Long separation between spouses can constitute mental cruelty, justifying divorce in cases where marriage has become unworkable.

JUDGMENT :

Mr. Sudhir Singh, J.

CM-15290-CII-2019

The present application has been filed under Section 5 of the LIMITATION ACT for condoning the delay of 56 days in filing the appeal.

Keeping in view the averments made in the application, the same is allowed and delay of 56 days is condoned.

FAO-4560-2019

Challenge in the present appeal is to the judgment and decree dated 11.04.2019 passed by the learned Principal Judge, Family Court, Rewari (for short ‘the Family Court’), whereby the petition under Section 13 (1) of the HINDU MARRIAGE ACT , 1955 (for short ‘the Act’) filed by the appellant-wife, was dismissed.

2. The aforesaid petition had been filed by the appellant-wife, inter-alia, pleading therein that her marriage with the respondent-husband was solemnised on 06.05.2011 as per Hindu rites. Out of the said wedlock, no child was born. It was further asserted that from the beginning of the marriage, the respondent-husband and his family members were not satisfied with the dowry given by her parents. Despite trying to maintain peace, the appellant continued facing cruelty at the hands of the respondent-husband and his family members. It was further alleged that the respondent-husband and his family members had exhibited cruel behaviour even outside the matrimonial home forcing the appellant-wife to leave the matrimonial home. It has been further pleaded that the respondent-husband used to force her for unnatural sex against her wishes and used to beat her up whenever she refused. Also the respondent-husband concealed his actual age at the time of the marriage and there was a difference of almost 12 years between the parties. Further, the appellant-wife suffered a miscarriage because of merciless beatings given by the husband-respondent. The respondent-husband failed to fulfill his marital duties and did not provide her with the basic needs. On 21.05.2013 the appellant-wife was thrown out of her matrimonial home without any just and reasonable cause.

3. Upon notice, the respondent-husband appeared and filed his written statement alleging therein that the appellant-wife was given love and respect in the matrimonial home, but she chose to leave the respondent-husband without any reasonable cause. The appellant used to frequently quarrel, insult and threaten him. Her behaviour was aggressive and she had termed the marriage as a poor match. The respondent-husband further pleaded that he had paid Rs.8,00,000/- for the BDS study of the appellant-wife and had also purchased her a car by getting a loan from Bank of Baroda to which he paid monthly instalments from 26.04.2011 to 4.08.2016. The respondent-husband had issued a legal notice and had also filed a petition under Section 9 of the HINDU MARRIAGE ACT , which was subjudice at PJFC, Delhi.

4. On the basis of the pleadings of the parties, the following issues were framed by the Family Court:-

i) Whether the petitioner is entitled to a decree of divorce on the grounds as mentioned in the petition? OPP

ii) Whether the petitioner has not come to the court with clean hands? OPR

iii) Relief.

5. In evidence, the appellant-wife examined herself as PW-1; Asha Devi as PW-2 (Mother) and Vijay Kumar as PW-3 (Father), besides tendering documentary evidence as Ex.P1 and Mark P2 to P5. On the other hand, the respondent examined himself as RW1, besides tendering documentary evidence Ex.R1 to R8 and Ex.R9 to Mark Y.

6. The learned Family Court after taking into consideration rival contentions of the parties and evidence on record, dismis