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Whether a husband can seek divorce against his wife on the ground of cruelty if he had filed a petition for restitution of conjugal rights?

IN THE HIGH COURT OF DELHI

M.A.T. App. (F.C.) 65/2020 and C.M. No. 7957-58/2020

Decided On: 01.05.2020

Jitender Kumar

Vs.

Kamlesh

Hon’ble Judges/Coram: Hima Kohli and Asha Menon, JJ.

1. This appeal has been preferred by the appellant/petitioner against the order of the learned Family Court, Dwarka, dismissing his petition seeking divorce from the respondent/wife under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act).

2. There is no dispute that the parties were married on 08.12.2003 as per the Hindu rites and ceremonies and the parties were blessed with two children: a son on 02.06.2006 and a daughter on 04.03.2009. Apparently, the parties knew each other prior to the marriage but the marriage was solemnised with the consent of both the families. The appellant/husband filed the petition for divorce on 29.05.2013 alleging that the respondent/wife had failed to discharge her moral, legal and social responsibilities towards him; used to abuse and threaten him in dirty language; used to undermine the reputation and status of the appellant/husband and his family members; used to pressurise him to give his minor son in adoption to her sister; used to believe in Tantriks; used to leave her matrimonial house without his knowledge and permission; used to quarrel with him on trivial issues and forced him to live separately from his parents since 28.11.2007; always passed adverse comments upon his low income, poor education and lack of knowledge of English and his personality and finances; that she got the appellant/husband arrested by the police and also filed a false complaint against him and his family members with the CAW Cell, Nand Nagari. It was also his grievance that on 09.04.2013, she had called the police and got him arrested and he had to spend a night in lock up and thereafter on 10.04.2013 she had appeared before the SEM, Seelampur and opposed his bail application, as a result whereof, he was sent to Tihar Jail up to 23.04.2013, though he was released on bail on 11.04.2013. He also claimed that on 11.05.2013 and 14.05.2013 he had made several efforts to persuade the respondent/wife to return to the matrimonial home but since all efforts went in vain, he filed the petition for divorce.

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3. In her written statement, the respondent/wife denied all these allegations and claimed that her sister was also blessed with a son and there was no occasion for her to take a child in adoption and further, her family members had never interfered in the household matters of the parties and had always helped the appellant/husband both financially and morally. According to her, the appellant/husband was given to drinking alcohol and had even created a nuisance during the wedding of her cousin brother and once stabbed her mother’s tenant. She further stated that she is an educated lady and never believed in black magic or tantriks. According to her, when she had come back to her matrimonial home with her six month old child, after the wedding ceremonies of her brother were over, the appellant/husband and his family members did not allow her to enter the house and as a result, she had to leave the matrimonial home and return to her parental home at about 12 in the night.

4. According to the respondent/wife, on 26.05.2012, the appellant/husband had beaten her mercilessly under the influence of liquor which prompted her to lodge a complaint in P.S. Gokul Puri. She admitted that the appellant/husband had filed a petition under Section 9 of the Act but when she expressed her readiness and willingness to live with him, he had withdrawn that petition. According to her, in the night of 09.04.2013, the appellant/husband had abused her and given merciless beatings to her and their children and ousted them from the house. Faced with no other alternative, she had called the police. Even after the police came she was beaten in front of them. According to her, she had gone to the SEM Court only because she had been so instructed by the police. The respondent/wife denied that any incident of the nature claimed by the appellant/husband had taken place on 14/15.05.2013.

5. The following issues were framed by the learned Family Court on the pleadings:

“1. Whether the petitioner is entitled to divorce on the ground of cruelty? (OPP)

2. Relief.

Additional Issue:

1. Whether this court has no territorial jurisdiction to

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entertain the present petition? (OPR)”

6. The appellant/husband examined himself as PW-1 and his father as PW-2. The respondent/wife examined herself as RW-1 and her brother as RW-2. After considering the material that was brought on record, the learned Family Court concluded that though the appellant/husband had levelled several allegations against the respondent/wife, he had miserably failed to furnish any specific details, leave alone prove the said allegations. Rather, it noted the conduct of the appellant/husband and concluded that he was not entitled to any relief whatsoever.

7. Aggrieved by the decision of the learned Family Court, the present appeal has been preferred on the grounds that the appellant/husband had established that he was physically, mentally and emotionally tortured, harassed and humiliated by the continuous adamant attitude and non-cooperative behaviour of the respondent/wife who on the contrary, was enjoying life fully and had involved him in false cases and had got him arrested and detained in prison. Learned counsel for the appellant/husband further submitted that since the parties have been living separately since 09.04.2013, nothing remained in the marriage and therefore, in the totality of the circumstances the learned Family Court ought to have dissolved the marriage on grounds of irretrievable breakdown of marriage.

8. We are not impressed by the submissions made on behalf of the appellant/husband. On the correct appreciation of the evidence on record, the learned Family Court has concluded that except for making some generalised allegations against the respondent/wife, the appellant/husband had not been able to establish that the respondent/wife had ever threatened him with cruelty. It is also worthy of note that according to the appellant/husband, sometime in August 2012, he had filed a petition under Section 9 of the Act for restitution of conjugal rights. In other words, if there was any misconduct or misbehaviour on the part of the respondent/wife till then, the appellant/husband had condoned the same when he approached the court for issuing directions to the respondent/wife to join the matrimonial home. According to the respondent/wife, when she had expressed her readiness and willingness to return to the matrimonial home to continue the relationship with the appellant/husband, he had promptly withdrawn the petition filed under Section 9, on 18.08.2012.

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9. The respondent/wife has also asserted, with no contest from the side of the appellant/husband, that she had in fact resided with the appellant/husband pursuant to a compromise arrived at between the parties and had continued to do so till 09.04.2013, when she was thrown out of the matrimonial home alongwith her children, after being beaten up by the appellant/husband under the influence of liquor. There is no denial to the fact that the proceedings under Section 107/151 Cr. P.C. were initiated against the appellant/husband and on 10.04.2013, the SEM had heard the kalandara. According to the appellant/husband, it was during those proceedings that he was sent to the Tihar Jail, though he was released on 11.04.2013.

10. In other words, upon the parties residing together in the year 2012-2013, any act of cruelty, even that had occurred prior thereto, stood condoned by the appellant/husband. The material on record clearly shows that after 09.04.2013, when she claimed she was beaten and ousted from the matrimonial home, the respondent/wife has not resided with the appellant/husband. Significantly, the appellant/husband has stated that he had made every effort to renew the matrimonial ties, by approaching the respondent/wife on 11.05.2013 or 14.05.2013. It is thus apparent that when he had filed the divorce petition on 29.05.2013, there were no cruel deeds attributable to the respondent/wife on the basis whereof the appellant/husband could have claimed divorce.

11. While the appellant/husband has only vaguely claimed that the respondent/wife has treated him with cruelty, the averments made in the kalandara (PW 1/5) fully supports the claim of the respondent/wife that she was being subjected to beatings by the appellant/husband when he was under the influence of alcohol.

12. After creating such an unhealthy environment for his family, the appellant/husband cannot now seek protection under the law for putting an end to the matrimonial relationship with the respondent/wife and in effect, conveniently escape from all his obligations towards his family.

13. We find no merit in the present appeal, which is dismissed along with pending applications with no orders as to costs.

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