Back
1991 Supreme(Del) 365
High Court Of Delhi
SANYOGTA VERMA - Appellant
Versus
VINOD VERMA - Respondent
First Appeal Order 217 of 1988
Decided On : 05/31/1991
A.M.SANGHVI, N.VAZIRI, S.K.PURI
Amendment of petition to include additional ground of desertion during pendency of divorce petition is permissible and effective from the date of amendment and not from the date of institution of the original petition.
Headnote:
HINDU MARRIAGE ACT - SECTION 13 - DESERTION - AMENDMENT OF PETITION - TWO YEARS PERIOD - CRUELTY - CONDONATION - CUSTODY OF CHILD. 1. Amendment of petition to include additional ground of desertion during pendency of divorce petition is permissible and effective from the date of amendment and not from the date of institution of the original petition. 2. Desertion is not intended or there was reasonable cause for leaving the matrimonial home is on the deserting spouse. 3. Cruelty is determined primarily by its effect upon the particular person complaining of the acts. 4. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. 5. Welfare and interest of the child is the paramount consideration in determining the custody of the child.
Fact of the Case:
The appellant-wife challenged the judgment of the Additional District Judge allowing the respondent-husband's petition for divorce on the ground of desertion. The respondent-husband had initially filed a petition for divorce on the ground of cruelty, but later amended the petition to include an additional ground of desertion. The appellant-wife contended that the amendment was not maintainable as the two years period between the date of alleged desertion and the date of filing the petition had not lapsed. The respondent-husband argued that the amendment related back to the date of the filing of the original petition. The appellant-wife also denied the allegations of cruelty made by the respondent-husband.
Finding of the Court:
The Court held that the amendment to include the ground of desertion was permissible and effective from the date of amendment and not from the date of institution of the original petition. The Court also held that the appellant-wife had not shown her willingness to go back to her matrimonial home and thus had deserted the respondent-husband. The Court further held that the allegations of cruelty made by the respondent-husband were substantiated by the evidence on record and that the respondent-husband had not condoned the acts of cruelty of the appellant-wife. The Court also held that the welfare and interest of the child was the paramount consideration in determining the custody of the child and that it would not be fit and proper to give the custody of the child to the appellant-wife at this stage.
Issues: 1. Whether the amendment of the petition to include the ground of desertion was maintainable? 2. Whether the appellant-wife had deserted the respondent-husband? 3. Whether the respondent-husband had condoned the acts of cruelty of the appellant-wife? 4. Whether the welfare and interest of the child would be best served by granting custody to the appellant-wife?
Ratio Decidendi: 1. The Court relied on the judgments of the Bombay High Court in Suren Chanderkant Shah v. Rita Suren Shah and the Delhi High Court in Dhanjit Vadra v. Smt. Beena Vadra and Jawahar Lal Mamtani v. Bhag Chand Motumal Mamtani to hold that the amendment to include the ground of desertion was permissible and effective from the date of amendment and not from the date of institution of the original petition. 2. The Court relied on the evidence on record to hold that the appellant-wife had not shown her willingness to go back to her matrimonial home and thus had deserted the respondent-husband. 3. The Court relied on the judgment of the Supreme Court in Dr. N. G. Dastane v. Mrs. S. Dastane to hold that the allegations of cruelty made by the respondent-husband were substantiated by the evidence on record and that the respondent-husband had not condoned the acts of cruelty of the appellant-wife. 4. The Court relied on the welfare and interest of the child to hold that it would not be fit and proper to give the custody of the child to the appellant-wife at this stage.
Final Decision: The appeal filed by the wife was dismissed and the cross appeal filed by the husband was allowed.
( 1 ) THIS appeal has been filed by the appellant wife against the judgment of the Additional District Judge dated 6. 9. 1988 whereby the petition filed by the respondent-husband under Section 13 of the Hindu Marriage Act was allowed on the ground of desertion.
( 2 ) THE brief facts of the case are as follows : The marriage between the parties was solemnised on 3. 5. 1980 at Delhi according to Hindu rites. One female child was born out of this wedlock on 5. 2. 1981. Initially, the divorce petition was filed by the respondent herein on 5. 7. 1983 on the ground of cruelty, however later on, on 24. 8. 1984 an application was filed by the respondent seeking amendment of the divorce petition by including an additional ground of desertion. On 22. 10. 1984 the amendment was allowed and the divorce petition was contested by the appellant wife on both the counts i. e. cruelty as well as desertion.
( 3 ) IT was alleged by the respondent husband that the appellant wife was suffering from mental and multiple diseases prior to the marriage and was undergoing regular treatment in various hospitals, however this fact was concealed from him and as such a fraud was committed by the appellant and the respondent was misled into marrying her. It was alleged that the appellant was aggressive in her nature and it was very difficult for the respondent to live with her. The appellant as well as her parents refused to get her medically examined and in fact the ailment of the appellant was concealed from the respondent even after marriage for a long time and the treatment was given to the appellant secretly by her parents. It was alleged that the mother of the appellant used to come to the house of the respondent on the pretext of meeting her and gave her medicine on the sly and the respondent was told that she was being treated for ear-ache. The respondent further alleged in the petition that after 40 days of the birth of the child, the appellant wife went to her parents house on a ceremonial visit, however later after about 2/3 days the respondent was called to the house of the appellant and was informed that the appellant had developed some old illoess for which she required treatment and thus the respondent was asked to take the. baby child with him. Accordingly, the respondent took the child back to his own house. The appellant got treatment from various doctors and remained admitted in St. Stephen Hospital from 19. 8. 1981 to 26. 8. 1981 where she was diagnosed as a patient of Hypomenia. It was alleged that the true ailment of the appellant was always concealed from the respondent and he was all the time given the impression that the appellant was only treated for ear ailment and even her treatment and admission in St. Stephen Hospital was concealed from the respondent. The appellant remained at her parents house for about six months and joined back the respondent in the second week of September 1981. It was further alleged that the appellant had deserted the child while the child was just 40 days old and the respondent had looked after the child with great difficulty since then. In fact, it was allged that after about 13 days of the birth of the child, the respondent was take. i to Dr. Roshan Lal Nursing Home, Naveen Shahdara whereafter checking the newly born child the respondent was told that the child should not be allowed to have mother s milk otherwise even the child may inherit the same disease as the mother. The respondent further alleged that the appellant s brother s marriage was held on 3. 12. 80. The appellant had already left the matrimonial home and gone to the parents house after a quarrel with his mother. However, the respondent attended the marriage because the brother of the appellant came and requested him to attend the marriage. When the respondent went there he was told by the appellant that she did not have Sandals and asked him to purchase the same for her from Karol Bagh. When he took the appellant to Ka
