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Neutral Citation No. - 2024:AHC:4946-DB

AFR

Court No. - 29
Case :- FIRST APPEAL No. - 177 of 2017
Appellant :- Charu Chug Alias Charu Arora
Respondent :- Madhukar Chugh
Counsel for Appellant :- Vinay Kumar Mishra,Vishesh
Rajvanshi

Hon'ble Vivek Kumar Birla,J.

Hon'ble Donadi Ramesh,J

1. Heard Sri Vishesh Rajvanshi, learned counsel for the

appellant-defendant (wife) and perused the record.

2. Vide order dated 9.3.2017 present appeal was admitted

and notices were issued to the sole respondent-plaintiff
(husband) by registered post/speed post. As per office report
dated 15.12.2017, ‘unserved notice returned due to unclaimed’.
Subsequently, the appeal was dismissed for want of prosecution
on 17.10.2022 and on a restoration application, the same was
restored on 22.5.2023. In view of the fact that the appeal had
been dismissed for want of prosecution, fresh notices were
issued on 1.11.2023. According to the office report dated
9.3.2023 in respect of ordinary process, it is reported that
notice not received back after service and in respect of speed
post, it is reported that undelivered notice received with
remark. In such circumstances, notice of service on sole
respondent is deemed to be sufficient.

3. No one has turned up on behalf of the sole respondent

(plaintiff-husband), therefore, we proceed to hear the counsel
for the appellant on merits.

4. Present appeal has been filed challenging the impugned

judgement and order dated 21.1.2017 passed by the Principal
Judge, Family Court, Meerut in Divorce Petition No. 643 of 2013
(Madhukar Chugh vs. Charu Chug) filed under Section 13 (1)
(ia) and (ib) of the Hindu Marriage Act.
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5. Submission of learned counsel for the appellant is that

respondent-plaintiff (husband) has himself deserted the
appellant-defendant (wife) as he wanted to perform re-
marriage with another lady. It is submitted that the Court
below failed to record any finding that the alleged
desertion/separation by the appellant was unreasonable,
unexplained and has not recorded any finding regarding
relation between the parties having become irretrievable. It is
further submitted that appellant-defendant clearly pleaded her
willingness to live with her husband to lead a peaceful and
successful matrimonial life, which has not been considered by
the Court below. It was next submitted that cruelty under
Section 13 (1)(ia) and (ib) of the Hindu Marriage Act has to be
proved beyond all reasonable doubt on the basis of cogent
evidence, but in the present case the requirement of provisions
have not been fulfilled and therefore, the judgement impugned
herein is bad in the eye of law. It is also submitted that the
issue of cruelty has been decided in a superficial manner
without discussing the evidence on record. Attention was drawn
to the stand taken by the appellant in her written statement
and the statement of respondent no. 1 recorded as PW-1 as
well as statement of PW-2. Specific attention was drawn to the
cross-examination of DW-1 in support of the arguments to
show that cruelty was committed on the appellant and not on
the respondent-plaintiff (husband). It is also submitted that the
Court below did not initiate conciliation proceedings between
the parties as per Section 9 of the Family Court Act, 1984.

6. We have considered the submissions of leaned counsel for

the appellant and have gone through the judgement of the
Court below impugned herein.

7. Admitted facts of the case as reflected from the

judgement are that the marriage between the plaintiff
(respondent-husband) and the defendant (appellant-wife) was
performed on 15.4.2002 as per hindu rites and rituals after the
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offer having been accepted through matrimonial advertisement

in a newspaper in the year 2001. It is also admitted that after
marriage they had gone to Dalhousie (Himachal Pradesh) for
honeymoon and after return from honeymoon, the husband
(respondent) had gone to Bhopal to join his services. It is
alleged that the appellant (wife) had gone to Meerut to her
parental house. Subsequently, she came to Bhopal. In
September, 2002 she had returned to her parents and the
husband was informed by his mother-in-law that she had a
miscarriage in November, 2002. In July, 2003 the appellant got
a job in Bhopal and joined the services. Subsequently, she had
joined the services at different places, admittedly, away from
the place of employment of her husband. Thereafter, the
husband was transferred to Mumbai in February, 2004 where
she had also come after leaving her job and remained with her
husband for a short period till 2005. It is also not in dispute
that right ovary of the appellant (wife) was operated before
marriage in the year 1999 and was removed. Another admitted
fact remains that out of the said wedlock, the couple is not
having any child.

8. In the divorce petition, it was stated that on the

unfortunate incident of death of father of the husband
(respondent) on 17.2.2010, she came to Pune at matrimonial
house and remained there for two days where according to the
husband, she was requested to remain with him but she did not
stay and go back. In April, 2010 the husband was transferred
to Mumbai again and she was requested to accompany him but
she did not agree and therefore, these facts as reflected from
the judgement impugned herein are not in dispute. It was also
asserted that the husband was subjected to mental and
physical cruelty and torture and he was deserted by her and
now it is not possible for them to live under one roof as no
physical or matrimonial relationship is left and it is a case of
cruelty as well as irretrievable breakdown and divorce was
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prayed for.

9. We may also place on record this fact that although

written statement was filed stating several facts, however,
these specific facts noticing the details are not in dispute and
this fact is clearly reflected that after marriage, they lived
together for a short period only and they never lived together
continuously for a long period. Apart from this admitted fact,
the stand taken by the appellant (wife) in her written
statement that on 27.11.2003 she was subjected to beating
and torture and her head was smashed on the wall and retina
of left eye was hemorrhaged and there was a demand of dowry
of Rs. 20,00,000/- as well. She had also taken a stand that the
husband was having an intimate relationship with one female
friend Barnali Mitra and she had come to know about this
during honeymoon itself in the year 2002.

10. Insofar as the ground regarding conciliation proceedings

is concerned, we find that in the impugned judgement, it has
been clearly noticed that on 31.3.2018 both the parties were
present in the Court and they talked each other for conciliation
and shared their problems and asked for next date for further
hearing whereon 7.4.2014 was fixed as the next date. It has
been further noticed that on 7.4.2014 the husband was
present, however, the wife (appellant) was not present and
therefore, it was recorded that she is not interested in
conciliation proceedings or any compromise in the matter,
therefore, the Court below proceeded further wherein the
statement of the plaintiff (husband) was recorded as PW-1 and
was cross-examined and PW-2 Pradeep Kumar was also cross-
examined. Certain documents were filed by the plaintiff
(respondent-husband), that is, photographs of marriage,
original wedding card, two photos, copy of degree of Ph.D.,
copy letter of Radharaman Institute of Technology, copy of
medical prescription of eye operation, copy of appointment
letter dated 3.1.2004 and certain other documents.
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11. Two issues were framed by the Court below: (i) whether
defendant has deserted the husband two years before from the
date of filing of the petition; (ii) whether the defendant has
committed any cruelty with the plaintiff; and (iii) to what relief
the plaintiff is entitled to.

12. While discussing the issue no. (ii) first, it was found that
the appellant never lived continuously with the husband
throughout the period after filing of the divorce petition and
this fact was admitted by her. Insofar as the demand of dowry
is concerned, it was found that the allegations levelled against
the husband were false and no evidence whatsoever was
produced in this regard; no complaint or FIR was lodged in this
respect with any authority or concerned police officer. Insofar
as the injury caused to the appellant is concerned, it was found
that she was having eye-problem even before marriage, which
was admitted and no report etc. in respect of the injury having
been caused was placed on record and even no complaint or
FIR in respect of alleged beating or smashing head of the
appellant on wall was ever reported to anyone. Therefore, it
was found that it was a case of false allegations and thus,
mental cruelty was committed. Insofar as intimate relationship
of husband with one female friend Barnali Mitra is concerned,
she had admitted in her cross-examination that the documents
being paper no. 9Ga/1 upto 9Ga/7 are concerned, messages
allegedly sent may contain forwarded messages and may not
be the message in original. On a pointed query in respect of
paper no. 96Ga/6, which was to the effect that Barnali Mitra
had written that she had a boyfriend and therefore, he
(Madhukar Chugh) should not remain attracted to her and that
she is not fit for Madhukar and she had even called him ‘Pagal’.
In that reply, she had admitted this fact and therefore, even e-
mail communication copy whereof were filed by the appellant
clearly reflects that the allegation levelled against the husband
having extra-marital relationship with Barnali Mitra was false
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and is not reflected or corroborated from the evidence. The

Court below recorded a finding that she had clearly failed to
prove such allegations of extra-marital affair. On that ground, it
was found that mental cruelty was caused to the husband.

13. Insofar as the desertion is concerned, it was recorded

that the petition was filed on 3.5.2012 whereas the finding has
been recorded that the period for desertion would be counted
from June, 2011 and therefore, issue no. (i) in respect of
desertion was decided against the husband and decree of
divorce was granted on the ground of cruelty. Insofar as the
cruelty is concerned, the law is very well settled that it need
not be physical in nature only and that there may be mental
cruelty as well to the extent that it becomes impossible for the
other spouse to continue in the marital relationship. We find
that the issue no. 2 has been decided by the Court below by
giving cogent reasons. It is a case of mental cruelty where false
allegations of serious nature having intimate relationship with a
female friend Barnali Mitra and causing physical injury to the
appellant were found to be false. Apart from this, the admitted
facts as reflected from the cross-examination annexed as
Annexure 5 of the typed copy of the paper book that since
2012 after marriage the appellant was not living continuously
with the husband. She had worked at different places in
different States, that is, Vanasthali (Rajasthan), Gurgaon,
Bombay, Bhopal and at present she is working Guru Ghasidas
Central University, Bilaspur as Associate Professor. She had also
admitted that from 2008 she had been visiting the husband off
and on, but she does not remember the dates or the period or
the duration of such living with her husband.

14. We, therefore, find that apart from issue no. 2 of cruelty
the Court below appreciated that it is a case of irretrievable
breakdown even if the desertion is not proved as per definition
of Section 13 (1)(ia) and (ib). Admittedly at least 13 years
have passed since both are living separately, which by itself
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amounts to cruelty under Section 13 (1)(ia) of the Act.

15. A reference may be made to the judgement of Hon’ble

Apex Court in Rakesh Raman vs. Smt. Kavita, AIR 2023
Supreme Court 2144, paragraphs 12 to 18 whereof are quoted
as under:

“12. Other aspect which we must consider is the fact that

for the last 25 years the appellant and respondent, are
living separately, and have not cohabitated. There is
absolutely no scope of reconciliation between the parties.
There is in fact no bond between the two and as the Law
Commission in its 71st report said about such a marriage,
which is a marriage which has de facto broken down, and
only needs a de jure recognition by the law. The same
was reiterated by the Law Commission in its 217th report.

13. Under similar circumstances, this Court in R. Srinivas

Kumar v. R. Shametha (2019) 9 SCC 409, Munish Kakkar
v. Nidhi Kakkar, (2020) 14 SCC 657 and Neha Tyagi v.
Lieutenant Colonel Deepak Tyagi, (2022) 3 SCC 86 has
held that an irretrievable marriage is a marriage where
husband and wife have been living separately for a
considerable period and there is absolutely no chance of
their living together again. In all the above cited three
cases, this Court in exercise of its power under Article 142
of the Constitution of India has dissolved the marriage on
the ground of irretrievable breakdown as a ground, which
otherwise does not exist under the Hindu Marriage Act.
14. In Naveen Kohli: (AIR 2006 SC 1675)(supra), a
strong recommendation has been made by this Court to
the Union of India to consider adding irretrievable
breakdown down of a marriage as a ground for divorce
under the Hindu Marriage Act.
15. The multiple Court battles between them and the
repeated failures in mediation and conciliation is at least
testimony of this fact that no bond now survive between
the couple, it is indeed a marriage which has broken down
irretrievably.
16. Matrimonial cases before the Courts pose a different
challenge, quite unlike any other, as we are dealing with
human relationships with its bundle of emotions, with all
its faults and frailties. It is not possible in every case to
pin point to an act of "cruelty" or blameworthy conduct of
the spouse. The nature of relationship, the general
behaviour of the parties towards each other, or long
separation between the two are relevant factors which a
Court must take into consideration. In Samar Ghosh v.
Jaya Ghosh, (2007) 4 SCC 511 a three judge Bench of
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this Court had dealt in detail as to what would constitute

cruelty under Section 13 (1) (ia) of the Act. An important
guideline in the above decision is on the approach of a
Court in determining cruelty. What has to be examined
here is the entire matrimonial relationship, as cruelty may
not be in a violent act or acts but in a given case has to
be gathered from injurious reproaches, complaints,
accusations, taunts, etc. The Court relied on the definition
of cruelty in matrimonial relationships in Halsbury's Laws
of England (Vol 13, 4th Edn, Para 1269, Pg 602) which
must be reproduced here:
"The general rule in all cases of cruelty is that the
entire matrimonial relationship must be considered, and
that rule is of special value when the cruelty consists not
of violent acts but of injurious reproaches, complaints,
accusations or taunts. In cases where no violence is
averred, it is undesirable to consider judicial
pronouncements with a view to creating certain categories
of acts or conduct as having or lacking the nature or
quality which renders them capable or incapable in all
circumstances of amounting to cruelty; for it is the effect
of the conduct rather than its nature which is of
paramount importance in assessing a complaint of cruelty.
Whether one spouse has been guilty of cruelty to the
other is essentially a question of fact and previously
decided cases have little, if any, value. The court should
bear in mind the physical and mental condition of the
parties as well as their social status, and should consider
the impact of the personality and conduct of one spouse
on the mind of the other, weighing all incidents and
quarrels between the spouses from that point of view;
further, the conduct alleged must be examined in the light
of the complainant's capacity for endurance and the
extent to which that capacity is known to the other
spouse. Malevolent intention is not essential to cruelty but
it is an important element where it exists."
The view taken by the Delhi High Court in the
present case that mere filing of criminal cases by the wife
does not constitute cruelty as what has also to be seen
are the circumstances under which cases were filed, is a
finding we do not wish to disregard totally, in fact as a
pure proposition of law it may be correct, but then we
must also closely examine the entire facts of the case
which are now before us. When we take into consideration
the facts as they exist today, we are convinced that
continuation of this marriage would mean continuation of
cruelty, which each now inflicts on the other. Irretrievable
breakdown of a marriage may not be a ground for
dissolution of marriage, under the Hindu Marriage Act, but
cruelty is. A marriage can be dissolved by a decree of
divorce, inter alia, on the ground when the other party
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"has, after the solemnization of the marriage treated the

petitioner with cruelty". In our considered opinion, a
marital relationship which has only become more bitter
and acrimonious over the years, does nothing but inflicts
cruelty on both the sides. To keep the facade of this
broken marriage alive would be doing injustice to both the
parties. A marriage which has broken down irretrievably,
in our opinion spells cruelty to both the parties, as in such
a relationship each party is treating the other with cruelty.
It is therefore a ground for dissolution of marriage under
Section 13 (1) (ia) of the Act.
17. Cruelty has not been defined under the Act. All the
same, the context where it has been used, which is as a
ground for dissolution of a marriage would show that it
has to be seen as a 'human conduct' and 'behavior" in a
matrimonial relationship. While dealing in the case of
Samar Ghosh: (AIROnline 2007 SC 377) (supra) this
Court opined that cruelty can be physical as well as
mental:
"46….. If it is physical, it is a question of fact and
degree. If it is mental, the enquiry must begin as to the
nature of the cruel treatment and then as to the impact of
such treatment on the mind of the spouse. Whether it
caused reasonable apprehension that it would be harmful
or injurious to live with the other, ultimately, is a matter
of inference to be drawn by taking into account the nature
of the conduct and its effect on the complaining spouse.
Cruelty can be even unintentional:
…...The absence of intention should not make any
difference in the case, if by ordinary sense in human
affairs, the act complained of could otherwise be regarded
as cruelty. Intention is not a necessary element in cruelty.
The relief to the party cannot be denied on the ground
that there has been no deliberate or wilful illtreatment."
This Court though did ultimately give certain
illustrations of mental cruelty. Some of these are as
follows:
(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.
(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
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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.
(emphasis supplied)
18. We have a married couple before us who have barely
stayed together as a 12. Other aspect which we must
consider is the fact that for the last 25 years the appellant
and respondent, are living separately, and have not
cohabitated. There is absolutely no scope of reconciliation
between the parties. There is in fact no bond between the
two and as the Law Commission in its 71st report said
about such a marriage, which is a marriage which has de
facto broken down, and only needs a de jure recognition
by the law. The same was reiterated by the Law
Commission in its 217th report.

16. Another reference may also be made to the judgement of

Hon’ble Apex Court in Rajib Kumar Roy vs. Sushmita Saha,
2023 SCC Online SC 1221, paragraphs 7 to 11 whereof are
quoted as under:

“7. We have heard the learned counsel for the petitioner

as well as the learned counsel for the respondent (wife)
at length. Today, the parties are also before us through
virtual mode, and we had a chance to interact with both.
Considering the entire gamut of facts which are there
before us, we have absolutely no doubt in our mind that
this is a case of irretrievable breakdown of marriage.

8. The husband and wife have been living separately, the

wife is at Udaipur (district Gomati), Tripura and husband
at Agartala, Tripura for the last 12 years. Nothing would
give us more satisfaction if the two could work out their
differences and decide to live together, if only for the
sake of their child. But under the circumstances, with the
rigid attitude of both the parties, who have failed to
appreciate the beauty of compromise, we have been
forced to convince ourselves, albeit regrettably, that the
two cannot now live together. Twelve years of
separation, is a sufficiently long period of time to have
sapped all emotions which the two perhaps may have
had once for each other. We therefore cannot take the
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same hopeful view as that of the High Court, which still

believes that the matrimonial bond between the two has
not ruptured beyond repair or that the two cannot still
give a new lease of life to their relation. Frankly, no
matter how much we would have liked this to happen but
in reality, this is a possibility, which under the facts and
circumstances of the case, can only be called wishful.
9. Continued bitterness, dead emotions and long
separation, in the given facts and circumstances of a
case, can be construed as a case of “irretrievable
breakdown of marriage”, which is also a facet of
“cruelty”. In Rakesh Raman v. Kavita reported in 2023
SCC OnLine SC 497, this is precisely what was held, that
though in a given case cruelty as a fault, may not be
attributable to one party alone and hence despite
irretrievable breakdown of marriage keeping the parties
together amounts to cruelty on both sides. Which is
precisely the case at hand.
10. Whatever may be the justification for the two living
separately, with so much of time gone by, any marital
love or affection, which may have been between the
parties, seems to have dried up. This is a classic case of
irretrievable breakdown of marriage. In view of the
Constitution Bench Judgment of this court in Shilpa
Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544
which has held that in such cases where there is
irretrievable breakdown of marriage then dissolution of
marriage is the only solution and this Court can grant a
decree of divorce in exercise of its power under Article
142 of the Constitution of India.
11. We therefore declare the marriage to have broken
down irretrievably and therefore in exercise of our
jurisdiction under Article 142 of the Constitution of India
we are of the considered opinion that this being a case of
irretrievable breakdown of marriage must now be
dissolved by grant of decree of divorce.”

17. Hon’ble Apex Court in Joydeep Majumdar vs. Bharti

Jaiswal Majumdar, 2021 (1) ARC 505 (SC) making reference to
the Hon’ble Apex Court in the case of Samar Ghosh vs. Jaya
Ghosh, (2007) 4 SCC 511 has granted divorce on the ground
mental cruelty. In the present case, undue harassment and
thus, mental cruelty has been clearly established, therefore,
the husband was rightly granted divorce by the Court below.

18. In view of the discussion made hereinabove, we do not

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find any good ground to set aside the judgement impugned

herein.

19. Present appeal lacks merit and is accordingly dismissed.

Order Date :- 10.01.2024

Abhishek

Digitally signed by :-
ABHISHEK AGRAHARI
High Court of Judicature at Allahabad