The court upheld that allegations of cruelty were unsubstantiated, emphasizing that both the Special Marriage Act and Hindu Marriage Act require consistent standards for proving cruelty, which were not met in this case.

JUDGMENT

Sanjeev Sachdeva, J. - Appellant/Husband impugns judgment and decree dated 30.08.2016 passed by the Family Court, whereby the petition filed by the appellant seeking divorce under Section 18 of the Foreign Marriage Act 1969 read with Section 27(1)(B) and (D) of the Special Marriage Act, 1954 on the grounds of desertion and cruelty has been dismissed.

2. Appellant husband, a Muslim got married to Respondent wife, a Hindu on 01.09.1994 under Civil Law in England. It is an admitted position that both parties are permanent residents of India and there is no dispute that the family court at Delhi had the jurisdiction to adjudicate the petition.

3. Appellant filed the petition alleging that their marriage has irretrievably broken down and that parties have been living separately since 2009, although they had not enjoyed conjugal relations since 2007. As per the Appellant, he has been residing in Srinagar since 2009 and was serving as the Chief Minister of the State of Jammu and Kashmir and Respondent had chosen to reside in Delhi with their children.

4. As per the Appellant Respondent refused to accompany him to Kashmir in 2002, when he moved there in order to prepare himself for the elections and this resulted in the Petitioner having to fly to Delhi on the weekends to meet his children. It is alleged that the Respondent has alienated the children from the Appellant which is evident from the SMS exchange between them and the Appellant. He further alleges that the Respondent had an uncomfortable relationship with the Appellant's family, due to which he was forced to distance himself from his own family to keep the peace in his marriage. It is contended that Respondent would never attend holidays with the Appellant's family, nor would she allow the children to do so.

5. As per the Appellant the fact that Respondent has been irrationally refusing any and all discussion for an amicable separation/divorce, it also amounts to cruelty. It is alleged that appellant had made sincere efforts to settle the disputes, however the Respondent has refused any dialogue.

6. Per contra, Respondent contends that the petition does not disclose any cruelty and as such the petition is liable to be dismissed for want of cause of action. The allegation of parties not having any conjugal relations since 2007 is denied, it is submitted that the parties were residing together until the filing of the petition in January 2013. It is contended that parties had not been living separately for over two years prior to the filing of the petition.

7. As per the respondent, parties had agreed that Respondent and the children would stay in Delhi, due to the security threats in Srinagar. It is submitted that the Respondent and children frequently travelled to Srinagar to visit the Appellant and his family and they took trips together abroad and within India.

8. The Family Court after considering the evidence led by the parties held that the allegations of cruelty were vague and unacceptable. It was held that the Appellant did not provide one single circumstance to explain the alleged discomfort between the Respondent and his family members. None of the family members except the Appellant's sister deposed, who also did not disclose any instances of mental stress and cruelty caused by the Respondent to the Appellant. It was also held that the parties were based in Delhi till 2002 and mutually decided that the children should be educated in Delhi and the Respondent agreed to stay back with the children.

9. The court held that frequent travel of the petitioner between Delhi and Srinagar could not be held to be on account of marital discord, as it was a collective decision and hence could not be termed as an act of cruelty towards the Appellant. Furthermore, it was an admitted position that the parties took several vacations and also attended various family functions together up until January 2011, when the divorce petition was filed.

10. The Family Court held that Appellant h