forcing hubby as Ghar Jamaee, deserting him on refusal, not attending 2 his ailments CRUELTY. Divorce decreed. MP HC

In this case the couple get married at a very young age. Right from the start of the matrimonial relations the wife and her father pressurize the husband to live as a Ghar Jamaee. He refuses to ditch his parents and live with them. So the wife misbehaves with him and starts living with her parents. She does not attend to him even though he is an Asthma Patient. His attempts to bring her back fail. He files for divorce in lower court, but looses the case in lower court. He appeals to the HC. The Hon HC appreciates the evidence and correspondence between parties and ascertains the wife’s cruelty and desertion. Husband gets divorce.

Excerpts :
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The Hon HC appreciates the evidence : “……21. The evidence as above would indicate that the petitioner desired that respondent should live with him, but the respondent and his family members insisted that the petitioner should come to Indore and should live with the respondent’s parents. It also appears from the above evidence that the respondent/wife, was not willing to live with the petitioner, in her matrimonial home; and that she used to quarrel and misbehave with the petitioner and her parents, even during the short period for which she lived with them. Thereafter, she returned back to her parents home in the year 1984, and did not return back despite persuasion of petitioner and his family members. It is also clear that the petitioner’s elder brother Ravishankar who was married on the same day, on which the petitioner was married, was required to live with the in-laws as ‘Ghar Jamaee’ under their pressure and expressed regrets and remorse about the above state of affairs, as would be evident from letters Ex. P-1 and Ex. P-2, written by him…..”

“…….22. In view of above, the petitioner’s statement that he was being persuaded and forced to live with his in-laws at Indore as ‘Ghar Jamaee’ is rendered plausible and believable. In fact, a letter Ex. P-3 written by respondent’s father, clearly contains a veiled threat that the petitioner’s parents would be loosing their younger son i.e., the petitioner also, as was the case with their elder son, i.e., Ravishankar. …..”

The Honourable HC concludes as follows “…..34. It would appear from the evidence as discussed above, that the respondent and her father had been continuously pressing the petitioner/husband to live with them as ‘Ghar Jamaee’. On the petitioner’s refusal to yield their unjust demand as above, the respondent/wife started misbehaving and maltreating the petitioner/husband and his family members. The respondent/wife had forsaken the company of the petitioner/husband without any justifiable cause and against his wishes. The petitioner/husband was an asthama patient. However, he was left alone to suffer in his misery and ailment, while he was posted at Bakhtara, as has been stated by him. Though married the petitioner, never enjoyed the marital bliss and comfort of a home. She did not return back despite requests and efforts made by the petitioner. The respondent’s father had extended threats to the father of the petitioner that he would be losing his younger son i.e., the petitioner also, as was the case of the elder brother of the petitioner.

35. It is, therefore, clear that the petitioner had to live a lonely life for a very long period of 17 years. The cumulative effect of the above facts and circumstances indicate that the respondent had treated the petitioner with cruelty.

36. It is thus clear that the grounds of desertion and cruelty have been established by the evidence and the facts and circumstances of the case. Thus, grounds for granting a decree of divorce as enumerated in Section 13(1)(i-a) and 13 (1) (i-b) have been made out…………….”

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Madhya Pradesh High Court

Gajendra vs Smt. Madhu Mati on 16 March, 2001

Equivalent citations: AIR 2001 MP 299, II (2001) DMC 123, 2001 (3) MPHT 335

Author: V Agrawal

Bench: V Agarwal

JUDGMENT V.K. Agrawal, J.

1. This appeal preferred under Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and decree dated 23-12-1991 by Third Additional District Judge, Bhopal, dismissing the petition under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’ for short), praying for divorce.

2. Undisputably, the parties were married in the month of February, 1976 at Indore. Both of them were minors at the time of their marriage. I; is also not in dispute that the elder sister of respondent was also married to the elder brother of petitioner on the same day, on which the parties were married. The ‘Gauna’ ceremony took place in the year 1978; whereafter, the respondent/wife came to the house of petitioner husband for a short while and then went back to the house of her parents. She continued to reside with her parents at Indore till the year 1983. The parents of appellant/husband are permanently residing at Bhopal. It is also now not in dispute that the parties last resided together at Bhopal till the year 1984, whereafter the respondent is living with her parents.

3. The petitioner filed an application under Section 13(1)(i-a) and 13(1)(i-b) of the Act, praying for dissolution of marriage by a decree of divorce. He averred therein that the petitioner made several efforts upto the year 1983 to bring his wife – the respondent to the matrimonial home at Bhopal, however the respondent was reluctant to come to the matrimonial home and the father of respondent desired that the petitioner/husband should reside at Indore in the house of respondent/wife as ‘Ghar Jamaee’. It was alleged that, when the pressure tactics of respondent and her father failed, the respondent started behaving in a harsh manner. It was alleged that she used to misbehave with the family members of petitioner and created nuisance and rowdy scenes. She would threaten that she would commit suicide in case the petitioner does not shift to Indore as desired by respondent, and if she was compelled to reside at Bhopal. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. It was further averred that ultimately the petitioner yielded to the persuasion and pressure tactics of respondent and shifted to Indore in June 1983 with her. A job in a private factory was procured by the father of respondent. However, as the petitioner was not inclined to reside with his in-laws in their house, he started residing in his own house at Indore, despite pressure from respondent and her father to live with them. Annoyed on account of resistance as above on the part of the petitioner, the respondent and her father used to quarrel with him. They also desired that the earnings of petitioner should be handed over to the respondent’s father. On account of constant nuisance and ill-treatment of respondent and her father, the petitioner went back to Bhopal in December, 1983. It was averred that the respondent after great persuasion agreed to accompany the petitioner and came to Bhopal. However, the respondent continued to compel and pressurise the petitioner to return to Indore. The petitioner refused to yield to the above pressure. Having failed in their efforts, the father of respondent took her away to Indore in February, 1984. It has also been averred by the petitioner that since then the respondent did not come back to the petitioner, despite several efforts made by him. The respondent filed an application under Section 125, CPC for maintenance at Indore, which has been allowed. A criminal revision against the said order was pending.

5. The petitioner further averred that the demand of respondent and her father that the petitioner should leave his parents and should live with the respondent’s father was unacceptable to the petitioner. Since the petitioner refused to accede to the above demand, the respondent is living with her father for a long period and has thus deserted the petitioner for a period of more than two years. The petitioner/husband therefore prayed for a decree for divorce on the ground of cruelty and desertion as above on the part of the respondent.

6. The respondent/wife resisted the petition and the above averments were denied. According to the respondent/wife she never misbehaved or maltreated the petitioner or his family members. She has also denied that she or her father desired that the petitioner should live with the father of respondent as ‘Ghar Jamaee’. According to the respondent, she never deserted the petitioner and in fact she made several attempts to come to her matrimonial home, but she was not permitted to do so.

7. The learned Trial Court framed mainly two issues, which were to the effect: as to whether the respondent treated the petitioner/husband with cruelly and as to whether the respondent has deserted the petitioner for a period of more than two years preceding the filing of the petition ?

8. The learned Trial Court found that the evidence led by the petitioner regarding allegations of cruelty or desertion is not worth acceptance, and thus it held that it was not proved that the respondent treated the petitioner with cruelty or had deserted him. Thus both the issues have been decided by the Trial Court against the petitioner/husband. The petition of divorce filed by him was therefore dismissed.

9. Learned counsel for petitioner/appellant submitted that the marriage between the parties took place while they were minors. It was also submitted that the petitioner’s elder brother was married to the respondent’s elder sister. The petitioner’s elder brother has been made to live by his wife’s parents as ‘Ghar Jamaee’, and the respondent and her father desired and persistently pressed the petitioner to live with them at Indore at the house of respondent’s parents as ‘Ghar Jamaee’. When the petitioner/husband refused to accede to their desire as above, the respondent started maltreating and misbehaving with the petitioner and his family members. She ultimately left the matrimonial home in the year 1984 and has not returned so far, despite persistent efforts by the petitioner. It was therefore, submitted that the respondent has treated the petitioner with cruelty and has deserted him. It has also been submitted by the learned counsel for the appellant that the marriage between the parties has completely broken down and there are no chances of their reunion. It was therefore submitted that the petition filed by the husband for decree of divorce deserves to be allowed.

10. None appeared for the respondent at the time of hearing.

11. The first question that requires consideration is, as to whether it has been established that the respondent/wife has deserted the petitioner for a period of two years or more ?

12. Under Section 13(1)(i-b) of the ‘Act’ one of the grounds for granting divorce is desertion. A decree for divorce can be granted on the ground that the other spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The expression ‘desertion’ is not defined in the ‘Act’. ‘Desertion’ in the context of matrimonial law represents a legal conception which is very difficult to define. Essential ingredients of desertion’, so as to furnish a ground for the relief of divorce are:

(a) Factum of separation;

(b) Intention to bring cohabitation permanently to an end -Animus deserendi; and

(c) The element of permanence i.e., elements (a) and (b) as above should continue during the entire statutory period.

The explanation clause of Section 13(1)(i-b) of the ‘Act’ provides that the expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. Thus, the above explanation has widened definition of desertion to include wilful neglect of the respondent and so as to amount to matrimonial offence, desertion must be without reasonable cause and without the consent or against the wish of the petitioner. The offence of desertion thus commences when the fact of separation and the animus deserendi co-exist.

13. As laid down in Smt. Rohini Kumar Vs. Narendra Singh (AIR 1972 SC 459) desertion does not imply, only a separate residence and separate living, but it is also necessary that there must be a determination to put an end to marital relation and cohabitation. Without animus deserendi there can be no desertion.

Similarly in Sanat Kumar Agarwal Vs. Smt. Nandini Agarwal (AIR 1990 SC 594), it has been observed that:

“The question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both interior and subsequent to the actual act of separation.”

14. In the instant case, undisputably the parties are living separately from each other from February, 1984, i.e., for a much longer period of two years. In the circumstances, the question that requires consideration would be as to whether the respondent can be said to have ‘deserted’ the petitioner. Therefore, the evidence regarding the circumstances, in which the parties are residing separately shall now be considered.

15. The petitioner/husband Gajendra (A.W. 1) has stated that he was married in the year 1976 with the respondent, when he was aged about 14 years. He further stated that his elder brother was married to the respondent’s elder sister on the same day. Thereafter, the respondent went back alongwith her parents to Bombay where they were then residing; while the petitioner came back to Bhopal to his parents’ house. He further states that in the year 1978 the ‘Gauna’ ceremony took place and his wife the respondent, came and resided with him at their house at Indore for a couple of days and then left for Bombay to her parental home. The petitioner Gajendra (A.W. 1) has stated that in the year 1983 he went to Indore, where her parents had settled to bring his wife – the respondent, with him. He stales that the parents of his wife however, were not prepared to sent her with him, and desired that the petitioner should come and live with them at Indore and serve at the place as may be directed by them. He has stated that in 1983 with great difficulty he could persuade his wife – the respondent, to come to Bhopal. The petitioner Gajendra (A.W. 1) has further stated that the respondent wife had come to Bhopal with him reluctantly, and lived with him at Bhopal only for about two or three months. During the above period the brother and parents of his wile used to come to Bhopal and tried to take the respondent as well as the petitioner to Indore. They also interfered in his domestic affairs. He also states that the respondent would also threaten him with dire consequences and also of committing suicide. She would also insult and humiliate him and used abusive language.

16. Petitioner Gajendra (A.W. 1) also stated that ultimately he was forced to go to Indore with his wife. However, at Indore he stayed at his own house. Further statement of Gajendra (A.W. 1) was that at Indore also the parents of respondent/wife would insist that the petitioner and his wife should reside with them in their house and should give them the income earned by him. He has stated that his elder brother Ravishankar was already living with the parents of his wife as ‘Ghar Jamaee’ and was giving his in-laws his income, which t hey would spend as they desired. Gajendra (A.W. 1) further states that he returned back alongwith the respondent to Bhopal where she stayed with him till February, 1984. During the above period also she misbehaved with him. In February, 1984 she went away with her father and never came back.

17. Petitioner Gajendra (A.W. 1) has also stated that he was unemployed till December, 1985. He was suffering from Asthama. He got an employment in the year 1986. His statement is that despite knowledge of his ailment the respondent never lived with him and he remained uncared for, while he stayed at Baktara, where he was posted in the year 1986. He stated that on account of behaviour of respondent and her parents as above, his life became miserable and mental and physical pain and suffering was caused to him. He also stated that the respondent/wife filed an application under Section 125, CPC for maintenance at Indore. That application was allowed and that he has filed a revision against the said order.

18. The statement as above has been corroborated by the statement of his father Bagirath (A.W. 4). He has stated that his elder son Ravishankar was residing as ‘Ghar Jamaee’ with his in-laws under their pressure. He has also stated that from 1986 onwards his elder son Ravishankar had not come to visit them. Bagirath (A.W. 4) states that the behaviour of respondent was objectionable. She used to abuse them and misbehave with them. She used to threaten them and quarrel with her husband – the petitioner. He has also stated that when the respondent was with them in Bhopal, her father and brother used to visit them and coax the petitioner to come to Indore and reside with them. This behaviour of respondent and her family members caused great disturbance in their family. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

19. The petitioner has also examined Kanhaiyalal (A. W. 2) who belongs to their community. The statement of Kanhaiyalal (A.W. 2) would indicate that Bagirath (A.W. 4) the father of petitioner complained to him that the respondent was living with her parents, who did not send her to the petitioner’s house. He has stated that he also tried to persuade the respondent to live with the petitioner but, her father did not agree to send her.

20. Kamal (A.W. 3) who is the maternal uncle of petitioner has also stated that the petitioner Gajendra (A.W. 1) complained to him that he was under tension due to the behaviour of his wife – the respondent. Kamal (A.W. 3) further stated that when he visited the house of petitioner at Indore, there was quarrel between the petitioner and respondent and her father.

21. The evidence as above would indicate that the petitioner desired that respondent should live with him, but the respondent and his family members insisted that the petitioner should come to Indore and should live with the respondent’s parents. It also appears from the above evidence that the respondent/wife, was not willing to live with the petitioner, in her matrimonial home; and that she used to quarrel and misbehave with the petitioner and her parents, even during the short period for which she lived with them. Thereafter, she returned back to her parents home in the year 1984, and did not return back despite persuasion of petitioner and his family members. It is also clear that the petitioner’s elder brother Ravishankar who was married on the same day, on which the petitioner was married, was required to live with the in-laws as ‘Ghar Jamaee’ under their pressure and expressed regrets and remorse about the above state of affairs, as would be evident from letters Ex. P-1 and Ex. P-2, written by him.

22. In view of above, the petitioner’s statement that he was being persuaded and forced to live with his in-laws at Indore as ‘Ghar Jamaee’ is rendered plausible and believable. In fact, a letter Ex. P-3 written by respondent’s father, clearly contains a veiled threat that the petitioner’s parents would be loosing their younger son i.e., the petitioner also, as was the case with their elder son, i.e., Ravishankar. It also appears from Ex. P-3 that the relationship between the parents of the parties were strained and the respondent’s father desired that the petitioner should also come and live with them. The contents and the language used in letter Ex. P-3 of respondent’s father corroborates the version of petitioner that the respondent and her father pressurised the petitioner to live with them as ‘Ghar Jamaee’.

23. As against the petitioner’s evidence as above, the respondent/wife Madhu Mati (N.A.W. 1) in her statement has denied the above allegations. According to her, she used to behave properly with the petitioner as also her in-laws and that she wanted to live with the petitioner, but was not permitted to do so by him. Kishore Kumar (N.A.W. 3) the father of respondent has supported the version of respondent Madhu Mati (N.A.W. 1). According to him the petitioner never turned up to take his wife – the respondent, with him. He has stated that his son-in-law – the petitioner, had written a letter to him that since he could not get accommodation, he is not taking his wife with him. However, the said letter has not been produced in the case.

24. The respondent has also examined her brother Jagdish (N.A.W. 2), who has stated that they had gone to Bhopal on receiving information of accident of younger brother of petitioner. However, at the Hospital the father of petitioner asked them to go away. It may be noticed that there is no specific mention about the above incident in the pleadings of the respondent.

25. Though, the respondent and her father claim that the petitioner wrote to them about his inability to take respondent with him and to live with her, yet none of such letters or other documents have been produced by them. It may also be noticed that no notice was served by the respondent beseeching or requesting the petitioner to take her with him. It may also be noted in the above connection that the respondent had not returned back to the petitioner, despite petitioner’s notice having been served on her. The foregoing circumstances clearly indicate that the respondent has deliberately abandoned her matrimonial home and had shown her unwillingness to return back and to live with the petitioner.

26. Thus weighing the evidence as above led by the respective parties, it appears that the version as put forth by the petitioner is more probable. The fact that petitioner’s elder brother is living with the respondent’s parents as ‘Ghar Jamaee’ lends support to the assertion of the petitioner that his in-laws wanted that the petitioner should also live as ‘Ghar Jamaee’ with them. As noticed above, the language and contents of the letter Ex. P-3 written by the respondent’s father also indicate that the relations between the parties were strained and that the respondent’s father had gone to the extent of extending threat the petitioner’s father that he would be loosing his younger son i.e., the petitioner also, as was the case with his elder son.

27. In the foregoing circumstances, the observation of the Trial Court that the evidence of the petitioner could not be accepted in the face of discrepancies between the pleadings and proof, does not appear to be justified. It is clear that minor discrepancies as pointed out by the learned Trial Court, could not constitute a valid ground for discrediting the whole of petitioner’s evidence. It is clear that in such cases broad probabilities have to be considered to weigh and assess the truthfulness or otherwise of the rival cases of the parties, keeping in view the circumstances of the case. In the instant case, the evidence led by the petitioner and the circumstances as pointed out above are indicative of the fact that it was the respondent/wife who was responsible for leaving the matrimonial home and preferring to live with her parents.

28. The evidence led as above by the petitioner appears to be probable. There appears to be no other reason as to why the petitioner would not keep the respondent with him if the petitioner and respondent were married in childhood, and ‘Gaunna’ ceremony look place as far back as in the year 1976 when the parties were young. Had three been cordiality between the two families, there was no reason why at that adaptable age the parties would not have amicably lived together. However, their relationship appears to have grown sour on account of unreasonable demand and desire of the respondent and her father that the petitioner should follow the path of his elder brother and live with them as ‘Ghar Jamaee’. Clearly, the respondent and her parents could certainly not force the petitioner to live with them as ‘Ghar Jamaee’. The petitioner was justified in refusing to yield to their unreasonable demand as above.

29. The foregoing discussion also indicates that the respondent/wife had left the company of the petitioner/husband and did not accede to her request to come back. There was no intention on her part to resume cohabitation unless and until the petitioner/husband acceded to the demand of the respondent/wife and her father to live with them as ‘Ghar Jamaee’. In view of above, the evidence placed on record indicates that there was abandonment and non-performance of marital obligations by the respondent/wife with an intention to do so. The conduct as above of the respondent goes to show that she is living separately from the petitioner without any reasonable cause and against his wishes and has wilfully neglected the petitioner.

30. It may be noted that the Supreme Court in Lachman Utamchand Kirpalani Vs. Meena alia Mota (AIR 1964 SC 40), while discussing desertion has observed:

“For the offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there, (1) the factum of
separation, and (2) the intention to bring cohabitation permanently
to an end (animus deserendi). Similarly, two elements are essential
so far as the deserted spouse is concerned: (1) absence of consent,
and (2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention
aforesaid. Desertion is a matter of inference to be drawn from the
facts and circumstances of each case. The inference may be, drawn
from certain facts which may not in another case be capable of
leading to the same inference; that is to say, the facts have to be
viewed as to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and subsequent to
the actual acts of separation. If, in fact, there has been a
separation, the essential question always is whether that act could
be attributable to an animus deserendi. The offence of desertion
commences when the act of separation and the animus deserendi coexist.”

31. To reiterate, in the instant case the demand of the respondent/wife and her father that the petitioner should live as her ‘Ghar Jamaee’ was unreasonable and it cannot be said that the petitioner/husband was not justified in not yielding to such a demand. In the circumstances, the blame for the differences between the parties in the instant case squarely lies on the shoulders of the respondent/wife and her father. As noticed above, it is also clear that the respondent/wife not only continued to live separately for a long period right from the year 1984, but she had intention to put to an end the marital relations. Thus, there was animus deserendi on her part. Therefore, the foregoing facts and circumstances of the case and conduct of the respondent, lead to an irresistible conclusion that it was the respondent/wife who deserted her husband – the petitioner.

32. The next question that requires consideration is as to whether the respondent/wife treated the petitioner with cruelty ?

33. Section 13(1)(i-a) of the ‘Act’ provides that a decree of divorce can be granted on the ground that the other party had treated the petitioner with cruelty. It is also well established that cruelty could be either physical or mental. The cruelty may be inferred from all the facts and matrimonial relations of the parties and inter-action between them in their daily life, as disclosed by the evidence. The question as to whether the petitioner was treated with cruelty, can be answered only after all the facts have been taken into account, and the Court has to ascertain whether or not the treatment or conduct of the offending party would amount to cruelty. What is a cruel treatment to large extent would depend on the facts and circumstances of each case. In V. Bhagat Vs. Mrs. D. Bhagat (AIR 1994 SC 710), it has been observed in the above context that:

“Mental cruelty in Section 13(1)(i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental paid and
suffering as would make it not possible for that party to live with
the other. In other words, mental cruelty must be of such a nature
that the parties cannot reasonably be expected to live together. The
situation must be such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with the other
party. It is not necessary to prove that the mental cruelty is such
as to cause injury to the health of the petitioner. While arriving at
the conclusion regard must be had to the social status, educational
level of the parties, the society they move in, the possibility or
otherwise of the parties ever living together in case they are
already living apart and all other relevant facts and circumstances
which it is neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty in another
case. It is a matter to be determined in each case having regard to
the facts and circumstances of that case. If it is a case of
accusations and allegations, regard must also be had to the context
in which they were made.”

34. It would appear from the evidence as discussed above, that the respondent and her father had been continuously pressing the petitioner/husband to live with them as ‘Ghar Jamaee’. On the petitioner’s refusal to yield their unjust demand as above, the respondent/wife started misbehaving and maltreating the petitioner/husband and his family members. The respondent/wife had forsaken the company of the petitioner/husband without any justifiable cause and against his wishes. The petitioner/husband was an asthama patient. However, he was left alone to suffer in his misery and ailment, while he was posted at Bakhtara, as has been stated by him. Though married the petitioner, never enjoyed the marital bliss and comfort of a home. She did not return back despite requests and efforts made by the petitioner. The respondent’s father had extended threats to the father of the petitioner that he would be losing his younger son i.e., the petitioner also, as was the case of the elder brother of the petitioner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

35. It is, therefore, clear that the petitioner had to live a lonely life for a very long period of 17 years. The cumulative effect of the above facts and circumstances indicate that the respondent had treated the petitioner with cruelty.

36. It is thus clear that the grounds of desertion and cruelty have been established by the evidence and the facts and circumstances of the case. Thus, grounds for granting a decree of divorce as enumerated in Section 13(1)(i-a) and 13 (1) (i-b) have been made out.

37. Yet another aspect of the matter, arising from the facts and circumstances of the case, deserves notice in the instant case. The parties are admittedly living separately for a long period of about 17 years. Their marriage appears to have irretrievable broken with no chance of reunion or resumption of their marital relations. The marriage between the parties therefore appears to be beyond repair. This would also constitute and justify grant of decree for divorce, as prayed by the petitioner.

38. In Smt Saroj Rani Vs. Sudarshan Kumar Chadha [(1984) 4 SCC 90], it has been laid down that the right of the husband or the wife to the society of the other spouse is not merely a creature of the statute. Such a right is inherent in the very institution of marriage itself. The essence of marriage lies in sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection of one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage – “breakdown” and if it continues for a fairly long period, it would indicate destruction of the essence of marriage – “irretrievable breakdown”. Similarly in Romesh Chander Vs. Smt. Savitri (AIR 1995 SC 851), the Supreme Court considered it just and proper to grant a decree for divorce in a case where there was irretrievable break down and the marriage was held to be dead.

39. In the instant case also, since the parties are living separately for the last about 17 years and have in fact spent the prime of their life without the company of each other, and as there appears to be no chance for their reunion and living together, and as the grounds under Sections 13(1)(i-a) and 13 (1) (i-b) of the ‘Act’ are made out, decree for divorce deserves to be granted.

40. Therefore, this appeal deserves to be and is hereby allowed. The impugned judgment and decree is set aside. The petitioner’s application for divorce under Section 13(1)(i-a) & 13(1)(i-b) of the ‘Act’ is allowed, and decree for divorce as prayed by the petitioner/husband is granted and their marriage is dissolved.

41. First Appeal allowed.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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