MAT.APP.(F.C.).45/2011 Page 1
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26.07.2016
Decided on: 21.09.2016
MAT.APP. 45/2011
MINI APPA KANDA SWAMI @ MANI ..... Appellant
Through: Ms. Shailja Balasaria, Advocate.
versus
M INDRA .... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MS. JUSTICE DEEPA SHARMA
(JUDGMENT)
1. This appeal has been preferred by the appellant husband against the
order of the Family Court, Rohini, Delhi, dated 12.08.2010 whereby his
petition for dissolution of marriage under Section 13(1)(ia) of the Hindu
Marriage Act (hereafter “the Act”) was dismissed.
2. Briefly, the facts are that the parties got married according to Hindu
rites and customs at JJ Colony, Delhi on 06.09.2003 and through the
wedlock one male child was born on 01.07.2004.
3. The petition for divorce was filed by the appellant on the ground of
cruelty, alleging that the respondent wife was pressurizing him to setup a
separate home as she did not want to live in a joint family. The appellant
MAT.APP.(F.C.).45/2011 Page 2
worked as a labourer and it is his contention that owing to limited
financial means it was not possible for him to set up a separate
independent household. It is further contended that despite several
attempts to explain the difficulty of setting up a separate household, the
respondent refused to cooperate and kept pressurizing the appellant. It is
argued that the respondent became overbearing and abusive and also
started misbehaving, not only with the appellant but also with his family
members. The respondent would get aggressive and on several occasions
had even beaten him. She also refused to do the household chores and
threatened to implicate him and his family members in false criminal
cases. Thereafter, on 21.11.2003, her parents visited her and instead of
advising her to mend her ways, supported her. The respondent continued
her atrocities against the appellant and his family and on 21.01.2004, left
the matrimonial home without giving any reasons. It is argued by the
appellant that he and his family members made several efforts for
reconciliation and even went to the respondent’s parental home on
10.02.2004 and 04.03.2004 to bring her back so that she could rejoin the
company of the appellant. However, all such attempts failed. In fact, it is
alleged, that instead of sorting the differences, the respondent and her
MAT.APP.(F.C.).45/2011 Page 3
family threatened to implicate the appellant as well as his family members
in dowry demand cases. The appellant received a notice from CAW Cell
(Crime Against Women Cell) on 30.03.2005. A false complaint with
Mahila Ayog (Delhi Commission of Women) was also filed by the wife.
The appellant submits that he returned all the dowry articles to the
respondent on 25.04.2005. It is submitted that he did not condone the
wife’s cruelty in any manner and that their marriage reached a point of no
return with there being no likelihood of a patch up or sorting of
differences. Under such circumstances there could be no re-union of the
parties.
4. The respondent, who appeared in person in the proceedings, had
filed her written statement which controverted all the appellant’s
contentions and had urged that it was he who had treated her with cruelty.
She contends that the appellant had raised a demand of ` 1 lakh as well as
a motor cycle and when she could not make good of these demands, she
was turned out of the matrimonial home; she made efforts for
reconciliation, but to no avail. It is also contended that she was sent back
to her parental home when she was in family-way and all the delivery
expenses were borne by her parents.
MAT.APP.(F.C.).45/2011 Page 4
5. In the replication, the appellant had alleged that it was he who had
borne the delivery as well as post-delivery expenses and denied any
allegation that he had demanded any money or a motor cycle or even that
he had treated her with cruelty.
6. The Family Court heard the arguments and framed three issues:-
“a. Whether after the solemnization of marriage, the
respondent has treated 'the petitioner with cruelty'? OPP
b. Whether the respondent has deserted the petitioner ,
for a continuous period of not less than 2 years
immediately before presentation of this petition? OPP
c. Whether the petitioner is entitled for a decree of
divorce on the ground as prayed for? OPP
7. Parties led their evidence. While the appellant had examined
himself and his mother and one neighbour, the respondent had examined
herself and her father. After considering all the evidence on record, the
Family Court found that the husband had failed to discharge the burden
placed upon him and had failed to prove that the respondent had
committed cruelty of such nature which warranted a decree of divorce. It
was also observed that the husband had failed to prove that his wife had
deserted him for a continuous period of two years and dismissed the
petition.
MAT.APP.(F.C.).45/2011 Page 5
8. The impugned order is challenged by the appellant before this Court
on the grounds that the learned Judge has failed to take note of the
unrebutted statements of his witnesses and that there was no reason to
disbelieve their testimonies. Learned counsel for the respondent, Ms.
Shailja Balasaria submits that on a reading of the impugned order, there
appears to be an inconsistency in the observations made by the learned
trial Judge in para 22. Counsel urges that the judgment is based solely on
presumptions and suffers from infirmity and illegality and is liable to be
set aside.
9. It is further contended that the appellant is possessed of limited
financial means and in the circumstances could not have afforded a
separate independent household. The respondents demanded a separate
residence and committed acts of misbehavior which resulted in cruelty; by
passing the impugned order, the Family Court has erred in holding that the
demand of the respondent for a separate home was justified. It is further
argued that the Family Court wrongly relied upon a settlement reached
between the parties before the CAW Cell although no such settlement was
proved on record by the respondent.
MAT.APP.(F.C.).45/2011 Page 6
10. The question for consideration is whether the conduct of the
respondent/wife in the circumstance of the case, amounted to cruelty, to
entitle the husband to divorce. Cruelty could be physical or mental or
both. While it is easy to discern physical cruelty, mental cruelty has to be
assessed from the overall behavior of spouses as well as other incidental
factors. There is no doubt that in a matrimonial setup, a couple, which
decides to live together, invariably has different attitudes and opinions,
likes and dislikes, and more often than not spouses behave differently
when faced with the same situations. While disputes and arguments are
normal in a marriage, in order to constitute cruelty, the conduct of the
spouse should be something more serious than the ordinary “wear and
tear” of a marital life.
11. While considering whether a particular conduct constitutes cruelty or
not, the social status of parties, cultural background, physical and mental
conditions, customs and traditions etc. have to be considered. Mental
cruelty can be assessed from the continuous unprovoked conduct of a
spouse which causes embarrassment, humiliation, and anguish so as to
render the other spouse’s life miserable and unendurable. This conduct
should be of such gravity that the wronged party cannot be reasonably
MAT.APP.(F.C.).45/2011 Page 7
asked to put up with such conduct and continue to live with the other
party.
12. The Supreme Court in the case of A. Jayachandra v. Aneel Kaur
reported in (2005) 2 SCC 22, has observed as under:-
“It is difficult to lay down a precise definition or to give
exhaustive description of the circumstances, which would
constitute cruelty. It must be of such type as to satisfy the
conscience of the Court that the relationship between the
parties had deteriorated to such extent due to the conduct of
the other spouse that it would be impossible for them to live
together without mental agony, torture or distress, to entitle
the complaining spouse to secure divorce. Physical
violence is not absolutely essential to constitute cruelty and
a consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty within
the meaning of …….”
13. It is in the backdrop, of the behavior of parties, that the court has to
discern if the conduct complained is cruelty. There is no dispute as to the
fact that the appellant was working as a labourer. He was living in a house
built on a plot measuring 25 sq. yards, consisting of two rooms, along with
his parents, three brothers and three sisters. While the appellant in his
evidence deposed he had a room on the ground floor and one room on the
first floor, his mother in her deposition claimed that there were two rooms
on the ground floor and one room on the first floor. Even if the latter
account were taken to be true, it leads to a scenario where, three rooms
MAT.APP.(F.C.).45/2011 Page 8
accommodate eight adults. With the respondent joining her matrimonial
home and after the birth of their child, the number of members living in
that house further increased.
It was in the background of these facts that the learned trial Judge
held:-
“The petitioner has claimed that the respondent wanted to
stay in a separate accommodation. She definitely
requires/required one bedroom for herself and the
petitioner. Such a demand from the newlywed cannot be
considered as unwarranted or undesirable. If the
respondent at all wanted to stay in a separate
accommodation that could be only because she did not or
could not have the required privacy in the matrimonial
home in such a large family. I am, therefore, of the
considered view that her expectation/demand was not
unreasonable.”
14. Privacy is a fundamental human right. Oxford dictionary defines
privacy as “a state in which one is not observed or disturbed by the other
people.” So when a woman enters into matrimony, it is the duty of the
family members of her matrimonial home to provide her with some
privacy. There is no evidential backing by the appellant or his family
members showing that they had provided requisite privacy to the
respondent. The Family Court was therefore correct in holding that such
demand was not unreasonable and as such did not constitute cruelty.
MAT.APP.(F.C.).45/2011 Page 9
Besides this allegation, the appellant has not brought on record any proof
to substantiate the allegation that the behavior of the respondent caused
mental cruelty. The allegation that she was abusing the appellant and his
family members are vague and there are no specific instances cited.
15. The Family Court has further noticed on the basis of evidences on
record that the petitioner had taken a rented accommodation and stayed
there with the respondent, but later on abandoned her.
The Family Court relying on the evidences on record held:-
“The record, further, reveals that the respondent had
lodged a complaint with CAW Cell and there, the parties
arrived at a compromise. The Respondent has claimed that
as per the settlement, it was agreed that the parties shall stay
in a separate independent accommodation. The Petitioner
has, however, stated that no such settlement was arrived at.
The Petitioner has taken the stand contradictory to his own
testimony in the court. He has testified in his crossexamination
that all the dowry articles of the Respondent as
per the list Ex. PW1/R1 were returned to the Respondent. He
denied the suggestion that any rented accommodation was
taken by them in E-Block Shakurpur. He, also, denied that
rent of the said accommodation was Rs. 1200/- per month or
that father of the Respondent was/has been paying the rent.
He, however, admitted voluntarily that all the dowry articles
of the Respondent are lying in that rented accommodation.
He, further, denied the suggestion that the articles are not
lying in the house of real Bua (sister of father of the
Respondent). If the Petitioner and the respondent had not
taken any rented accommodation in pursuance of the
settlement arrived at in CAW Cell, the Petitioner could not
have known that the dowry articles are lying in that rented
MAT.APP.(F.C.).45/2011 Page 10
accommodation. The Respondent has, therefore, rightly
claimed and testified in the court that the Petitioner stayed
with her in a separate rented accommodation for 2-3 days in
the year 2005 i.e. after the settlement arrived at in CAW Cell.
The dowry articles were returned to the Respondent on
25.04.2005 and thereafter, the parties stayed in a rented
accommodation for 2-3 days.”
16. The evidence clearly disproves the appellant’s contention that the
respondent left her matrimonial home and never returned. Rather, the
record shows that the appellant had set up the matrimonial home in a
rented accommodation, which he left and did not return to thereby
abandoning the respondent. In his cross-examination, the appellant has
also admitted that at the time of marriage the respondent had brought
dowry with her. His testimony is extracted as under:-
“At the time of my marriage respondent brought one bed,
some utensils, one refrigerator, one washing machine and one
almirah. We have returned all the articles of the respondent
which belongs to her as per the list mentioned Ex. PW1/R1.”
17. Interestingly, in the cross-examination of the respondent/wife a
suggestion was given which was accepted by the respondent, thereby
fortifying her stand that the appellant had demanded ` 1 lakh and one
motorcycle from her and on her failure to arrange the same, he abandoned
her. The suggestion which was accepted as correct by the respondent is “It
MAT.APP.(F.C.).45/2011 Page 11
is correct that petitioner demanded Rs. One Lac and one motor cycle from
me. This demand was raised in the presence of my in-laws.”
18. A person is not allowed to take advantage of his own wrong. The
appellant has failed to prove his allegation of cruelty. Not just this, he had
also demanded dowry and it is he who abandoned the respondent. Under
the circumstances, there is no infirmity in the order of the learned trial
judge inasmuch as the appellant is not entitled to a decree of divorce under
Section 13(1)(ia) of the Hindu Marriage Act, 1955. Furthermore, Section
23(1)(a) of the Act makes it abundantly clear that a decree can be granted
when the Court is satisfied that the petitioner is in no way taking
advantage of his wrong. Such is not the case here, as it is the appellant
who abandoned the company of his wife.
19. Lastly, it is urged by learned counsel for the appellant that the
parties have been living separately for the last 12 years and the marriage
has virtually lost its meaning for them as they have reached a point of no
return. She avers that there is no life in the marriage bond and that it
should be dissolved for this reason. She has relied on para 26 of the
Judgement in K. Srinivas Rao vs D.A. Deepa, 2013 (2) SCALE 735,
reproduced as under:-
MAT.APP.(F.C.).45/2011 Page 12
“We are also satisfied that this marriage has irretrievably
broken down. Irretrievable breakdown of marriage is not a
ground for divorce under the Hindu Marriage Act, 1955.
But, where marriage is beyond repair on account of
bitterness created by the acts of the husband or the wife or
of both, the courts have always taken irretrievable
breakdown of marriage as a very weighty circumstance
amongst others necessitating severance of marital tie. A
marriage which is dead for all purposes cannot be revived
by the court's verdict, if the parties are not willing. This is
because marriage involves human sentiments and emotions
and if they are dried-up there is hardly any chance of their
springing back to life on account of artificial reunion
created by the court's decree.”
20. We have given thoughtful consideration to this argument of the
learned counsel. While there is no dispute to the fact that the parties have
not been living together for almost 12 years, yet a decree of divorce cannot
be passed on this ground alone as has been observed by the Supreme Court
in the Rao case (supra):-
“Irretrievable breakdown of marriage is not a ground for
divorce under the Hindu Marriage Act.”
21. No doubt in Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558, the
Supreme Court made a recommendation to the Union of India to amend
the Hindu Marriage Act to incorporate irretrievable breakdown of
marriage as a ground for divorce, yet till date this ground of divorce has
MAT.APP.(F.C.).45/2011 Page 13
not been added to the Act. Also in Vishnu Dutt Sharma v. Manju Sharma
(2009) 6 SCC 379, the Supreme Court held as under:-
“On a bare reading of Section 13 of the Act, reproduced
above, it is crystal clear that no such ground of irretrievable
breakdown of the marriage is provided by the legislature for
granting a decree of divorce. This Court cannot add such a
ground to Section 13 of the Act as that would be amending
the Act, which is a function of the legislature.
Learned Counsel for the appellant has stated that this Court
in some cases has dissolved a marriage on the ground of
irretrievable breakdown. In our opinion, those cases have
not taken into consideration the legal position which we
have mentioned above, and hence they are not precedents. A
mere direction of the Court without considering the legal
position is not a precedent. If we grant divorce on the
ground of irretrievable breakdown, then we shall by judicial
verdict be adding a clause to Section 13 of the Act to the
effect that irretrievable breakdown of the marriage is also a
ground for divorce. In our opinion, this can only be done by
the legislature and not by the Court. It is for the Parliament
to enact or amend the law and not for the Courts. Hence, we
do not find force in the submission of the learned Counsel
for the appellant.”
22. The Supreme Court in Anil Kumar Jain vs. Maya Jain 2009 (12)
SCALE 115 clearly defined the jurisdiction of the High Court while
considering the ground of irretrievable breakdown of marriage as a ground
for granting divorce. The court has stated as under:
17. …….This doctrine of irretrievable break-down of
marriage is not available even to the High Courts which do
not have powers similar to those exercised by the Supreme
Court under Article 142 of the Constitution.
MAT.APP.(F.C.).45/2011 Page 14
23. This Court thus lacks jurisdiction to dissolve a marriage on the
doctrine of “irretrievable breakdown”.
24. The findings of the Family Court that the respondent had no
intention to desert the appellant cannot be faulted with especially when
evidence shows that it was the appellant who had left her and the child in
the rented accommodation where he stayed with them only for 2-3 days.
25. The order of the family court does not warrant any interference.
The appeal has no merit and is dismissed.
DEEPA SHARMA
(JUDGE)
S. RAVINDRA BHAT
(JUDGE)
SEPTEMBER 21, 2016
IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26.07.2016
Decided on: 21.09.2016
MAT.APP. 45/2011
MINI APPA KANDA SWAMI @ MANI ..... Appellant
Through: Ms. Shailja Balasaria, Advocate.
versus
M INDRA .... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MS. JUSTICE DEEPA SHARMA
(JUDGMENT)
1. This appeal has been preferred by the appellant husband against the
order of the Family Court, Rohini, Delhi, dated 12.08.2010 whereby his
petition for dissolution of marriage under Section 13(1)(ia) of the Hindu
Marriage Act (hereafter “the Act”) was dismissed.
2. Briefly, the facts are that the parties got married according to Hindu
rites and customs at JJ Colony, Delhi on 06.09.2003 and through the
wedlock one male child was born on 01.07.2004.
3. The petition for divorce was filed by the appellant on the ground of
cruelty, alleging that the respondent wife was pressurizing him to setup a
separate home as she did not want to live in a joint family. The appellant
MAT.APP.(F.C.).45/2011 Page 2
worked as a labourer and it is his contention that owing to limited
financial means it was not possible for him to set up a separate
independent household. It is further contended that despite several
attempts to explain the difficulty of setting up a separate household, the
respondent refused to cooperate and kept pressurizing the appellant. It is
argued that the respondent became overbearing and abusive and also
started misbehaving, not only with the appellant but also with his family
members. The respondent would get aggressive and on several occasions
had even beaten him. She also refused to do the household chores and
threatened to implicate him and his family members in false criminal
cases. Thereafter, on 21.11.2003, her parents visited her and instead of
advising her to mend her ways, supported her. The respondent continued
her atrocities against the appellant and his family and on 21.01.2004, left
the matrimonial home without giving any reasons. It is argued by the
appellant that he and his family members made several efforts for
reconciliation and even went to the respondent’s parental home on
10.02.2004 and 04.03.2004 to bring her back so that she could rejoin the
company of the appellant. However, all such attempts failed. In fact, it is
alleged, that instead of sorting the differences, the respondent and her
MAT.APP.(F.C.).45/2011 Page 3
family threatened to implicate the appellant as well as his family members
in dowry demand cases. The appellant received a notice from CAW Cell
(Crime Against Women Cell) on 30.03.2005. A false complaint with
Mahila Ayog (Delhi Commission of Women) was also filed by the wife.
The appellant submits that he returned all the dowry articles to the
respondent on 25.04.2005. It is submitted that he did not condone the
wife’s cruelty in any manner and that their marriage reached a point of no
return with there being no likelihood of a patch up or sorting of
differences. Under such circumstances there could be no re-union of the
parties.
4. The respondent, who appeared in person in the proceedings, had
filed her written statement which controverted all the appellant’s
contentions and had urged that it was he who had treated her with cruelty.
She contends that the appellant had raised a demand of ` 1 lakh as well as
a motor cycle and when she could not make good of these demands, she
was turned out of the matrimonial home; she made efforts for
reconciliation, but to no avail. It is also contended that she was sent back
to her parental home when she was in family-way and all the delivery
expenses were borne by her parents.
MAT.APP.(F.C.).45/2011 Page 4
5. In the replication, the appellant had alleged that it was he who had
borne the delivery as well as post-delivery expenses and denied any
allegation that he had demanded any money or a motor cycle or even that
he had treated her with cruelty.
6. The Family Court heard the arguments and framed three issues:-
“a. Whether after the solemnization of marriage, the
respondent has treated 'the petitioner with cruelty'? OPP
b. Whether the respondent has deserted the petitioner ,
for a continuous period of not less than 2 years
immediately before presentation of this petition? OPP
c. Whether the petitioner is entitled for a decree of
divorce on the ground as prayed for? OPP
7. Parties led their evidence. While the appellant had examined
himself and his mother and one neighbour, the respondent had examined
herself and her father. After considering all the evidence on record, the
Family Court found that the husband had failed to discharge the burden
placed upon him and had failed to prove that the respondent had
committed cruelty of such nature which warranted a decree of divorce. It
was also observed that the husband had failed to prove that his wife had
deserted him for a continuous period of two years and dismissed the
petition.
MAT.APP.(F.C.).45/2011 Page 5
8. The impugned order is challenged by the appellant before this Court
on the grounds that the learned Judge has failed to take note of the
unrebutted statements of his witnesses and that there was no reason to
disbelieve their testimonies. Learned counsel for the respondent, Ms.
Shailja Balasaria submits that on a reading of the impugned order, there
appears to be an inconsistency in the observations made by the learned
trial Judge in para 22. Counsel urges that the judgment is based solely on
presumptions and suffers from infirmity and illegality and is liable to be
set aside.
9. It is further contended that the appellant is possessed of limited
financial means and in the circumstances could not have afforded a
separate independent household. The respondents demanded a separate
residence and committed acts of misbehavior which resulted in cruelty; by
passing the impugned order, the Family Court has erred in holding that the
demand of the respondent for a separate home was justified. It is further
argued that the Family Court wrongly relied upon a settlement reached
between the parties before the CAW Cell although no such settlement was
proved on record by the respondent.
MAT.APP.(F.C.).45/2011 Page 6
10. The question for consideration is whether the conduct of the
respondent/wife in the circumstance of the case, amounted to cruelty, to
entitle the husband to divorce. Cruelty could be physical or mental or
both. While it is easy to discern physical cruelty, mental cruelty has to be
assessed from the overall behavior of spouses as well as other incidental
factors. There is no doubt that in a matrimonial setup, a couple, which
decides to live together, invariably has different attitudes and opinions,
likes and dislikes, and more often than not spouses behave differently
when faced with the same situations. While disputes and arguments are
normal in a marriage, in order to constitute cruelty, the conduct of the
spouse should be something more serious than the ordinary “wear and
tear” of a marital life.
11. While considering whether a particular conduct constitutes cruelty or
not, the social status of parties, cultural background, physical and mental
conditions, customs and traditions etc. have to be considered. Mental
cruelty can be assessed from the continuous unprovoked conduct of a
spouse which causes embarrassment, humiliation, and anguish so as to
render the other spouse’s life miserable and unendurable. This conduct
should be of such gravity that the wronged party cannot be reasonably
MAT.APP.(F.C.).45/2011 Page 7
asked to put up with such conduct and continue to live with the other
party.
12. The Supreme Court in the case of A. Jayachandra v. Aneel Kaur
reported in (2005) 2 SCC 22, has observed as under:-
“It is difficult to lay down a precise definition or to give
exhaustive description of the circumstances, which would
constitute cruelty. It must be of such type as to satisfy the
conscience of the Court that the relationship between the
parties had deteriorated to such extent due to the conduct of
the other spouse that it would be impossible for them to live
together without mental agony, torture or distress, to entitle
the complaining spouse to secure divorce. Physical
violence is not absolutely essential to constitute cruelty and
a consistent course of conduct inflicting immeasurable
mental agony and torture may well constitute cruelty within
the meaning of …….”
13. It is in the backdrop, of the behavior of parties, that the court has to
discern if the conduct complained is cruelty. There is no dispute as to the
fact that the appellant was working as a labourer. He was living in a house
built on a plot measuring 25 sq. yards, consisting of two rooms, along with
his parents, three brothers and three sisters. While the appellant in his
evidence deposed he had a room on the ground floor and one room on the
first floor, his mother in her deposition claimed that there were two rooms
on the ground floor and one room on the first floor. Even if the latter
account were taken to be true, it leads to a scenario where, three rooms
MAT.APP.(F.C.).45/2011 Page 8
accommodate eight adults. With the respondent joining her matrimonial
home and after the birth of their child, the number of members living in
that house further increased.
It was in the background of these facts that the learned trial Judge
held:-
“The petitioner has claimed that the respondent wanted to
stay in a separate accommodation. She definitely
requires/required one bedroom for herself and the
petitioner. Such a demand from the newlywed cannot be
considered as unwarranted or undesirable. If the
respondent at all wanted to stay in a separate
accommodation that could be only because she did not or
could not have the required privacy in the matrimonial
home in such a large family. I am, therefore, of the
considered view that her expectation/demand was not
unreasonable.”
14. Privacy is a fundamental human right. Oxford dictionary defines
privacy as “a state in which one is not observed or disturbed by the other
people.” So when a woman enters into matrimony, it is the duty of the
family members of her matrimonial home to provide her with some
privacy. There is no evidential backing by the appellant or his family
members showing that they had provided requisite privacy to the
respondent. The Family Court was therefore correct in holding that such
demand was not unreasonable and as such did not constitute cruelty.
MAT.APP.(F.C.).45/2011 Page 9
Besides this allegation, the appellant has not brought on record any proof
to substantiate the allegation that the behavior of the respondent caused
mental cruelty. The allegation that she was abusing the appellant and his
family members are vague and there are no specific instances cited.
15. The Family Court has further noticed on the basis of evidences on
record that the petitioner had taken a rented accommodation and stayed
there with the respondent, but later on abandoned her.
The Family Court relying on the evidences on record held:-
“The record, further, reveals that the respondent had
lodged a complaint with CAW Cell and there, the parties
arrived at a compromise. The Respondent has claimed that
as per the settlement, it was agreed that the parties shall stay
in a separate independent accommodation. The Petitioner
has, however, stated that no such settlement was arrived at.
The Petitioner has taken the stand contradictory to his own
testimony in the court. He has testified in his crossexamination
that all the dowry articles of the Respondent as
per the list Ex. PW1/R1 were returned to the Respondent. He
denied the suggestion that any rented accommodation was
taken by them in E-Block Shakurpur. He, also, denied that
rent of the said accommodation was Rs. 1200/- per month or
that father of the Respondent was/has been paying the rent.
He, however, admitted voluntarily that all the dowry articles
of the Respondent are lying in that rented accommodation.
He, further, denied the suggestion that the articles are not
lying in the house of real Bua (sister of father of the
Respondent). If the Petitioner and the respondent had not
taken any rented accommodation in pursuance of the
settlement arrived at in CAW Cell, the Petitioner could not
have known that the dowry articles are lying in that rented
MAT.APP.(F.C.).45/2011 Page 10
accommodation. The Respondent has, therefore, rightly
claimed and testified in the court that the Petitioner stayed
with her in a separate rented accommodation for 2-3 days in
the year 2005 i.e. after the settlement arrived at in CAW Cell.
The dowry articles were returned to the Respondent on
25.04.2005 and thereafter, the parties stayed in a rented
accommodation for 2-3 days.”
16. The evidence clearly disproves the appellant’s contention that the
respondent left her matrimonial home and never returned. Rather, the
record shows that the appellant had set up the matrimonial home in a
rented accommodation, which he left and did not return to thereby
abandoning the respondent. In his cross-examination, the appellant has
also admitted that at the time of marriage the respondent had brought
dowry with her. His testimony is extracted as under:-
“At the time of my marriage respondent brought one bed,
some utensils, one refrigerator, one washing machine and one
almirah. We have returned all the articles of the respondent
which belongs to her as per the list mentioned Ex. PW1/R1.”
17. Interestingly, in the cross-examination of the respondent/wife a
suggestion was given which was accepted by the respondent, thereby
fortifying her stand that the appellant had demanded ` 1 lakh and one
motorcycle from her and on her failure to arrange the same, he abandoned
her. The suggestion which was accepted as correct by the respondent is “It
MAT.APP.(F.C.).45/2011 Page 11
is correct that petitioner demanded Rs. One Lac and one motor cycle from
me. This demand was raised in the presence of my in-laws.”
18. A person is not allowed to take advantage of his own wrong. The
appellant has failed to prove his allegation of cruelty. Not just this, he had
also demanded dowry and it is he who abandoned the respondent. Under
the circumstances, there is no infirmity in the order of the learned trial
judge inasmuch as the appellant is not entitled to a decree of divorce under
Section 13(1)(ia) of the Hindu Marriage Act, 1955. Furthermore, Section
23(1)(a) of the Act makes it abundantly clear that a decree can be granted
when the Court is satisfied that the petitioner is in no way taking
advantage of his wrong. Such is not the case here, as it is the appellant
who abandoned the company of his wife.
19. Lastly, it is urged by learned counsel for the appellant that the
parties have been living separately for the last 12 years and the marriage
has virtually lost its meaning for them as they have reached a point of no
return. She avers that there is no life in the marriage bond and that it
should be dissolved for this reason. She has relied on para 26 of the
Judgement in K. Srinivas Rao vs D.A. Deepa, 2013 (2) SCALE 735,
reproduced as under:-
MAT.APP.(F.C.).45/2011 Page 12
“We are also satisfied that this marriage has irretrievably
broken down. Irretrievable breakdown of marriage is not a
ground for divorce under the Hindu Marriage Act, 1955.
But, where marriage is beyond repair on account of
bitterness created by the acts of the husband or the wife or
of both, the courts have always taken irretrievable
breakdown of marriage as a very weighty circumstance
amongst others necessitating severance of marital tie. A
marriage which is dead for all purposes cannot be revived
by the court's verdict, if the parties are not willing. This is
because marriage involves human sentiments and emotions
and if they are dried-up there is hardly any chance of their
springing back to life on account of artificial reunion
created by the court's decree.”
20. We have given thoughtful consideration to this argument of the
learned counsel. While there is no dispute to the fact that the parties have
not been living together for almost 12 years, yet a decree of divorce cannot
be passed on this ground alone as has been observed by the Supreme Court
in the Rao case (supra):-
“Irretrievable breakdown of marriage is not a ground for
divorce under the Hindu Marriage Act.”
21. No doubt in Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558, the
Supreme Court made a recommendation to the Union of India to amend
the Hindu Marriage Act to incorporate irretrievable breakdown of
marriage as a ground for divorce, yet till date this ground of divorce has
MAT.APP.(F.C.).45/2011 Page 13
not been added to the Act. Also in Vishnu Dutt Sharma v. Manju Sharma
(2009) 6 SCC 379, the Supreme Court held as under:-
“On a bare reading of Section 13 of the Act, reproduced
above, it is crystal clear that no such ground of irretrievable
breakdown of the marriage is provided by the legislature for
granting a decree of divorce. This Court cannot add such a
ground to Section 13 of the Act as that would be amending
the Act, which is a function of the legislature.
Learned Counsel for the appellant has stated that this Court
in some cases has dissolved a marriage on the ground of
irretrievable breakdown. In our opinion, those cases have
not taken into consideration the legal position which we
have mentioned above, and hence they are not precedents. A
mere direction of the Court without considering the legal
position is not a precedent. If we grant divorce on the
ground of irretrievable breakdown, then we shall by judicial
verdict be adding a clause to Section 13 of the Act to the
effect that irretrievable breakdown of the marriage is also a
ground for divorce. In our opinion, this can only be done by
the legislature and not by the Court. It is for the Parliament
to enact or amend the law and not for the Courts. Hence, we
do not find force in the submission of the learned Counsel
for the appellant.”
22. The Supreme Court in Anil Kumar Jain vs. Maya Jain 2009 (12)
SCALE 115 clearly defined the jurisdiction of the High Court while
considering the ground of irretrievable breakdown of marriage as a ground
for granting divorce. The court has stated as under:
17. …….This doctrine of irretrievable break-down of
marriage is not available even to the High Courts which do
not have powers similar to those exercised by the Supreme
Court under Article 142 of the Constitution.
MAT.APP.(F.C.).45/2011 Page 14
23. This Court thus lacks jurisdiction to dissolve a marriage on the
doctrine of “irretrievable breakdown”.
24. The findings of the Family Court that the respondent had no
intention to desert the appellant cannot be faulted with especially when
evidence shows that it was the appellant who had left her and the child in
the rented accommodation where he stayed with them only for 2-3 days.
25. The order of the family court does not warrant any interference.
The appeal has no merit and is dismissed.
DEEPA SHARMA
(JUDGE)
S. RAVINDRA BHAT
(JUDGE)
SEPTEMBER 21, 2016
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