Punjab-Haryana High Court
Renuka vs Shelly Kumar on 26 September, 2022
FAO-6740 of 2018 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO 6740 of 2018
Date of Decision:- September 26,2022
Renuka
......Appellant
Versus
Shelly Kumar
......Respondent
CORAM:- HON'BLE JUSTICE MS. RITU BAHRI
HON'BLE JUSTICE MS. NIDHI GUPTA
Present:- Mr. Vivek Khatri, Advocate for the appellant
Mr. Shelly Kumar, Respondent in person with his
counsel Mr. Naveen Siwach, Advocate
******
NIDHI GUPTA, J.
This is an appeal filed by the wife against the dismissal of her
petition under Section 13 of the Hindu Marriage Act,1955 (hereinafter 'the
Act'), by Additional Family Court, Hisar vide impugned judgment and
decree dated 28.9.2018.
Brief facts of the case are that the parties were married as per
Hindu rites and ceremonies on 12.8.2012. Though they cohabited, no
child was born out of their wedlock. After marriage, the appellant lived
together with the respondent, his mother Santosh, his brother Raju, and
RAJINDER PARSHAD JOSHI
2022.09.27 10:14
I attest to the accuracy and
authenticity of this document
Raju's wife Kajal, in a joint family. It is appellant's case that the
respondent and his family constantly tortured her physically, mentally,
emotionally, and pestered her incessantly demanding more dowry. The
appellant used to work as a Counsellor in an Institute at Hisar even prior
to her marriage, and was drawing a salary of Rs. 13,000/- per month. She
had saved a sum of Rs. 1 lac before her marriage, but after marriage this
money was also taken away by her mother-in-law purportedly to repay
the debts that were incurred for the purpose of this marriage. At the time
of marriage, the respondent was working and was earning a salary of
Rs.25,000 per month. However, after marriage he had stopped working
also. Appellant further states that in October 2012 she got pregnant.
However, the respondent forcibly got her pregnancy terminated stating
that he had no means to bring up the child. Even after termination of her
pregnancy she was not allowed to rest as was required for recovery, and
though she felt very weak still the respondent and his mother made her
work due to which the appellant developed gynaecological complications
due to which she was not able to conceive again. Appellant states that
this caused her tremendous mental agony. It is also stated that the
respondent used to force her for unnatural sex. The appellant further
states that the respondent and his family doubted her character and used
to call her characterless and abused her with filthy expletives. The
respondent and his family did not allow the appellant even to interact or
talk with her parents or siblings or other persons from her office as they
were very suspicious in nature. Finally in July 2014, it is alleged that the
appellant was turned out of the matrimonial home whereafter a
Panchayat was convened at the behest of which the appellant was taken
back to her matrimonial home with the assurance that respondent and
RAJINDER PARSHAD JOSHI
2022.09.27 10:14
I attest to the accuracy and
authenticity of this document
his family members would not torture her after that. In November 2014
respondent asked the appellant to leave her job, and as she wanted her
marriage to work, she quit her job on 29.1.2015. On 9.2.15, on her
birthday, the appellant was receiving greetings and good wishes from her
colleagues, friends and family members, the respondent got suspicious
and not only shouted at her but also hurled obscene and filthy expletives
at her, called her characterless, broke her mobile phone and hit her. Then
on 13.3.2015 when the parties were living in a rented accommodation,
respondent picked up a quarrel with the appellant for no reason or cause
and left their home, taking his clothes and belongings with him. In this
situation, the appellant had no means to maintain herself and was left
with no choice but to go to her parental home. It is accordingly alleged
that the respondent treated the appellant with cruelty and deserted her.
On this ground the appellant filed petition under Section 13 of the Act
before the Family Court, Hisar.
The respondent filed written statement before the Family Court,
and primarily stated that actually it was due to interference of the family
members of the appellant that their marriage did not work. He stated that
he remained under pressure and couldn't work because of this reason,
and that he was willing to keep the appellant with him and his family.
On the basis of pleadings of the parties, the ld. Family Court
framed the following issues:
"1. Whether the respondent has treated the
petitioner with such degree of cruelty as would amount
to a matrimonial offence and the marriage has
irretrievably failed? OPP
2. Whether the petition is not maintainable?
RAJINDER PARSHAD JOSHI
2022.09.27 10:14
I attest to the accuracy and
authenticity of this document
OPR
3. Relief.
In support of their respective stand the parties
adduced evidence, as detailed in paras 8 and 9 of the impugned
judgment and decree, which are reproduced below:-
"8. The petitioner Renuka in her evidence
has examined Ct. Gulab Singh as PW1, herself as
PW2 and her brother Mohit as PW3. Thereafter, the
petitioner closed her evidence. Besides this, she also
relied upon the following documents:-
Ex.P1 Copy of online complaint.
Ex.P2 Printout of e-mail.
Ex.P3 to 5 OPD Cards.
Ex.P5 Printout of online complaint.
Ex.P6 Final report u/s 173 Cr.PC in FIR
No.1277/15 PS City Hisar.
Ex.P7 FIR No.1277/15 PS City Hisar
Mark-A&B Photocopy of OPD Slips.
9. On the other hand, the respondent Shelly
Kumar examined his mother Santosh as RW1 and
himself as RW2. Thereafter, the respondent closed
his evidence."
On the basis of pleadings and evidence led by the parties,
Additional Family Court, Hisar vide impugned judgment and decree, held
that no cruelty or desertion was made out on the part of the respondent
and accordingly dismissed the appellant's petition under Section 13 of
the Act. Hence, the present appeal.
Counsel for the appellant inter-alia, submitted that the parties
were married in the year 2012 and had admittedly been living separately
since March 2015 when the respondent had walked out of the
RAJINDER PARSHAD JOSHI
2022.09.27 10:14
I attest to the accuracy and
authenticity of this document
matrimonial home. It is stated that even though the appellant is an
educated and working woman, yet she was subjected to great humiliation
and tortured by the respondent and his family for bringing less dowry. It
is further stated that respondent and his family always doubted her
character and abused her everyday and that the respondent and his
brother used to beat her over smallest matters. It is then submitted that
the respondent used to insult the appellant's parents and her brother and
time and again demanded a huge sum of Rs. 5 lacs from the appellant
and her family on the pretext that this money was needed by the
respondent to set up his business.
Counsel for the appellant further contended that the appellant
was heartbroken when her pregnancy was forcibly terminated at the
insistence of the respondent. Even thereafter, because the respondent
and his mother did not allow the appellant to take rest which is necessary
for recovery, she developed gynaecological complications because of
which she was unable to conceive. It is stated that the appellant also took
treatment to be able to conceive but unfortunately, could not become a
mother.
In support, counsel for the appellant has relied upon Rajveer
Singh v Gaganjot Kaur 2022 (2) RCR (Civil) 514; Sushma v Sunil
Kumar 2022(2) RCR (Civil) 642; Som Dutt v Babita Rani 2022 (3) RCR
(Civil) 189; and Priya Rani v Rajiv Kumar @ Bobby 2022(3) RCR (Civil)
589.
On the other hand, the respondent perfunctorily denied the
above said allegations and stated that it was a love marriage between
the parties and they had known each other for 6 years prior to the
marriage and the respondent was unwilling to grant divorce to the
RAJINDER PARSHAD JOSHI
2022.09.27 10:14
I attest to the accuracy and
authenticity of this document
appellant.
We have heard learned counsel for the parties and perused the
record in detail.
It is not in dispute that the parties have been living separately
since 2015. Further, the list of acrimonious allegations by the appellant
against the respondent and his family are endless. Be that as it may,
Motherhood is innate, natural, and fulfilling to every woman; and the fact
that the appellant was denied the same, and was forced to terminate her
pregnancy against her will, at the insistence of the respondent, and
thereafter could not conceive again due to gynaecological complications
in our view, constitutes cruelty. We have seen the medical record
appended by the appellant in this regard, in particular exhibits at Mark -
A, and Mark - B, clearly show that in 2014, the appellant went to Fertility
Centres where she underwent treatment because she 'wants to
conceive'. Therefore, the appellant's averments in this regard are borne
out from the evidence on record.
Further, perusal of the petition filed by the appellant before the
learned Family Court, specifically paras 12 and 13 thereof, shows that
the above allegations have been categorically made therein to the effect
that the respondent had forced her to terminate her pregnancy against
her will etc. However, reply filed by the respondent before the Family
Court shows that his denial of these very serious allegations is
lackadaisical and limited, without any specifics, he has only stated as
follows:
"12. That the contents of para no.12 of the
petition are wrong, incorrect and hence denied. The
detailed facts have already been described in the
RAJINDER PARSHAD JOSHI
2022.09.27 10:14
forgoing paras on behalf of the respondent.
I attest to the accuracy and
authenticity of this document
13. That the contents of para no.13 of the
petition are wrong, incorrect and hence denied. The
detailed facts have already been described in the
forgoing paras on behalf of the respondent."
It is well-acknowledged that what constitutes 'Cruelty', in a
marriage is almost impossible to define. Thus, this Court, as also the
Hon'ble Supreme Court, have in a number of decisions held that 'cruelty'
in a marriage is to be determined in the facts and circumstances of each
case. In this regard, the observations of the Hon'ble Supreme Court in
'Ravi Kumar v. Julmidevi' (2010) 4 SCC 476, are relevant:
"19. It may be true that there is no definition of cruelty
under the said Act. Actually, such a definition is
not possible. In matrimonial relationship, cruelty
would obviously mean absence of mutual respect
and understanding between the spouses which
embitters the relationship and often leads to
various outbursts of behaviour which can be
termed as cruelty. Sometime cruelty in a
matrimonial relationship may take the form of
violence, sometime it may take a different form. At
times, it may be just an attitude or an approach.
Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies
any definition and its categories can never be
closed. Whether the husband is cruel to his wife
or the wife is cruel to her husband has to be
ascertained and judged by taking into account the
entire facts and circumstances of the given case
and not by any predetermined rigid formula.
Cruelty in matrimonial cases can be of infinite
variety-it may be subtle or even brutal and may be
by gestures and words. That possibly explains
why Lord Denning in Sheldon v. Sheldon, [1966]
RAJINDER PARSHAD JOSHI
2022.09.27 10:14
I attest to the accuracy and
authenticity of this document
2 WLR 993 held that categories of cruelty in
matrimonial cases are never closed."
In our view, in facts and circumstances of the present case, it
is not mere wear and tear of marriage, as held by the ld. Court below. The
conduct of the parties in the present case evidences that there are
irreconcilable differences between the parties, rendering the marriage, as
of today, a mere legal fiction. It is not in dispute that the parties are
residing separately since 2015. Even mediation attempts between the
parties have remained unsuccessful. Though irretrievable breakdown of
marriage is not available as a ground under the statute, yet, the reality of
it has been recognised by the Supreme Court in a catena of decisions,
and the power to grant divorce on ground of irretrievable breakdown of
marriage is only with the Hon'ble Supreme Court under Article 142.
Nonetheless, for the purposes of the present case, observations of the
Hon'ble Supreme Court in the case of 'Naveen Kohli v. Neelu Kohli',
(2006) 4 SCC 558 which was also a case of cruelty (mental and physical)
where the Hon'ble Supreme Court also considered the concept of
irretrievable breakdown of marriage, may be noticed. In that case too the
parties had been living separately since ten years and the wife was not
ready to grant divorce to her husband. However, notwithstanding this
factual position, Hon'ble Supreme Court was pleased to grant divorce in
said matter and further noticed as follows:
"32. In 'Sandhya Rani v. Kalyanram Narayanan', (1994) Supp.
2SCC 588, this 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 mind that the marriage between the
parties has irretrievably broken down. There is no chance
RAJINDER PARSHAD JOSHI
2022.09.27 10:14
I attest to the accuracy and
authenticity of this document
whatsoever of their coming together. Therefore, the Court
granted the decree of divorce.
33. In the case of 'Chandrakala Menon v. Vipin Menon',
(1993)2 SCC 6, 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.
34. In the case of Kanchan Devi v. Promod Kumar Mittal,
1996(2) RCR (Criminal) 614 : (1996)8 SCC 90, 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 therefore the Court directed that the marriage
between the parties stands dissolved by a decree of divorce."
In the facts and circumstances of the present case as narrated
above, this appeal is accordingly, allowed. The judgment and decree
dated 28.9.2018 passed by the learned Additional Family Court, Hisar, is
set aside. The petition for divorce filed by the appellant-wife under Section
13 of the Act is decreed and the marriage of the parties solemnized on
12.8.2012 is dissolved by a decree of divorce.
(Nidhi Gupta) (Ritu Bahri)
Judge Judge
September 26, 2022
Joshi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
RAJINDER PARSHAD JOSHI
2022.09.27 10:14
I attest to the accuracy and
authenticity of this document
