FA/171/2018 of MAA GYAN SURVEERA Vs SANJAY KHATRI

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

HON’BLE THE CHIEF JUSTICE MS. RITU BAHRI AND HON’BLE SRI JUSTICE RAKESH THAPLIYAL

13[TH]AUGUST, 2024

FIRST APPEAL NO. 171 OF 2018

Maa Gyan Surveera

..Appellant

Versus

Sanjay Khatri

…..Respondent

Counsel for the appellant :Ms. Abhilasha Tomar, learned counsel holding brief of Mr. Sandeep Kothari, learned counsel. holding brief of Mr. Sandeep Kothari, learned counsel. Counsel for the respondent :None.

JUDGMENT : (per Ms. Ritu Bahri, C.J.)

Present Appeal has been filed by the appellant (wife) against the judgment and order dated 28.09.2018 passed by the learned Principal Judge, Family Court, District-Tehri Garhwal in Original Suit No. 88 of 2015 titled as ‘Maa Gyan Suveera vs. Shri Sanjay Khatri’ under Section 13 of the Hindu Marriage Act, 1955, whereby the suit for divorce preferred by the appellant was dismissed.

2. As per the Office Report dated 05.01.2019, the respondent is unserved with the remark that ‘the said premises is under demolished and no body is staying’. This office report is of 2019 and as of today, though more than five years have gone by, the appellant has not been able to get any new address to serve the respondent.

3. Counsel for the appellant states that the marriage of the parties took place in 1983 and they are living

separately since 2008. There are two children from the marriage and they are staying with the father and at present both of them are married. She was seeking divorce on the ground of cruelty and stating that she could not go back and stay with the husband. The divorce petition was dismissed by the Family Court vide judgment dated 28[th] September, 2018. The appellant has not been able to serve the respondent also. They are living separately since 2008 and it has almost been sixteen years since they are living separately. She is claiming that the Appeal be allowed on the ground of dead marriage as there is no emotional bonding of her with the husband and the children from the marriage are now married and are staying with the husband, and she is not claiming any permanent alimony from the husband.

4. In the cases of Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511; Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544; and Prakashchandra Joshi v. Kuntal Prakashchandra Joshi @ Kuntal Visanji Shah, 2024 INSC 55, the Hon’ble Supreme Court has solved the issue of dead marriage and the law on dead marriage is very clear.

5. This Appeal is pending in this Court since 2018 and the whereabouts / address of the respondent is not in the

knowledge of the appellant, therefore, he cannot be served. The marriage took place in the year 1983 and they are living separately since 2008. Apart from the fact that it is dead marriage, non-grant of divorce would also amount to mental cruelty to the appellant as the respondent’s address is not known and his fresh address cannot be given by the appellant.

6. In view of the above circumstances and the law laid down by the Hon’ble Supreme Court on dead marriage and mental cruelty, the Appeal is allowed on the ground of dead marriage and liberty is given to the respondent to get this Appeal revived within period of six weeks if he wants to contest it.

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RITU BAHRI, C.J.

Dt: 13[th] August, 2024 Rathour

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RAKESH THAPLIYAL, J.