Mental cruelty can lead to irretrievable breakdown of a marriage, and long periods of separation can amount to cruelty under Section 13 (1)(ia) of the Hindu Marriage Act.

JUDGMENT :

1. Heard Sri Vishesh Rajvanshi, learned counsel for the appellant-defendant (wife) and perused the record.

2. Vide order dated 9.3.2017 present appeal was admitted and notices were issued to the sole respondent-plaintiff (husband) by registered post/speed post. As per office report dated 15.12.2017 ‘unserved notice returned due to unclaimed’. Subsequently, the appeal was dismissed for want of prosecution on 17.10.2022 and on a restoration application, the same was restored on 22.5.2023. In view of the fact that the appeal had been dismissed for want of prosecution, fresh notices were issued on 1.11.2023. According to the office report dated 9.3.2023 in respect of ordinary process, it is reported that notice not received back after service and in respect of speed post, it is reported that undelivered notice received with remark. In such circumstances, notice of service on sole respondent is deemed to be sufficient.

3. No one has turned up on behalf of the sole respondent (plaintiff-husband), therefore, we proceed to hear the counsel for the appellant on merits.

4. Present appeal has been filed challenging the impugned judgment and order dated 21.1.2017 passed by the Principal Judge, Family Court, Meerut in Divorce Petition No. 643 of 2013 (Madhukar Chugh vs. Charu Chug) filed under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act.

5. Submission of learned counsel for the appellant is that respondent-plaintiff (husband) has himself deserted the appellant-defendant (wife) as he wanted to perform re-marriage with another lady. It is submitted that the Court below failed to record any finding that the alleged desertion/separation by the appellant was unreasonable, unexplained and has not recorded any finding regarding relation between the parties having become irretrievable. It is further submitted that appellant-defendant clearly pleaded her willingness to live with her husband to lead a peaceful and successful matrimonial life, which has not been considered by the Court below. It was next submitted that cruelty under Section 13 (1)(ia) and (ib) of the Hindu Marriage Act has to be proved beyond all reasonable doubt on the basis of cogent evidence, but in the present case the requirement of provisions have not been fulfilled and therefore, the judgment impugned herein is bad in the eye of law. It is also submitted that the issue of cruelty has been decided in a superficial manner without discussing the evidence on record. Attention was drawn to the stand taken by the appellant in her written statement and the statement of respondent no. 1 recorded as PW-1 as well as statement of PW-2. Specific attention was drawn to the cross-examination of DW-1 in support of the arguments to show that cruelty was committed on the appellant and not on the respondent-plaintiff (husband). It is also submitted that the Court below did not initiate conciliation proceedings between the parties as per Section 9 of the Family Court Act, 1984.

6. We have considered the submissions of leaned counsel for the appellant and have gone through the judgment of the Court below impugned herein.

7. Admitted facts of the case as reflected from the judgment are that the marriage between the plaintiff (respondent-husband) and the defendant (appellant-wife) was performed on 15.4.2002 as per hindu rites and rituals after the offer having been accepted through matrimonial advertisement in a newspaper in the year 2001. It is also admitted that after marriage they had gone to Dalhousie (Himachal Pradesh) for honeymoon and after return from honeymoon, the husband (respondent) had gone to Bhopal to join his services. It is alleged that the appellant (wife) had gone to Meerut to her parental house. Subsequently, she came to Bhopal. In September, 2002 she had returned to her parents and the husband was informed by his mother-in-law that she had a miscarriage in November, 2002. In July, 2003 the appellant got a job in Bhopal and joined the services. Subsequently, she h