IMPORTANT POINT
Husband cannot be awarded with decree of divorce for his own infidelity.

Yogesh Khanna, J.—Sometimes it become necessary to enquire from what motive a behaviour ensues. If the cause for the behaviour of a spouse is the result of breach of faith by the other spouse, and especially where the trust of fidelity is breached, it becomes the duty of the court to be more vigilant and appraise the evidence led at the trial with a hawk’s eye. Sieving the evidence and then examining it under a microscope.

2. The appeal has reached for hearing today and none appears for the respondent. The reason is obvious. During the subsistence of the marriage he had an extra-marital relationship with one Ms.IK (name withheld). As a result of an illegal order passed by the learned Judge Family Court the appellant was denied the opportunity to bring on record evidence of adultery. But as recorded in the order dated January 18, 2016 passed in the appeal, the respondent admitted that he had formally married Ms.IK after decree for divorce in his favour was passed and that on February 05, 2008, i.e. when the marriage was subsisting he had fathered a child Master MS (name withheld). It would be relevant to note that the petition seeking annulment of the marriage by grant of a decree for divorce was filed by the respondent on July 12, 2004 and was allowed in his favour vide order dated May 23, 2015. It is apparent that Master MS was born to Ms.IK when the proceedings for divorce were pending.

3. This appeal challenges the grant of decree of divorce under Section 13(1)(i)(a) of Hindu Marriage Act by the Family Court, 1955 Central District, Tis Hazari vide judgment and decree dated May 23, 2015. The parties were married on July 03, 1993 at Ludhiana, according to Hindu rites and ceremonies and a child Ms.Harpreet was born to them. The respondent in his petition for divorce alleged the behavior of the appellant to be cruel; quarrelsome; that she consumed sleeping pills on the first night; demanded share in his ancestral property. The appellant was brought to Delhi by the respondent to reside in a rented house at Fateh Nagar, Delhi and here also she misbehaved with his sisters in September, 1996 and in August, 1998 i.e. on the day of Raksha Bandhan.

4. The respondent herein further alleged to have purchased a house at Virender Nagar, Delhi in the year 1999 and shifted there. The respondent alleged that in October 2001 and in December, 2003 he was asked by the appellant to leave the house. The later incident was even witnessed by his neighbours. He was rather not allowed to enter in the house for about a month. In March 31, 2004, he alleges that the appellant abused and kicked him out of the house in the presence of one Col. Gurdeep Singh and Mr.Gill and that lastly on April 03, 2004 she threw his articles from the balcony of the house and he then left his matrimonial home.

5. The appellant in her written statement denied the assertions of the respondent herein and alleged that she always acted as a devoted Hindu married women but was treated with cruelty by the respondent herein and his family members; that the respondent used to beat her almost daily; used to demand dowry etc. The appellant denied having taken any sleeping pills ever or having claimed any share in his ancestral property or ever asked him for a separate residential accommodation. She alleges to have been tortured on the birth of a female child; was never given a single penny for her personal expenses and was forced to abort her second child. She further alleges that the respondent was hell bound to get a divorce from her as he wanted to marry one Ms.IK, an employee in his office with whom he had an affair.

6. A bare perusal of the pleadings would show allegations and counter allegations, most of which are the part of the impugned judgment.

7. After recording the evidence, the Family Court granted the divorce to the respondent on the following facts, viz.; (a) grant of discharge of mother/sister of the respondent herein, in FIR bearing No.456/2004 under