JUDGMENT

SANJEEV SACHDEVA, J. MAT. APP (F.C.) 290/2018

1. Appellant/wife impugns common order and judgement dated MAT. APP (F.C.) 290-291/2018 Page 1 of 19 Signature Not Verified Digitally Signed

18.09.2018 passed by the Family Court, Dwarka, New Delhi whereby the Petition filed by the Respondent/husband under section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) seeking divorce on the ground of cruelty and desertion has been allowed and the Counter Claim filed by the Appellant seeking restitution of conjugal rights has been dismissed.

2. Parties were married on 17.02.2002 according to Hindu rites and customs and were blessed with a daughter, born on 07.01.2007. As per the Respondent they have been living separately since January

2007 and as per the Appellant since May 2007.

3. Respondent had filed the Petition seeking divorce on 26.05.2011 alleging that the Appellant used to exert pressure upon him to separate himself from his family members and live at the parental home of the Appellant. She is also alleged to have neglected the presence of other members in his family and would not even wish any guests and elders in the family. It is alleged that she used to misbehave with him and her behaviour towards his family members was disrespectful. He alleged that she used to stay at her parents’ house on one pretext or the other. She would not do the household chores.

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4. The Respondent also alleged that from the very first day of marriage, Appellant created scenes at night hours and most of the times did not allow him to enjoy his conjugal rights. She refused him to have access to her and inflicted cruelty upon him. He further alleged that he was allowed by the Appellant only 30-35 times (approximately) to enjoy conjugal relations since their marriage.

5. He also alleged that 20 days after the birth of the daughter, the Appellant left with her father for her parental house and has not returned to her matrimonial home despite repeated requests and visits by the Respondent.

6. The family court after considering the evidence led by the parties held that it clearly reflected that the Appellant/wife was interested to stay with her husband at the matrimonial house but it was the Respondent/husband who was not interested to keep his wife along with him. The Family Court has also referred to the statement of the father of the Respondent/husband that his son was not ready to reside with the Appellant. The Family Court thus held that the Respondent/husband had failed to establish the ground of Desertion.

7. In respect of the ground of cruelty, the Family Court has held MAT. APP (F.C.) 290-291/2018 Page 3 of 19 Signature Not Verified Digitally Signed that “there was no normal and healthy sexual relationships between (Respondent) and his wife (Appellant) and same has resulted in striking at the very foundation of their marriage. It has been well settled that normal and healthy sexual Relationships between both spouse is one of the basic ingredients for happy and harmonious marriage as the marriage without sex is an anathema. Sex is foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue.”

8. The Family Court after holding that there was denial of conjugal relations, noticed that parties had been living separately for more than 11 years and held that the marriage had broken down beyond repair and thus held that the Respondent had successfully established cruelty and thus granted a decree of divorce against the Appellant.

9. With regard to the Counter Claim of the Appellant seeking restitution of conjugal rights, the Family Court has held that as the court had held that the Respondent/husband was entitled to grant of divorce on the ground of cruelty, Appellant was not entitled to restitution of conjugal rights.

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