Hon'ble Subhash Chand,J.
Heard Shri Harsh Bhatnagar, learned counsel holding brief of Shri Ashok Shankar Bhatnagar, learned counsel for the appellant. Though served respondent for three years has absented here as also before the family court This appeal, has been filed by the appellant to set aside the judgment dated 29.07.2019 passed by Principal Judge, Family Court, Ghaziabad in O.S. No. 158 of 2018 and allow the petition of the appellant under Section 13(1)(i-a) of Hindu Marriage Act, 1955.
The short brief facts as culled out from the record are that the appellant was married with respondent on 11.02.2012 by performing all the Hindu rituals. There is no dispute to this fact. Immediately after the wedding, the husband and his family members started harassing the appellant who was at the matrimonial home in Udaipur in the State of Rajasthan. The husband lost his job and therefore, started demanding money from the father of the appellant who showed his inability to pay a sum of Rs. 20 lakhs. After this incident the husband and the family members started abusing and insulting the appellant, however, she tolerated all this so as to save her matrimony, during this period she conceived a child but because of the unhappiness and because her parents was unable to pay Rs. 20 lakhs, she was forced to abort the child and the child aborted. Looking to this unhappy incident, the father of the appellant paid a sum of Rs. 10 lakhs. The husband after procuring the money from the appellant he was in debt and was running here and there. The appellant herein gave birth to a female child which infuriated the respondent more than what he was before the incident. He was indebted to people to the tune of Rs. 40 lakhs, his cruelty day and day out had started physically assaulting her. The appellant's father who lived in a rented house in Ghaziabad and therefore in the year 2017 when she was driven out of the house and when the husband went away and absconded, she was also thrown out of the house with her daughter. All this was tolerated by the wife and much later in the year 2018 she filed the suit for divorce which was conducted ex-parte. The judgement spells out in:
3." प्रतिवादी को दावे की सूचना भेजी गयी। कई बार पंजीकृत डाक से सूचना भेजी गयी। अखबार में प्रकाशन कराया, लेकिन दावे की खबर होने के बावजूद उसने जानबूझकर उपस्थित होकर जवाब दावा नहीं लगाया। प्रतिवादी के द्वारा जानबूझकर न्यायालय में उपस्थित न होने की परिस्थितियों में उनके विरूद्ध दिनांक 21.01.2019 को एकपक्षीय कार्यवाही का आदेश हुआ।
4. याचनी को एकपक्षीय साक्ष्य का अवसर दिया गया, जिस पर याचनी द्वारा साक्ष्य में अपना साक्ष्य शपथ-पत्र दाखिल किया गया है। अन्य किसी साक्षी का साक्ष्य शपथ-पत्र दाखिल नहीं किया गया है। दस्तावेजी साक्ष्य के रूप में शादी की फोटो, शादी का कार्ड, आधार हेतु किये गये आवेदन की फोटोप्रति, एककिता रेंट एग्रीमेंट व शादी व पुत्री के जन्म के समय दिये गये सामान की सूची दाखिल की गयी है।
6. अब देखना यह है कि क्या याचनी अपनी केस एकपक्षीय रूप से साबित करने में सफल रही है? अपने केस के समर्थन में याचनी द्वारा अपना साक्ष्य शपथ-पत्र दाखिल किया गया है। अन्य किसी साक्षी का साक्ष्य शपथ-पत्र दाखिल नहीं किया गया है। प्रतिवादी द्वारा की गयी क्रूरता की बाबत कोई अभिलेख साक्ष्य याचनी द्वारा प्रस्तुत नहीं की गयी है।"
Despite this the learned Judge dismissed the application for decree for divorce on the ground that:-
".... प्रस्तुत प्रकरण में याचनी की साक्ष्य से यह कतई स्पष्ट नहीं होता है कि याचनी का प्रतिवादी के साथ रहने की स्थिति में जीवन खतरे में है। अतः केस के तथ्यों एवं परिस्थितयों के आलोक में मयंक भटनागर ने कोई भी क्रूरता याचनी के प्रति की हो ऐसा आरोप याचनी साबित करने में पूरी तरह से असफल रहा है।
याची के द्वारा जनपद गाजियाबाद में निवास के संबंध में केवल नोटेरी किरायानामा दाखिल किया है, परन्तु उक्त किरायानामा को सम्पत्ति मालिक को न्यायालय में परीक्षित कर सत्यापित नहीं कराया है।...." and has rejected the application. It is this order which has given rise to this appeal.
By way of this appeal the appellant who had moved the Family Court for seeking divorce from her husband has moved this Court contending that despite the above mentioned facts the matter was not contested by the respondent-husband. The court on two counts dismissed the Family Court petition for divorce, one of the grounds on which the petition was dismissed that the appellant herein could not prove that she was resident of Ghaziabad. For that the appellant has contended that she had applied for Aadhar Card after been thrown away from the matrimonial home she was moved to Ghaziabad and was residing there when Family Court when the application for divorce was filed, she has filed the application in Ghaziabad. She is daughter of late. Sanjay Bhatnagar and she used to stay in tehsil " 710C Pinakel Towers Ahinsa Khand, Dwitiya Tehsil, Ghaziabad" which she has maintained also in 2021, this is the submission of the learned counsel of the appellant and the appellant has not changed the address.
The provisions of Section 19 of the Hindu Marriage Act, 1955 relates to jurisdiction. The petition was filed under Section 13 of the Hindu Marriage Act and Section 19 of the Hindu Marriage Act, 1955 reads as follows:-
"19. Court to which petition shall be presented.- Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction-
(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or..."
The facts reveal that at the time of filing of the petition the appellant proved that the residence was falling in territorial jurisdiction of the family court , as per provisions of Act the petition can be filed where the residence of petitioner was disclosed and no rebuttal evidence came on record to contend that the petitioner was not giving correct facts. The another ground to dismiss the petition is that petitioner failed to prove cruelty by cogent evidence that husband had perpetuated mental cruelty though she has condoned the same once the court has lost sight of the fact that cruelty has to be decided on facts it might have been condoned once but that is not conclusive that it was not revisited and was again repeated. The learned counsel for the appellant has taken us to the record and has referred to, page 15 which narrates the genesis of all the events which the learned counsel for the appellant has requested us to go through which would go to show that the chain is complete and the behaviour of the husband has been such which shows that he has not only deserted but before deserting the wife he has forced her to leave Rajasthan and move to Ghaziabad disowning the wife after the birth of a female child is the highest kind of cruelty and therefore in the case on hand the matter will have to be decided based on the facts emerging are (a) desertion (b)as well as cruelty. We are fortified by the judgements in the case of V. Bhagat Vs. D. Bhagat, (1994) 1 SCC 337, G.Padmini Vs. G.Sivananda Babu, AIR 2000 Andhra Pradesh 176 and Jitendra Kumar Vs. Ankita Sharma @ Thakur, on which heavy reliance is placed by the learned counsel for the appellant.
There is not even a whisper on record to show that ever the husband tried to carry the wife and maintain her. The evidence of the wife clearly shows that on account of subjecting cruelty, both physical and mental, under the guise of the demand of cash, ornament etc.The respondent husband has persistently remained absent for more than 3 years though he have been served with summons of both the courts namely the family court and court of appeal namely in this appeal . The respondent has not appeared before this Court. The evidence reveals three facts: (1) that the husband has no animus of cohabitation; (2)the petitioner has substantiated her say with evidence and even she has in her oral testimony proved the facts alleged . Moreover, the petitioner has proved the facts averred about residential proof . Even if the decree be not granted on the ground of desertion but on the ground of irretrievably breaking down of marriage and on the ground of cruelty a decree was required to be passed in favour of the petitioner appellant as the facts also shows that the respondent and his family members have caused mental cruelty to the petitioner.
We would take assistance from a the judgment reported in 2006 (3) GLR 2182 between Naveen Kohli vs. Neelu Kohli, wherein it has been held as follows:
"Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not, but the legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.
Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties."
It would be necessary to refer to the provisions of Section 13 (1) (i-a) and (iii) of the Hindu Marriage Act, 1955 which reads as under:-
"13 Divorce - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(i) XXX XXX XXX (i-a) has after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) XXX XXX XXX
(ii) XXX XXX XXX
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
XXX XXX XXX So considering the above provisions of Section 13 (1) of the Hindu Marriage Act, and in light of the facts and in light of the findings that the marriage is not only irretrievably broken, the wife was treated by the husband with mental cruelty without any reason and there was no animus of cohabiting shown by the husband .We find support In decision titled K. Srinivas Rao Vs. D.A. Deepa A.I.R. 2013 SC 2176 where the Court held "cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse.Cruelty may be physical or mental. A sustained course of abusive and humiliating treatment calculated to torture, discommode orrender miserable life of the spouse is cruelty. Mental cruelty is a state of mind. The feeling of deep anguish, disappointment,frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. Accusations of unchastity and indecent familiarity with a neighbour were made in the written statement support the allegation of mental cruelty caused to husband by wife. Humiliation by leveling allegation o fillicit relations of husband with some other ladies that too unproved and unsubstantiated, humiliation of parents of husband, complaint to police authorities against husband for such unfounded allegations collectively do constitute a clear case of mental cruelty justifying divorce under Section 13 of Act,1955."
As stated earlier, the respondent-husband has not come forward before this Court to contest this appeal and has chosen to remain absent.The respondent has not cross-examined the petitioner before the trial court and has not stepped into the witness box. The say of the petitioner in her petition as well as in her affidavit, has therefore, remained unchallenged and uncontroverted and stands proved and adverse inference should have been drawn against the respondent but non considering by trial court has caused injury to appellant wife . This Court has also no reason to disbelieve the say of the petitioner/appellant on oath as she has proved her averments by stepping into the witness-box. The petitioner has categorically stated in the way in which she was treated with mental and physical cruelty and was deserted by the respondent.It is an admitted position of fact that there is a desertion of more than two years. Thus it goes without saying that the ingredients of the Section 13 of Hindu Marriage Act 1955 have been proved by the wife. The averments of the plaint and the facts proved by the wife shows that the husband has perpetrated cruelty on the wife. The averments of the wife stated in the petition and this appeal have gone uncontroverted and unchallenged and from the evidence it emerges that the petitioner has been subjected to the cruelty and is deserted, and therefore, this is a clear case of cruelty and desertion for the following reasons:
There is no cohabitation by and between the parties. The petitioner's allegations are not refuted or controverted by the respondent, as he has not stepped into the witness box;
The respondent has not made any endeavour of reconciliation and has also not appeared before this Court and has chosen to remain absent though served.
The petitioner was subjected to the mental and physical cruelty as alleged in the petition. So, from the above said reasons, the marriage seems to have turned into deadlock as they have no cohabitation with each other since last more than two years. Therefore, the petitioner has been successful in establishing that she was treated with cruelty and has been deserted by the husband and hence the petitioner/appellants entitled to a decree of divorce as prayed for therefore, in view of the above, a decree of divorce requires to be granted to this petitioner/appellant. .It is proved that she was driven out of the matrimonial house and neglected by the husband, which is obviously proved and thus, she is entitled to divorce.We are also fortified in our view by placing relence on the decision in The judgment reported in AIR 2005 SC 3508 in the case of Geeta Jagdish Mangtani v. Jagdish Mangtani,which also helps the petitioner's case as there where thefacts show " the wife left matrimonial home in Mumbai only after about 4 months of marriage and started living with her parents in Gujarat where she gave birth to child and then continued with her teaching job. No attempt was made by her to stay with husband which clearly established animus deserendi. The course of conduct adopted by the respondent proved desertion on her part without reasonable cause. The Hon'ble Supreme Court has held that it amounted to willful neglect of husband and he, is therefore, entitled to divorce decree".
The appeal is allowed.
The marriage dated 11.02.2012 are ordered to be dissolved. The Marriage Petition No. 518 of 2018 (Smt. Shruti Bhatnagar Vs. Mayank Bhatnagar) under Section 13 (1)(A)of Hindu Marriage Act1955 is allowed .The judgment and decree are reversed. The family court to draw modified decree in consonance with this judgment within eight weeks from today. Record be sent to the concerned Family Court.
We are thankful to young counsel who argued the matter and has assisted the Court ably.
Order Date :- 12.8.2021/PS