IMPORTANT POINT
Divorce – Where marriage has ceased to exist both in substance and in reality, divorce is appropriate remedy.

JUDGMENT

Vikram Nath, J.

Leave granted.

2. The present appeal is preferred by Appellant-Dr. Vikas Kanaujia against the impugned order of High Court of Allahabad dated 22.08.2019, passed in First Appeal No. 31 of 2007, whereby the High Court allowed the appeal and set aside the decree of divorce granted by the Family Court, Meerut on 20.12.2006 in Matrimonial Case No. 123 of 2003 filed by the Appellant. The Appellant-husband had filed the petition for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955[In short, HMA] on the ground of Cruelty.

3. The factual matrix of the case, along with the record of multiple legal proceedings between the parties, is summarised as follows:

4. Appellant-Dr. Vikas Kanaujia and Respondent Dr. Sarita got married to each other on 20.02.2002 in accordance with Hindu Rites and Customs. The Respondent-wife came to her marital home at Meerut. The Appellant submitted in his plaint, that marriage was consummated but later the relationship between parties was strained as Respondent refused to perform marital obligations and misbehaved with his mother. On 22.02.2002, the younger brother and maternal aunt of the Respondent allegedly visited the house and the Respondent left for her paternal home along with them. The Appellant brought her back to marital home on 04.03.2002. Afterwards both the Appellant and Respondent went to Udhampur (Jammu and Kashmir) where the Appellant was working as an eye surgeon. However, the Appellant claims that behaviour of Respondent was cold and indifferent towards him. They both returned on 11.03.2002. On 17.03.2002 the Thirteenth day function (Terahi Ceremony) was held for a family member of Appellant. On the evening of same day, the Respondent left her marital home. Since then, the Respondent is residing at her paternal home. Thus, the Appellant and Respondent have lived together for barely 23 days as the Respondent shifted to her paternal home before completing even a month at her marital home.

5. The Appellant states that he made repeated attempts to bring back the Respondent but he failed as Respondent refused to live with him. Thus, the Appellant filed a suit under Section 9 of HMA for restitution of conjugal rights as Suit No. 598 of 2002. The Respondent, on the other hand, filed an application under Section 24 of the HMA for maintenance as Suit No. 336 of 2002. Both the cases were listed together before the Family Court on 28.11.2002 however allegedly the Respondent and her father misbehaved with the father of Appellant on the day of proceedings. Since no attempts of reconciliation were successful, on 26.02.2003 the Appellant filed a suit for dissolution of marriage under Section 13 of the HMA on the ground of Cruelty as Matrimonial Case No. 123 of 2003. Appellant claimed cruelty against Respondent on two grounds. First, the Respondent did not fulfil her marital obligation by depriving the Appellant of his conjugal rights. Second, the Respondent caused mental cruelty by her temperament and misbehaviour with family members of Appellant. On the other hand, in the Written Statement the Respondent-wife has stated that Appellant was unhappy in marriage since day one. She never refused to join the company of Appellant and live together. But the Appellant and his family wanted to remarry him for dowry. They had allegedly demanded dowry from Respondent as well.

6. While the proceedings in Matrimonial suit were pending, on 31.07.2006 the Family Court rejected the application filed by Respondent seeking maintenance under Section 24 of HMA, on the ground that Respondent was also a doctor and her earnings are at par with the Appellant.

7. The suit for restitution of conjugal rights was later withdrawn by the Appellant. On 26.05.2003, the Respondent wife filed a petition under Section 125 of the Code of Criminal Procedure, 1973 seeking maintenance as Case no. 89 of 2011. It was dismissed on 29.11.2013 on the ground that Respondent was earning at par with Appellant and t