* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 01.05.2020
+ MAT.APP.(F.C.) 65/2020 C.M. No.7957-58/2020
JITENDER KUMAR @ RAJAN ….. Appellant
Through: Mr. Tarun Rai, Advocate with
appellant in person.
versus
KAMLESH ….. Respondent
Through: None.
CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MS. JUSTICE ASHA MENON
ASHA MENON, J.
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
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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.
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,
MAT.APP.(F.C.) 65/2020 Page 2 of 6
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
entertain the present petition? (OPR)”
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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
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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.
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
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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 alongwith
pending applications with no orders as to costs.
(ASHA MENON)
JUDGE
(HIMA KOHLI)
JUDGE
MAY 01, 2020
pkb
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