Failure to make attempts to reconcile and restore the marriage can amount to cruelty under Section 13(1)(ib) of the Hindu Marriage Act.

JUDGMENT :

Sri Rakesh Thapliyal, J.

By the instant First Appeal, the appellant is challenging the judgment and decree dated 18.12.2021 passed by the Judge, Family Court, Pauri Garhwal in Family Court Case No. 60 of 2018 titled as “Smt. Shakuntala Umrao vs. Shri Ram Sharan Umrao”, whereby the suit filed by the appellant-plaintiff under Section 13(1)(ia) and (ib) of Hindu Marriage Act, 1955 for divorce against the respondent-defendant has been dismissed.

2. The facts of the case, which are not in dispute, are as follows:

The marriage of the appellant/plaintiff and the respondent/defendant had been solemnized on 05.02.2016 as per the Hindu rites and customs at Vishwanath Temple, Uttarkashi, District-Uttarkashi. Out of their wedlock, no child was born. In the plaint, it is alleged by the appellant (wife) that the respondent (husband) was not interested in establishing marital relationship and was evading to have marital relationship, which caused mental agony to the appellant and, according to her, the marital life of the appellant got ruined; she had to go to her maternal house third day of her marriage because of this behavior; the respondent (husband) married her only for money, and her life was in danger because his demand was not met. The last time the parties lived together was on 11.06.2016, at Srinagar, and since then, there is no husband-wife relationship in between the appellant and the respondent. Since then, the appellant and the respondent are living separately; and she apprehends that any time the respondent may cause harm to the lives of the appellant and her family members, as also, the property. On the aforesaid grounds, the appellant filed Family Court Case No. 60/2018 under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of cruelty.

3. The respondent filed his Written Statement Paper No.27Ka denying all the allegations made by the appellant in the plaint against him, particularly the allegation that he did not take interest in establishing marital relationship. Therein, he admitted the fact of his marriage with the appellant on 05.02.2016, and there being no issue out of their wedlock. He further stated that he still wants to live with the appellant, and cannot imagine his life without the appellant. The respondent prayed that the suit of the plaintiff be rejected.

4. The appellant filed her own affidavit Paper Nos. 45Ka/1 to 45Ka/3 as PW-1, the affidavit of Vishambhar Dayal Paper Nos. 49Ka/1 to 49Ka/2 as PW2, affidavit of Mayaram Paper Nos. 50 Ka to 50Ka/2 as PW-3, and the said witnesses were cross-examined on behalf of the respondent.

5. The respondent filed his own affidavit Paper Nos.52Ka/1 to 52Ka/4 as DW-1. The respondent was cross-examined on behalf of the appellant. In oral evidence, through List Paper No. 23GA, the original copy of the notice received by the respondent from his School Paper No. 23Ga/1 and through List No.38Ga, copy of the Original Residence Certificate Paper No.38Ga/1 and copy of the Voter Identity Card Paper No.38Ga/2 were filed.

6. The Judge, Family Court, Pauri Garhwal, Uttarakhand, vide its impugned judgment and order dated 18.12.2021, dismissed the petition for divorce filed by the appellant.

7. The learned Judge, Family Court, Pauri Garhwal, Uttarakhand, on the basis of the contentions of the parties, framed the following three issues:-

(1) Whether cruel behaviour was done by the defendant with the plaintiff, if yes, its effect?

(2) Whether the defendant has deserted the plaintiff without any reason, if yes, then its effect?

(3) Whether the plaintiff is entitled to get the relief sought in the plaint?

8. Issue No. 1, which is to the effect “whether cruel behaviour was done by the defendant with the plaintiff, if yes, its effect?”, was decided by the Judge, Family Court, Pauri Garhwal, against the appellant (defendant). The Judge, Family Court, Pauri Garhwal, while deciding the said issue against the appellant recorded a finding that from th