c. I ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING
THE PETITION FILED UNDER SECTION 13(1) (i-a) OF THE
HINDU MARRIAGE ACT, 1955.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:

                     JUDGMENT

The present Miscellaneous First Appeal is filed by the

appellant - husband against the judgment & decree dated

13th March 2020 made in M.C. No.5209/2015 on the

file of the I Additional Principal Judge, Family Court,

Bengaluru, dismissing the petition filed by him under the

provisions of Section 13(1)(i-a) of the Hindu Marriage Act,

1955 (hereinafter referred to as "the Act" for the sake of

brevity).

2. It is the case of the appellant that respondent

is his wife and their marriage was performed on 13.2.2011

at Amber Vilas, Tonk Road, Jaipur and the respondent -

wife joined the matrimonial home at Bangalore and they

lived happily for some time. Thereafter, the respondent -

wife started to give pin-pricks to him from the initial days

of the marriage and she never allowed him to live

peacefully and she was always causing mental torture on

one pretext or the other. The appellant initially tolerated

all the stubborn and arrogant attitudes of the respondent

with the fond hope that she may change her behaviour.

The respondent was very stubborn and provocative in

nature. The appellant came from highly respectable

family having his business circle and he does not want to

have any fights to indulge with unnecessary marital

problems, thereby he started ignoring arrogant behaviour

of the respondent and he kept himself busy with his

business by providing some time to the respondent to

realize her mistakes. But the efforts made by him never

yielded any fruit. It is further case of the appellant that

the respondent - wife used to threaten him that she would

commit suicide and used to cry loudly without any valid

reasons causing mental torture and agony to him. Even

though the appellant tried to resolve the indifferent

attitudes amicably, but the respondent started arguments,

fights with him and sometimes used to lock inside the bed

room for whole day thereby he was giving mental torture

to the respondent/wife.

3. It is further contended that the

respondent/wife used to threaten the appellant that she

would jump from the balcony or hanging herself inside the

room, which is also one of the grounds of mental cruelty to

the appellant/husband. Inspite of requests made by the

appellant, the respondent never changed her attitude,

thereby he issued legal notice. Thereafter, she was in the

habit of going to her parents' house at Rajasthan. In the

first year of their marriage, respondent stayed in for six

months and another six months during the second year

and thereafter, nine months during the third year and she

has completely deserted the appellant/husband in the

fourth year from January, 2015. It is further contended

that the respondent/wife used regularly visit the police

station and filed criminal cases against the

appellant/husband and his family members. Hence, the

parents of the appellant and respondent requested the

respondent to leave their house and live in a separate

house, but the respondent/wife refused to do so and

continued to live in the parents' house of the appellant and

continued with her erratic behaviour. Hence, the parents

of the appellant also filed a complaint against the

respondent on 23/12/2016, but no action was taken.

4. On the other hand, the respondent/wife filed a

false complaint against the appellant in Cr.No.376/2016 for

the offence punishable under Section 498-A read with

Section 34 of the Indian Penal Code ("IPC") and thereby

caused mental cruelty. Therefore, the appellant/husband

issued a legal notice on 29/06/2015 to the wife requesting

her to give consent for a mutual consent divorce and the

respondent/wife replied to the same denying all the

allegations. The attitude of the wife depicts that she is not

interested to continue her marital relationship with the

appellant and thereby the appellant/husband had to face

the mental torture by the wife and insult from the society.

Therefore, he was forced to issue another legal notice on

18/07/2015 and filed a petition in M.C.No.5209/2015

before the Family Court under the provisions of Section

13(1)(ia) of the Act seeking dissolution of marriage.

5. In response to the notice issued by the Family

Court, the respondent/wife appeared before the Court and

filed her statement of objections denying all the allegations

made in the petition except admitting her marital

relationship with the appellant/husband. She contended

that it was an arranged marriage and engagement

ceremony and marriage was performed by her parents and

she came and joined the appellant in the matrimonial

home at Bengaluru. She was very much diligent in

discharging her matrimonial obligations. She contended

that the appellant was always busy with his phone either

talking to somebody or messaging and the appellant kept

himself busy with his business and totally neglected the

respondent. He was not providing any money for her daily

expenses and maintenance. She contends that the

marriage was consummated and denied all the allegations.

Hence, she sought for dismissal of the petition.

6. On the basis of the pleadings, the Family Court

framed the following points for consideration:

(i) Whether the petitioner proves that the respondent has caused much physical and mental cruelty, which entitles him to seek a decree of divorce?

   (ii)        What order?


          7.   In   order      to    prove      the     case    of    the

appellant/husband, he examined himself as PW.1 and

marked 39 documents as Exs.P-1 to P-39 and the

respondent/wife examined herself as RW.1 and no

document was marked. Considering both oral and

documentary evidence on record, learned trial Judge

recorded a finding that the appellant/petitioner failed to

prove the case against the respondent that she caused

physical and mental cruelty which entitled him to seek a

decree of divorce. Accordingly, the learned trial Judge

dismissed the petition filed by the appellant/petitioner

under the provision of Section 13(1)(ia) of the Act. Hence,

the present appeal is filed.

8. We have heard learned senior counsel, Sri

Prabhuling K.Navadgi along with Sri K.S.Bheemaiah,

learned counsel for the appellant/husband and Sri H.Mallan

Goud, learned counsel for the respondent/wife and

perused the material on record.

9. Learned counsel for the appellant contended

that the impugned judgment and decree passed by the

trial Court dismissing the petition filed by the husband

under Section 13(1)(ia) of the Act is erroneous and

contrary to the material on record. Learned senior counsel

further contended that even though there is sufficient

evidence on record to prove the cruelty meted out by the

appellant at the instance of the respondent/wife, the same

has been ignored by the Family Court and thereby

erroneously dismissed the petition without appreciating

both oral and documentary evidence on record which

clearly depicts that the marriage between the appellant

and husband has been irrevocably broke down and it

cannot be repaired at any stretch of imagination and it is

not possible for the appellant and respondent to live

together to continue the matrimonial home.

10. Learned senior counsel further contended that

admittedly, the respondent and the appellant are living

separately for more than seven years and the respondent

had the habit of leaving the matrimonial home frequently

and staying at her parents house for six months, nine

months and nine months respectively and she used to

lodge police complaints and harass the husband. In the

cross-examination of RW.1, it is categorically admitted that

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the respondent/wife and the appellant/husband had a

separate bed room and there was no problem for her and

the respondent/husband to have privacy. It is also

admitted that the family members were in cordial terms

with her when she was staying in the matrimonial home,

but she also admits that when the respondent was staying

with his parents, his parents called the police stating that

the respondent has trespassed into their house so as to

prove that even the parents of the appellant/husband were

not cordial with the respondent/wife. The said evidence is

not considered by the learned Judge of the Family Court.

Therefore, the petition was dismissed erroneously.

11. It is further contended that the mental agony

and harassment suffered by the appellant and his family

members while attending several false cases filed by the

wife against him and his parents under the provisions of

Section 498-A read with Section 34 of the IPC and other

criminal cases which have ended in acquittal by this Court

and in Criminal Petition No.2734/2018 connected with

- 11 -

Criminal Petition No.2733/2018 were quashed on

26/08/2021 which reached finality and indicates that she

was constantly harassing both appellant and his parents.

Therefore, it is a good ground for granting divorce under

the provisions of Section 13(1)(ia) of the Act. It is also

contended that even taking into consideration the age of

both the appellant and respondent i.e., 38 years and 34

years respectively and that they are living separately for

more than seven years, it is highly impossible to join them

together as both the appellant and respondent are

mentally and physically disturbed and it is a fit case to

grant divorce.

12. In support of his contention, learned Senior

counsel relied upon the dictum of the Hon'ble Supreme

Court in the cases of Joydeep Majumdar vs. Bharti

Jaiswal Majumdar [Civil Appeal Nos.3786-

3787/2020 disposed on 26/02/2021], paragraph

Nos.14 and 15 are relevant and K.Srinivas vs. K. Sunita

[Civil Appeal No.1213/2006 disposed on

- 12 -

19/11/2014] the relevant portion are paragraph Nos.4

and 7 as well as the case of Naveen Kohli vs. Neelu

Kohli [(2006)4 SCC 558] (Naveen Kohli vs. Neelu Kohli),

paragraph Nos.51, 66, 90 and 91 are relevant in this case.

Therefore, he sought to allow the appeal.

13. Per contra, Sri Mallan Goud, learned counsel

for the respondent/wife, while justifying the impugned

judgment and decree passed by the Family Court,

contended that it is the appellant/husband who harassed

the respondent/wife and was not taking care of her

properly and thereby, the respondent/wife used to go to

the parents' house and come back to matrimonial home for

which no material is produced by the appellant to prove

that he has made out a case under the provisions of

Section 13(1)(ia) of the Act. He further contended that

merely because the respondent/wife filed a complaint

under the provisions of Section 498A of the IPC, it is not a

ground to seek divorce as it is the right of the woman to

protect her safety in accordance with law. He would further

- 13 -

contend that the learned trial Judge, considering the entire

material on record, has recorded a finding that the

respondent also contends that he was always abusing and

belittling her status. The respondent also contended that

the petitioner started mocking her in the bedroom and

started sleeping separately by denying her conjugal bliss,

thereby, the appellant/husband committed all the cruel

acts against the respondent/wife only to harass her and as

such, she was forced to file a criminal case against the

appellant/husband and his parents with regard to cruelty

and dowry demands. He further contended that during the

course of cross-examination, the appellant/husband, who

is PW.1 himself admitted that he himself left the

matrimonial home and the respondent/wife continued to

stay with his parents. The said act of the

appellant/husband itself shows that he left the matrimonial

home by leaving the respondent/wife in his parents' house

and the respondent did not leave the matrimonial home

with an intention to live separately. He further contended

that the appellant has not produced any documentary

- 14 -

evidence to prove the alleged illicit relationship with one

Dinesh Sharma except his self-interested testimony of the

appellant/husband and the same has been considered by

the Family Court and has rightly dismissed the petition

filed by him. Therefore, he sought to dismiss the present

appeal.

14. In view of the rival contentions made by

learned counsel for both the parties, the only point that

arises for our consideration in this appeal is:

"Whether the appellant/husband has made out a case to interfere with the impugned judgment and decree passed by the trial Court and whether he is entitled to a decree of divorce as contemplated under the provisions of Section 13(i)(ia) of the Act in the facts and circumstances of the present case?"

15. We have given our careful consideration to the

arguments advanced by the learned counsel for the parties

and perused the entire material including original records.

- 15 -

16. The undisputed facts of the case are that the

marriage between the appellant and the respondent was

performed on 13/02/2011 at Amber Vilas, Tonk Road,

Jaipur. It is also not in dispute that both the

appellant/husband and the respondent/wife were living

happily in the matrimonial home at Bengaluru. According

to the appellant/husband, after sometime the

respondent/wife started to give pin-pricks to the

appellant/husband and she was very adamant and she

used to cause him mental torture on one pretext or the

other. But the appellant/husband tolerated all the

stubborn and arrogant attitude of the respondent/wife and

was concentrating on his business with a fond hope that

she may change her behavour. According to the

respondent/wife filed the objections before the Family

Court denying all the allegations made in the petition. It is

the appellant/husband who ignored the respondent/wife

and not made any arrangement for her to live comfortably

and was not taking care of his wife. Hence, she was forced

- 16 -

to lodge a complaint to the jurisdictional police against the

appellant and his parents to protect her rights.

17. In order to prove the case of the present

appellant/husband who was the petitioner before the

Family Court, he has examined himself as PW.1 and

produced documents marked as Exs.P-1 to P-39. The

respondent/wife examined herself as RW.1.

18. It is relevant to consider at this stage, the

evidence of PW.1 by way of affidavit. At paragraph No.3

of the affidavit of evidence, it is specifically stated that

initially he tolerated all the stubborn and arrogant

behaviour of the respondent/wife with a hope that all the

differences would be sorted out in the course of time and

expected to have a happy married life in future. That

apart his parents, brother and his family and well wishers

advised him to patiently accept all the provocative actions

of the respondent/wife, thinking that the respondent/wife

may require some considerable time to get accustomed to

- 17 -

his lifestyle, immediate and extended family. But the

respondent's behaviour over the passage of time became

more stubborn and provocative one, and as a result of

which the appellant/husband started ignoring all the

provocative actions of the respondent/wife to avoid any

quarrel since he was from highly respectable family and

more over he was in a business circle.

19. It was further stated in paragraph No.6 of the

affidavit of evidence that since the respondent/wife was

not behaving in a proper manner and always used to

threaten that she would commit suicide and file false

cases, the appellant/husband with a good intention to

resolve the differences in the marital life, spoke to the

appellant's parents and requested for marital counseling,

but at that juncture, her parents, instead of understanding

the grave situation, shrugged his responsibilities and

threatened him with dire consequences in the event of any

severance of the marriage by him. Despite the said threat

and dire consequences, the appellant/husband remained

- 18 -

calm and cool and started to behave with her in a proper

manner thinking that she would change her own. He

further stated in the examination-in-chief that there were

occasions that he had told the respondent/wife to adjust

his joint family environment patiently with calm attitude,

so that the appellant and the respondent could lead a

happy married life, but the respondent instead of following

the said request, always used to trigger a fight with the

appellant/husband and suddenly lose her temper and start

arguing with him without any issue and all of a sudden,

she left the house in Bengaluru, deserting him without any

valid reason and without informing him. Thereafter, she

stayed with her parents at Rajasthan approximately for a

period of six months, another six months and nine months

respectively in three years of marriage and in the fourth

year, the respondent/wife left the matrimonial house. He

further stated in the evidence that unnecessarily she

lodged false complaint against him and his parents. The

marriage was celebrated in a grand scale. Therefore, he

sought for a decree as prayed for.

- 19 -

20. In the cross-examination, the averments made

by the appellant/husband in the affidavit evidence is not

disputed except suggestion that he has not produced any

document to show that she subjected him to cruelty. PW.1

denied the suggestion that it is not true to suggest that

around Rs.50,00,000/- was spent for marriage and that

after marriage he brought the respondent/wife to

Bengaluru to his parental house. He denied further

suggestion that immediately after the marriage, himself

and his family members were harassing her for not

bringing sufficient dowry. He further denied the

suggestion that immediately after the respondent/wife

came to his house, himself and his parents took the

jewellary gifted to her by her parents, guests and her

family members. He also denied that the

appellant/husband and his family members started

commending on her looks and dressing sense not being

satisfied with the dowry that she had brought. He denied

the suggestion that she is not fit to mingle with them in

- 20 -

the social sector and were commenting on her qualification

and knowledge of English. He further denied the

suggestion that since the demand made by the

appellant/husband and his family members was not met,

he started to come late during night and was not having

cordial conjugal relationship with the respondent/wife. He

also denied the suggestion that apart from him, his brother

and sisters-in-law were also harassing the respondent/wife

and denied that he did not provide any maintenance to

her.

21. He further stated that he has transferred

money to her, but he does not have any document for the

same. He admitted in the cross-examination that when

she was staying with his parents, his parents called the

police for trespassing in the house. He further denied the

suggestion that thereafter she was forced to leave the

house and they did not allow her to enter the house. He

also denied that his wife was driven out of the house by

them and subsequently she filed two criminal cases. After

- 21 -

the respondent/wife left the matrimonial house, his

parents have not tried for reconciliation.

22. The wife is examined as RW.1. In the cross-

examination, while reiterating the averments made in the

objections, she denied all the averments made and

contended that she was not allowed to enter the

matrimonial home, but in the cross-examination, she has

admitted that it is true that after the marriage, herself and

the appellant came to matrimonial home at Bengaluru and

they were residing in a joint family at the time of their

marriage. The joint family consisting of the appellant, his

parents, brother and his family as well as one cousin and

his family. It is also admitted in categorical terms that the

appellant/husband and respondent/wife had a separate

bedroom and there was no problem for their privacy. She

further admitted that the appellant's family members were

in cordial terms, but she denied the suggestion that she

had all luxuries in that house, that means she had less

luxury compared to her parental house.

- 22 -

23. In further cross-examination of RW.1, in

paragraph No.22, she has further admitted that her elder

sister was married in December, 2011. Her in-laws and

other family members were looking after her normally, but

she denied the suggestion that after she came to

matrimonial home, she was abusing and quarrelsome with

her husband, in-laws and other family members. She also

admitted that the appellant/husband is a businessman, but

she does not know what business he was doing and she

does not know that her husband had clients from United

States of America. She further admitted that it is true that

for the photos of ID Card, which are shown to her

pertaining to the web designing course and admitted that

these documents are marked as Exs.P-22 and P-23. She

further admitted that during the year 2007 she joined CA

course and she also admitted that it is true that

photographs shown to her contains her statement of marks

of the said course as per Ex.P-24. She further admitted

that she joined multimedia course during the year 2007

- 23 -

and the photograph shown to her containing the receipt of

said course as per Ex.P-25. She further admitted in the

cross-examination that in the four photographs shown to

her, she is visible. The person who is wearing blue top in

the photograph is hers. She identified all the four

photographs marked as Exs.P-21 to P-30. Witness

volunteers in the cross-examination that about 6 to 7

months after November 2015 after the respondent/wife

left matrimonial home. She has not made any effort to join

the appellant/husband. It is also admitted that afterwards

the appellant started to live separately, but often used to

visit matrimonial home. Witness volunteers that sometime

after the appellant's brother, his family and cousin started

residing separately from the said house. She further

admitted in the cross-examination that afterwards she

went to policed station and her father also came to police

station very late. She further admitted that the said

complaint was registered in Cr.No.62/2017. She admitted

that she lodged complaint and it is registered in

Cr.No.63/2017, but she denied that she lodged the said

- 24 -

complaint only as a counter blast to the complaint in

Cr.No.62/2017 and also denied that only because of

influence of her uncle through Labhu Ram, charge sheet

was filed to her complaint and B-report was filed to the

complaint of my father-in-law. She admitted that she

lodged a complaint in Sardar Shara Police Station, a

petition under the Protection of Women from Domestic

Violence Act, 2005 ("PWDV Act") and a petition for

restitution of conjugal rights as per Exs.P-19 to P-21. The

investigation is still in force for complaint as per Ex.P-19.

She also submitted that she has filed a petition before the

Hon'ble Supreme Court to transfer this petition to

Rajasthan High Court. She further stated that she made

all efforts to have children when she and the

appellant/husband were residing in the matrimonial home.

The witness volunteered that the relationship of her with

the appellant/petitioner was cordial.

24. A careful reading of the evidence of PW.1 and

RW.1, it clearly depicts that out of the wedlock on

- 25 -

13/02/2011, they have no issues till the matrimonial case

was filed in 2015. It is also not in dispute that on

24/12/2016, during the pendency of matrimonial case filed

by her for divorce in M.C.No.5209/2015, she lodged a

complaint against the appellant in Cr.No.376/2016 under

Section 498A of the IPC on 26/12/2016. It is also not in

dispute that the said registration of criminal case was

challenged by the present appellant/husband in Criminal

Miscellaneous Petition No.164/2017 on 28/02/2017. This

Court after hearing both the parties, learned single Judge

of this Court, by order dated 26/08/2021, quashed the

proceedings, which reached finality. It is also not in

dispute as admitted by RW.1 in the cross-examination

that there were several criminal cases lodged during the

pendency of the case before the Family Court. The

relationship between the parties strained day-by- day in

view of the proceedings both matrimonial and criminal

arose between the parties and admittedly, they are

residing separately for more than seven years as on today.

It is also not in dispute that after the husband lodged a

- 26 -

matrimonial case for divorce against the wife, though she

had filed petitions, subsequently, she lodged criminal cases

against the husband, which ended in acquittal, thereby the

relationship between the parties as husband and wife

distanced. If the wife really wanted to join the husband

after filing the petition, she could have made efforts to file

a petition for restitution of conjugal rights. The petition

filed by the wife for restitution of conjugal rights in 2017

before the Rajasthan Court is still pending. The fact

remains that the cordial relationship was spoiled because

of the criminal cases registered by the wife against the

husband and his family members, thereby the wife

virtually treated the husband with cruelty. That is one of

the grounds to grant divorce as contemplated under

Section 13(1)(ia) of the Act.

25. Our view is fortified by the dictum of Hon'ble

Supreme Court in the case of K.Srinivas vs. K.Sunita

[Civil Appeal No.1213/2006 disposed on

- 27 -

19/11/2014], wherein, in paragraph Nos.6 and 7, the

Apex Court has held as under:

"Another argument which has been articulated on behalf of the learned counsel for the Respondent is that the filing of the criminal complaint has not been pleaded in the petition itself. As we see it, the criminal complaint was filed by the wife after filing of the husband's divorce petition, and being subsequent events could have been looked into by the Court. In any event, both the parties were fully aware of this facet of cruelty which was allegedly suffered by the husband. When evidence was lead, as also when arguments were addressed, objection had not been raised on behalf of the Respondent- Wife that this aspect of cruelty was beyond the pleadings. We are, therefore, not impressed by this argument raised on her behalf.

7. In these circumstances, we find that the Appeal is well founded and deserves to be allowed. We unequivocally find that the Respondent-Wife had filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty."

26. It is the specific case of the appellant in his

examination-in-chief and cross-examination that he was

- 28 -

doing business and came from a highly respectable family.

He tolerated all the pin-pricks given by the wife and to

protect the matrimonial ties and to protect dignity and

reputation of the appellant/husband in the society. The

same was no longer existing in view of the relationship of

the husband and wife and in view of the criminal cases

lodged by the wife against the husband and his family

members during the pendency of the matrimonial cases,

thereby the appellant/husband had made out a case to

seek divorce. Our view is fortified by the dictum of Hon'ble

Supreme Court in the case of Joydeep Majumdar vs.

Bharti Jaiswal Majumdar [Civil Appeal Nos.3786-

3787/2020 disposed on 26/02/2021] in paragraph

Nos.14 and 15 held as under:

"14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial

- 29 -

relationship and there is enough justification for him to seek separation.

15. Therefore, we are of the considered opinion that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life. It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court. The appellant is accordingly held entitled to dissolution of his marriage and consequently the respondent's application for restitution of conjugal rights stands dismissed. It is ordered accordingly."

27. It is well settled that the marriages are made

in heaven. Both the parties have crossed the point of 'no

return'. A workable solution is certainly not possible. The

parties cannot at this stage reconcile themselves and live

together for forgetting their past as a bad dream in view of

multiple criminal cases lodged by the wife against the

husband and therefore, the trial Court ought to have

granted a decree of divorce. In this regard, the trial Court

- 30 -

has not considered the material while passing the

impugned judgment and decree passed by the trial Court.

28. The mental cruelty under Section 13(1)(ia) of

the Act, cannot be defined that the conduct which inflicts

on the other party such mental pain and suffering would

not make it possible to that party to live with the other

party. In other words, the mental cruelty must be of such

nature that the parties cannot be reasonably accepted to

live together. The situation must be such that the

wronged party cannot be 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 that has caused 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 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

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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.

29. The word 'cruelty' has to be understood in the

ordinary sense of the term in matrimonial affairs. If the

intention to harm, harass or hurt could be inferred by the

nature of the conduct or brutal act complained of, cruelty

could be easily established. But the absence of intention

should not make any difference in the case. There may be

instances of cruelty by unintentional but inexcusable

conduct of any party. The cruel treatment may also result

from the cultural conflict between the parties. Mental

cruelty can be caused by a party when the other spouse

levels an allegation that the petitioner is a mental patient,

or that he requires expert psychological treatment to

restore his mental health, that he is suffering from

paranoid disorder and mental hallucinations, and to crown

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it all, to allege that he and all the members of his family

are a bunch of lunatics. The allegation that members of the

petitioner's family are lunatics and that a streak of insanity

runs though his entire family is also an act of mental

cruelty.

30. Admittedly, in the present case, if the wife

wanted to continue in the matrimonial home even though

at a later stage she filed the petition for restitution of

conjugal rights in 2017 in Rajasthan High Court, she

should not have indulged in lodging several criminal cases

against the husband and his family members under

Section 498-A read with Section 34 of the IPC and other

criminal cases. It is also not in dispute that Criminal

Petition No.2734/2018 connected with Criminal Petition

No.2733/2018 filed against her husband and parents were

quashed on 26/08/2021 which reached finality. Therefore,

it clearly indicates that the subsequent petition filed by the

wife under the provisions of the Act for restitution of

conjugal rights is an after thought, thereby the

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proceedings between the parties and the relationship were

dissolved to the extent that it cannot be cured for ever.

The Hon'ble Supreme Court in the case of Naveen Kohli vs.

Neelu Kohli stated supra, at paragraph Nos.56 to 60 and

paragraph Nos.83, 84, 86, 88 and 90 held as under:

"56. In Chetan Dass vs. Kamla Devi, this Court observed that the matrimonial matters have to be basically decided on its facts. In the words of the Court:

"14. Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not

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be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case."

57. In Sandhya Rani vs. Kalyanram Narayanan Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our minds that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court granted the decree of divorce.

58. In Chandrakala Menon vs. Vipin Menon, the parties had been living separately for so many years. This Court came to the conclusion that there is no scope of settlement between them because, according to the observation of this Court, the marriage has irretrievably broken down and there is no chance of their coming together. This Court granted decree of divorce.

59. In Kanchan Devi vs. Promod Kumar Mittal, the parties were living separately for more than 10 years and the Court came to the conclusion that the marriage between the parties had to be irretrievably broken down and there was no possibility of reconciliation and

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therefore the Court directed that the marriage between the parties stands dissolved by a decree of divorce.

60. In Swati Verma vs. Rajan Verma, a large number of criminal cases had been filed by the petitioner against the respondent. This Court observed that the marriage between the parties had broken down irretrievably with a view to restore good relationship and to put a quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, and on the request of the parties, in exercise of the power vested in this Court under Article 142 of the Constitution of India, the Court allowed the application for divorce by mutual consent filed before it under Section 13-B of the Hindu Marriage Act and declared the marriage dissolved and granted the decree of divorce by mutual consent.

x x x

83. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our minds that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage

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between the parties had broken down irretrievably and there is no chance of their coming together, or living together again.

84. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.

x x x

86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond.

x x x

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88. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life.

                          x   x    x


90.    Consequently,    we       set   aside    the   impugned

judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extra- ordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,00,000/- (Rupees Twenty five lakhs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- (Rupees five lakhs with interest) deposited by the appellant on the direction of the Trial Court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs.20,00,000/- (Rupees Twenty lakhs) to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us

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would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant."

31. It is also not in dispute that during the

pendency of the proceedings, having regard to the interim

order dated 01/02/2018 awarding maintenance of

Rs.25,000/- per month to the respondent inclusive of

litigation expenses from the date of the application till

disposal of the petition.

32. In view of the material evidence on record and

taking into consideration the pleadings and age of the

parties and that they have no issues out of their wedlock,

this Court tried to resolve the dispute between the parties,

thereby the counsel for the appellant had agreed to pay a

sum of Rs.30,00,000/- (Rupees thirty lakh only) as

permanent alimony to the wife, but the learned counsel for

wife on instructions submitted that the wife was not willing

for any compromise. The fact remains that the

relationship between the parties as husband and wife and

the marriage solemnized between the parties is not in

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dispute and there is no dispute that out of the wedlock

there was no issues. Their age is 38 years and 34 years

respectively and admittedly, they are residing separately

for more than seven years and it is also not in dispute that

the criminal cases filed by the wife against the husband, in

particular under Section 498-A of the IPC are quashed.

33. Considering the human problems in the

present case, the trial Court ought to have properly

resolved by adopting a human approach while passing the

decree dismissing the petition for divorce unless the

material depicts that there may be a ray of hope for the

parties that after a passage of time after obtaining a

decree of divorce the parties may psychologically and

emotionally settle down and start a new chapter in life.

Admittedly, in the present case, no material is placed to

take such a view. In the absence of any material, learned

Judge is not justified in dismissing the petition for divorce

sought for by the appellant. Considering the entire

material on record and carefully looking into the peculiar

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facts of this case, in our opinion, wisdom lies in accepting

the pragmatic reality of life and take a decision which

would ultimately be conducive in the interest of both the

parties to life a happy life.

34. It is also relevant to note at this stage that

since the age of the wife is 34 years and she has to live

through out her life without there being any companion,

though she may be the cause for the same, she is entitled

for permanent alimony. Though the appellant has agreed

to pay a sum of Rs.30,00,000/-(Rupees thirty lakh only),

taking the age of the wife, we are of the considered

opinion that the appellant has to pay Rs.40,00,000/- as

permanent alimony within the time stipulated to resolve

the problem in the extra-ordinary facts and circumstances

of the present case, to resolve the problem in the interest

of all concerned, while dissolving the marriage between the

parties.

35. For the reasons stated above, the point that

arises in the present appeal has to be answered in the

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negative holding that the trial Court is not justified in

dismissing the petition filed by the husband under Section

13(1)(ia) of the Act and the appellant has made out a case

for divorce as contemplated under the provision of Section

13(1)(ia) of the Act of the Hindu Marriage Act.

36. In view of the above, we pass the following:

ORDER

(a) The Miscellaneous First Appeal is allowed.

(b) The impugned judgment and decree passed by

the trial Court dated 13/03/2020 is hereby set

aside.

(c) The marriage between the parties solemnized on

13/02/2011 is dissolved under the provisions of

Section 13(1)(ia) of the Act in the peculiar facts

and circumstances of the present case.

(d) We direct the appellant/husband to pay a sum of

Rs.40,00,000/- (Rupees forty lakh only) by way of

demand draft towards permanent alimony to the

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respondent/wife within a period of four weeks

from the date of receipt of a copy of this order.

(e) In case the appellant/husband fails to pay the

said amount within the stipulated time, the

respondent/wife is at liberty to initiate contempt

proceedings against him.

(f) The assistance rendered by learned counsel for

both the parties to arrive at this conclusion is

appreciated and placed on record.

(g) No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

S*