Anjali Bhan and Others vs Ajay Kumar Bhan and Others

Gh. Hasnain Massodi, Judge

Instant Civil First Miscellaneous Appeal, calls in question judgment and decree of learned Additional District Judge, Matrimonial Cases, Jammu

dated 26th September, 2006 in petition u/s 13 of J&K Hindu Marriage Act titled ""Ajay Kumar v. Anjali Bhan"", whereby marriage of the parties

has been dissolved. The appeal arises in the following factual background.

The Respondent on 1st June, 2001 filed a petition u/s 13 of J&K Hindu Marriage Act, seeking a Decree of divorce. The Respondent based his

claim for divorce on the ground that the Appellant, after solemnization of the marriage, treated the Respondent with cruelty. The particulars of

cruelty allegedly perpetrated by the Appellant on the Respondent were spelt out in the petition, as under: -

(I) That the Appellant, soon after the parties tied marital knot, treated Respondent and ""his parents and family members with disrespect"",

misbehaved"" with the parents and other family members of the Respondent, picked up quarrels over trivial matters, did not lend a helping hand in

day-to-day domestic work and failed to perform her duties as a wife and daughter-in-law. (II) That the Appellant in March, 2000, underwent

abortion/aborted foetus, without knowledge and consent of the Respondent, at the instance of her parents; that this act of the Appellant resulted in

mental torture and tension to the Respondent; that the Respondent because of abortion has lost trust in the Appellant, making it impossible for the

Respondent to live with the Appellant.

(III) That the Appellant after the Respondent expressed displeasure on her having aborted the foetus, sent her colleagues from her office and other

goons to the residence of the Respondent, who assaulted and dragged out the Respondent, his parents and other family members, and threatened

the Respondent.

(IV) That the Appellant lodged false and frivolous complaints against the Respondent and his family members at Police Station, Janipur and Police

Women Cell, Canal Road, Jammu and all the complaints on investigation were found false and frivolous; that the Respondent and his parents were

summoned to the police station a number of times and treated like ordinary criminals.

(V) That the Appellant all along behaved abnormally, would shout at and pick up quarrels with the Respondent No. 1, even in the new locality

where the Respondent No. 1 shifted to live with the Appellant separately from his parents and other family members, that the Appellant would not

cook food for the Respondent or wash his clothes, and the Respondent a number of times had to go to bed without meals; that the Appellant

would off and on assault the Respondent and on one such occasion poured hot wax from a burning candle on the Respondent. (VI) That the

Appellant used to threaten to drag the Respondent and his family to the police station and spoil his service career; that the Appellant even made

phone calls to the office of the Respondent leveling baseless allegations against the Respondent, so as to malign and disgrace the Respondent.

(VII) That the Appellant on 2nd April, 2001 i.e. within a month of their having shifted to the rented accommodation, took away all valuables

including jewelry and ornaments gifted by the Respondent and his parents, and has been ever since living separately from the Respondent, with her

parents at her parental home.

(VIII) That the marital life of the parties was spoiled by the parents of the Appellant, who had an eye on Appellant's salary and not in a mood to

lose her salary, they were likely to lose in the event the marriage between the parties went well, the Appellants parents wrecked their marital boat.

The Appellant denied all the averments made in the petition and disputed that the Appellant treated the Respondent with cruelty. The Appellant

pleaded that the Respondent failed to show up at the time of birth of their only child (girl child) and has not till date seen his daughter, not to speak

of providing her maintenance and health care. The Appellant alleged that the Respondent after subjecting the Appellant to merciless beating threw

her out from marital home on 1st September, 2000 and that the Respondent and his parents have even misappropriated Stridhan and other

ornaments/property of the Appellant; that though the Appellant returned to her marital home on the assurance that there would be a change in

Respondent's behavior, the Respondent continued to misbehave with and harass the Appellant and treat the Appellant as a domestic servant,

frequently subjecting her to severe beating. The Appellant claimed to have been constrained to lodge a complaint against the Respondent and his

family members, after the Appellant was continuously threatened by them and that the Respondent before the investigating officer admitted all his

mistakes and undertook to desist from such activities, in future. The Appellant further pleaded that the Respondent filed a divorce petition against

the Appellant and when confronted with his misbehavior and cruel conduct, allowed the petition to be dismissed on 21st December, 2000. The

Appellant questioned maintainability of the Petitioner in hand on the ground of dismissal of earlier petition brought on identical grounds. The

Appellant pleaded that after the Appellant was reunited with the Respondent, the Respondent choose not to make any change in his cruel behavior

and continued to harass the Appellant, even in the rental premises, where the Respondent shifted after having a quarrel with his parents. The

Appellant claimed to have contributed an amount of Rs. 60,000/- for the construction of the residential house by the Respondent. The Appellant,

leveling allegations of misappropriation of Stridhan and other valuable ornaments and dowry demands, asked for dismissal of the petition.

The trial court on perusal of the pleadings settled following issues:

Whether the Respondent treated the Petitioner with cruelty which has rendered matrimonial life impossible?

Whether Respondent has deserted the Petitioner since September, 2000 without any justification?

Relief.

The Respondent examined two witnesses in support of his case. The Respondent also stepped in the witness box. The Appellant on the other

hand examined four witnesses to support the case set up by her in opposition to the petition and to rebut the evidence adduced by the Respondent.

The Appellant appeared in the witness box to substantiate her stand.

Learned trial judge on appreciation of the evidence brought on the file and after making a comprehensive survey of case law on the subject

decided both the issues in favour of the Respondent and against the Appellant. The trial court held the Appellant to have treated the Respondent

with cruelty and to have deserted the Respondent since September, 2000 without any justification. The trial court after recording its finding on

issues 1 and 2 proceeded to grant a decree of divorce in favour of the Respondent. However, learned trial judge awarded an amount of Rs. 2 lac

as permanent alimony"" to the Appellant and an amount of Rs. l lac in favour of the girl child. The decree of divorce is subject to payment of the

awarded amount. The trial court left the parties to bear their own cost.

The trial court judgment and decree dated 26th September, 2006 are assailed in this appeal on the grounds that the judgment in question is

based on mis-appreciation and non-appreciation of evidence. It is urged that as the parties after abortion lived together and were blessed with a

child, the act of abortion is to be deemed to have been condoned by the Respondent. The trial court, according to the Appellant completely

ignored this aspect of the case and based it judgment taking the abortion claimed to have been undergone by the Appellant without consent of the

Respondent, as an act of cruelty, least realizing that parties had lived together after the abortion. It is pleaded that as no fresh allegations of cruelty

were pleaded in the petition, the trial court ought not to have granted the decree of divorce in favour of the Respondent. The trial court is said to

have failed to take a holistic view of the evidence brought on the file, to appreciate the evidence in its totality and instead relied upon a few

statement in bits and pieces. The judgment and decree impugned, according to the Appellant is based on surmises and conjectures. The trial court

is said to have erroneously taken the marriage as broken, though no such ground was urged in the petition. The trial court, it is urged, failed to

notice that PW Dr. Veena Raina had claimed to have merely done DNC procedure on the Appellant and not to have facilitated abortion and the

Respondent thus failed to prove that the Appellant had undergone abortion or that the abortion had not occurred in normal course without any

medical intervention.

I have gone through the memorandum of appeal and the judgment impugned in the petition. I have also perused the trial court record.

Before embarking on an exercise to re-appraise the entire evidence brought on record by the parties and to see whether the conclusions drawn

by the trial court are based on proper appreciation of the evidence, it needs to be pointed out that though the appeal is a continuation of the suit

and the appellate court has power to re-appreciate the evidence, yet the appellate court is to bear in mind that the trial court had an advantage and

opportunity to have a first hand account of demeanor of the witnesses and the conclusions drawn are not normally to be disturbed.

The Supreme Court in Jagdish Singh Vs. Madhuri Devi, has held:

When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having

applied its mind the appellate court is enjoined to keep that fact in mind. No doubt, the appellate court possesses the same powers as that of the

original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial

court mainly on appreciation of oral evidence, it should not be lightly disturbed, unless approach of the trial court in appraisal of evidence is

erroneous, contrary to well established principles of law or unreasonable. The High Court has to deal with the reasons recorded and conclusions

arrived at by the trial court. Thereafter, it is, certainly open to the appellate court to come to its own conclusion, if it finds that the reasons which

weighed with the trial court or conclusions arrived at were not in consonance of law."" The Apex Court has laid down following three prerequisites

that normally must be present before an appellate court reverses a finding of the trial court:

(I) It applies its mind to reasons given by the trial court. (II) It keeps in mind that it has had no advantage of seeing and hearing the witnesses. (Ill)

It records cogent and convincing reasons for disagreeing with the trial court.

Having drawn the baseline to be adhered to by this Court while dealing with the appeal, the focus must shift to the judgment and decree

impugned in the appeal and grounds urged to assail the judgment and decree of the trial court.

The case projected by the Respondent before the trial court to seek divorce was that the Appellant, after solemnization of the marriage,

treated the Respondent with cruelty. The Respondent in his petition alleged mental as well as physical cruelty. The Respondents' case primarily was

that the Appellant by aborting her first child without knowledge and consent of the Respondent had subjected the Respondent to mental cruelty.

Mental cruelty was also said to have been perpetrated by the Appellant, by misbehaving with and humiliating the Respondent, his parents and other

relations, and even lodging false complaints, on investigation found devoid of any substance. In addition, the Respondent also alleged that the

Appellant sent her office colleagues to Respondents residence who physically assaulted and thrashed the Respondent, his parents and siblings.

The Respondent appeared in the witness box to substantiate his case and so did his brother Raj Kumar and a close relation Smt. Raj Dulari.

The Respondent examined Dr. Veena Raina, who treated the Appellant at her clinic, did DNC because of incomplete abortion and presence of

remnants of foetus in her uterus.

The Appellant crossed the witness box and examined S/Sh. Chuni Lal Kaw, Virinder Trisal Bhushan Lal Kaw and Bhushan Singh in support of her

stand.

The trial court after making an elaborate discussion of ingredients, of ""cruelty"" contemplated by Section 13(1) (ii) Jammu and Kashmir Hindu

Marriage Act, 1980 and after making a survey of case law on the subject summarized parameters of cruelty as under:

There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the

other spouse need not be enquired into or considered. In such cases cruelty will be established if the conduct itself is proved or admitted. The

attitude is also the important aspect if attitude of one spouse towards the other is not good, it also amounts to mental cruelty. The mental cruelty

can even cause more grievous injury and create in mind of injured spouse, reasonable apprehension that it will be impossible or unsafe with other

party. The conduct alleged must also be viewed from the angle of victim's capacity or incapacity for endurance in so far as that is, or ought to be

known to the offending spouse. Cruelty alleged should be of such a nature as to satisfy the conscience of the court that the relationship between the

parties have deteriorated to such an extent that it would be impossible for them to live together without mental agony, torture or distress to entitle

the party to secure divorce. Cruelty also consists of verbal abuses and insults by using filthy and abusive language leading to constant disturbance

of mental peace of the other party. Solitary instance of emotional out burst of violent behavior does not constitute cruelty."" 13. The trial court,

thereafter, proceeded to assess and evaluate the evidence brought by the parties on the file and held:

From the evidence on the record it is clear that after the marriage the parties have never lived peacefully under one roof. It had become a routine in

their married life to quarrel with each other. Firstly the Petitioner filed a divorce case in 2000 which was dismissed after compromise and the

parties started living together again but after some time they again started living separately.

The main allegation leveled by the Petitioner against the Respondent is that she aborted child without his consent which was denied by the other

party. From the statement of Dr. Veena Raina it is revealed that Respondent had gone to her clinic. Dr. Veena Raina has stated in her statement

that Respondent came to her clinic. The Respondent was bleeding and she conducted DNC upon the Respondent. She was alone at that time. The

Respondent herself has admitted that she called her brother-in-law on telephone. It is strange that the Respondent did not call her husband and call

her parents and lonely conducted DNC in Nursing home. Generally it is seen that ill ladies suffer from such problems they visit doctors alongwith

their husband or nearest relations but the Respondent in the present case has visited the Nursing home lonely putting her life in risk as she has not

cared to take her husband alongwith or some other person. Even Dr. Veena Raina did not bother to inform the Respondent's in-laws or her

parents about the same. Even the Respondent contacted her parental house not her mother-in-law. Since the dispute between the parties was

already going on and the parties were not happy with each other. The statement of the Petitioner cannot be disbelieved. The marriage between the

parties is almost dead as the parties are living separately for last 5/6 years. It seems that there was no emotional attachment between the parties

otherwise at that juncture the parties would have been living together."" The trial court concluded:

The most important fact to establish the ground of cruelty is whether the Respondent has treated the Petitioner in such a manner which has caused

reasonable apprehension in the mind of the Petitioner that it would be harmful or injurious for him to live with the Respondent. The Petitioner and

Respondent were given chances to live together, firstly when the divorce case was filed by the Petitioner which was dismissed in 2000 on

compromise and thereafter again the Petitioner filed case for divorce in 2001. It seems that there is no mental adjustment between the parties and

parties have gone to the extent of filing cases against each other, abusing by the Respondent has also caused mental torture to the Petitioner and

lodging of FIR has also caused mental torture to the Petitioner. The relationship between the parties have deteriorated to such an extent that it is

impossible for them to live together. The marriage is almost dead and there is no chance of retrieve.

Learned Counsel for the Appellant assails the conclusions arrived at by the trial court as erroneous, unwarranted and depicting mis-

appreciation of evidence on the ground that the trial court failed to notice that no effort was made by the Respondent to prove that the Appellant

had aborted the child and that PW Veena Raina claimed to have merely performed DNC on the Appellant and not facilitated abortion. It is argued

that there being no evidence on the file to conclude that the Appellant underwent abortion, it was not open to the trial court to held that because of

the abortion, the Appellant had subjected the Respondents to mental cruelty.

The argument is preposterous and made unmindful of the pleadings of parties and the evidence on the file.

Learned Counsel for the Appellant appears to loose sight of the objections filed by the Appellant in the divorce petition/application. The Appellant

in para 7 of her objections pleaded................

It is denied that abortion was carried without consent of the Petitioner or the in-laws. It is submitted that at the instance of Petitioner himself that an

abortion was brought out on the first chance. It is entirely false to suggest that the fact of abortion was concealed from the Petitioner

It may be recalled that main plank of the Respondent's case before the trial court was that the Appellant underwent abortion without

knowledge and consent of the Respondent. The Appellant in reply to the averments while admitting that she had undergone abortion denied that it

was carried out without knowledge or consent of the Respondent. In the circumstances, there is no merit in the argument that as the Respondent

had failed to prove before the trial court that the Appellant aborted the child, the trial court ought not to have held the abortion to have taken place

and proceeded to observe that the Appellant by doing so had treated the Respondent with cruelty. In view of the admission made by the Appellant

in her objections, the Respondent was free from onus to prove the factum of abortion. Independent of the pleadings, the evidence on the file also

substantiates the fact that the Appellant underwent abortion and later went to the clinic of PW Dr. Veena' Raina, Additional Professor Gynecology,

who performed DNC on the Appellant. PW Dr. Veena Raina has deposed that the Appellant had undergone an incomplete abortion and the

remnants of the foetus were still present and removed through DNC. DNC or ""Dilation and Curettage"", it is well known, is a surgical procedure

often performed after a first trimester miscarriage. It involves opening up of cervix and removal of contents of uterus. The Appellant in her

statement has admitted that the Appellant conceived in December, 1999 but insisted that the pregnancy of its own got aborted soon thereafter. It is

important to note that the case sought to be set up by the Appellant while rendering evidence, is not pleaded in objections filed to oppose the

petition. It is nowhere pleaded that the abortion took place without medical intervention. The Appellant, rather, pleaded that the abortion was

carried out"" at the instance of the Respondent. There is thus variance between pleadings are proof. On the other hand, the stand taken by the

Respondent that he became aware of the development only when he by chance laid hands on prescription of PW Dr. Veena Raina handed over to

the Respondent by the Appellant's parents sounds convincing in face of the evidence on the file. In the circumstances, the argument advanced is

bereft of any force.

The Respondent by cogent and convincing evidence proved before the trial court that in addition to unilateral decision to abort the child, the

Appellant's conduct towards the Respondent and his family caused embarrassment, humiliation and anguish to the Respondent and his family

making their life miserable and un-endurable. It was proved before the trial court that not only was the conduct of the Appellant disrespectful but

she got registered criminal cases against the Respondent and his family at Police Station, Janipur and also Police Women Cell, Canal Road, Jammu

that though on investigation the complaints were found without substance yet Respondent and his parents were summoned to the police station,

treated like criminals and exposed to humiliation. It was also proved that the Appellant's office colleagues on her persuasion went to the

Respondents house, assaulted and humiliated the Respondent and his family members. The conduct attributed to the Appellant in the application as

also the evidence, is echoed in the case set up by the Appellant in opposition to the petition and the evidence adduced to rebut the Respondent's

case.

It is pertinent to point out that the Appellant apparently keen to have the marital relations restored with the Respondent and to lead a peaceful

married life has leveled serious allegations against the Respondent. The Appellant has accused the Respondent of insatiable greed, unruly behaviour

and cruel conduct. The Appellant while responding to the omissions and commissions alleged in the petition has instead of denying the averments

made in the petition, leveled counter charges and justified her conduct.

It is next argued by learned Counsel for the Appellant that the trial court while deciding issue No. 1 in favour of the Respondent and against the

Appellant, has paid no attention to the conduct of the parties after incident of abortion and alleged incidents of mis-behaviour. It is insisted that

even if, it is assumed that the Appellant went for the abortion without knowledge and consent of the Respondent or indulged in conduct

unbecoming of a wife and daughter in-law, the parties having restored marital relations and the Respondent having even fathered a child, the

Respondent is to be taken to have condoned the lapses, if any, on part of the Appellant. Learned Counsel for the Appellant while elaborating on

the argument, pointedly invited attention of this Court to dismissal of an earlier divorce petition filed by the Respondent, for non prosecution. It is

argued that the Respondent by taking the Appellant to her marital home and deciding to live with the Appellant as husband, has followed the policy

of ""forget and forgive"" and cannot be allowed to maintain the present petition. The argument again is devoid of any merit and not sustainable.

The decision to abort a child and that also taken unilaterally by a wife is grave a matter not to be taken to have been condoned by the husband

by making an unsuccessful effort to go for rapprochement. A brief full in marital affairs possibly because of intervention and advice of elders may

generate a hope that time may prove a great healer, but cannot be taken indicative of condonation of conduct that has left the husband tormented

and shattered. If, a spouse treats other spouse with cruelty and peace is brokered temporarily by the parents and other relations whereafter the

erring spouse continues with cruelty, the cause to seek divorce re-emerges and the wounds cannot be said to have healed and the complaining

spouse estopped from bringing a fresh action for divorce.

In Smt. Abha Agarwal Vs. Sunil Agarwal, , relied upon by learned Counsel for Respondent, where a divorce petition brought by the husband

on the ground of cruelty and misbehaviour by the wife was not prosecuted by the husband on the intervention of parents and relatives and wife

after the matrimonial relations were restored behaved normally only for a short time. It was held that in view of subsequent behaviour of the wife,

she cannot call to her aid the plea of condonation. It was held that behavior of the wife resulted in revival of the original cause of action.

In Samar Ghosh Vs. Jaya Ghosh, , where the parties after deciding to part ways inter alia because of unilateral decision of the wife not to raise

the family decided to live together, and after the experiment failed the husband again got an action for divorce. The Supreme Court rejecting the

argument that decision of the husband to start living with the wife after the wife refused to have a child, amounted to condonation observed:

the finding of the high court that the Appellants started living with the husband amounted to condonation of the act of cruelty is unsustainable in

law.

Reliance placed by learned Counsel for the Appellant on law laid down in S. Hanumantha Rao v. S. Ramini AIR 1999 Supreme Court 1318 is

misplaced and does not extend any help to the Appellant, for the simple reason, that the facts of the reported case are markedly distinguishable

from the facts of the present case. In the reported case, the parents of the wife sought help of Women's Protection Cell for reconciliation of the

estranged spouses and not to prosecute the husband or his parents. Further more, there was no evidence to show that the husband or his family

members were harassed by the Cell. In the said factual background it was held that the wife did not treat the husband with cruelty.

The trial court findings on factual aspects of issue No. 1 is based on correct appreciation of the evidence on the file and cannot be interfered

with. Whether the conduct attributed to the Appellant and proved by the Respondent on the strength of creditworthy evidence, amounts to

cruelty"" within the meaning of Section 13(1) (ii) Jammu and Kashmir Hindu Marriage Act, 1980 is next to be seen.

In Vinita Saxena Vs. Pankaj Pandit, . Supreme Court commenting on the parameters of ""cruelty"" and what a party complaining of cruelty, is

required to prove observed:

The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the

parlies. This general rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints, accusations or

taunts........... It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other

spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of

such injury. There are two sides to be considered in case of cruelty. From the Appellant's side, ought this Appellant to be called on to endure the

conduct? From the Respondent's side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible

conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view

after a consideration of any excuse which the Respondent might have in the circumstances, the conduct in such that the Petitioner ought not be

called upon to endure.

In Suman Kapur Vs. Sudhir Kapur, Supreme Court after making an elaborate survey of law on the subject held:

Cruelty is a course of conduct of one spouse which adversely affects the other spouse. The cruelty may be mental or physical, intentional or

unintentional. If cruelty is physical, it is a question of degree which is relevant. If it is mental, the enquiry must begin as to the nature of the cruel

treatment and then as to the impact of such treatment on the mind of the other spouse. Whether it caused reasonable apprehension that it would be

harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its

effect on the complaining spouse. The concept of legal cruelty changes according to the changes and advancement of social concept and standards

of living. To establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total

indifference on the part of the husband towards marital obligations would lead to legal cruelty.

The court, quoted with the approval following observations made in the Vinita Saxena case (supra):

It is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the

injured Appellant such apprehension as is contemplated in the section. It is to be determined on whole facts of the case and the matrimonial

relations between the spouses. To amount to cruelty, there must be such willful treatment of the party which caused suffering in body or mind either

as an actual fact or by way of apprehension in such a manner as to render the continued living together or spouses harmful or injurious having

regard to the circumstances of the case.

The matrimonial matters, as observed by the Supreme Court in Chetan Dass Vs. Kamla Devi, are the matters of delicate human and emotional

relationship. These demand mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse.

The decision of a married couple to raise a family and to have a child is an important decision and cannot be taken by one of the spouses

unilaterally. If, husband decides not to have a child, ignoring wishes of his wife and to accomplish his object abstains from cohabitation or uses a

barrier, it may amount to mental cruelty to the wife, eager to attain motherhood. Similarly, it may amount to cruelty by the wife, if wife refuses to

have a child and either abstains from sexual relationship or uses any preventive measure, so as to prevent pregnancy. The matter assumes gravity, if

wife after becoming pregnant, undergoes abortion and that too without knowledge or consent of the husband. Such a unilateral act is bound to

leave psyche of the husband bruised and battered, give rise to a host of questions in the mind of the husband, sow seeds of suspicion and lead to

life long frustration and mental depression. Supreme Court in Samar Ghosh Vs. Jaya Ghosh, , emphasizing importance of decision by married

couple to have a child held that such a vital decision cannot be taken unilaterally after marriage by a spouse and if taken unilaterally, it may amount

to mental cruelty to other spouse.

From above discussion what emerges is that unilateral decision of wife and that also without knowledge and consent of the husband, to

terminate pregnancy, would amount to ""cruelty"" within the meaning of Section 13(1) (ii) Jammu and Kashmir Hindu Marriage Act, 1980.

In the present case, the decision taken by the Appellant to abort the child without knowledge and consent of the Respondent, undoubtedly,

must have caused deep pain to the Respondent and fall out of the act because of its very nature cannot be put in a time frame but would continue

to be painful and tormenting for the husband, for the rest of his life. Unilateral decision taken by the Appellant dismantled the very edifice on which

the sacred relationship of husband and wife was built.

In the circumstances, the trial court was justified in concluding that the Appellant treated the Respondent with cruelty within the meaning of

Section 13(1) (ii) Jammu and Kashmir Hindu Marriage Act, 1980.

However, finding returned by the trial court on issue No. 2 does not find any support from the evidence on the file and is thus unsustainable.

Issue No. 2 as a matter of fact does not reflect the pleadings. It is admitted position of the parties that the parties lived together first at the parental

house of the Respondent and thereafter in the rented premises till 2nd April, 2001. In issue No. 2, the Appellant is said to have deserted the

Respondent since September, 2000 without any justification, which as already stated is not the case set up by the Respondent. In the

circumstances, the finding returned by the trial court that the Appellant deserted the Respondent since September 2000, is in conflict with the

pleadings as well as proof. This apart answer to issue No. 2 is of no consequence as regards the controversy involved in case in hand. It needs to

be pointed out that in terms of Section 13(1) (ii) the Petitioner to get a decree of divorce on the ground of desertion has to prove that the opposite

party deserted the Petitioner for a continuous period of not less than two years immediately preceding the presentation of the Petitioner. It is

nobody's case that the Appellant deserted the Respondent for a continuous period of not less than two years immediately preceding 1st June,

2001 i.e. the date on which the divorce petition was presented before the trial court.

So viewed, the finding returned by the trial court on issue No. 2 is untenable and is accordingly set aside. This, however, does not change

complexion of the case inasmuch as the Petitioner did not edifice his case on the ground of desertion and asked for decree of divorce only on the

ground of cruelty.

The argument advanced by learned Counsel for the Appellant that there having been no specific averment made by the Respondent that there

was a complete breakdown of marriage between the parties, nor any issue settled reflecting such assertion, it was not open to the trial court to

declare the parties to have reached a point of no return and the marriage without any chance of retrieval. In a family dispute like person one, the

court is duty bound to assess and evaluate how wide is the gulf of disagreement between the parties, explore the chances of reconciliation and

wherever even a meager chance of rapprochement and reconciliation is visible, to persuade the parties to bury the hatchet, give their relationship a

second chance and also to declare the marriage irretrievable, where no chance of reconciliation is visible. Long separation between the parties as in

the present case and cessation of marital relationship for a long period may be the factors that contribute to the view that there is no hope of the

parties coming together notwithstanding any amount of efforts made by the trial court and all those interested in reconciliation between the parties.

In the case in hand, trial court having persistently during course of trial made efforts to persuade the parties to restore marital relations and it's all

efforts having met failure, was right in holding that the parties had reached point of no return.

In Durga Prasanna Tripathy Vs. Arundhati Tripathy, Supreme Court observed.

Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this

stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal

and set aside the judgment of the High Court affirming the order of the Family Court granting decree for divorce

In Samar Ghosh's case (supra) Supreme Court observed:

The High Court in the impugned judgment ought to have considered the most important and vital circumstance of the case in proper perspective

that the parties have been living separately since 27.8.1990 and thereafter, the parties did not have any interaction with each other................. This

instance is clearly illustrative of the fact that now the parties have no emotions, sentiments or feelings for each other, at least since 27.8.1990. This

is a clear case of irretrievable breakdown of marriage. In our considered view, it is impossible to preserve or save the marriage. Any further effort

to keep it alive would prove to be totally counterproductive.

The trial court in the circumstances cannot be found fault with for having made an effort to find out and opine whether there was any chance of

reconciliation between the parties and after mapping out milestones in the marital life of the parties, holding that there was no chance of

reconciliation.

For the reasons discussed above appeal is dismissed. The judgment and decree impugned in the appeal are held to be in strict accordance with

law, and the Respondent to have successfully brought his case within ambit of Section 13(1) (ii) of J&K Hindu Marriage Act, 1980.

However, having regard to cost of living, diminishing rupee value, high inflation rates and skyrocketing prices, ends of justice would be met if

the amount awarded by the trial court for minor child is enhanced from Rs. 1.00 lac to Rs. 2.00 lac. The judgment and decree are accordingly

upheld with the aforesaid modification as regards amount awarded to the minor. Decree sheet be drawn up. Record send down and appeal file

send to records.

Dismissed.