Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(J&K) 546

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
RAHUL BHARTI, J.
Anupam Koul – Appellant
Versus
Tina Dhar Koul – Respondent
M.A. No. 50 of 2016, I.A. No. 1 of 2017, I.A. No. 1 of 2016
Decided On : 16-08-2023

Advocates:
Advocate Appeared:
For the Appellants : Sunil Sethi, Lawanya Sharma, U.K. Jalali, Shivani Jalali.
For the Respondent: Kamal Magotra.

The main legal point established in the judgment is the proof of cruelty and desertion as grounds for granting a decree of divorce under the Jammu & Kashmir Hindu Marriage Act, 1980.

Headnote:
Divorce - Matrimonial Dispute - Jammu & Kashmir Hindu Marriage Act, 1980 - Section 9, Section 13 - [Cruelty, Desertion] - [Section 9, Section 13 of the Jammu & Kashmir Hindu Marriage Act, 1980] - The court discussed the issues of cruelty and desertion in the context of the divorce petition filed under Section 13 of the Jammu & Kashmir Hindu Marriage Act, 1980. The court found that the appellant had failed to prove the alleged cruelty and desertion by the respondent, resulting in the dismissal of the divorce petition. However, the appellate court held that the appellant had proved both the issues and granted a decree of divorce, dissolving the marriage with the respondent. The court also awarded the respondent an amount of Rs. Ten(10) lacs as permanent alimony payable by the appellant.
Fact of the Case:

The spouses, who were married for three years, had been in acrimonious litigation for more than seventeen years. The appellant filed a petition seeking restitution of conjugal rights, which was later withdrawn, and subsequently filed a petition for divorce on the grounds of mental cruelty and desertion.
Finding of the Court:

The court found that the appellant had failed to prove the alleged cruelty and desertion by the respondent, resulting in the dismissal of the divorce petition. However, the appellate court held that the appellant had proved both the issues and granted a decree of divorce, dissolving the marriage with the respondent. The court also awarded the respondent an amount of Rs. Ten(10) lacs as permanent alimony payable by the appellant.
Issues: The issues revolved around the alleged cruelty and desertion by the respondent, as well as the maintainability of the petition in view of the earlier petition filed by the appellant under Section 9 of the Jammu & Kashmir Hindu Marriage Act, which was subsequently withdrawn.
Ratio Decidendi: The court found that the appellant had proved both the issues of cruelty and desertion, leading to the grant of a decree of divorce. The court also considered the entitlement and grant of permanent alimony to the respondent in view of the marriage being dissolved by a decree of divorce, as mandated by Section 31 of the Jammu & Kashmir Hindu Marriage Act, 1980.
Final Decision: The court granted a decree of divorce, thereby declaring the marriage of the appellant and the respondent being dissolved by a decree of divorce. The respondent was entitled to receive an amount of Rs. Ten(10) lacs as permanent alimony from the appellant, payable within a period of three months.

JUDGMENT :

RAHUL BHARTI, J.

1. Heard learned counsel for the parties and perused the record.

1.1 A factual preface which self introduces itself in this appeal is that as against hardly three years of company in matrimony, the spouses i.e. the appellant and the respondent are in acrimony of litigation for the last more than seventeen years in running none relenting to end it in a cordiality of their consent.

2. The denial of divorce by the court below has brought the appellant-husband in the present appeal which has been pending final adjudication for the last more than seven years in this Court and before that it has taken more than nine years for the court below to wind up the matrimonial litigation between the two. This is a high time for the courts dealing the matrimonial litigation, be it on trial side or appellate side, to awaken and act upon a realization that when the time is essence of life then a matrimonial litigation is not supposed to run prime life time of the spouses in litigation. Bond in matrimony shall not lead to long bondage in litigation.

3. Both the appellant and the respondent are the educated persons who entered marital relationship on 26.11.2001 solemnized under the Hindu customs and rituals in Jammu. Respective parental side residences of the appellant and the respondent are also in Jammu and were so even at the time of solemnization of marriage between the appellant and the respondent.

4. Out of this marital wedlock, the appellant and the respondent came to have a daughter born to them on 03.09.2002 who is named as Tanaya Koul. The place of birth of Tanaya Koul was in USA when both the appellant and the respondent were on their visit to attend a social function on the side of the respondent’s brother settled in USA.

5. The marital living between the appellant and the respondent came to suffer split and separation in October, 2003 distancing the two in terms of bed and bread as the appellant remained in his parental household whereas the respondent went back to her parental household never to get redrawn in matrimonial company and care of each other but only to find themselves in presence of each other in the litigation.

6. In the background of missing conjugal company lasting for more than three years reckoning from October, 2003, the appellant had come to file on 06.10.2006 a petition under section 9 of the Jammu & Kashmir Hindu Marriage Act, 1980 seeking restitution of conjugal rights. This petition, later on, came to be withdrawn on 25.07.2007 by the appellant purportedly acting upon a self drawn opinion that the respondent was not earnestly inclined to restore the conjugal company and case filed by him would be wastage of time and effort. Thus, on 25.07.2007 when said section 9 petition for restitution of conjugal rights came to be withdrawn by the appellant a petition under section 13 of the Jammu & Kashmir Hindu Marriage Act, 1980 for a decree of divorce came to be filed on 25.07.2007 against the respondent on the purported grounds of mental cruelty and desertion.

7. It is the appellant’s said petition for divorce before the Court of learned Additional Judge (Matrimonial Cases), Jammu on its file no. 540/HMA which has failed so as to give rise to the present appeal.

8. In his divorce petition, the appellant came to aver and allege that the respondent came to leave the matrimonial household of the appellant without any rhyme or reason in the month of October, 2003 to station up herself in her parental household and despite repeated requests from the appellant as well as from his parents’ end for restoring the matrimonial relationship, the respondent negated the said requests and, therefore, a state of desertion came to be set in lasting for more than four years from the respondent’s end uptil the time of filing of the divorce petition.

9. In his said petition, the appellant came to plead that even during brief period of marital cohabitation, the respondent was making stray stay in the matrimonial household