Priti Patwa vs Dinesh Mundera And ORS.

Shailendra Shukla, J

The present appeal under Section 19 of the Family Courts Act, read with Section 28 of the Hindu Marriage Act, has been preferred by the appellant against the judgment and decree passed on 31.10.2011 by the First Addl. Principal Judge, Family Court, Indore in Hindu Marriage Case No.835/2008 whereby her suit for dissolution of marriage has been rejected.

The un-controverted facts of the case are that the marriage between the appellant and the respondent No.1 was solemnized on 2.2.2006 as per Hindu rites and ceremony and no child was begotten of the said wedlock.

The facts of the case in brief are that right after the marriage, the behavior of the respondent - Dinesh towards the appellant - Priti was disrespectful and he used to make fun of her short height, less hair on her head, spectacles and marks on her face. The respondent used to insult her and she suffered inferiority complex and was traumatized. The respondent did not establish any physical relations with the appellant and it was a dead marriage from the very inception. The respondent failed to fulfill his responsibilities towards the appellant and did not provide her with food, clothes etc. The appellant was pursuing her C.A. course, but because of non-cooperative attitude of the respondent could not complete her course and this again became the cause for taunt and abuse by the respondent. In the month of 2006, the respondent's mother called up appellant's father and told him that appellant and respondent are not able to cope up with each other and asked father of the appellant to take her back or else separate arrangements for living of the respondent shall have to be made. On 4.6.2006, appellant - Priti returned to her parental house and is living with her parents since then. During this period many phone calls were made to the respondent to know as to why appellant was sent back. However, no satisfactory answer has been provided. On 15.11.2008, a notice was sent through the registered AD by the appellant - wife to the respondent, but there was no reply from the respondent side. Under these circumstances, the suit was filed for dissolution of marriage.

The respondent submitted his reply in which he had stated that the appellant refused the conjugal relations with the respondent on one pretext or the other and she used to dislike him. She used to taunt him on his body structure and failure on his part to purchase car and other luxurious items.

In appeal, it has been stated that the learned trial court did not consider the submissions appropriately and overlooked the fact that there is irretrievable break down of marriage and dismissed the suit for divorce in appropriately. The appellant in her appeal has prayed that suit for dissolution of marriage be decreed in favour of the appellant.

The respondent has not furnished any reply to the appeal.

Learned counsel for the appellant in her submissions has invited court's attention towards the evidence showing that the appellant has been living separately from respondent since the year 2006 and the respondent has failed to establish conduct with her ever since then. These circumstances point to irretrievable break down of the marriage and, therefore, the divorce decree be drawn in favour of the appellant.

The Apex court in the case of Sandhya Rani vs. Kalyanram Narayanan, (1994) Suppl. 2 SCC 588, it was held that when the parties have been found to be living separately for a long duration then, marriage would be considered to have irretrievably broken down. Similar observation has been made by the Apex court in the case of Chandrakala Menon (Mrs.) & Anr. vs. Vipin Menon, 1993 Vol. II SCC page 2 and Smt.Kanchan Devi vs. Praveen Kumar Mittal, (1996) 8 SCC page 90.

The facts of the present case reveal that the appellant and the respondent have been living separately for a number years with no contact established between them and there is such break down which is irretrievable in nature. Hence, the marriage between the appellant and the respondent deserves to be dissolved. The judgment and decree dated 31.10.2011 is set aside. The suit filed by the appellant Preeti Patwa for dissolution of marriage is decreed. Both the parties to bear their own cost. The appeal stands allowed in above terms.

A copy of this judgment along with the family court record be sent to the family court for compliance.