Point of Law : Once parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that breakdown is irreparable, then divorce should not be withheld

JUDGMENT :

Jasmeet Singh, J.

1. The present appeal has been filed by the Appellant (Husband) under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 challenging the judgment and decree dated 30.11.2019, whereby the petition filed by the Respondent for dissolution of Marriage under Section 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 has been allowed, and the marriage between the parties has been dissolved.

2. At the very outset, it must be noted that we on 15.07.2021, had interacted with the parties to explore the possibility of a mediated settlement. However, it was of no avail.

3. The necessary facts, giving rise to the present appeal are that the Appellant-husband and the Respondent-wife got married on 06.05.2011 at Delhi according to Hindu rites and ceremonies. The parties resided together at J1/226, DDA Flats, Kalkaji, New Delhi till 10.07.2011, after which the respondent left the matrimonial home.

4. On 01.09.2012, the Respondent filed a petition under Section 13(1)(ia) and 13(iii) of the Hindu Marriage Act, 1955. In the petition, the Respondent claimed that the parties did not consummate their marriage; that there were dowry demands by the appellant and his family members; that the appellant fought with her constantly; that the appellant used to torture her; that he did not spend any amount towards household expenses and; lastly that he was suffering from a Bi-Polar disorder which he concealed from her before marriage.

5. The Family Court found that:

i. the respondent/wife has brought sufficient material on record and given specific incidents of cruelty on the part of the appellant/husband

ii. The respondent proved that the appellant was abusive, and was in the habit of picking up quarrels frequently.

iii. The appellant abused the respondent making the allegations that she was having sexual relationship with her brother and father.

iv. The appellant was a patient of "PSYCHOMOTOR ACTIVITY, BIOLAR DISORDER AND PERSONALLITY DISORDER MULTIPLETRAIT".

v. The appellant did not show any interest, whatsoever, in establishing conjugal relationship with the respondent.

vi. The appellant used to insult the respondent before relatives/domestic helps.

vii. The appellant had assaulted, beaten, and tortured the respondent continuously, accusing her of bad character suspecting of her having affairs.

viii. The appellant did not have physical intimacy with the respondent for long.

ix. On 10.07.2011, when the respondent told the appellant that house rent and other bills for two months have not been paid, the appellant asked the respondent to bring Rs. 1.0 lac from her mother and when she refused, the appellant threw utensils and glasses on the floor.

x. The appellant threatened the respondent to butcher her with a knife. The respondent was scared of him. After 10.07.2011, the parties did not have any conjugal relationship.

xi. The conduct of the appellant by no stretch of imagination, could be termed as ordinary wear and tear of matrimonial life. The appellant subjected the respondent with continuous ill-treatment. The contemporaneous evidences, in the form of complaints filed by the respondent with the police against the behaviour of the appellant were relied upon.

xii. The above series of acts/incidents would constitute the mental cruelty, which is a ground for divorce under Section 13(1)(ia)of Hindu Marriage Act.

6. The main contentions of the Appellant in this appeal are as under :

(i) That the Family Court has not adjudicated the matter based on pleadings and has given findings on issues which were neither pleaded nor proved.

(ii) That the Respondent was not a reliable witness. The averments made in her petition are false to her knowledge and there exist many inconsistencies between the averments in the petition filed by her, and the statements made by her in the Cross examination before the Family Court.

(iii) That the Respondent before the Family Court did not press her claim for divorce on the ground