MAT.APP.(F.C.) 100/2021

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$~21.

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: 08.10.2021

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MAT.APP.(F.C.) 100/2021

MRS. NAYANIKA THAKUR MEHTA

..... Appellant

Through:

Mr. Jawahar Raja, Advocate.

versus

MR. MOHIT MEHTA

..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI

HON'BLE MR. JUSTICE JASMEET SINGH

VIPIN SANGHI, J. (ORAL)

C.M. Nos.35874/2021 & 35876/2021

1.

Exemptions allowed, subject to all just exceptions.

2.

The applications stand disposed of.

MAT.APP.(F.C.) 100/2021 and C.M. Nos.35873 & 35875/2021

3.

The appellant has assailed the order dated 22.03.2021 passed by the

learned Judge, Family Courts, New Delhi District, Patiala House Courts,

New Delhi in HMA No.315/2018. By the impugned order, the Family Court

has dismissed the application filed by the appellant wife under Order VII

2021:DHC:3238-DB

MAT.APP.(F.C.) 100/2021

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Rule 11 CPC seeking rejection of the aforesaid divorce petition preferred by

the respondent under Section 13(1)(ib) of the Hindu Marriage Act, 1956

(„the Act‟) to seek dissolution of marriage on the ground of desertion.

4.

The appellant sought rejection of the petition by placing reliance upon

Order II Rule 2 CPC. The submission of the appellant – in support of the

said application, was that the respondent/ husband had earlier instituted two

cases, namely, HMA No.471/2014 for judicial separation under Section 10

of the Act, and HMA No.637/2014 for divorce on the ground of cruelty

under Section 13(1)(ia) of the Act, but had failed to include the ground of

divorce premised upon the alleged desertion, even though, the said ground

was available to the respondent/ husband when the earlier petitions were

preferred. The respondent did not include the whole of the claim – which he

was entitled to make, in respect of the cause of action and, since he omitted

to sue on the ground of desertion – though available to him when he

preferred the aforesaid two petitions, he was precluded from, later on, suing

in respect of the said ground. The appellant/ wife contended that though the

respondent was entitled to grant of both the reliefs in respect of the same

cause of action, namely, to seek divorce on the ground of cruelty under

Section 13(1)(ia), and on the ground of desertion under Section 13(1)(ib) of

the Act, he did not seek the relief of divorce on grounds of desertion, and

omitted to do so. While omitting to claim divorce on the ground of

desertion in his earlier petitions – particularly HMA No.637/2014, he did not

obtain leave of the Court to sue for such relief later on. Thus, he was

precluded from preferring the second divorce petition premised upon the

ground of desertion under Section 13(1)(ib) of the Act.

2021:DHC:3238-DB

MAT.APP.(F.C.) 100/2021

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5.

At the outset, we may observe that so far as the first petition preferred

by the respondent/ husband under Section 10 of the Act – to seek judicial

separation is concerned, the filing of same, in any event, cannot be relied

upon by the appellant for the simple reason, that when the said petition was

preferred, the respondent was not interested in seeking a decree of divorce

under Section 13 of the Act. Consequently, even if the ground of

constructive desertion was available to the respondent – as claimed by the

appellant, when he preferred his petition under Section 10 of the Act (HMA

No. 471/2014), he was not bound to claim the relief of divorce as he had the

option to only claim judicial separation, and not divorce. In any event, this

petition was withdrawn by the respondent when he preferred his petition for

divorce on the ground of cruelty under Section 13(1)(ia) of the Act, being

HMA No.637/2014.

6.

The discussion found in the impugned order passed by the Family

Court reads as follows:

”6.

“2.

2021:DHC:3238-DB

MAT.APP.(F.C.) 100/2021

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to constitute but one cause of acti