Divorce on the ground of cruelty can be contained u/s 13(1)(ia) of the Hindu Marriage Act if continuation of marriage can cause immense mental cruelty: High Court of Delhi

 MAT.APP.(F.C.) 97 2019 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: Judgment delivered on: 03.01.2022 VANDANA SINGH Appellant Through: Mr. Praveen Mahajan Adv. with appellant in person. SATISH KUMAR Respondent Through: Mr. Amit Bhatnagar & Ms. Namrata Ranga Advs. with respondent HON BLE MR. JUSTICE VIPIN SANGHI HON BLE MR. JUSTICE JASMEET SINGH JUDGMENT VIPIN SANGHI J. The present appeal has been filed by the Appellant wife against the Respondent Husband under Section 19 of the Family Courts Act 1984 to assail the judgment dated 31.10.2018 passed by the Family Court Dwarka New Delhi whereby the petition filed under Section 13(1)of the Hindu Marriage Act 1955 by the appellant wife for grant of divorce from the respondent husband on the grounds of cruelty was dismissed. Briefly stated the facts are that the marriage of the parties was solemnized on 06.05.2010 at Arya Samaj Vivah Mandir Trust at MAT.APP.(F.C.) 97 2019 Manvi Kalan Near Tehsil Khekra Bhagpat UP according to Hindu Rites and Ceremonies. The marriage was consummated but no child was born out of their wedlock. It was the case of the Appellant that at the time of the marriage she was pursuing B.Tech. from Lucknow University and the respondent used to visit India from Canada to meet his family. It was during these visits that the respondent started following her and expressed his love for her. Thereafter the Appellant and Respondent became friends and started communicating with each other through telephonic calls and messages. During this time the Respondent informed the Appellant that he was pursuing MBA from Canada and gave his date of birth as 27.01.1983. At the time of their marriage the Appellant came to know that the actual date of birth of the respondent was 27.01.1977. However at that time she could not back out from the marriage out of fear. The Appellant further averred that the Respondent had initially cleverly convinced her not to inform either of their parents about their marriage. After the marriage ceremony the couple went to Lucknow and then to Agra for their honeymoon and thereafter both parties returned to their respective homes. Thereafter the Respondent left for Canada for his job taking along with him all marriage documents and photographs. The Respondent returned to India after one and a half years of the marriage on 19.10.2011. Both the Appellant and the Respondent stayed in Mumbai for two days along with the respondent’s sister. The next time the Respondent returned to India was from 13.10.2012 to 20.11.2012. This time the parties went to Nainital on vacation for two days. The next visit of the Respondent to India was on 03.02.2014 when the MAT.APP.(F.C.) 97 2019 parties stayed together in Delhi for one day after which the Respondent again went back to Canada. The Appellant averred that on all these occasions the Respondent was physically mentally and sexually abusive towards her. Owing to the above conduct of the Respondent the Appellant finally instituted the divorce petition on 28.04.2014. The Respondent in his written statement denied all allegations and submitted that the Appellant was well aware of his age before their marriage and that their marriage was a happy one. He further submitted that he travelled to India in 2008 when the parties stayed together for forty five days. Thereafter the Appellant visited in the year 2009 and then in 2010 for about two months each when the parties spent most of their time together. The respondent further averred that it was due to the pressure from the Appellant’s family that she was refusing to reside with the Appellant as the family of the Appellant was against their inter caste marriage. If the Appellant was given a choice she would choose to live with the respondent. Both the parties led their respective evidence in support of their pleadings. The Family Court came to the conclusion that the Appellant was not able to establish that she was subjected to cruelty whether physical or mental. The Family Court was of the view that she has not been able to prove that the conduct of the respondent amounted to cruelty within the parameters of Section 13(1)(ia) of the Act. Rather it was the Appellant who had committed cruelty on her husband by concealing her marital status and by leveling several non specific allegations regarding ill treatment and cruelty without giving any specific details with regard to those allegations. 10. We required the parties to remain present before us and interacted with them in the light of the fact that they admittedly had resided together MAT.APP.(F.C.) 97 2019 for very few days during the entire period of their marriage i.e. 11 years. The Respondent on account of his being in Canada had joined the interaction virtually. The Respondent kept insisting that the Appellant is being pressurized by her brother not to live with the respondent and she still wanted to stay with him. He also stated that he is ready to make arrangements for her to come to Canada and stay with him. The Appellant however refuted this allegation and maintained her stand that the marriage was deceitful and a violent one and she is not inclined to continue the same. We therefore heard the arguments and reserved judgment. 11. Two aspects that need our consideration are whether: the long periods of continuous separation between the parties led to the matrimonial bond being breached beyond repair which tantamounted to cruelty and whether the conduct of the respondent before or after the filing of the Divorce Petition has been such as to cause mental cruelty to the Appellant to such an extent that she cannot be reasonably expected to live with the 12. On the first aspect the Judicial view in context of longtime separation of parties has been well settled with time. In Samar Ghosh Vs. Jaya Ghosh 4 SCC 511 while enumerating instances of human behavior which may be relevant in cases of mental cruelty the Supreme Court has indicated an illustrative list of instances. The part relevant for this discussion reads as follows: “101. … ii) On comprehensive appraisal of the entire matrimonial life of the parties it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to MAT.APP.(F.C.) 97 2019 put up with such conduct and continue to live with other 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) 13. Recently in the case of Sivasankaran v. Santhimeenal 2021 SCC OnLine SC 702 the Supreme Court held that the court can dissolve a marriage when there is actually no chance of the marriage surviving and it is broken beyond repair. The Court Relied on Naveen Kohli v. Neelu Kohli 2006) 4 SCC 558 wherein it held as follows: “85. Undoubtedly it is the obligation of the court and all concerned that the marriage status should as far as possible as long as possible and whenever possible be maintained but when the marriage is totally dead in that event nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. ...” In Laxmi v. Kanhaiya Lal MAT.PP.(F.C.) 5 2020 decided by this Court on 07.10.2021 where the parties lived together only for a period of 8 to 9 months while they had been living separately for the last 15 16 years this court has held as follows: “23. When the marriage sours the vows that the couple takes at the time of marriage are a casualty. We take it that neither of the parties to a marriage enters into the matrimonial bond only to break it later. For the said bond to breach there are bound to be some underlying reasons. In some cases those reasons may come to the surface and the court may be able to see them. In others they may remain latent for myriad reasons. Those MAT.APP.(F.C.) 97 2019 reasons would invariably be attributable to both the parties as it takes two to fight. And when the fight goes to the point of them filing cases against each other the situation becomes messy and bitter for both of them. Unless the situation is diffused early and the parties decide to reconcile and call a truce with passage of time the void between them only increases and the feeling of love and warmth in their relationship begins to fade. What is left is only a feeling of hurt hatred disrespect disregard and bitterness for the other. These negative feelings and thoughts are bound to give rise to mental trauma harassment and cause immense cruelty to one if not both the parties. It is well known and medically established that constant feeling of sorrow hatred stress pain hurt and the like do also manifest in the form of serious diseases such as heart diseases diabetes cancer etc. 72American Psychologist578. MAT.APP.(F.C.) 97 2019 the society. An essential aspect of marriage is being present in each other’s life physically and emotionally. It is not to say that every marriage where the couple stays apart from each other for work or other obligations consensually is a broken one. However a marriage where there is neither sharing of emotions nor of dreams joys sorrows memoriesis merely a legal bond. In the present case the parties have never lived together for any significant length of time since inception of their marriage. It appears that the Respondent treated the Appellant as his overseas wife only to use her as a temporary companion and to have someone to serve him when he came to India on short visits after yearly gaps. In the past seven years after institution of the divorce proceedings the parties have admittedly not communicated with each other. The respondent’s submission that the appellant has been forced and is under pressure to not stay with the respondent is wholly denied by the Appellant even before us. The Appellant is a 34 year old woman with a professional degree having worked in a MNC. She is a major and has been consciously maintaining her stance consistently. During the hearing when we personally interacted with the parties the Appellant has emphatically stated that she has no intention to reconcile with or stay with Respondent under one roof. 17. The period of separation and the deciduous meetings of the parties are enough to show that their matrimonial bond has broken and is beyond repair. After the marriage which is now 11 years old the parties lived together only for a few days together in Lucknow Agra Delhi Nainital and Mumbai when the Respondent came back from Canada on vacations. In the present case there is neither a matrimonial home nor the possibility of ever having MAT.APP.(F.C.) 97 2019 one. The damage to the marriage is evident. These instances do not amount to ordinary wear and tear of day to day life. The parties in the present appeal are at an age where they may start a new life if given a chance. However keeping them tied to a legal bond would only mean snatching away from them the chance to ever lead a fulfilling life. Continuation of this matrimonial bond itself is sufficient to cause immense mental cruelty to the appellant at least if not to both the parties. In the facts of the present case we see no reason to keep this moribund marriage alive. The ground of cruelty is thus clearly made out as expounded in Samar Ghosh97 2019 with her. The said conduct of the respondent clearly shows that it was not a priority for him to save his marriage with the appellant. This indifference shown by the respondent towards the appellant would certainly have caused doubts and consternation in the mind of the appellant and her decision not to immigrate to Canada only because the respondent was calling her can well be appreciated. There appear to be little rather no confidence building measures that the respondent appears to have taken to give an assurance that the appellant would be well taken care of and not harmed or left helpless if she followed him into a far off strange world. In his written statement the respondent has made rather serious and scandalous allegations against the appellant’s father which have not been substantiated by him in his evidence. He alleged that the father of the appellant upon learning of the marriage of the parties had stated that the petitioner should be “gang raped” for the kind of act she has performed and that “the petitioner should have been aborted at the time of birth” and that “the petitioner is a curse to the family”. These averments are contained in the response to paragraph 11 & 12 of the divorce petition. As aforesaid these statements attributed to the appellant’s father have not been substantiated much less established by the respondent. The attribution of such like statements to the appellant’s father would constitute character assassination of the appellant’s father. They portray the appellant’s father in a very poor light. For any daughter it would be extremely painful and torturous to be told that her father feels for her in the manner alleged by the respondent. Any self respecting daughter would find it difficult to continue to have anything to do with a man who has made such scandalous allegations against her father. The relationship between a father and his MAT.APP.(F.C.) 97 2019 daughter is very delicate loving and pure. The allegation made by the Respondent against the Appellant’s father seeks to vitiate that relationship. 21. We may also observe that in his written statement and also before us the respondent has been claiming that it is the Appellant’s father and brother who have turned the matrimonial relationship between the parties into hell. Thus it is clear that the respondent has treated and continues to treat the appellant’s family with disdain. This conduct of the respondent would also have caused immense mental cruelty to the appellant sufficient for her to reasonably conclude that she cannot continue her relationship with 22. We are therefore of the view that even the aforesaid conduct of the respondent establishes the ground of mental cruelty caused to the appellant the respondent. by the respondent. In view of the aforesaid we allow the appeal set aside the impugned judgment and decree and dissolve the marriage between the parties by a decree of divorce on the ground of cruelty contained in Section 13(1)(ia)of the Hindu Marriage Act. Decree sheet be prepared accordingly. JANUARY 03 2022 VIPIN SANGHI) JASMEET SINGH) MAT.APP.(F.C.) 97 2019 

Summary: When continuation of matrimonial bond itself is a sufficient to cause immense mental cruelty, then keeping parties tied to a legal bond of marriage would only mean snatching away from them the chance to ever lead a fulfilling life. These were stated by Justice Vipin Sanghi in the case of Vandana Singh vs. Satish Kumar [MAT.APP.(F.C.) 97/2019] on 03.01.2022. The facts of the case are that the marriage of the parties was solemnized on 06.05.2010 according to Hindu Rites and Ceremonies. It was the case of the Appellant that at the time of the marriage, she was pursuing B.Tech. from Lucknow University, and the respondent used to visit India from Canada to meet his family. It was during these visits that the respondent started following her, and expressed his love for her. Thereafter, the Appellant and Respondent became friends and started communicating with each other through telephonic calls and messages. During this time, the Respondent informed the Appellant that he was pursuing MBA from Canada, and gave his date of birth as 27.01.1983. At the time of their marriage the Appellant came to know that the actual date of birth of the respondent was 27.01.1977. However, at that time, she could not back out from the marriage out of fear. The Appellant further averred that the Respondent had initially, cleverly, convinced her not to inform either of their parents about their marriage. After the marriage ceremony, the couple went to Lucknow, and then to Agra for their honeymoon, and thereafter both parties returned to their respective homes. Thereafter, the Respondent left for Canada for his job, taking along with him all marriage documents and photographs. The Respondent returned to India, after one and a half years of the marriage, on 19.10.2011. Both the Appellant and the Respondent stayed in Mumbai for two days along with the respondent’s sister. The next time the Respondent returned to India was from 13.10.2012 to 20.11.2012. This time the parties went to Nainital on vacation for two days. The next visit of the Respondent to India was on 03.02.2014, when the parties stayed together in Delhi for one day, after which the Respondent again went back to Canada. The Appellant averred that on all these occasions, the Respondent was physically, mentally and sexually abusive towards her. Owing to the above conduct of the Respondent, the Appellant finally instituted the divorce petition on 28.04.2014. The Counsel for the appellant contended the parties have never lived together for any significant length of time, since inception of their marriage. The respondent treated the Appellant as his overseas wife, only to use her as a temporary companion, and to have someone to serve him when he came to India on short visits after yearly gaps. In the past seven years, after institution of the divorce proceedings, the parties have admittedly not communicated with each other. The respondent’s submission that the appellant has been forced and is under pressure to not stay with the respondent, is wholly denied. The Appellant is a 34 year old woman with a professional degree, having worked in a MNC. She is a major, and has been consciously maintaining her stance consistently. The Appellant has no intention to reconcile with, or stay with Respondent under one roof. The Counsel for the Respondent submitted that the Appellant was well aware of his age before their marriage, and that their marriage was a happy one. He further submitted that he traveled to India in 2008, when the parties stayed together for forty-five days. Thereafter, the Appellant visited in the year 2009 and then in 2010 for about two months each, when the parties spent most of their time together. The respondent further averred that it was due to the pressure from the Appellant’s family, that she was refusing to reside with the Appellant, as the family of the Appellant was against their inter-caste marriage. It was contended that if the Appellant was given a choice, she would choose to live with the respondent.