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2009 Supreme(Del) 180
159 (2009) DELHI LAW TIMES 590
DELHI HIGH COURT
J.R. Midha, J.
VIPIN KUMAR SHARMA – Appellant
Versus
MITHLESH KUMARI – Respondent
MAT. APP No. 106 of 2008
Decided on 9.2.2009
For the Appellant; Mr. C.C.S. Tomar, Advocate.
For the Respondent; None.
Failure to prove acts of cruelty as per the provisions of the Hindu Marriage Act led to the dismissal of the petition for divorce.
Headnote:
Divorce - Hindu Marriage Act - Cruelty - The appellant's petition for divorce under Sections 13(l)(ia) and 13(1)(ib) of the Hindu Marriage Act was dismissed by the Trial Court on the ground that the appellant failed to prove the acts of cruelty against the respondent. The appellant's appeal was also dismissed as the court agreed with the findings of the Trial Court.
Fact of the Case:
The appellant filed a petition for divorce under Sections 13(l)(ia) and 13(1)(ib) of the Hindu Marriage Act, alleging cruelty by the respondent. The Trial Court dismissed the petition, holding that the alleged acts of cruelty did not constitute grounds for divorce.
Finding of the Court:
The Court found that the appellant failed to prove the acts of cruelty against the respondent, and dismissed the appeal.
Issues: The issues revolved around proving the acts of cruelty against the respondent and the grounds for divorce under the Hindu Marriage Act.
Ratio Decidendi: The appellant's failure to prove the alleged acts of cruelty led to the dismissal of the petition for divorce.
Final Decision: The Court dismissed the appeal, upholding the Trial Court's decision to dismiss the petition for divorce.
J.R. Midha, J.-The appellant has challenged the judgment and decree dated 30th July, 2008 passed by learned Additional District Judge whereby the petition for divorce under Sections 13(l)(ia) and 13(1)(ib) of the Hindu Marriage Act,i995 has been dismissed.
2. The appellant was married to the respondent on 8th February, 1985 according to Hindu Marriage rites and ceremonies. Three children were born out of this wedlock who are now aged about 18, 19 and 20 years.
3. The respondent initially contested the petition before the learned Trial Court by filing the written statement on 9th May, 2007. However, she subsequently stopped appearing and was proceeded ex parte on 4th January, 2008.
She again appeared on 30th May, 2008 and joined the proceedings and also filed an application for setting aside the exparte order but the same was withdrawn on 29th July, 2008.
4. The learned Trial Court has dismissed the petition on the ground that the appellant has not been able to prove the acts of cruelty against the respondent. The learned Trial Court has held that the conduct charged as cruelty against the respondent is in the nature of normal tits and bits of the matrimonial life and do not constitute cruelty to get a decree of divorce. The learned Trial Court further held that the appellant had filed petition for restoration of conjugal rights which was dismissed on the ground that the appellant had not approached the Court with clean hands. In the said judgment, it was also held that the appellant was responsible for desertion and had no bo1Ul fide will to join the respondent. The learned Trial Court also held the petition to be barred by Section 23 of the Hindu Marriage Act as the appellant was apparently trying to take advantage of his own wrongs.
5. I have gone through the impugned judgment and the Trial Court record. I agree with the findings of the learned Trial Court. The appellant has not been able to prove the cruelty.
6. The learned Counsel for the appellant submits that the appellant has lodged an FIR against the respondent. The lodging of the FIR per se cannot be said to amount to cruelty till the adjudication by the Competent Court with respect to veracity of the averments made therein. It is not disputed that the matter is still sub judice.
7. There is no merit or substance in the appeal which is hereby dismissed.
Appeal dismissed.
