Uttarakhand High Court

Chhavi Aggarwal vs Vilakshan on 16 May, 2024

                                         Reserved Judgment

     IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

            HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
                                AND
               HON'BLE MR. JUSTICE RAKESH THAPLIYAL


                   Reserved on : 09.05.2024
                   Delivered on : 16.05.2024

                   FIRST APPEAL NO. 56 OF 2023


Chhavi Aggarwal                          ......         Appellant

Versus


Vilakshan                                ......          Respondent


Counsel for the appellant     :   Mr. Pranav Singh, learned counsel

Counsel for the respondent    :   Mr. M.S. Tyagi, learned Senior
                                  Counsel assisted by Mr. Sunil
                                  Chandra, learned counsel



The Court made the following:

JUDGMENT:

(per Hon'ble the Chief Justice Ms. Ritu Bahri)

The appellant Chhavi Aggarwal has come up in

appeal against the judgment of the Family Court dated

06.01.2022, passed in Original Suit No. 237 of 2017,

titled as 'Chhavi Aggarwal Vs Vilakshan', whereby her

petition under Section 13 of the Hindu Marriage Act,

1955, for grant of decree of divorce has been dismissed.

2) As per plaint averments, marriage of the

appellant-wife was solemnized with respondent-husband

on 31.05.2015, as per Hindu rites and customs. As per

the appellant, sufficient dowry and gifts were given at

the time of marriage. Few days after the marriage, the

appellant started receiving taunts from the two brothers

of the respondent namely Nishkar and Divakar, and their

wives. They started pressurizing her for getting rupees

five lakhs in cash, and a four wheeler. Appellant tried to

explain that her father does not have means to fulfill

their demand of dowry, on this the family members of

her husband used to fight and harass the appellant

physically and mentally. On 03.12.2015, it was the

birthday of the appellant, on which her brother came to

her matrimonial house with some items of gift, but her

in-laws misbehaved with her brother and taunted the

appellant. The appellant got a job at Roorkee on

13.08.2015, but the respondent used to keep a track on

her presence at an interval of every five minutes, and if

there was delay in coming back to her matrimonial

house, the respondent used to abuse and commit maar

peet with her. The ATM card of the appellant was also

taken by her brother-in-law Nishkar Agarwal and her

salary amounting to Rs.3,26,520/- till June 2016 was

withdrawn. Appellant's bank account was with Punjab

National Bank, Roorkee, in which her salary used to

come.

3) In the month of August 2015, Jyoti Goyal,

elder sister of the appellant, visited her matrimonial

home and gifted her a statue of 'Bal Swaroop of Lord

Shri Krishna', on this the respondent and his family

members objected saying that they are atheist and will

not allow the appellant to perform pooja-path in their

house. Respondent used to taunt the appellant on

account of her physical appearance and compare her

with his two sisters-in-law. Respondent always provide

the appellant the used apparel of his sisters-in-law, and

on being objected, used to beat her. Every now and

then, the respondent used to abuse and commit physical

and mental cruelty with the appellant raising false

allegations on her character. On 20.11.2015, the

respondent ousted the appellant from her matrimonial

home, but on the mediation of their family members, it

was decided that the appellant along with the

respondent will stay in a separate household, but the

behaviour of the respondent did not change and he used

to leave her at the bus station at 06:00 A.M. every

morning, and return back to his shop and from there in

the evening every day visit her sisters-in-law house, and

came back from their at 11-11:30 P.M., in the night. On

being asked, the respondent used to commit cruelty with

the appellant, and asked her to bring the share from the

house of her father, and then he will keep her with him.

4) On 18.12.2015, at 12.00 noon, the respondent

and his family members ousted the appellant from her

matrimonial home for non-fulfillment of demand of

dowry, and the appellant came back to her parental

house on 18.12.2015. Appellant, while she was staying

with the respondent, came to know the fact that he is

incapable of making physical relationship, and to beget a

child. Despite this, the appellant tried to counsel the

respondent for the sake of her and her family's respect.

It is alleged that on 18.01.2017, the respondent and his

family members came to the parental house of the

appellant, and started demanding dowry from her

parents, and even started hurling abuses and committed

maar peet with them. Respondent badly assaulted the

appellant, and somehow she managed to save herself. A

case, bearing suit No. 16 of 2017, in this regard was

filed in the court of Judicial Magistrate I, Roorkee under

Section 125 Cr.P.C., and a separate case was also filed

under Section 12 of the Protection of Women from

Domestic Violence Act, but the said cases were

subsequently got dismissed as withdrawn by the

appellant. With the aforementioned plain averments,

the appellant-wife got instituted petition under Section

13 of the Hindu Marriage Act, for dissolution of marriage

between the parties before the Family Court, Roorkee,

District Haridwar.

5) In reply, the respondent-husband filed his

counter-claim. He admitted the factum of marriage, but

denied the fact of taking any dowry and it was stated

that his family members got ready for the marriage

looking at the educational qualification of the appellant-

wife, and that the marriage was solemnized in a simple

manner without taking any dowry. Respondent also

denied the fact that he ever committed cruelty with the

appellant. It was stated that it was the family members

of the appellant, who tried to put obstacles in their

married life, due to which he got agreed to live with the

appellant in a separate household, but unfortunately, he

got seriously ill in the month of September 2016, and

had to be admitted in higher medical center at Jolly

Grant Hospital. It was alleged that the appellant did not

look after him, even his father-in-law never visited him

in the hospital, and his brothers used to look after him in

the hospital and when he got fully recovered, they took

him with them. On this, the appellant got infuriated,

and started quarreling with him. On 18.09.2016, the

appellant left for her parental home after taking her

entire goods, apparel and jewellery, and did not come

back even after much persuasion. It was further alleged

that the appellant instituted false cases, one under

Section 125 Cr.P.C. and the other in respect of

Protection of Women from Domestic Violence Act, and

for this reason alone both the cases were got withdrawn

by her. Respondent never asked the appellant for

dissolution of marriage, and she had instituted false

cases in the court under the influence of her father in

order not to return a sum of Rs.8,50,000/- which they

had taken from his family members on the pretext of

loan. It was further alleged that appellant-wefe was

appointed as L.T. Grade teacher in Ram Swaroop Inter

College, Roorkee and remained as such till 2015 only,

but her brother is still continuing there as a teacher in

the primary section. It was also alleged, that on

31.05.2015, after three weeks of their marriage, father

of the appellant requested in front of the respondent and

his brothers to lend him rupees ten lakhs as Chhavi and

his brother had a interview call in K.L.D.A.V Inter

College, and he told them that he will return the said

amount in installments. On this an amount of

Rs.8,50,000/- was lent to father of the appellant in the

presence of both the brothers of the respondent. In the

month of August 2015, the appellant got appointed as a

L.T. Grade Assistant Teacher in K.L.D.A.V. Inter College,

Roorkee, and her brother Nikhil Agarwal got

appointment in B.D. Inter College, Bhagwanpur as

Assistant Teacher, L.T. Grade in May 2016. Finally, it

was stated that the respondent-husband is ready to live

with the appellant-wife by accepting all her conditions.

6) On the basis of pleading between the parties,

the Family Court framed the following issues :

i) Whether the defendant committed cruelty on the plaintiff. If yes, its effect?

ii) To which relief the plaintiff is entitled for?

7) The Family Court after going through the

evidence brought on record held that after the marriage

the parties have no children and the appellant-wife was

working as a teacher, and at her behest false cases have

been registered against the respondent-husband under

Section 125 of Cr.P.C. and under Protection of Women

from Domestic Violence Act. It is also observed that

P.W.1, the wife, had herself admitted in her cross-

examination that the statements made in the

proceedings under Section 125 Cr.P.C. and Section 12 of

the Protection of Woman from Domestic Violence Act

were false. Finally, the divorce petition filed by the

appellant-wife was dismissed.

8) In the appeal before this Court the facts which

are not in dispute between the parties are that the

marriage took place in the year 2015, they have no child

from this marriage, and they are living separately since

2017. As on today 07 years have gone by and they had

no positive relationship with each other. It is a dead

marriage. They have been staying separately since

2017. Keeping in view the above facts, reference can

now be made to a recent Supreme Court judgment in

the case of Rakesh Raman Vs Kavita, 2023 SCC OnLine

SC 497, decided on 26.04.2023. In that case the

marriage was solemnized on 16.04.1994, and there was

no child from this marriage, and the parties merely

stayed together for four years, and by the time the

matter went to the Supreme Court the marriage had

been 25 years old. There was no child from the

wedlock. The Supreme Court held that the matrimonial

bond had completely broken and was beyond repair, and

the fact that it was long separation and absence of

cohabitation and the complete breakdown of all

meaningful bonds has to be read as cruelty under

Section 13(1)(ia) of the 1955 Act. Since the dissolution

of marriage would affect only the two parties, and there

was no child out of the wedlock, the Supreme Court

allowed the appeal of the husband, and held that the

marriage stood dissolved. Keeping in view the income of

the appellant, permanent alimony of rupees 30 lakhs

was awarded to the wife. While passing the said

judgment, the Supreme Court also referred to its earlier

judgment rendered in Munish Kakkar Vs Nidhi Kakkar,

2019 SCC OnLine SC 1636, decided on 17.12.2019.

Relevant paragraphs of Munish Kakkar's case (supra)

are reproduced below :

"18. No doubt there is no consent of the respondent. But there is also, in real terms, no willingness of the parties, including of the respondent to live together. There are only bitter memories and angst against each other. This angst has got extended in the case of the respondent to somehow not permit the appellant to get a decree of divorce and "live his life", forgetting that both parties would be able to live their lives in a better manner, separately, as both parties suffer from an obsession with legal proceedings, as reflected from the submissions before us.

19. We may note that in a recent judgment of this Court, in R. Srinivas Kumar Vs R. Shametha, (2019) 9 SCC 409, to which one of us (Sanjay

Kishan Kaul, J.) is a party, divorce was granted on the ground of irretrievable breakdown of marriage, after examining various judicial pronouncements. It has been noted that such powers are exercised not in routine, but in rare cases, in view of the absence of legislation in this behalf, where it is found that a marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably.

That was a case where parties had been living apart for the last twenty-two (22) years and a re-union was found to be impossible. We are conscious of the fact that this Court has also extended caution from time to time on this aspect, apart from noticing that it is only this Court which can do so, in exercise of its powers under Article 142 of the Constitution of India. If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it.

20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the

senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end."

9) The ratio of the Munish Kakkar's case (supra)

is directly applicable to the facts of the present case.

The appellant as well as the respondent both are

working. Apart from the divorce petition, there were

cases under Section 12 of the Protection of Women from

Domestic Violence Act as well as under Section 125

Cr.P.C., which were later on withdrawn by the appellant-

wife. Counsel for the appellant has stated in the Court

that the appellant-wife is not interested in having any

permanent alimony, she only wants that the marriage be

dissolved keeping in view the fact that they both are