SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Rajni vs Vijay on 20 November, 2019

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 18th November, 2019
% Pronounced on : 20 November, 2019
+ MAT. APP. (F.C.) 239/2018
RAJNI ….. Petitioner
Through: Mr.Bharat Bhushan Kaushik, Mr.
Himanshu Kaushik, Advocates
versus
VIJAY ….. Respondent
Through: Mr. Ratan Kumar, Advocate

CORAM:
HON’BLE MR. JUSTICE G.S.SISTANI
HON’BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J.

1. The present appeal has been filed challenging the judgment dated
10.08.2018 passed by the Family Court in HMA No. 92/18 whereby the
petition under Section 13 (1) (ia) and (ib) of the SectionHindu Marriage Act,
1955 (hereinafter referred to as ‘HMA’) filed by the
respondent/husband for the dissolution of marriage has been allowed
and the marriage has been dissolved by a decree of divorce.

2. The necessary facts required to be noticed for disposal of this appeal are
that marriage between the parties was solemnized on 28.11.2010 at
Delhi, according to Hindu rites and customs. Marriage was
consummated but no child was born from the said wedlock.

3. Disputes and differences having arisen between the parties, the
respondent/husband filed a petition under Section 13 (1) (ia) and (ib) of
HMA seeking dissolution of marriage by passing a decree of divorce on
the ground of ‘cruelty’ and ‘desertion’.

MAT. APP.(FC) 239/2018 Page 1 of 9

4. The grounds on which the divorce petition was filed was that the
marriage between the parties was solemnized with simplicity, however,
the petitioner started quarreling with the respondent from December,
2010 itself and levelled false and baseless allegations on the character
of the respondent. It is pleaded by the respondent that since the very
beginning, the petitioner did not participate in the domestic affairs in
the matrimonial home. She forced the respondent to eat outside as she
did not prepare food at home. Due to this reason, the father of the
respondent shifted the parties to the second floor of the matrimonial
home which had a separate kitchen. There was no change in the
behavior of the petitioner and she left the matrimonial home on
08.05.2011, without informing anyone, and returned on 15.06.2011.

5. Further, the case of the respondent was that the petitioner left the
matrimonial home again on 28.08.2011 without informing the petitioner
and started residing at her parental home. The father of the respondent
filed a suit for permanent injunction bearing no. 326/2011 in October,
2011 in order to restrain the petitioner and the respondent from entering
his property bearing no. WZ- 92B, Harijan Colony, Tilak Nagar, Delhi.
The petitioner filed a false petition under Section 12 of Protection of
Women from Domestic Violence, 2015 bearing no.262/12 against the
respondent and his family members, which was dismissed in default on
24.11.2014. The petitioner is also stated to have made a complaint
before Crime against Women Cell.

6. The petitioner herein contested the divorce petition, by filing her
written statement. It was pleaded therein that the respondent cannot be
allowed to take advantage of his own wrongs. On merits, the petitioner

MAT. APP.(FC) 239/2018 Page 2 of 9
denied the allegation of cruelty and desertion mentioned in the petition.
It was claimed by the petitioner that the respondent and his family
members have in fact subjected the respondent to grave cruelty on
account of insufficient dowry and left the petitioner at her parental
home to pressurize her father for dowry demands.

7. In her preliminary submissions, the petitioner while admitting the
marriage between the parties submitted that the respondent has caused
grave cruelty to the petitioner by refusing sexual intercourse, on some
occasions after marriage. It was submitted that the respondent
developed extra marital relations with one lady namely Rupa, who was
living in the area of Chaukhandi, and when the petitioner objected to
the relationship, she was beaten up by the respondent. Further, it is
stated that the respondent dropped the petitioner at her parental home in
the month of May, 2011 but subsequently, upon reassurance by her
father-in-law that the respondent would not have any relations with
Rupa, the petitioner returned to her matrimonial home.

8. It was submitted by the petitioner that she was beaten up on 27.08.2011
by the respondent and his family members. She went to Tilak Vihar
Police Post on 28.08.2011, however no action was taken by the police.
The petitioner came to her parental home on 28.08.2011. Thereafter, her
father sent her to her matrimonial home on 19.10.2011, but, the
petitioner and his family refused to take her back.

9. In the replication filed by the respondent, he reiterated the averments
made in the petition and denied those in the written statements which
were contrary to his case.

10. On 18.02.2016, the following issues were framed by the Family Court;

MAT. APP.(FC) 239/2018 Page 3 of 9

“1. Whether the petitioner is entitled for the decree of divorce
on the grounds of cruelty and desertion as per Section 13 (1)
(ia) and (ib) of HMA? OPP

2. Relief.”

11. In support of his case, the respondent examined himself as PW-1 and
tendered his affidavit as evidence as Exhibit PW-1/A and relied upon
documents viz. Exhibit PW-1/1 i.e. a photocopy of his election ID card,
Exhibit PW-1/2 being one photograph of marriage and Exhibit PW-1/3
being a certified copy application under Section 12 of Protection of
Women from Domestic Violence, 2015 along with order dated
24.11.2014.

12. In support of her case, the petitioner examined herself as RW-1 and
relied upon the documents which were marked as Mark A to Mark C;
Mark A being photocopy of the police complaint dated 28.08.2011;
Mark B being photocopy of MLC no. 21683 and Mark C photocopy of
police complaint dated 20.10.2011.

13. The Family Court after examining the pleadings and evidence on
record, noticed that respondent in affidavit Ex. PW-1/A deposed that
the petitioner was found to be quarrelsome in nature soon after the
marriage; she did not participate in the daily domestic chores at the
matrimonial home and she left the matrimonial home without informing
the respondent or his family on 08.05.2011. However, it was found that
the said allegations are not sufficient to constitute cruelty on the part of
the respondent as the assertions made by the respondent were without
any specific details and were vague. Respondent was held disentitled
for the decree of divorce on the ground of cruelty as he did not lead

MAT. APP.(FC) 239/2018 Page 4 of 9
reliable or cogent evidence to prove allegations of cruelty against the
petitioner.

14. Reliance was placed on Gurbux Singh v Harinder Kaur (2010) 14
SCC 301, wherein the Supreme Court observed that matrimonial life
should be assessed as a whole, and not on a few isolated incidents.
Irritation, quarrels and normal wear and tear are part and parcel of
matrimonial life, which couples forgive and forget.

15. In addition to the above, the Family Court found that the petitioner had
not led any corroborated or cogent evidence to prove that the
respondent was having or developed an extra marital relationship. It
was held that the respondent made a false allegation against the
petitioner regarding the extra marital relationship. Further, the petitioner
could not prove by leading evidence that during their cohabitation,
respondent stopped cohabiting with the petitioner and also refused
sexual intercourse.

16. Further, the Family Court concluded that the respondent had been able
to substantiate the grounds of desertion. It was held that the petitioner
had deserted the respondent since August, 2011 and as such had
withdrawn from the conjugal society of the respondent without any
reasonable excuse. The petitioner had failed to discharge the
matrimonial duties and obligations towards the respondent. Petitioner
has been residing at her parental home since 28.08.2011 without any
reasonable excuse and was adamant not to join the matrimonial
company of the respondent. It was held that the petitioner had deserted
the respondent without sufficient cause. He had been deserted for a
continuous period of not less than two years preceding the presentation

MAT. APP.(FC) 239/2018 Page 5 of 9
of the petition. The respondent was thus held entitled to divorce on the
ground of desertion as per Section 13 (1) (ia) (ib) of HMA.

17. We have heard the learned counsels for the parties and examined their
rival submissions together with the pleadings and the evidence on
record.

18. A perusal of the pleadings and evidence exchanged between the parties
indicates that the marriage between the parties was solemnized on
28.11.2010 and the petitioner has been living at her parental home since
28.08.2011. As per the unrebutted assertion of the respondent, there
were marital discords between the parties right from the very next
month. The parties never enjoyed the bliss of a normal married life.
Petitioner instituted a petition against the respondent and his family
under Section 12 of the Protection of Women from SectionDomestic Violence
Act, 2005 which was dismissed in default on 24.11.2014. She also filed
a complaint before the Crime against Women Cell on 20.10.2011.
Petitioner during her cross- examination also admitted that investigation
was conducted on the said complaint, but it was closed as no response
was shown. Petitioner admitted that she had voluntarily asked CAW
cell to close her complaint. The petitioner initiated false and vexatious
litigation and complains against the respondent and his family.

19. A perusal of the impugned judgment shows that what primarily
weighed with the Family Court to conclude that the petitioner had
deserted the respondent was that there was nothing in the evidence to
prove that the respondent was instrumental or had forced the petitioner
to leave the matrimonial home on 28.08.2011. It was also proved by the
respondent that the petitioner never fulfilled the obligations of the

MAT. APP.(FC) 239/2018 Page 6 of 9
marriage and withdrew from the matrimonial cohabitation on her own
accord. The petitioner deserted the respondent without sufficient cause

20. The first issue which arises for our consideration is whether the
petitioner/ wife had left the matrimonial home for a continuous period
of two years immediately preceding the institution of the petition
seeking divorce. As per the respondent/husband, the petitioner had left
the matrimonial home on 28.08.2011without sufficient/ just/ reasonable
cause. It is also the case of the respondent that the petitioner did not
perform her marital duties.

21. In the pleadings, the petitioner took the stand that she was beaten up on
27.08.2011, by the respondent and his family members. She reported
the matter to the police on 28.08.2011. The respondent and his father
were called to the Police Post, however, no action was taken against
them. Leaving of the matrimonial home is not in dispute. The Family
Court has placed heavy reliance on the cross-examination of the
respondent wherein he deposed that he did not beat the petitioner nor
did the petitioner file any police complaint on 28.08.2011. Family
Court noticed that there was no cross- examination of the respondent on
his evidence that the petitioner left the house without any cause.

22. Further, the Family Court has also taken note of the fact that the
petitioner did not call any witness from Police Post, Tilak Vihar to
prove that the incident of alleged beating on 27.08.2011. Although we
are conscious of the fact that in matrimonial disputes, not all incidents
are reported to the police, however, in this case, producing a witness
from Police Post, Tilak Vihar gains immense importance as the
petitioner herself has alleged that the incident of 27.08.2011 was

MAT. APP.(FC) 239/2018 Page 7 of 9
reported to the police. The respondent and his father were called to the
police post but no action was taken against them. Once having made a
categorical assertion that the matter was reported to the police and the
respondent and his father were called by the Police, in our view, in the
absence of any copy of complaint having been filed and exhibited and
in the absence of any witness from the police force, it cannot be said
that the petitioner left the matrimonial home for justifiable reasons or
on account of being beaten on 27.08.2011. The petitioner, in her cross-
examination has also admitted that she had come to her parental home
on 28.08.2011 for good.

23. The Apex Court in SectionSavitri Pandey vs Prem Chandra Pandey reported
at (2002) 2 SCC 73 held as under:

“Desertion”, for the purpose of seeking divorce under the
Act, means the intentional permanent forsaking and
abandonment of one spouse by the other without that other’s
consent and without reasonable cause. In other words it is a
total repudiation of the obligations of marriage. Desertion is
not the withdrawal from a place but from a state of things.
Desertion, therefore, means withdrawing from the
matrimonial obligations, i.e., not permitting or allowing and
facilitating the cohabitation between the parties. The proof
of desertion has to be considered by taking into
consideration the concept of marriage which in law legalises
the sexual relationship between man and woman in the
society for the perpetuation of race, permitting lawful
indulgence in passion to prevent licentiousness and for
procreation of children. Desertion is not a single act
complete in itself, it is a continuous course of conduct to be
determined under the facts and circumstances of each case.

24. In the case of SectionBipin Chander Jaisinghbhai Shah vs Prabhawati
reported at 1957 AIR 176, the Apex Court held as under:

MAT. APP.(FC) 239/2018 Page 8 of 9

“…If a spouse abandons the other spouse in a state of
temporary passion, for example, anger or disgust, without
intending permanently to cease cohabitation, it will not
amount to desertion.’ For the offence of desertion, so far as
the deserting spouse is concerned, two essential conditions
must be there., namely, (1) the factum of separation, and (2)
the intention to bring cohabitation permanently to an end
(animus deserendi ). Similarly two elements are essential so
far as the deserted spouse is concerned: (1) the absence of
consent, and (2) absence of conduct giving reasonable cause
to the spouse leaving the matrimonial home to form the
necessary intention aforesaid. The petitioner for divorce
bears the burden of proving those elements in the two
spouses respectively…”

25. Having traversed the law on the subject and analyzed the facts of the
case and evidence on record, we are in agreement with the decision
rendered by the Family Court that the petitioner has deserted the
respondent. Desertion on the part of the petitioner/wife has been made
out as firstly, she stayed away on her own accord, and secondly, she
was not prevented from coming back. It is clear that this marriage is
beyond salvage. In our view, the Family Court has rightly granted a
decree of divorce in favor of the respondent. We find no infirmity in the
order of the Family Court.

26. There is no merit in this appeal, and the same is accordingly dismissed.

G.S. SISTANI, J

JYOTI SINGH, J

NOVEMBER 20, 2019//

MAT. APP.(FC) 239/2018 Page 9 of 9

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation