CAV Judgment

Sanjay S. Agrawal, J.

1. This appeal has been preferred by the non-applicant/wife (Smt. Sarita Tamrakar) under Section 19(1) of the Family Courts Act, 1984 (henceforth ‘the Act, 1984’) questioning the legality and propriety of the judgment and decree dated 11-2-2016 passed by the 3rd Additional Principal Judge, Family Court, Durg, in civil suit No.150-A/2014 whereby the learned trial Court has granted a decree of divorce by dissolving the marriage on the grounds enumerated under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (henceforth ‘the HM Act’) (for the sake of brevity, the parties shall be referred hereinafter as per their description before the Court below).

2. The facts, in brief, are that the marriage between the parties was solemnised on 22-6-1988 and out of their wedlock, two children namely; Sourabh & Bhagyashree were born on 10-1-1990 & 1-1- 1995, respectively. According to the applicant/husband (Sudhir Tamrakar), immediately after the marriage, the non-applicant/wife has started quarreling with him and lodged the false report for offence under Section 498-A read with Section 34 of the Indian Penal Code (henceforth ‘the IPC’) as well as for the offence under Sections 3 & 4 of the Dowry Prohibition Act, 1961 (henceforth ‘the Act, 1961’) and has also lodged a false report as per the provisions enumerated under Sections 17, 18 & 19 of the Protection of Women from Domestic Violence Act, 2005 (henceforth ‘the DV Act’). It is contended further that on account of the false report, the applicant & his father were in detention for five days whereas his mother was in detention for one day. It is, therefore, contended by the applicant that the wife (non-applicant) is behaving with him in a cruel manner and pleaded further that since July, 1998 his wife has deserted him and they are living separately. The applicant/husband is, therefore, praying for dissolution of marriage on the grounds as mentioned hereinabove.

3. While denying the aforesaid contention of the applicant/husband, it is pleaded by the non-applicant/wife that she has never committed any kind of cruelty with her husband and when she was subjected to cruelty by him and his parents, the alleged reports were lodged. It is contended further that she never deserted him and only on the false ground the claim has been made. Thus, the application filed by the husband deserves to be rejected.

4. After considering the evidence led by the parties, the trial Court arrived at a conclusion that the non-applicant/wife has not only committed cruelty with her husband but has deserted him and that by considering further that since both the couple are residing separately since a long period, the decree for dissolution of marriage has accordingly been passed under Section 13(1)(ia) and (ib) of the HM Act.

5. Assailing the impugned judgment and decree, learned counsel appearing for the non-applicant/wife would submit that the findings recorded by the trial Court are not at all sustainable in the eyes of law as without considering the evidence in its true perspective the decree of divorce has been passed.

6. Perusal of the record would show that a report was lodged by the non-applicant/wife for the offence punishable under Section 498-A read with Section 34 of the IPC as well as for offence under Sections 3 & 4 of the Act, 1961 against her husband and in-laws. The same was registered as Criminal Case No.391/13 and vide judgment of conviction and order of sentence dated 8-8-2013 (Ex.D/ 4), the learned Judicial Magistrate First Class, Durg, acquitted them for offence under Section 3 of the Act, 1961, however, they have been convicted under Section 498-A read with Section 34 of the IPC and for the offence under Section 4 of the Act, 1961 and the appeal is pending against the said judgment. It appears further that on 7-5-2009 an application under Sections 17, 18 & 19 of the DV Act was filed by the non-applicant against her husband and in-laws. The said application was rejected by the concerned trial Court after considering the evidence led by the parties vide order dated 1-10-2009 (Ex.P/1) passed in Criminal Case No.430/09 and the appeal is pending against the said order. It, thus, appears that although the said application of the non-applicant/wife filed under the provisions of the DV Act has been rejected vide order dated 1-10-2009, but as the appeal is pending against it, therefore, it cannot be said that the wife has lodged a false report against her husband and in-laws. That apart, a bare perusal of the entire evidence of the applicant (AW-1) would show that only a bald and general allegations have been raised by him in this regard against his wife, as such, in absence of any cogent and reliable evidence led by him it cannot be said that he was harassed by his wife so as to obtain a decree for dissolution of marriage on the ground under Section 13 (1)(ia) of the HM Act. The finding of the trial Court is, therefore, liable to be and is hereby set aside.

7. In so far as the plea of desertion is concerned, it is stated by the husband that both are living separately since 1998 and the said version is found to be corroborated by the statement of the wife, as reflected from para 16 of her statement whereby it is deposed by her that they lived only for 2-3 months after 25-6-1998 and appears further from her own admission as reflected from para 17 that a desertion certificate was issued by the Nagar Panchayat, Dhamdha on 19-2-1999. After considering the evidence led by the parties, the trial Court has, therefore, not committed any illegality in arriving to a conclusion that both are living separately since 1998 and, thus, rightly granted a decree for dissolution of marriage on the ground enumerated under Section 13(1)(ib) of the HM Act and we do not find any infirmity in the same.

8. Moreover, as observed hereinabove, the marriage was solemnised in June, 1988 but both have started living separately since 1998. Therefore, the alleged marriage has irretrievably broken down and, it is, thus like a deadwood for all purposes and cannot be revived as held by the Hon’ble Supreme Court in the matter of K. Srinivas Rao v D.A. Deepa (2013) 5 SCC 226, wherein, it has been held at paragraphs 30 & 31 as under :

“30. It is also to be noted that the appellanthusband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, if we refuse to sever the tie, it may lead to mental cruelty.

31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot

be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.” 9. Applying the aforesaid principles to the case in hand and in view of the observations made hereinabove, we are of the considered opinion that the impugned judgment and decree passed by the learned Court below is just and proper, except to a decree on the ground of cruelty, so as to call for any interference in this appeal. 10. Consequently, the appeal, being devoid of merit, is liable to be and is hereby dismissed, leaving the parties to bear their own cost(s). 11. A decree be drawn accordingly.