ASHOK KUMAR VERMA, J.

1. The appellant-wife has come up in appeal before this Court seeking setting aside of judgment and decree dated 05.02.2014 passed by the Additional District Judge, Panipat, whereby petition filed by the respondent-husband under Section 13(1) of the Hindu Marriage Act, 1955 (for short ‘the HMA’) for a decree of divorce by way of dissolution of marriage, has been allowed.

2. Brief facts of the case are that respondent-husband filed a petition under Section 13(1) of the HMA for a decree of divorce by way of dissolution of marriage pleading therein that marriage between the parties was solemnized according to Hindu rites and ceremonies on 09.07.2005 at Vishanu Nagar, Gohana, District Sonepat, in a simple manner. No dowry was given or taken. The marriage was registered with the Registrar of Marriage at Gohana. The marriage was duly consummated and a male child namely, Gatik was born out of their wedlock. After marriage, parties resided in their home at NFL Township, Panipat. On the first night of the marriage when respondent tried to have sexual relationship with the appellant, he could not penetrate properly. On the next day, he consulted an expert doctor and got himself operated in Prabhakar Hospital and was advised bed rest for 15 days. As a result of which he could not make physical or sexual contact with the appellant for a period of about 20-25 days after the marriage. Thereafter, when respondent tried to have physical relationship with the appellant, she told him that she had conceived admitting that she had committed a wrong prior to the marriage as she was having a love affair with a boy prior to her marriage. Respondent suffered great mental pain, agony and went into depression. Appellant concealed the fact of her pregnancy prior to her marriage. Appellant was got medically examined at Hyderabadi Hospital and the fact of her pregnancy was confirmed. Thereafter, mother of the appellant took the appellant along with her to abort her pregnancy but left the appellant at her matrimonial home on 22.08.2005 without getting the pregnancy terminated. Appellant was again called at Hyderabadi Hospital for check up and further treatment on 27.08.2005. On the said date, Dr. Bharti Dhawan of Hyderabadi Hospital conducted ultrasound of the appellant and confirmed her pregnancy. Thereafter, pregnancy of the appellant was got terminated on 30.08.2005 and she continued receiving treatment from Dr. Bharti Dhawan after termination of her pregnancy. However, appellant did not mend her behavior and left respondent’s company on 26.10.2005 leaving a written note mentioning that she was going to commit suicide for which she herself was responsible. Respondent contacted the appellant and asked her to come back. However, appellant asked the respondent to come to her parental home. In the last week of October, 2005, respondent went to the house of appellant to bring her back. Appellant asked him to gift a gold ring to her sister Sonia. After coming to his house, appellant again started misbehaving with him and his parents. She even tried to manhandle her mother-in-law and threw a shoe upon her father-in-law. Respondent requested the appellant to mend her behaviour but she did not listen to him. Rather she raised a demand to live separately from her in-laws. He being the only son of his parents did not accede to her demand. When all efforts of the respondent to settle the matter failed, he started living separately from his parents at Village Barauli along with the appellant to run his married life smoothly. They resided at Village Barauli for about 3-4 months. She again started misbehaving with the respondent and refused to cook meals for him. Thereafter, both of them started residing at Yamuna Nagar. Appellant got admission in Sant Nischal Singh Education College to get JBT degree. Respondent joined a private job in Thopson Systems Pvt. Limited, Karnal. However, behaviour of the appellant did not change. Once she attacked the respondent with a knife and gave a blow of knife on his left wrist. Respondent was debarred from inheriting their immovable or movable properties by his parents through publication in Dainik Jagran dated 04.07.2006. In the month of August, 2007 appellant left the respondent’s company without any sufficient reason and took away all the gold and silver jewellery and other valuable household articles and clothes. Respondent contacted the appellant and her family but they did not give any satisfactory reply. Appellant was pregnant at that time. Respondent asked the appellant to come to her matrimonial home for delivery but she refused. Respondent visited the parental house of the appellant a number of times with a request to join his company but in vain. Appellant gave birth to a male child, namely, Gatik on 21.10.2007. All the expenses on the delivery of the child were borne by the respondent. After the delivery of the child, respondent along with his relatives again tried to bring back the appellant. They convened a number of panchayats but the matter could not be settled. Appellant is working as a teacher in a school at Village Sikandarpur Majra, District Sonepat and drawing a salary of more than Rs.22,000/- per month, whereas respondent is unemployed. Thus, appellant considers herself to be superior to respondent and has flatly refused to join his company. They have been living separately since August, 2007.

3. Appellant-wife contested the petition on the ground that petition was not maintainable. Respondent is himself estopped by his own act and conduct from filing the petition for grant of divorce. The petition was filed on false and vexatious grounds. Appellant-wife pleaded that sufficient dowry articles including jewellery, clothes, furniture and valuable gifts were given by her parents. However, respondent-husband and his family members were not satisfied with the dowry brought by her. They used to taunt and tease her. She used to be beaten and tortured mentally and physically. The marriage was duly consummated on the very first night of the marriage. She gave birth to a male child on 20.10.2007 at her parental home. All the expenses on the treatment and delivery were borne by her parents. Respondent did not care for her and the child. A false and concocted story of alleged cruelty and desertion has been narrated by the respondent-husband. Appellant denied that respondent was suffering from any kind of sexual disease. She further denied that the respondent could not make physical contact with her for a period of 20-25 days of the marriage. False allegations regarding her character have been made by the respondent. She had no love affair with any boy prior to her marriage. She was also not pregnant at the time of marriage. A false report was obtained by the respondent from the doctor. Appellant denied that she herself left her matrimonial home. Rather she was turned out of her matrimonial home on 21.10.2005 after giving her severe beatings. It was denied that she demanded a gold ring for her sister or that she ever threw a shoe upon her father-in-law. Averment made by the respondent to the effect that he is the only son of his parents is incorrect as he has a brother and a sister. Both his brother and sister, namely, Pankaj and Neelam have been living abroad. Brother of the respondent is also a divorcee. All the expenses on her education and stay at Yamuna Nagar were borne by appellant’s parents. Respondent himself left her at her parental home. She denied that any panchayat was got convened by the respondent. She also denied that she refused to live with the respondent. Appellant also denied that respondent was unemployed. Respondent holds a masters degree in Tourism and Hotel Management. He has not cared to pay any money towards maintenance of his minor child. False and baseless allegations with regard to alleged cruelty have been made by the respondent. She thus sought dismissal of the petition.

4. From the pleadings of the parties, following issues were framed by the Family Court on 26.03.2012: -

“1. Whether the petitioner-husband (Sunil Kumar) is entitled to claim decree of divorce on the ground of cruelty as pleaded by him in the petition OPP.

2. Whether petition is not maintainable in the present form and petitioner-husband is not entitled to claim decree as prayed for on the grounds as mentioned in the written statement OPR

3. Relief."

5. However, issue No.1 was amended vide order dated 27.01.2014 as under: -

“Whether the petitioner-husband (Sunil Kumar) is entitled to claim decree of divorce on the grounds as pleaded by him in the petition OPR."

6. In order to prove his case, respondent-husband stepped into witness box as PW1, besides examining his mother Vidya Wati as PW2 and Than Singh son of Tulshi Ram r/o Sanjay Colony, Panipat, as PW3. He also tendered documentary evidence as Ex.P1 to Ex.P11.

7. On the other hand, appellant-wife herself appeared as RW1 and her evidence was closed vide order dated 13.12.2013.

8. The Family Court has returned the findings in favour of the respondent-husband and decided issue No.1 against appellant-wife. It was observed that appellant has withdrawn from the society of the respondent without sufficient reason. Therefore, the respondent-husband was held entitled to a decree of divorce under Section 13(1)(i-a) and 13(1)(i-b) of the HMA.

9. Learned counsel for the appellant contended that impugned judgment and decree passed by the Family Court are based on mere conjectures and surmises. She never committed any adultery and always remained committed to her husband. Learned counsel contended that appellant never deserted the respondent and never misbehaved with the respondent’s parents. Appellant always tried her best to save her matrimonial life. She was and is always willing to live with the respondent peacefully. Learned counsel for the appellant further contended that respondent has been granted divorce on false grounds. Therefore, impugned judgment and decree of the Family Court are liable to be set aside.

10. Per contra, learned counsel for the respondent supported the judgment and decree passed by the Family Court. He contended that respondent has been granted divorce rightly by the Family Court as the appellant was already pregnant at the time of her marriage with the respondent. This act and conduct of the appellant amounts to cruelty. Moreover, her behaviour remained cruel towards respondent’s family members. Appellant left the company of the respondent in August, 2007 and despite numerous efforts never returned back. Resultantly, in July, 2011 respondent filed petition under Section 13 of the HMA for a decree of divorce by way of dissolution of marriage, which has rightly been allowed by the Family Court, vide impugned judgment and decree dated 05.02.2014.

11. We have considered the rival submissions made by learned counsel for the parties and perused the records.

12. Matrimonial cases are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general.

13. In support of his case, respondent-husband stepped into witness box as PW1 and tendered his affidavit Ex.PW-1/A wherein he reiterated all the averments made in the petition for divorce filed by him. Respondent stated that he tried to cohabit with the appellant on the first night of the marriage but he could not penetrate properly. On the next date he consulted an expert doctor regarding his problem, who advised him to get operated. He immediately got admitted in Prabhakar Hospital, where he was operated and was advised bed rest for 15 days due to stitches. He could not make physical contact with the appellant for a period of 20/25 days after the marriage. After recovering from the operation, he again tried to have physical relations with the appellant. At that time appellant disclosed to him that because of her error before marriage, as she was in love affair with a boy, she was apprehending that she might have conceived because the date of menstruation had expired. The respondent suffered a great mental pain and agony and after that he could not come in contact of the appellant. Respondent disclosed this fact to his mother. Due to this, respondent and his family members told the mother of the appellant that they could not settle appellant in their family. Appellant and her mother suggested the respondent to get abort the pregnancy of the appellant without disclosing this fact to anybody. Respondent keeping in view his own image as well as image of his family, accepted the suggestion of appellant and her mother. Respondent’s mother and mother of the appellant got the appellant-wife checked from Dr. Bharti Dhawan of Hyderabadi Hospital, Sonali Road, Panipat, who confirmed the pregnancy of appellant prior to the marriage. Mother of the appellant took the appellant with herself with an assurance that after getting her pregnancy aborted she would leave the appellant with the respondent in her matrimonial home. However, without getting the unwanted pregnancy terminated mother of the appellant left her at respondent’s house on 21.08.2005. Mother of the appellant again came to the house of the respondent on 27.08.2005 and got checked her daughter in Hyderabadi Hospital, Panipat, where Dr. Bharti Dhawan got ultrasound of the respondent on 27.08.2005 and confirmed about the pregnancy of respondent prior to her marriage. With the help of medicines prescribed by Dr. Bharti Dhawan, unwanted pregnancy of the appellant was terminated. After that respondent tried his best to live with the appellant in a happy atmosphere, but all his efforts failed and she compelled the respondent to live in city. To run his married life properly, appellant and respondent started living at Yamunanangar where appellant was got admitted in Sant Nischal Singh Education College to do a degree of JBT by the respondent and she started living in the hostel of said college separate from the respondent. The respondent joined a private job in Thopson Systems Pvt Litd, Karnal. After some time, appellant and the respondent started to live in a rented accommodation at Yamunanagar. Even then the behaviour of the appellant did not change and she again started to manhandle the respondent. Appellant and respondent were debarred by father of the respondent from his moveable and immoveable properties due to the act and conduct of the appellant by publishing an information in a newspaper namely Dainik Jagran dated 04.07.2006. In August, 2007 when the respondent had gone to his duty, appellant left his company without proper cause and reason. She took all her istridhan, gold and silver jewellery gifted by respondent and his parents as well as other valuable household items with her. Respondent immediately contacted the appellant and her mother and asked the reason for leaving her matrimonial home but she did not give satisfactory reply and flatly refused to join his company. At that time appellant was pregnant. All his efforts to bring back the appellant failed. Appellant delivered a male child, namely, Gatik on 21.10.2007 at her parental home but all the expenses of delivery were borne by the respondent. After the delivery of the male child, respondent as well as his relatives again tried to bring back the appellant and many panchayats were convened but in vain. It is further stated that appellant is serving as a JBT teacher at village Sikandarpur Majra, District Sonepat and is drawing a salary of more than Rs.25,000/- per month and on the other hand respondent is an unemployed person that is why appellant has developed ego in her mind and she considers herself as superior than the respondent. That is why despite repeated efforts of the respondent, she flatly refused to join his company. As the appellant has refused to live with the respondent as his legally wedded wife, therefore, he has no other way except to get the marriage dissolved by a decree of divorce. It is further submitted that appellant and the respondent are living separately since the month of August 2007 and now there is no relationship between them as husband and wife. There is no cohabitation between them since their separation. The marriage of the appellant and the respondent has gone in a dead position which cannot be revived and the same amounts to irretrievable break down of marriage which is one of the grounds to dissolve the marriage of the appellant and the respondent. As the appellant attributed cruelties and deserted the respondent and left his company without any proper cause or reason and flatly refused to join his company, hence petition had been filed. In support of his averments, respondent tendered following documents: -

“i) Copy of certificate of registration of marriage dated 20.07.2005 as Ex.P-1.

ii) Copy of letter dated 18.08.2009 in the name of Sarpanch Gram Panchayat Garhwal District Sonepat as Ex.P2.

iii) Copy of reminder in the name of Sarpanch Gram Pancyhayat by deponent as Ex.P-3.

iv) Copy of letter dated 07.08.2009 by Sarpanch, Gram Panchayat Barauli in the name of Sarpanch, Gram Panchayat Garhwal as Ex.P-4.

v) Copy of OPD slip no.43572 dated 27.08.2005 issued by Dr. Bharti Dhawan, Gynaeocologist Hyderabadi and Nursing Home Panipat as Ex.P-5.

vi) Copy of report of Ultrasound of appellant dated 27.08.2005 as Ex.P-6.

vii) Copy of receipt no.83747 issued by Hyderabadi and Nursing Home Panipat dated 27.08.2005 as Ex.P-7.

viii) Copy of OPD slip no.40295 dated 01.09.2005 as Ex.P8.

ix) Copy of receipt no.83917 dated 03.09.2005 as Ex.P-9.

x) Copy of X-ray Ultrasound and copy of prescription slip issued by Dr. Bharti Dhawan dated 27.08.2005 as Ex.P10.”

14. To prove her case, appellant-Sushma appeared as RW1 in the witness box. During her cross-examination, appellant stated that she did not know whether respondent was admitted in Prabhakar Hospital, Panipat where he was operated because on the first day of marriage he was not able to penetrate. It is correct that she contacted Dr. Bharti Dhawan of Hyderabadi hospital, Panipat and told her last mensuration date as 21.07.2005. Firstly, she contacted Dr. Bharti Dhawan on 27.08.2005. She had seen a receipt dated 27.08.2005, 03.09.2005, prescription slip dated 27.08.2005, ultra sound report dated 27.08.2005, prescription slip dated 01.09.2005 and ultrasound films Ex.P5 to Ex.P10. She further stated that in para no.8 of affidavit Ex.P11 it has rightly been stated by her that the husband of deponent namely Sunil Kumar physically contacted her after 4/5 days of his operation. It was also correct that she had mentioned in para no.9 of affidavit Ex.P11 that abortion was done on the advise of Dr. Bharti Dhawan. It is correct that Dr. Bharti Dhawan had examined her radiologically and done her urine test vide which she was found pregnant. Dr. Bharti Dhawan disclosed before her that she was pregnant for four weeks. She never disclosed all these facts before her mother. She as well as respondent are living separately since July, 2010. She further stated that she does not remember lastly when she left the matrimonial home. Child was born on 21.10.2007 at Gohana in her parental home. She started doing job on 05.01.2011 at village Sikandarpur Majra near Gohana. Now-a-days she is working as JBT teacher at Government Primary School, Sikandar Pur Majra, District Sonepat and drawing a salary of Rs.27,000/- per month. She had been residing in her parental home at Gohana since the birth of child namely Gatik. She could not tell the exact date, month and year when the respondent physically (sexually) contacted her.

15. From the above deposition of the respondent-wife, it is axiomatic that entire case set up by her stands totally demolished from her own statement as RW1 wherein she has admitted in so many words that she is living separately since July, 2007; respondent made physical contact with her after 4-5 days of the operation as on the first day of marriage he was not able to penetrate and the abortion was done on the advice of Dr. Bharti Dhawan.

16. As per ultrasound report of Mrs. Sushma i.e. appellant dated 27.08.2005 (Ex.P6) there was 5 wks+1wks gestation early pregnancy. From the oral as well as documentary evidence available on record it is amply clear that appellant was pregnant even prior to the date of her marriage with the respondent and this fact was willfully concealed by her from the respondent and his family members. It is further proved that even after getting operated, respondent could not make physical contact with the appellant for 4-5 days. After joining as JBT teacher, appellant developed some ego problem and started living separately from the respondent as he was unemployed and inferior to her.

17. From the abovesaid evidence on record it is duly proved that it is the appellant who has withdrawn from the society of the respondent without any reasonable cause. No cogent and reliable evidence could have been led by the appellant which may show that respondent has withdrawn himself from the company of the appellant without any sufficient reason or cause. Rather it is the appellant who has deserted the respondent for a continuous period of not less than two years immediately preceding of the presentation of the petition for divorce.

18. The next issue for consideration in the present appeal would be whether the relationship of the husband and wife has come to an end and if the appellant-wife is not ready to give mutual divorce to the respondent-husband, whether this act of her, would amount to cruelty towards husband, keeping in view the fact that she is not staying with her husband for the last more than eleven years and there is no scope that they can cohabit as husband and wife again. Reference at this stage can be made to a judgment of Hon'ble the Supreme Court of India in a case of Chandra Kala Trivedi vs. Dr. S.P.Trivedi, 1993 (4) SCC 232 wherein Hon'ble the Supreme Court was considering a case where marriage was irretrievably broken down and held that in this case, the decree of divorce can be granted where both the parties have levelled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together.

19. Reference at this stage can be made to a judgment of three Judge Bench of Hon'ble the Supreme Court of India in case of A Jayachandra vs. Aneel Kaur, 2005 (2) SCC 22 wherein Hon'ble the Supreme Court was having an occasion to consider the case of divorce on the basis of cruelty including mental cruelty. While examining the pleadings and evidence brought on record, the Court emphasized that the allegation of cruelty is of such nature in which resumption of marriage is not possible, however, referring to various decisions, the Court observed that irretrievable breaking down of marriage is not one of statutory grounds on which Court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in longdrawn legal battle, directed in those cases dissolution of marriage. In para 17, it has been observed as under:-

“17. Several decisions, as noted above, were cited by learned counsel for the respondent to contend that even if marriage has broken down irretrievably decree of divorce cannot be passed. In all these cases it has been categorically held that in extreme cases the court can direct dissolution of marriage on the ground that the marriage had broken down irretrievably as is clear from para 9 of Shyam Sunder case. The factual position in each of the other cases is also distinguishable. It was held that long absence of physical company cannot be a ground for divorce if the same was on account of the husband's conduct. In Shyam Sunder case it was noted that the husband was leading adulterous life and he cannot take advantage of his wife shunning his company. Though the High Court held by the impugned judgment that the said case was similar, it unfortunately failed to notice the relevant factual difference in the two cases. It is true that irretrievable breaking of marriage is not one of the statutory grounds on which court can direct dissolution of marriage, this Court has with a view to do complete justice and shorten the agony of the parties engaged in long- drawn legal battle, directed in those cases dissolution of marriage. But as noted in the said cases themselves, those were exceptional cases.”

20. Hon'ble the Supreme Court in a case of Naveen Kohli vs. Neetu Kohli, 2006 (4) SCC 558 was considering a case of irretrievable break down of marriage. In this case, wife living separately for long but did not want divorce by mutual consent only to make life of her husband miserable. Thus, the decree of divorce was granted and held it is a cruel treatment and showed that the marriage had broken irretrievably. In para 62, 67, 68 and 69, it has been observed as under:-

“62. Even at this stage, the respondent does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the respondent has resolved to live in agony only to make life a miserable hell for the appellant as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. The High Court ought to have visualized that preservation of such a marriage is totally unworkable which has ceased to be effective and would be greater source of misery for the parties.

xxx xxx xxx

67. The High Court ought to have considered that a human problem can be properly resolved by adopting a human approach. In the instant case, not to grant a decree of divorce would be disastrous for the parties. Otherwise, there may be a ray of hope for the parties that after a passage of time (after obtaining a decree of divorce) the parties may psychologically and emotionally settle down and start a new chapter in life. 68. In our considered view, looking to the peculiar facts of the case, the High Court was not justified in setting aside the order of the Trial Court. In our opinion, wisdom lies in accepting the pragmatic reality of life and take a decision which would ultimately be conducive in the interest of both the parties.

69. Consequently, we set aside the impugned judgment of the High Court and direct that the marriage between the parties should be dissolved according to the provisions of the Hindu Marriage Act, 1955. In the extra-ordinary facts and circumstances of the case, to resolve the problem in the interest of all concerned, while dissolving the marriage between the parties, we direct the appellant to pay Rs.25,00,000/- (Rupees Twenty five lacs) to the respondent towards permanent maintenance to be paid within eight weeks. This amount would include Rs.5,00,000/- (Rupees five lacs with interest) deposited by the appellant on the direction of the Trial Court. The respondent would be at liberty to withdraw this amount with interest. Therefore, now the appellant would pay only Rs.20,00,000/- (Rupees Twenty lacs) to the respondent within the stipulated period. In case the appellant fails to pay the amount as indicated above within the stipulated period, the direction given by us would be of no avail and the appeal shall stand dismissed. In awarding permanent maintenance we have taken into consideration the financial standing of the appellant.”

21. In the present case, the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again. Further, not to grant decree of divorce would be disastrous for the parties.

22. The three Judges' Bench of Hon'ble the Supreme Court in a case of Samar Ghosh vs. Jaya Ghosh, 2007 (4) SCC 511 passed the decree on the ground of mental cruelty but the concept of irretrievable breakdown of marriage has been discussed in detail referring the 71st report of the Law Commission of India.

23. Hon'ble the Supreme Court in a case of K. Srinivas Rao vs. D.A. Deepa, 2013 (5) SCC 266 has observed that though irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, however, marriage which is dead for all purposes, cannot be revived by Court's verdict, if parties are not willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by court decree.

24. It is well settled that once the parties have separated and separation has continued for a sufficient length of time and anyone of them presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

25. For the reasons afore-stated, the Family Court was perfectly justified in holding that there were hardly any chances that the appellant and the respondent could lead a happy married life because a lot of bitterness has been created in their relationship.

26. Learned counsel for the appellant is unable to point out any illegality or infirmity in the impugned judgment and decree which calls for interference by this Court.

27. Consequently, this appeal is dismissed.