Uttarakhand High Court

Smt. Shakuntala Umrao vs Ram Sharan Umrao on 12 September, 2023

   IN THE HIGH COURT OF UTTARAKHAND
              AT NAINITAL

                   SRI JUSTICE VIPIN SANGHI, C.J.
                               AND
                 SRI JUSTICE RAKESH THAPLIYAL, J.

Reserved on : 14.08.2023 Delivered on: 12.09.2023 FIRST APPEAL No. 84 OF 2022 Smt. Shakuntala Umrao ...........Appellant

Versus

Ram Sharan Umrao ..........Respondent

Counsel for the appellant : Dr. Kartikey Hari Gupta, Mr. Rafat Munir Ali and Ms. Irum Zeba.

Counsel for the respondent : Mr. Ravi Babulkar and Mr. Ravi Bisht.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT : (per Sri Rakesh Thapliyal, J.)

By the instant First Appeal, the appellant is

challenging the judgment and decree dated 18.12.2021

passed by the Judge, Family Court, Pauri Garhwal in

Family Court Case No. 60 of 2018 titled as "Smt.

Shakuntala Umrao vs. Shri Ram Sharan Umrao",

whereby the suit filed by the appellant-plaintiff under

Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955

for divorce against the respondent-defendant has been

dismissed.

2. The facts of the case, which are not in

dispute, are as follows:

The marriage of the appellant/plaintiff and

the respondent/defendant had been solemnized on

05.02.2016 as per the Hindu rites and customs at

Vishwanath Temple, Uttarkashi, District-Uttarkashi. Out

of their wedlock, no child was born. In the plaint, it is

alleged by the appellant (wife) that the respondent

(husband) was not interested in establishing marital

relationship and was evading to have marital

relationship, which caused mental agony to the

appellant and, according to her, the marital life of the

appellant got ruined; she had to go to her maternal

house third day of her marriage because of this

behavior; the respondent (husband) married her only

for money, and her life was in danger because his

demand was not met. The last time the parties lived

together was on 11.06.2016, at Srinagar, and since

then, there is no husband-wife relationship in between

the appellant and the respondent. Since then, the

appellant and the respondent are living separately; and

she apprehends that any time the respondent may

cause harm to the lives of the appellant and her family

members, as also, the property. On the aforesaid

grounds, the appellant filed Family Court Case No.

60/2018 under Section 13(1)(ia) and (ib) of the Hindu

Marriage Act, 1955 for dissolution of marriage on the

ground of cruelty.

3. The respondent filed his Written Statement

Paper No.27Ka denying all the allegations made by the

appellant in the plaint against him, particularly the

allegation that he did not take interest in establishing

marital relationship. Therein, he admitted the fact of

his marriage with the appellant on 05.02.2016, and

there being no issue out of their wedlock. He further

stated that he still wants to live with the appellant, and

cannot imagine his life without the appellant. The

respondent prayed that the suit of the plaintiff be

rejected.

4. The appellant filed her own affidavit Paper

Nos. 45Ka/1 to 45Ka/3 as PW-1, the affidavit of

Vishambhar Dayal Paper Nos. 49Ka/1 to 49Ka/2 as PW-

2, affidavit of Mayaram Paper Nos. 50 Ka to 50Ka/2 as

PW-3, and the said witnesses were cross-examined on

behalf of the respondent.

5. The respondent filed his own affidavit Paper

Nos.52Ka/1 to 52Ka/4 as DW-1. The respondent was

cross-examined on behalf of the appellant. In oral

evidence, through List Paper No. 23GA, the original

copy of the notice received by the respondent from his

School Paper No. 23Ga/1 and through List No.38Ga,

copy of the Original Residence Certificate Paper

No.38Ga/1 and copy of the Voter Identity Card Paper

No.38Ga/2 were filed.

6. The Judge, Family Court, Pauri Garhwal,

Uttarakhand, vide its impugned judgment and order

dated 18.12.2021, dismissed the petition for divorce

filed by the appellant.

7. The learned Judge, Family Court, Pauri

Garhwal, Uttarakhand, on the basis of the contentions

of the parties, framed the following three issues:-

(1) Whether cruel behaviour was done by the

defendant with the plaintiff, if yes, its effect?

(2) Whether the defendant has deserted the

plaintiff without any reason, if yes, then its effect?

(3) Whether the plaintiff is entitled to get the

relief sought in the plaint?

8. Issue No. 1, which is to the effect "whether

cruel behaviour was done by the defendant with the

plaintiff, if yes, its effect?", was decided by the Judge,

Family Court, Pauri Garhwal, against the appellant

(defendant). The Judge, Family Court, Pauri Garhwal,

while deciding the said issue against the appellant

recorded a finding that from the contentions of the

parties and the evidence on record, it is clear that the

marriage of the appellant and the respondent had been

solemnized with the consent of the parties and their

family members; there were healthy marital

relationship between the parties; they used to visit

their work-places/residence, but now the appellant

does not want to live with the respondent, because of

which-by leveling the allegation of cruelty, she wants

divorce from him. But on the file, the allegation of

cruelty by the respondent has not been proved by the

appellant. The appellant had sufficient opportunity to

prove her contentions with ample evidence, but no

such evidence is available on the file to prove that

cruelty has been caused to the appellant by the

respondent. While arriving at this finding, the Judge,

Family Court, Pauri Garhwal took into consideration the

statements made by the appellant in her cross-

examination, the statement made by Vishambar Dayal-

PW-2 in his cross-examination, and the statement

made by Mayaram-PW-3 in his cross examination.

9. Issue No. 2, which is to the effect "whether

the defendant has deserted the plaintiff without any

reason, if yes, then its effect?", was also decided

against the appellant. While deciding this issue against

the appellant, the Judge, Family Court, Pauri Garhwal

took into consideration the statements made by the

appellant in her cross-examination, the statements

made by Vishambar Dayal-PW-2 in his cross

examination, as also the statement made by Mayaram-

PW-3 in his cross-examination and recorded a finding

that from the evidence available on the record, it is

evident that at present, the appellant has not been able

to prove the fact of desertion being done by the

respondent without any reason by substantial evidence.

In such a situation, on the basis of desertion under

Section 13(1)(i-b) of the Hindu Marriage Act, 1955, the

relief of divorce cannot be granted to the appellant.

10. Issue No. 3, which is to the effect "whether

the plaintiff is entitled to get the relief sought in the

plaint?", has also been decided against the appellant.

While deciding this issue against the appellant, the

Judge, Family Court, Pauri Garhwal recorded a finding

that in the light of disposal of Issue Nos. 1 and 2, it is

evident that the appellant has not been able to prove

that cruelty has been caused to the appellant by the

respondent, or the respondent has deserted the

appellant. In such a situation, it is not justifiable to

give the relief sought for in the plaint to the appellant.

From the evidence available on the record, it is the

clear view of the Court that the marriage of the parties

is not like on deathbed and there is no such situation,

on the basis of which their marriage be dissolved.

11. Heard learned counsel for both the parties,

examined the lower court and evidence adduced by the

parties and perused the impugned judgment.

12. After hearing the parties, the issue, which

arises for consideration by this Court, is to the effect:-

"Whether desertion by the respondent since

11.06.2016 amounts to cruelty against the

appellant, as no attempt whatsoever was made by

the respondent for reconciliation or to take the

appellant back?"

13. We have gone through the divorce petition,

wherein the appellant / plaintiff specifically pleaded in

Paragraph-9 as under:-

"9- ;g fd okfnuh o izfroknh ds fnukad 11-06-2016 ds

ckn fdlh rjg ls Hkh ifr&iRuh ds lEcU/k ugha gsSa vkSj uk gh

LFkkfir gq;s rFkk i{kdkj fnukad 11-06-2016 ds ckn ls

vyx&vyx fuokl djrs gSaA"

Ram Sharan Umrao-the respondent-husband

(defendant) was examined as DW-1 and in his cross-

examination, he admitted that since June, 2016, they

are living separately. Relevant extract of the affidavit

of the respondent-husband, which contains his

admission that they are living separately since June,

2016, reads as under:-

"esjk fookg okfnuh 'kdqUryk ds lkFk 05 Qjojh 2016 dks gqok

FkkA esSa o okfnuh twu 2016 ls vyx&vyx jg jgs gSaA gekjs

fookg ds ikWap ekg ckn ls gh ge vyx&vyx jgus yxs FksA"

14. Now the facts, as stated above, reveals that

the marriage of the parties took place on 05.02.2016

and since 11.06.2016 both are living separately and

furthermore, there are no issues from the said

marriage.

15. It is evident that the respondent (husband

herein) never made any attempt to restore the

marriage either by way of conciliation or by filing a suit

under Section 9 of the Hindu Marriage Act for

restitution of conjugal rights. This, itself, reveals that

at no point of time since the appellant and the

respondent got separated and are living separately, i.e.

since 11.06.2016, the husband made any attempt to

take-back the wife. This is completely a failure on the

part of the husband, and this also amounts to cruelty

by the husband against the wife, who filed a suit

seeking divorce on the ground of cruelty. The

respondent showed no concern for the appellant; he

exhibited no desire to have her back in his matrimonial

life, and on the contrary, his utter indifference, and

cold approach towards the appellant, would have

caused immense mental cruelty to her. Pertinently, the

parties had been married only for four months when

they separated. So early in their marriage, the

respondent became disinterested in the appellant. This

shows his mental state to forsake and desert the

appellant. A woman, upon her marriage, goes to live

with her husband and his family members. The

surroundings and environment are new for her. To be

able to adjust in the new surroundings and

environment, she heavily relies upon her husband's

love and affection, moral support and guidance. A

woman, who does not receive love and affection,

moral support and guidance from her husband, is

bound to feel miserable and helpless, and that would

be subjection to serious cruelty. There may be

temporary misunderstandings and quarrels between

the newly married couple, but normally they would

overcome them, and sustain their bond, as there is

inherent attraction, love and affection in the normal

course, between a newly married couple. However, if

that does not happen, then the situation is not normal,

and one or both the spouses are bound to feel grave

agony and pain. In the present case, the respondent

did not take any steps to exhibit his love and affection

for the appellant, and did not reach out to her to take

her back with him to her matrimonial home. Such

conduct of the husband clearly establishes that he,

firstly, deserted the wife for a period, which is

obviously of more than two years, as since 2016, they

are living separately, and, secondly, he subjected the

appellant wife to immense cruelty. Hence, the ground

of desertion and cruelty, as taken by the wife for

seeking dissolution of marriage, stood established.

16. The Family Court, while dismissing the suit

seeking divorce filed by the wife, failed to consider all

these aspects, as it nowhere dealt with the conduct of

the husband in separating and living separately from

his wife-the appellant, and not making any endeavour

to restore his marriage.

17. For ready reference, Section 13(1)(ib) of the

Hindu Marriage Act 1955, which is related to divorce on

the ground of desertion, reads as under:-

"13 Divorce. --

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party--

(i) .....

(ia) ....

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]"

18. The Supreme Court in the case of Samar

Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has laid

down certain guiding factors giving some illustrations /

instances of human behavior, though they are not

exhaustive, which may be relevant in dealing with the

cases of "mental cruelty", including the "mental

cruelty" based on 'desertion'. The extract of the

aforesaid judgment, which is relevant for deciding the

instant case, reads as follows:-

"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) ...

(ii) ...

(iii) ...

(iv) ...

(v) ...

(vi) ...

(vii) ...

(viii) ...

(ix) ....

(x) ....

(xi) ...

(xii) ...

(xiii) ....

(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."

19. Section 13(1)(ib) of the Act states that any

marriage solemnised, 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 has deserted the petitioner for a continuous

period of not less than two years immediately

preceding the presentation of the petition.

20. Here in this case, admittedly the appellant

and the respondent have been living separately since

11.06.2016.

21. Since there has been a long period of