Neutral Citation No.

- 2024:AHC:106253-DB
Reserved

Chief Justice's Court

Case :- FIRST APPEAL No. - 181 of 2019

Appellant :- Vipin Kumar Agrawal

Respondent :- Smt. Manisha Agrawal
Counsel for Appellant :- Archit Mehrotra
Counsel for Respondent :- Harshul Bhatnagar

Hon'ble Arun Bhansali, Chief Justice

Hon'ble Vikas Budhwar, J.
(Per : Arun Bhansali, CJ)

1. Heard Sri Manish Goyal, learned Senior Advocate, assisted by

Sri Archit Mehrotra, learned counsel appearing for the appellant and
Sri Ashok Shankar Bhatnagar, learned Senior Advocate, assisted by
Sri Harshul Bhatnagar, learned counsel for the respondent.

2. This appeal is directed against the judgment dated 01.09.2017

passed by Additional Principal Judge, Family Court, Gautambuddha
Nagar whereby the petition filed by the appellant under Section 13 of
the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’)
seeking dissolution of the marriage has been rejected.

3. The proceedings under Section 13 of the Act were initiated on

03.10.2011 with the averments that parties entered into wedlock on
06.12.1994 and two sons, Vinamra and Chaitanya, were born to them
at Farrukhabad District, U.P. At the time of marriage, the family used
to reside at Farrukhabad and house of the respondent was at Noida
where her family was staying. After the death of respondent’s father
on 26.11.1999, respondent’s both brothers and mother stayed in the
house at Noida. Her both the brothers were married, however, their
marriages have been dissolved. The respondent was living with her
mother and brothers for about four years. It was indicated that the
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appellant is a partner in M/s. Narayan International and M/s. North

International. The family shifted to Noida whereat House No. A-111,
Sector 40, Noida, the family along with the children was living. The
house in question was got registered in the name of the respondent on
appellant making payment through an account payee cheque, which
amount was paid from M/s. Narayan International. It was claimed that
the family life of the parties was always disturbed because of which
the respondent did not take care of her husband and children
appropriately. Most of the time, she was staying at her parental home.
It was then alleged that in the intervening night of 20 th and 21st of
August 2007, there was dispute between the parties for which
respondent was responsible, based on which the respondent decided
not to live with the appellant and without reasonable cause, she ousted
the husband from the house. The respondent misbehaved along with
her mother and brothers with him and started claiming herself to be
the owner of the house situated at Sector-40, Noida. The appellant was
forced to live with the family alone. Respondent filed Misc.
Application No. 38 of 2008 under Section 7 of Guardians and Wards
Act, 1960, Hindu Minority and Guardianship Act, 1956 before the
District Judge, Gautambudh Nagar on 20, 21 November, 2008. False
criminal case was registered with the Chief Judicial Magistrate,
wherein allegations of domestic violence were made that the appellant
had beaten her in August, 2007. In fact, the elder son, Vinamra, was
made to give a statement for the purpose of creating false evidence.
However, the case was dismissed for lack of evidence. Allegations
were made that in September, 2010, attempt was made to usurp house
at Sector-40, which failed, several false complaints were filed
including at Mahila Police Station, which resulted in mental cruelty. A
false affidavit was filed before the Court of Additional Sessions Judge
that till such time that witnesses are given Police protection, they will
not appear and that the appellant wants to compromise with the
 3

respondent so that they can live together and he can murder her and
give it a shape of suicide, which application was rejected. Other
allegations were made regarding making of false applications before
the Court and in the allegations made in the petitions, character
assassination of the appellant was done. Further allegations were
made pertaining to various kind of averments made in the proceedings
amongst the parties including the fact that her father died on account
of behaviour of the appellant. Further submissions were made that
false allegations pertaining to abortion were made. It was indicated
that a suit was filed on 05.05.2008 for restoration of conjugal rights.
However, when the response was not filed, the same was withdrawn.
Efforts were made to resolve the issue by A.D.J. Court also, however,
the same also failed. Based on the said averments, relief was claimed
for dissolution of marriage.

4. Reply to the petition was filed by the respondent, inter alia,

contesting the averments made in the petition. It was claimed that
despite suffering the torture for years, she made all the attempts to
save her matrimonial life and was waiting for behaviour of the
appellant to change. Submissions were made that the main reason for
the matrimonial dispute was that as elder brother of the appellant had
no son and the respondent refused to give her younger son in adoption
to the elder brother of the appellant, the same resulted in the dispute
between the parties. Further allegations were made that as the
appellant has not approached the Court with clean hands, the petition
was liable to be dismissed. It was denied that any allegations
pertaining to adultery were made. Children have always indicated that
they wanted to live with the mother. The property at Sector-40 is
registered in her name and that the respondent was forced to take
stand before the Courts on account of the behaviour meted out to her.
It was submitted that the respondent was willing to live with the
appellant subject to correction in his behaviour.
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5. Based on the averments of the parties, the Family Court framed

three issues. Issue No. 1 pertained to cruelty, Issue No. 2 related to
cause of action and the Issue No. 3 pertained to relief.

6. On behalf of the appellant, three witnesses were produced and

several documents were exhibited. On behalf of the respondent, six
witnesses were examined and several documents were exhibited.

7. After hearing the parties, the Family Court came to the

conclusion that in respect of the allegations pertaining to desertion on
20th and 21st of August 2007, though a dispute did arise between the
parties, however, there was no material available on record to indicate
that the appellant was thrown out of the house, besides the fact that no
criminal case was lodged by him. The Family Court, thereafter dealt
with the allegations made in each sub-para of Para-11 pertaining to
cruelty and accepting the version of the respondent and came to the
conclusion that the appellant failed to prove the cruelty. The Issue No.
2 pertaining to cause of action was decided on the basis of the
admitted fact of marriage and Issue No. 3 pertaining to relief was
decided against the appellant and the petition was dismissed. Feeling
aggrieved, the present appeal has been filed.

8. Learned counsel for the appellant made submissions that parties

are living separately since the year 2007, no mutual faith and trust is
left between the parties, it is established from the evidence available
on record that the respondent has failed to understand and accept the
emotions and feelings of the appellant and cruel behaviour of the
respondent is writ large on record and, therefore, the Family Court fell
in grave error in refusing to pass a decree for divorce. Submissions
have been made that the life of the appellant can be bifurcated in
different stages. From, 06.12.1994, when they got married, to
19.08.1999, while they were residing at Farrukhabad away from
Noida, from 1999 to 2001, when the family of the appellant was
shifting from Farrukhabad to Noida and the appellant purchased
 5

House at Sector-40 on 10.07.2000 in the name of respondent, and the

last phase from 2001 to 2007, the turbulent phase, wherein the
respondent under the influence of her mother and two brothers, both
divorcee, committed cruelty against the appellant. All efforts were
made by the appellant to save his marriage, however, failed. It is
submitted that since 2007 till date, the married life has reached a dead
end as there has been a series of litigations between the parties
wherein criminal complaint was filed by the respondent-wife,
proceedings under Guardians and Wards Act for custody of children
was filed by her, the contempt of Court proceedings against the
appellant was initiated, complaint was made to the Senior
Superintendent of Police levelling charges of burglary against the
appellant and threat to life. Proceedings were filed under Guardians
and Wards Act and injunction suit was filed by the appellant and
proceedings were initiated under Section 9 of the Act. Submissions
have been made that a bare look at averments made in various
proceedings would reveal that the same are sufficient to constitute
mental cruelty wherein no stone was left untouched to assassinate the
character of not only the appellant, but the entire family. Reference
has been made to allegations contained in various pleadings and the
statements recorded. Efforts have been made to indicate that the
allegations contained therein were false resulting in mental cruelty.

9. Learned counsel for the appellant emphasized that the Family

Court, instead of seeking to explain each and every allegation made in
the petition regarding mental cruelty from the point of the view of the
respondent, should have taken an over all view of what has happened
in the life of the parties. The evidence adduced by the appellant was
misread and wherever there has been clear evidence of cruelty, the
Family Court has not even discussed the same which has resulted in
perversity vitiating the judgment impugned.
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10. Further submissions were made that the judgment impugned is

perverse in not taking into the consideration the material available on
record. Reliance was placed on Samar Ghosh Vs. Jaya Ghosh :
(2007) 4 SCC 511, V. Bhagat Vs. D. Bhagat (Mrs.) : (1994) 1 SCC
337, Raj Talreja Vs. Kavita Talreja : (2017) 14 SCC 194 and
Malathi Ravi M.D. Vs. B.V. Ravi M.D. : (2014) 7 SCC 640.

11. Further submissions were made that present is a classic case of

irretrievable break down of conjugal relations, wherein the parties are
well qualified and understand the implications of the averments made
by them in various pleadings and evidence recorded in the matter. The
two children of the parties are now aged 25 and 27 years and are
settled in U.K. and, therefore, there is no reason to drag the
relationship. Submissions were also made that the respondent was
already in possession of a valuable property purchased and owned by
the appellant and the appellant, keeping in view the observations
made by Hon’ble Supreme Court in the case of Raj Talreja (supra),
is prepared to pay a sum of Rs. 3 crore as permanent alimony so as to
take care of her status post grant of decree of divorce. It is prayed that
the appeal be allowed, judgment impugned be set aside and marriage
between the parties be ordered to be dissolved.

12. Submissions made by counsel for the appellant were

vehemently opposed by counsel for the respondent. Submissions were
made that insofar as the respondent is concerned, she does not want
dissolution of marriage but seeks the appellant not to indulge in
violence. It was submitted that the house in question though was
purchased by a cheque given by the appellant, the money was paid to
him by respondent’s father in cash in advance. Learned counsel for the
respondent emphasized that even as per the case of the appellant, the
dispute started with the birth of younger son on 19.09.1999, as the
appellant wanted to give the said child in adoption to his elder brother.
The appellant himself left the house after thrashing her in the
 7

intervening night of 20th and 21st of August, 2007 and the respondent
is being accused of desertion, which is baseless. Learned counsel
made submissions that the appellant took away the children in March,
2008 and filed proceeding under Section 9 of the Act on 05.05.2008
which was later on withdrawn. A suit for injunction was filed by him
for restraining the respondent from meeting the children wherein an
ex-parte injunction was granted. The injunction was later on vacated
and directions were given that the children would live with each
parent for one month each. On 31.05.2008, the appellant did not hand
over the children and as such a complaint under Section 156(3)
Cr.P.C. was filed seeking return of children based on which the
custody was handed over and the case was dismissed for want of
prosecution. In the said proceedings, the son gave statement under
Section 202 Cr.P.C. on 21.08.2008 whereafter the appellant initiated
proceedings under Section 7 of Guardians and Wards Act wherein
allegations and counter allegations were made. It was submitted that
the nature of the allegations, which were made by the appellant in his
examination-in-chief, amounts to cruelty and it was only on account
of the allegations made that the respondent was forced to indicate the
things in rejoinder which cannot be permitted to be used for alleging
cruelty as the appellant cannot be permitted to take advantage of his
own wrong. It was submitted that the indications made in the
proceedings pertaining to custody of children had nothing to do qua
the matrimonial dispute and by making false allegations, the
respondent was forced to make counter allegations. It was submitted
that based on the averments contained in various pleadings, which
were forced on the respondent, appellant cannot be permitted to seek
dissolution of marriage. Reliance was placed on Ravindra Kaur Vs.
Manjit Singh : (2019) 8 SCC 308, Samar Ghosh Vs. Jaya Ghosh
(supra), Ashok Kumar Jain Vs. Sumati Jain : (2013) 14 SCC 123
 8

and Smt. Shashi Bala Vs. Rajendra Pal Singh : First Appeal No.
231 of 2015, decided on 10.12.2019 by Division Bench of this Court.

13. We have considered the submissions made by counsel for the

parties and have perused the material available on record.

14. From a perusal of the pleadings of the parties as well as the

statements recorded in support of respective versions, it is revealed
that the petition seeking dissolution of marriage was filed by the
appellant alleging desertion and cruelty.

15. The averments pertaining to desertion were made in para-10 of

the plaint, which averments were denied by the respondent. However,
surprisingly, the Family Court did not frame any issue on the aspect of
desertion and even in the judgment impugned, there has been a lack of
point for determination with regard to aspect of desertion though the
evidence was adduced.

16. Under the provisions of Order XVIII Rule 4 C.P.C., as the

examination-in-chief is by way of affidavit, the allegations, as
contained in the plaint, were repeated and the cross-examination took
place on the aspect of the desertion as well. Finding of the Family
Court on the aspect of desertion is quite cursory and does not indicate
in so many words as to whether the aspect of desertion has been
proved or not. The duty of the Court in farming issues, as provided
under Order XIV C.P.C., is not a mere formality, as the issues are the
foundation on which the evidence is required to be led/modulated by
the parties and failure to frame proper issues not only deprives the
parties to lead evidence appropriately, the judgment delivered also
lacks comprehension and, therefore, proper framing of the issues is a
sine qua non for the purpose of a proper trial.

17. Be that as it may, the allegations in the plaint pertained to a

quarrel between the parties in the intervening night of 20th and 21st of
August, 2007, as a result of which the appellant claims to have been
 9

forced to leave the matrimonial house and he started to live with his
parents. The said allegations made in the plaint were specifically
denied by the respondent insofar forcing the respondent to leave the
house in question was concerned, on the other hand it was alleged that
the appellant gave thrashing to the respondent and himself left the
house. The circumstances, which have come on record, clearly reveal
that since 20th//21st August, 2007 the parties are not living together. As
to whether the respondent forced the appellant to leave the
matrimonial house or the appellant left the house on his own; and,
whether leaving house on his own would amount to desertion by the
respondent of the appellant, requires determination.

18. Term “Desertion” has been defined in Explanation to Section

13(1) of the Act as under:

“Explanation.- In this sub-section the expression “desertion”

means the desertion of the petitioner by the other party to the
marriage without reasonable cause and without the consent or
against the wish of such party, and includes the wilful neglect of the
petitioner by the other party to the marriage, and its grammatical
variations and cognate expressions shall be construed accordingly.”
A perusal of the above explanation would reveal that
“desertion” would mean leaving of the petitioner by the other party to
the marriage without reasonable cause and without the consent and
includes the wilful neglect of the petitioner by the other party to the
marriage.

19. In the present case, since admittedly, the appellant left the
matrimonial home for whatever reasons, including the fact that there
was some altercation between him and the respondent on 20 th August,
2007, it cannot apparently be alleged that the respondent had deserted
the appellant. The allegations contained in para-10 of the petition
seeking divorce read as under:

“10. That in the night of 20/21.8.2007 there was a quarrel in

between the parties and it was the defendant-respondent who was
responsible for that and as a result thereof, she declared she would
 10

not live with the plaintiff-petitioner any more, consequently, she

deserted or turned the plaintiff-petitioner out of the house (A-111
Sector-40, Noida), without reasonable cause and against the wish of
the petitioner, in complicity with her mother and brothers, that too
after abusing him and his parental joint family members claiming
that she is the sole owner of House No. A-111, Sector-40, Noida,
hence, she shall alone stay there, as per her own Sweet Will.
Consequently, the petitioner, husband has been compelled to reside
at his Parental Joint Family house.”
20. A perusal of the above would reveal that the appellant has relied
on a single event whereby he himself left the matrimonial residence
and started living with his parents. Except for making allegations that
the respondent declared that she shall alone stay in the house, nothing
has been indicated with regard to efforts made by the appellant to get
back in the matrimonial home and in those circumstances, it cannot be
said that there has been desertion on the part of respondent so as to
bring the case within the ambit of Section 13(1)(i-b) of the Act.

21. In that view of the matter, so far as the plea pertaining to

desertion is concerned, the same cannot be accepted and the finding
recorded by the Family Court, though cursory, does not call for any
interference.

22. The main focus of the petition seeking dissolution of marriage

has been the alleged cruelty committed by the respondent, the
allegations whereof are contained in various sub-paras of para-11 of
the petition. The allegations essentially pertain to the nature of
averments made in various proceedings between the parties on various
aspects of matrimonial dispute including proceedings under the
Guardians and Wards Act and the criminal complaint made by the
respondent. Submissions made are that the allegations, which were
made, are per se false, which caused great mental agony beyond all
limits and that the same shocked the family. For the purpose of
establishing cruelty, reliance is sought to be placed on the
averments/allegations contained in various pleadings/papers
 11

pertaining to filing of complaint in June, 2008 alleging that she was

beaten up in August, 2007, complaint made pertaining to attempt to
get back in the property, affidavit in guardianship case alleging threat
to life issued by the appellant, purported attempt on the part of the
appellant for reconciliation so as to ultimately murder her indicating
the appellant being of deep ante-social, ante-family character, alleging
adultery and it is submitted that the complaints made were dismissed
causing great mental torture to the appellant.

23. It would be appropriate to quote the contents of the rejoinder

filed by the respondent in the proceedings initiated by her under
Section 7 of the Guardians and Wards Act, which read as under:

“(e) Respondents family environment is characterised by being

abusive, carrying arms and being generally and completely
aggressive/violent/unsocial in nature. The Respondent and his family
is engaged in upholstery manufacturing business and is dealing with
illiterate/ semi-literate labourers where they use abusive aggressive
language 12 hours a day. Such exposure has percolated in
respondents familial psyche and he uses such abusive language and
violent/unsocial manners even at home. His aggressive violent
unsocial behaviour, habit of telling lies and interpreting situations in
a twisted manner may work in his business but would certainly be a
bad example for the minors at such tender age. In fact, Respondent
constantly teaches children to lie and sets various completely
immoral examples for them to follow.
Such an ugly exposure to children at such an early age would leave
deep un-repairable psychological marks on them, permanently
damaging their psyche and they will not develop into morally sound
character.
(f) Due to respondent family’s possession of pistols/arms and their
uncontrolled violent nature, minors are even at physical risk.”
24. In the affidavit filed by the respondent in support of the
proceedings under Section 7 of Guardians and Wards Act, it was, inter
alia, stated as under:

“9- That the respondent is a violent, inhuman, “revolver” totting,

individual, who acts in a fit of rage has outrageously anti-social
questionable individuality, repeatedly threatens and beats, throws
 12

his wife and children out of his home and currently resides in a
family where the other mail child in the so-called joint family
routinely fails in studies year after year because members cannot
spend any time on child’s development due to their single minded
pursuit of business wealth, where other male child are sent to hostel,
where men routinely come home late at night and are on frequent
business tours and where abusive aggressive language and
behaviour is order of the day.”
25. In the cross-examination as DW-1 in the present proceedings,
the respondent admitted to have filed the rejoinder and further stated
as under:

^^mDr fjTokbUMj esa esjs }kjk fofiu th dks violent, Introman, revolver
totting, indivudal, outrageously, anti social, questionable foi{kh ds
fy[kh xbZ gSA Anti Social dk eryc tks social u gksA tc ekjrs ihVrs x;sA
violent dk eryc fd ekjrs ihVrs gSA inhuman dk eryc gS tks nwljs dh bTtr
u djsA Revolver totting eryc gS fd tks cUnwd vius ikl j[krs gksA vkSj
Mjkrs ?kedkrs gksA indivudal dk eryc balkuA eSus 17 lky esa fofiu th ds vUnj
;g [kwch ns[kh fd os vius vkfQl esa esgur ls dk;Z djrs gSaA os vius dk;Z esa brus
O;Lr jgrs gSa fd vius chch cPpksa dks Hkwy tkrs gSaA mudh t:jr] nnZ dk
dksbZ ?;ku ugha djrsA fofiu th vius ekrk firk HkkbZ HkkHkh ds lkFk bruk pyrs gS
fd os esjh] esjs cPpksa dh rFkk esjs ifjokj okyks dh bTtr j[kuk Hkwy tkrs gSa vkSj
csbTtrh djrs gSaA yksxksa dks iSlk fn[kkrs gSa vkSj “kku le>rs gSaA esjh ,oa cPPkksa dh
t:jrksa dks Hkwy tkrs gSaA blds vykok eq>s bl le; ;kn ugha fd fofiu th esa D;k
D;k [kwfc;kWa gSaA^^
26. The respondent, in her affidavit in the proceedings under
Guardians and Wards Act, also alleged as under:

“32- That due to cruelties and atrocities committed by respondent

and his other family members the deponent twice suffered
miscarriage. That the endeavour of the respondent was to inflict so
much pressure upon the deponent, both mental and physical, as
would render her incapacitated in some manner as that would
further his designs. That this fact shows that the respondent does not
have abiding love and affection towards minors and wife, which is
otherwise natural to a father and a husband. All the time he is just
after money.”
27. During the course of the proceedings under the Guardians and
Wards Act, she filed an application (Paper No. 135Ga/2) indicating
that a burglary took place in her house on 27.08.2010, wherein several
 13

valuables were stolen and went on to allege that ^^ftlesa lEiw.kZ gkFk
izkfFkZuh ds ifr fofiu vxzoky dk gh FkkA^^
28. In the said application, she further alleged that the witnesses of
the respondent have danger to the life from the appellant and his men
and further went on to allege as under:

^^fQj mls ckn lw=ksa ls ;g Hkh irk pyk gS fd vc foi{kh lqyg dk <ksax djds
izkFkZuh dks ,&111] lsDVj&40 esa lkFk j[kdj izkfFkZuh dks tku ls ekjdj
pkykdh ls vkRegR;k dk dsl cukus dh ;kstuk cuk jgk gSA izkFkZuh euh’kk
vxzoky dks fofiu vxzoky ls tku dk [krjk fQj ls gks x;k gSA^^
29. The respondent also filed complaint under Section 156(3)
Cr.P.C. against the appellant alleging offences under Sections 323,
406, 504 and 506 I.P.C. and sought action. The complaint remained
pending from 03.06.2008 till 11.09.2009 and came to be dismissed for
non prosecution on 11.09.2009. The Court passed the following order:
^^11&09&09
okn iqdkjk x;k ifjokfnuh vuqifLFkrA i=koyh ds voyksdu ls fofnr
gksrk gS fd ifjoknh yEcs le; ls vuqifLFkr py jgk gS ,slk izrhr gksrk gS fd
mls vc bl okn esa dksbZ :fp ugha gSA foi{kh dks ryc djus gsrq i;kZIr lk{;
ugha gSA
vr% ifjokn vUrxZr /kkjk 203 n0iz0la0 [kkfjt fd;k tkrk gSA
i=koyh nkf[ky nQ~rj gksA^^
30. Another complaint was made to the Senior Superintendent of
Police, Gautambudh Nagar on 14.11.2020, wherein a report, after
investigation, was given regarding the allegations being incorrect and
mainly outcome of the pending proceedings inter-se parties.

31. In the lengthy examination-in-chief and cross-examination

conducted before the Family Court, the parties and their counsel,
apparently, went beyond the pleadings of the parties and indulged in
wholly irrelevant and uncalled for cross-examination of the parties.
On the part of the Family Court also, no control was exercised during
the course of the cross-examination and, in fact, the stipulations of
Rule 30 of the U.P. Family Courts Rules, 2006 were violated. The
provisions of Rule 30 of the Rules, inter alia, read as under:
 14

“30. The Court may record only the substance of what the witness
deposes in his examination by Court, and cross examination by
respondent if the court so permits, and shall prepare only a
memorandum of substance of what the witness deposes as prescribed
under Section 15 of the Family Courts Act, 1984. The memorandum
shall be read and explained to the witness, signed by witness and the
Presiding Officer of the Court and shall form part of the record. The
Court may in the matter of interim relief take evidence on affidavit, if
any, which shall also form part of the record of the court.”
32. A perusal of the above would reveal that the Rule provides that
the Court may record only the substance of what the witness deposes
in his examination and cross-examination and shall prepare only a
memorandum of substance of what the witness deposes in terms of
Section 15 of the Family Courts Act, 1984.

33. However, it would be seen that the affidavit, filed in lieu of the
examination-in-chief of PW-1, runs in 55 pages (page 187 to 242 of
the paper-book of the appellant) and he has been cross-examined on
seven dates between 25.08.2014 and 21.01.2015 and the same runs in
28 pages. Similarly, affidavit of respondent as DW-1 runs in 114
pages and she was cross-examined between 22.07.2015 to 18.12.2015
on 17 dates and her cross-examination runs in 59 pages. Such nature
of conduct of the proceedings by the parties and the Family Court
permitting conduct of proceedings in the above manner in violation of
provisions of Rule 30 of Rules, 2006 and Section 15 of the Act cannot
be appreciated. The permission to file such lengthy affidavits and
permitting cross-examination to such an extent, as noticed
hereinbefore, goes against the very spirit of the enactments so as to
ensure expeditious disposal of the matrimonial matters.

34. In the cross-examination of the respondent, as noticed

hereinbefore, there is no denial of the various allegations made against
the appellant in the pleadings, affidavit and complaints. However, the
same have been sought to be justified on account of the alleged
conduct of the appellant. During the course of the submissions,
 15

counsel for the respondent sought to justify the contents of the

rejoinder and affidavit filed in the proceedings under Guardians and
Wards Act on account of the purported allegations made in the reply
to the proceedings initiated by the respondent under Guardians and
Wards Act. However, the said response filed by the appellant has not
been produced/exhibited in the proceedings despite the fact that the
appellant heavily relied on the allegations made in the rejoinder
amounting to cruelty. The nature of allegations, which have been
made in the proceedings, may be on account of the anxiety to ensure
the custody of the children, cannot be justified and unless the same are
proved to be correct and/or have the foundation, would clearly amount
to cruelty by the respondent against the appellant.

35. The respondent made allegations regarding the burglary

conspired by the appellant in a complaint to the Police and alleged
that her witnesses’ life has been threatened by the appellant and also
made serious allegations that appellant was hatching conspiracy to kill
the respondent by keeping her with him in the name of conciliation
and give it a colour of suicide. The said averments made are sought to
be brushed away by learned counsel for the respondent by indicating
that the allegations about the plan to murder the respondent and give it
a colour of suicide has been based on the information and the same
cannot form the basis for alleging cruelty. The said submissions made
cannot be accepted under any circumstance, as making the allegations
of such serious nature by attributing the same based on some
information without disclosing the same even during the course of
examination and cross-examination, consequences of which are
serious insofar as the other side is concerned against whom the
allegations have been made and also show the mindset of the party
involved in seeking to make fantastic allegations for the purpose of
achieving the desired result against the other side and would clearly
amount to committing cruelty to the other side.
 16

36. As noticed hereinbefore, the allegations were made regarding

the respondent suffering two miscarriages on account of the alleged
cruelty/atrocities committed by the appellant. However, no material
worth the name was produced to support the said allegation. Even the
fact of miscarriage itself has not been proved by way of producing any
medical evidence in this regard. It cannot be said that in case the
miscarriage had taken place, in a well educated family there would be
no medical evidence available in this regard. Even the manner of
making allegations, as noticed hereinbefore, is wholly casual in nature
and apparently an attempt to somehow paint the appellant herein as a
person, who was committing cruelty against the respondent without
producing any material in this regard. The Family Court, while
dealing with the said aspect, has only noticed the fact that the
appellant and the respondent had resided together after the birth of the
second child and has assumed the possibility of the respondent
conceiving and consequential miscarriage, as alleged by her, which
determination cannot be sustained under any circumstance.

37. Strong reliance has been placed by the respondent on the

statement of Vinamra Agrawal, son of appellant and respondent,
recorded under Section 202 Cr.P.C. to allege that as the appellant has
been committing physical violence against the respondent and has
been committing cruelty all along to her, he cannot take advantage of
his own wrong so as to allege cruelty against the respondent, which at
the best, can be by way of reaction to the cruelty committed by the
appellant.

38. The said statement under Section 202 Cr.P.C. was recorded by
the child, who was 11 years of age, in the complaint made under
Section 156(3) Cr.P.C. by the respondent and without any precursor
contains the allegations regarding appellant ill treating/giving beating
to the respondent, which allegations essentially are totally beyond the
allegations contained in the complaint (Exhibit-12Ga/1).
 17

39. Section 203 Cr.P.C. reads as under:

“203. Dismissal of complaint- If, after considering the

statements on oath (if any) of the complainant and of the
witnesses and the result of the inquiry or investigation (if any)
under section 202, the Magistrate is of opinion that there is no
sufficient ground for proceeding, he shall dismiss the
complaint, and in every such case he shall briefly record his
reasons for so doing.”
40. The above provision provides that if after considering the
statement of the complainant and the witnesses, the Magistrate is of
the opinion that there is no sufficient ground for proceeding, he shall
dismiss the complaint. In the case in hand, as noticed hereinbefore, the
Magistrate in his order dated 11.09.2009, (quoted at para 29
hereinbefore), on coming to the conclusion, based on the material
available, including the statement recorded under Section 202 Cr.P.C.
that there was no sufficient evidence to summon the respondent,
rejected the application and, therefore, in those circumstances, placing
heavy reliance on the statement of minor in the said complaint cannot
be countenanced.

41. From the material available, which has come on record, as

noticed hereinbefore, it is apparent that though the parties are living
separately since the year 2007, while the appellant is seeking
dissolution of marriage, the respondent, though, admittedly, living
separately and not having taken any apparent steps for restitution of
conjugal rights despite alleging desertion by the appellant, is insisting
that she wants to continue with matrimonial relationship with the
appellant and seeks assurance that he should not indulge in violence,
apparently without establishing the violence having been committed
by the appellant. It also appears from the material, which has come on
record, that though the parties have been daggers drawn against each
other and the children, apparently, under the direction of the Court
were in the custody of the respondent, the appellant has
 18

undertaken/met with the required expenditure pertaining to the

education of the children and the children have come out with flying
colours whereby both the sons, now 27 and 25 years of age, are
Engineers and serving in U.K., yet they have failed to persuade the
parents to bury the hatchet.

42. Hon’ble Supreme Court in the case of Raj Talreja (supra),

after referring to the fact that the complaints made by the wife against
the husband to the Police were found false and the fact that the
allegations were levelled on account of filing of the divorce petition,
came to the following conclusion:

“8. As noted above, these findings of the police have attained finality
and as on date there is no criminal case pending against the
husband. It is more than obvious that the allegations levelled by the
wife are false. It may be true that these allegations were levelled
after the divorce petition had been filed and the wife may have been
in an agitated state of mind. However, that did not give her a right to
make defamatory statements against the husband. The falseness of
the allegations is borne out from the fact that the police did not even
find it a fit case to be tried. After the police filed its cancellation
report, the wife kept silent and after 11 years she filed a protest
petition.”
“11. Cruelty can never be defined with exactitude. What is cruelty
will depend upon the facts and circumstances of each case. In the
present case, from the facts narrated above, it is apparent that the
wife made reckless, defamatory and false accusations against her
husband, his family members and colleagues, which would definitely
have the effect of lowering his reputation in the eyes of his peers.
Mere filing of complaints is not cruelty, if there are justifiable
reasons to file the complaints. Merely because no action is taken on
the complaint or after trial the accused is acquitted may not be a
ground to treat such accusations of the wife as cruelty within the
meaning of the Hindu Marriage Act, 1955 (for short ‘the Act’).
However, if it is found that the allegations are patently false, then
there can be no manner of doubt that the said conduct of a spouse
levelling false accusations against the other spouse would be an act
of cruelty. In the present case, all the allegations were found to be
false. Later, she filed another complaint alleging that her husband
along with some other persons had trespassed into her house and
assaulted her. The police found, on investigation, that not only was
 19

the complaint false but also the injuries were self inflicted by the
wife. Thereafter, proceedings were launched against the wife under
Section 182 of IPC.”
“13. Though we have held that the acts of the wife in filing false
complaints against the husband amounts to cruelty, we are, however,
not oblivious to the requirements of the wife to have a decent house
where she can live. Her son and daughter-in-law may not continue
to live with her forever. Therefore, some permanent arrangement has
to be made for her alimony and residence. Keeping in view the status
of the parties, we direct that the husband shall pay to the wife a sum
of Rs.50,00,000/- (Rupees Fifty Lakhs only) as one time permanent
alimony and she will not claim any further amount at any later
stage. This amount be paid within three months from today. We
further direct that the wife shall continue to live in the house which
belongs to the mother of the husband till the husband provides her a
flat of similar size in a similar locality. For this purpose, the
husband is directed to ensure that a flat of the value up to
Rs.1,00,00,000/- (Rupees One Crore Only) be transferred in the
name of his wife and till it is provided, she shall continue to live in
the house in which she is residing at present.”
43. In the above judgment, it has been laid down that if the wife
makes reckless, defamatory and false accusations against her husband,
the same would be an act of cruelty and merely because some
proceedings have been initiated by the other party, it does not give her
right to make defamatory allegations against the husband, which ratio
applies to the present circumstances as well.

44. Similarly, in the case of Malathi Ravi (supra), Hon’ble

Supreme court, after referring to various judgments on the aspect,
came to the following conclusion:

“42. For the present, we shall restrict our delineation to the issue
whether the aforesaid acts would constitute mental cruelty. We have
already referred to few authorities to indicate what the concept of
mental cruelty means. Mental cruelty and its effect cannot be stated
with arithmetical exactitude. It varies from individual to individual,
from society to society and also depends on the status of the persons.
What would be a mental cruelty in the life of two individuals
belonging to a particular strata of the society may not amount to
mental cruelty in respect of another couple belonging to a different
stratum of society. The agonised feeling or for that matter a sense of
 20

disappointment can take place by certain acts causing a grievous

dent at the mental level. The inference has to be drawn from the
attending circumstances.
43. As we have enumerated the incidents, we are disposed to think
that the husband has reasons to feel that he has been humiliated, for
allegations have been made against him which are not correct; his
relatives have been dragged into the matrimonial controversy, the
assertions in the written statement depict him as if he had tacitly
conceded to have harboured notions of gender insensitivity or some
kind of male chauvinism, his parents and he are ignored in the
naming ceremony of the son, and he comes to learn from others that
the wife had gone to Gulbarga to prosecute her studies. That apart,
the communications, after the decree for restitution of conjugal
rights, indicate the attitude of the wife as if she is playing a game of
Chess. The launching of criminal prosecution can be perceived from
the spectrum of conduct. The learned Magistrate has recorded the
judgment of acquittal. The wife had preferred an appeal before the
High Court after obtaining leave. After the State Government prefers
an appeal in the Court of Session, she chooses to withdraw the
appeal. But she intends, as the pleadings would show, that the case
should reach the logical conclusion. This conduct manifestly shows
the widening of the rift between the parties. It has only increased the
bitterness. In such a situation, the husband is likely to lament in
every breath and the vibrancy of life melts to give way to sad story of
life.
44. From this kind of attitude and treatment it can be inferred that
the husband has been treated with mental cruelty and definitely he
has faced ignominy being an Associate Professor in a Government
Medical College. When one enjoys social status working in a
Government hospital, this humiliation affects the reputation. That
apart, it can be well imagined the slight he might be facing. In fact,
the chain of events might have compelled him to go through the
whole gamut of emotions. It certainly must have hurt his self-respect
and human sensibility. The sanguine concept of marriage
presumably has become illusory and it would not be inapposite to
say that the wife has shown anaemic emotional disposition to the
husband. Therefore, the decree of divorce granted by the High Court
deserves to be affirmed singularly on the ground of mental cruelty.”
45. Hon’ble Supreme Court laid down that mental cruelty and its
effect cannot be stated with arithmetical exactitude. It varies from
individual to individual, from society to society and also depends on
the status of the persons and, in case, the husband has reasons to feel
 21

that he has been humiliated, for allegations made against him are not
correct; or the assertions made in the pleading are incorrect, the same
manifestly shows the widening of the rift between the parties and the
same increases bitterness and affirmed the decree granted by the High
Court on the ground of mental cruelty.

46. Recently, a Division Bench of this Court in the case of Col.

Manoj Kumar Gupta Vs. Sangeeta : First Appeal No. 819 of 2019,
decided on 29.02.2024, after referring to the circumstances of the case
wherein the parties were living separately for over 18 years, came to
the following conclusion:

“38. In so many cases, the matrimonial life between the parties is

only for the namesake, whereas factually the marriage has become
totally unworkable and emotionally dead, even if respondent is
insisting upon carrying on with such emotionally dead relationship.
It is only for this reason recognizing ground realities of such dead
relationship, it is being consistently felt by the Hon’ble Apex Court
that continuance of such unworkable matrimonial ties is nothing but
mental cruelty on the parties and atleast on the petitioner, even when
the divorce petition is being opposed by the other side. To our mind,
irretrievable break down is an assessment of circumstances
prevailing in lives of the parties to the marriage and if proved,
would amount to mental cruelty.
39. Reverting back to the facts of the case and the discussion made
hereinabove, we find that the marriage has irretrievably been broken
down. Hence, as held by the Apex Court, certainly this case has to
be construed as a case of ‘mental cruelty’ on the appellant as the
marriage is totally unworkable and emotionally dead. On that note,
divorce can be granted.”
47. In the case of Ravindra Kaur (supra), cited on behalf of the
respondent, it has been laid as under:

“11. Insofar as the action taken by the appellant herein to file a

police complaint and the proceedings initiated under Section
107/151 of Cr.PC it is the natural legal course adopted by
respondent to protect her right and possession of the property. It is
not in dispute that at the point when a complaint was filed and a suit
was also stated to have been filed by the appellant herein on
05.09.1995 there was misunderstanding brewing in the marital life
of the parties and in that circumstance the appellant herein had
 22

adopted the legal course to protect her rights. Such action taken in
accordance with law cannot, in any event, be considered as inflicting
cruelty as the legal proceedings was used only as a shield against
the assault. In this regard the decision of this Court in the case of
Ramchander vs. Ananta (2015) 11 SCC 539 relied on by the learned
counsel for the appellant would be relevant, wherein while taking
note of similar instances this Court has held that the same would not
amount to cruelty and such instances would not be convincing
enough to lead to a conclusion that the marriage is irretrievably
broken down.”
48. Hon’ble Supreme Court laid down that the action taken in
accordance with law for the purpose of protecting rights cannot by
itself be considered as inflicting cruelty on the other side. However,
the said judgment does not lay down that for the purpose of protecting
one’s right, absolutely false and frivolous allegations can be made
against the other side and in case false and frivolous allegations have
been made, the same would not amount to cruelty.

49. In the case of Samar Ghosh (supra), Hon’ble Supreme Court

laid down the instances of mental cruelty and also indicated that the
same were illustrative and not exhaustive and laid down as under:

“101. No uniform standard can ever be laid down for guidance, yet
we deem it appropriate to enumerate some instances of human
behavior which may be relevant in dealing with the cases of 'mental
cruelty'. The instances indicated in the succeeding paragraphs are
only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of
the parties, acute mental pain, agony and suffering as would
not make possible for the parties to live with each other could
come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly clear
that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and continue
to live with other party.
(iii) Mere coldness or lack of affection cannot amount
to cruelty, frequent rudeness of language, petulance of
manner, indifference and neglect may reach such a degree
 23

that it makes the married life for the other spouse absolutely
intolerable.
(iv) Mental cruelty is a state of mind. The feeling of
deep anguish, disappointment, frustration in one spouse
caused by the conduct of other for a long time may lead to
mental cruelty.
(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behavior of
one spouse actually affecting physical and mental health of
the other spouse. The treatment complained of and the
resultant danger or apprehension must be very grave,
substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and
tear of the married life which happens in day to day life
would not be adequate for grant of divorce on the ground of
mental cruelty.
(x) The married life should be reviewed as a whole and
a few isolated instances over a period of years will not
amount to cruelty. The ill-conduct must be persistent for a
fairly lengthy period, where the relationship has deteriorated
to an extent that because of the acts and behavior of a spouse,
the wronged party finds it extremely difficult to live with the
other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilization without medical reasons and without the consent
or knowledge of his wife and similarly if the wife undergoes
vasectomy or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the
spouse may lead to mental cruelty.
 24

(xii) Unilateral decision of refusal to have intercourse

for considerable period without there being any physical
incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife
after marriage not to have child from the marriage may
amount to cruelty.
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law
in such cases, does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions
of the parties. In such like situations, it may lead to mental
cruelty.”
50. Both the sides have relied on various illustrations given by
Hon’ble Supreme Court for supporting their cause, however,
apparently the circumstances of the case appear to be covered by
clauses (v) and (vi), as enumerated by Hon’ble Supreme Court.

51. So far as judgment in the case of Ashok Kumar Jain (supra)

is concerned, the Hon’ble Supreme Court came to the following
conclusion:

“14. In the present case, both the Courts noticed the relevant facts
and came to a definite conclusion that the appellant has not only
been cruel to the respondent, but has also brought the situation to
the point where the respondent had no option but to leave the
matrimonial home. In this situation as the appellant was trying to
take advantage of his own wrong, the Courts disallowed the relief as
was sought for. We find that the order to that effect of the High Court
does not suffer any infirmity, illegality or perversity; no interference
is called for.”
52. Hon’ble Supreme Court laid down that a party cannot take
advantage of his own wrong. However, as noticed hereinbefore, the
present is a case wherein fact that the appellant was seeking to take
advantage of his own alleged wrong has not been proved.

53. Similarly, in the case of Smt. Shashi Bala (supra), another

Division Bench of this court came to the conclusion that the plaintiff
 25

therein had committed physical and mental cruelty and not vice versa,
based on which the decree was refused and the appeal was allowed.
As already observed hereinbefore, the said judgment would have no
application to the facts of the present case.

54. In view of the above discussion, it is apparent that the Family

Court has not dealt with the allegations made by appellant based on
documentary evidence in correct perspective and in a cursory manner
has sought to explain all the allegations made, without coming to the
conclusion that there was any substance in the allegations made by the
respondent in various proceedings against the husband insofar as the
allegations pertaining to metal cruelty are concerned.

55. In view of what has been found hereinbefore, the allegations

made against the appellant in various pleadings/complaints/statements
have apparently no basis and the same, as laid down by Hon’ble
Supreme Court in the case of Raj Talreja (supra), being reckless,
defamatory and false, would be an act of cruelty to the appellant,
which has been sufficiently proved. In view thereof, the judgment of
the Family Court rejecting the petition of the appellant seeking
dissolution of marriage cannot be sustained and, therefore, liable to be
set aside.

56. As noticed hereinbefore, counsel for the appellant, while

closing the submissions, keeping in view the observations made by
Hon’ble Supreme Court in the case of Raj Talreja (supra) regarding
requirements of the wife to have a decent house, where she can live
and therefore some permanent arrangement has to be made for her
alimony and residence and keeping in view the status of the parties
directed the husband to make payment to the wife as one time
permanent alimony and directed that she will not claim any further
amount at any later stage, made submissions that the respondent was
already in possession of a valuable residential property purchased and
owned by the appellant, the appellant is further ready to pay a sum of
 26

Rs.3,00,00,000/- (Rupees Three Crore) as permanent alimony so as to

take care of her status post grant of decree of divorce. In view of the
stand taken by the respondent seeking to continue with the matrimony,
no response was given to the said offer.

57. However, as it is not denied that the residential house, which is

claimed to have been purchased by the appellant in the name of
respondent, continues to be in her possession, the offer of Rupees
Three Crore made by the appellant by way of permanent alimony,
keeping in view the status of the parties, appears to be reasonable.

58. Consequently, the appeal is allowed. The judgment and decree

dated 01.09.2017 passed by Additional Principal Judge, Family Court,
Gautambuddha Nagar in Original Suit No. 1195 of 2011 (Vipin
Kumar Agrawal Vs. Smt. Manisha Agrawal) is set aside. The petition
for dissolution of marriage filed by the appellant under Section 13 of
the Act is decreed and the marriage of the parties, solemnized on
06.12.1994, is dissolved by a decree of divorce.

59. The respondent shall be entitled to a permanent alimony of

Rs.3,00,00,000/- (Rupees Three Crore Only) and would be entitled to retain
possession of the residential house where she is residing. The amount of
permanent alimony be paid within a period of six weeks from the date of
this judgment.

60. No order as to cost.

Order Date :- 01.07.2024
P.Sri.

(Vikas Budhwar, J.) (Arun Bhansali, CJ)

Digitally signed by :-
PUNEET SRIVASTAVA
High Court of Judicature at Allahabad