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HIGH COURT OF DELHI
GAURAV NIGHAWAN ..... Appellant
Through: Mr.Ajit Singh, Advocate
Through: None.
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
1. The present appeal under Section 19 of the Family Courts Act, 1984 has been preferred by the appellant-husband against the impugned judgment dated 24.11.2022 passed by learned Family Court in HMA Petition No.1297/2022 whereby his petition seeking divorce from the respondentwife under the provisions of Section 13(1)(ia) (ib) of the Hindu Marriage Act, 1955 has been dismissed.
2. The brief background of the case as spelt out in the present appeal, are that the marriage between the appellant and respondent was solemnised on 23.10.2015 as per Hindu rites and customs, however, no child was born out of said wedlock. 15:41
3. The appellant in his divorce petition before the learned Family Court has alleged that after their marriage, the respondent was welcomed with love and affection in their family, however, she never gave love, affection and respect to him and his parents instead she used filthy language and picked up unnecessary quarrels. Further submitted that the appellant has alleged that the respondent had gynaecological and internal stomach disease prior to her marriage which fact was not brought into the knowledge of appellant and his family. Even more, she had affairs with 2-3 boys. The appellant has alleged that whenever he confronted the respondent, she used abusive and filthy language against him and his family members.
4. The appellant alleged that the respondent was not willing to live in a joint family and accused his mother of interfering unnecessarily in their married life. According to appellant, he and his family members tried their level best to change respondent’s behavior towards them, however, in the month of December, 2015, she left the matrimonial home with all her valuables and belongings
5. The appellant had further alleged that even after respondent left the matrimonial home, her father demanded Rs.50 lacs by threatening the appellant and his family of roping in false cases. Having no ray of hope for his married life, the appellant preferred a petition seeking divorce on the ground of cruelty under Section 13 (1)(ia) and (ib) of the Hindu Marriage Act, 1955.
6. The respondent was served by way of publication vide order dated 11.07.2022 and was later proceeded ex parte by the learned Family Court. 15:41
7. The appellant examined himself as PW-1 and his father as PW-2 in ex-parte evidence.
8. The learned Principal Judge, Family Court vide impugned judgment and decree dismissed his petition, holding as under:- “31. Keeping in view the contents of the petition, it is clear that the petitioner, who is claiming to be the husband, has failed to furnish the details of any of the alleged instances to prove that the respondent, who is claimed to be the wife, has him with 'cruelty'. He has failed to give the details of the alleged instances of cruelty with sufficient particularity the time and places of the acts alleged including the dates, place, time, etc. as well whether or not such alleged acts of the respondent were witnessed by any person. The allegations levelled by the petitioner are too vague, unspecify and general due to which the same do not appear to be believable. There is not even one specific incident with date, time, place and details mentioned in the petition. The petitioner has not pleaded any incident with the required particulars. Although, the petitioner, in paragraph number 23 of the petition, has averred that he has not condoned the alleged acts of cruelty by the respondent but in fact, the petition reveals that he has averred that he tolerated the alleged cruelty by the respondent keeping in view of the future of married life and he was hoping that someday the respondent would mend herself or cruel ways and will treat the petitioner due love, affection and respect but no miracle took place and the respondent committed cruelties. The same indicates that he has condoned the alleged cruelty by the respondent. 15:41
41. As regards the petition filed on the ground of desertion, although the title of the case indicates that the petition has also been filed on the ground of desertion by the respondent besides the ground of cruelty but except for a passing reference in paragraph number 17 of the petition and paragraph number 15 of his affidavit filed in evidence that the respondent left the parental house of the petitioner in December, 2015 taking all her valuables, jewellery, there is nothing shown by the petitioner that she has deserted him. He has not even prayed specifically in the petition that he may be granted divorce under the provision of section 13 (I) (ib) of the HMA. He has not disclosed about any efforts or complaint to police made by him in order to bring the respondent back to the matrimonial home or the action taken by him regarding the alleged desertion of the respondent since December, 2015 till 04.09.2021 (date of filing of the present petition). He has not even averred in the petition that she has deserted him.
43. In facts and circumstances of the present case, as the petitioner is not entitled to a decree of divorce on the grounds of cruelty and desertion under section 13 (1) (ia) and (ib) of the HMA, the present petition is hereby dismissed.”
9. The challenge to the impugned judgment dated 24.11.2022 is on the ground that the judgment is absolutely non-speaking, perverse and in violation of principles of natural justice. The learned Family Court erred by not drawing the adverse inference against the respondent as she was 15:41 proceeded ex-parte vide order dated 11.07.2022.
10. During the course of hearing, learned counsel for the appellant submitted that to satisfy the ingredients of Section 13 (ia) (ib) of Hindu Marriage Act, the conduct of the respondent indicating cruelty and desertion was sufficient as these provisions are not confined to physical violence but also mental torture by one spouse to other. Learned counsel submitted that respondent deserted him in December 2015 and thus, the provisions of Section 20 of the Hindu Marriage Act are also applicable to the present case. Hence, setting aside of the impugned judgment and decree dated 24.11.2022, is sought by the appellant.
11. When this Appeal came up for hearing, vide order dated 14.03.2023 this Court directed service upon respondent through all prescribed modes as well as through SHO concerned. As per office report, notice was served upon the respondent through concerned SHO, however, the respondent refused to accept the service. Hence, the respondent was proceeded ex-parte on 06.09.2023.
12. This Court has gone through the impugned ex parte judgment dated 24.11.2022 passed by the learned Family Court as well as testimony of witnesses i.e. PW-1 and PW-2 recorded before the learned Family Court and find that since the respondent-wife was proceeded ex-parte before the learned Family court, written statement/reply on her behalf to the allegations raised by the appellant were not on record. Hence, the learned Family Court proceeded to pass the impugned judgment based upon the testimony of witnesses examined by the appellant.
13. Learned Family Court, with regard to the cruelty committed by the 15:41 respondent upon the appellant, has held that the appellant has not been able to bring forthwith any particular details of the incident of non-cooperation, misbehaviour, demand of Rs.50 lacs, threats to implicate in false criminal case, taking away household goods or valuables etc. Upon going through the testimony of appellant as PW-1 we find that in his evidence by way of affidavit, the appellant has not narrated any single incident depicting cruelty caused by the respondent upon him. No details have been given as to how and when the respondent ill treated the appellant and only wonted allegations have been levelled.
14. The marriage between the parties is a sacred bond which is premised upon respect and trust between the spouses. There exists a thin line between misbehaviour and cruelty. Whether behaviour of a spouse against the other is mere difference of opinion, leading to matrimonial conflicts resulting into normal wear and tear of a married life or the conduct is such which has led to a spouse misbehaving with the other to the extent that it causes mental agony upon the other, determines the aspect of cruelty meted upon the other. What is cruelty has already been dealt with, in a catena of decisions by the Hon’ble Supreme Court and this Court as well.
15. The Hon’ble Supreme Court in Savitri Pandey Vs. Prem Chandra Pandey (2002) 2 SCC 73 has recited “Cruelty” in married life in the following words:-
16. The parties to the present appeal got married on 23.10.2015 and the respondent left the matrimonial home in December, 2015 and since then, parties have not cohabited. Meaning thereby, the parties lived hardly together hardly for about two months only. There is no averment by the appellant that respondent had made any complaint or taken any legal action or recourse to law against the appellant or his family members. The mere allegation raised by appellant against the respondent is that she misbehaved with him and his family members and was not willing to live in a joint family set up. The allegations of misbehaviour are not substantiated by any incident or date and thus, appellant has not been able to prove those allegations.
17. Similarly, appellant has not provided the names and details of the 15:41 two-three boys with whom respondent was allegedly having affair and not brought any proof on record to demonstrate this allegations. The learned Family Court has specifically observed that the photographs placed on record appeared to be photoshopped and did not seem to be genuine. Even with regard to whatsapp chats, the appellant did not file Certificate under Section 65B of the Indian Evidence Act, 1872.
18. In our considered opinion the appellant has not been able to substantiate the allegations of cruelty meted out by the respondent within the purview of Section 13(ia) of the Act, as rightly held by the learned Family Judge.
19. With regard to Section 13(1) (ib) of the Hindu Marriage Act, 1955, the pertinent observations of the Hon’ble Supreme Court in Bipin Chandra Jaisinghbhai Shah Vs. Prabhavati 1956 SCC OnLine SC 15 are as under:- “Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.” 15:41
20. The Hon’ble Supreme Court in Bipinchandra Jaisinghbhai Shah(Supra) has further observed that once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued and that is not necessary for the deserted spouse actually to take steps to bring the deserting spouse back to the matrimonial home.
21. Also, the Hon’ble Supreme Court in Chetan Dass Vs. Kamla Devi
22. The pertinent observations of the Hon’ble Supreme Court on the aspect of desertion in Savitri Pandey (Supra), are as under:-