Full Text
HIGH COURT OF DELHI
JUDGMENT
OMAR ABDULLAH .... Appellant
For the Appellant: Ms. Malavika Rajkotia with Mr. Ramakant Sharma, Ms. Trisha Gupta, Ms. Ekta Sharma, Ms. Purva Dua, Mr. Sajal Arora, Mr. Prateek Avasthi and Mr. Mayank Grover, Advocates.
For the Respondents: Mr. Prosenjeet Banerjee, Ms. Shreya Singhal, Mr. Sarthak Bhardwaj, Ms. Anshika Sharma, Ms. Pranaya Sahai and
Ms. Akriti Anand, Advocates.
HON'BLE MR. JUSTICE VIKAS MAHAJAN
1. Appellant/Husband impugns judgment and decree dated 30.08.2016 passed by the Family Court, whereby the petition filed by the appellant seeking divorce under Section 18 of the Foreign Marriage Act 1969 read with Section 27(1)(B) and (D) of the Special Marriage Act, 1954 on the grounds of desertion and cruelty has been dismissed.
2. Appellant husband, a Muslim got married to Respondent wife, a Hindu on 01.09.1994 under Civil Law in England. It is an admitted position that both parties are permanent residents of India and there is no dispute that the family court at Delhi had the jurisdiction to adjudicate the petition.
3. Appellant filed the petition alleging that their marriage has irretrievably broken down and that parties have been living separately since 2009, although they had not enjoyed conjugal relations since
2007. As per the Appellant, he has been residing in Srinagar since 2009 and was serving as the Chief Minister of the State of Jammu and Kashmir and Respondent had chosen to reside in Delhi with their children.
4. As per the Appellant Respondent refused to accompany him to Kashmir in 2002, when he moved there in order to prepare himself for the elections and this resulted in the Petitioner having to fly to Delhi on the weekends to meet his children. It is alleged that the Respondent has alienated the children from the Appellant which is evident from the SMS exchange between them and the Appellant. He further alleges that the Respondent had an uncomfortable relationship with the Appellant’s family, due to which he was forced to distance himself from his own family to keep the peace in his marriage. It is contended that Respondent would never attend holidays with the Appellant’s family, nor would she allow the children to do so.
5. As per the Appellant the fact that Respondent has been irrationally refusing any and all discussion for an amicable separation/divorce, it also amounts to cruelty. It is alleged that appellant had made sincere efforts to settle the disputes, however the Respondent has refused any dialogue.
6. Per contra, Respondent contends that the petition does not disclose any cruelty and as such the petition is liable to be dismissed for want of cause of action. The allegation of parties not having any conjugal relations since 2007 is denied, it is submitted that the parties were residing together until the filing of the petition in January 2013. It is contended that parties had not been living separately for over two years prior to the filing of the petition.
7. As per the respondent, parties had agreed that Respondent and the children would stay in Delhi, due to the security threats in Srinagar. It is submitted that the Respondent and children frequently travelled to Srinagar to visit the Appellant and his family and they took trips together abroad and within India.
8. The Family Court after considering the evidence led by the parties held that the allegations of cruelty were vague and unacceptable. It was held that the Appellant did not provide one single circumstance to explain the alleged discomfort between the Respondent and his family members. None of the family members except the Appellant’s sister deposed, who also did not disclose any instances of mental stress and cruelty caused by the Respondent to the Appellant. It was also held that the parties were based in Delhi till 2002 and mutually decided that the children should be educated in Delhi and the Respondent agreed to stay back with the children.
9. The court held that frequent travel of the petitioner between Delhi and Srinagar could not be held to be on account of marital discord, as it was a collective decision and hence could not be termed as an act of cruelty towards the Appellant. Furthermore, it was an admitted position that the parties took several vacations and also attended various family functions together up until January 2011, when the divorce petition was filed.
10. The Family Court held that Appellant had miserably failed to prove any act which could be termed as an act of cruelty, whether physical or mental, towards him.
11. On the issue of desertion, the Family Court has held that though parties had been living separately since 2009, they had been visiting each other, travelling together till 2011. Further, the parties were living separately under a mutual arrangement for the convenience and safety of their children and no fault could be attributed to the Respondent, hence no divorce on grounds of desertion could be granted. Consequently, the family court dismissed the Divorce Petition filed by the Appellant.
12. Learned counsel for the Appellant submits that the Family Court has erred in holding that the allegations do not amount to cruelty. She submits that the Family Court has not held that the allegations are not proved but has erroneously held that they do not constitute cruelty.
13. Learned Counsel for the Appellant further submits that the threshold of proof required to prove grounds for divorce under the Special Marriage is much lower than the Hindu Marriage Act. It is submitted that the impugned judgement has not distinguished between the two acts and instead imposed the sensibilities and philosophies of the Hindu Marriage Act on the Special Marriage Act.
14. It is submitted that irretrievable breakdown of marriage has been considered along with the “fault theory” to bring down the threshold of proof required to establish fault to either party under the Special Marriage act, by virtue of marriage being contractual in nature. She relies upon the judgment in the case of Sandhya Kumari v. Manish Kumar 234 (2016) DLT 381 to contend that irretrievable breakdown of marriage blended with cruelty would entitle a Petitioner to a divorce
15. Learned Counsel for the Appellant further submits that Special Marriage Act, 1954 has a lower threshold of proof given the fact that marriage under the said Act is not a "sacrament" in the way it is under Hindu and Christian personal law. This, it is submitted that can be inferred from the fact that Special Marriage Act provided for divorce from its inception in 1954 while the Hindu Marriage Act, 1955 did not provide for it till 1976.
16. It is submitted that as marriage under the Hindu Marriage Act is a sacrament thus divorce is not an entitlement. In contrast marriage under the Special Marriage Act is purely contractual in nature. The Special Marriage Act as a statute does not envisage 'no exit' and it would be unjust for the Appellant to be denied a divorce.
17. Per Contra, Learned Counsel for the Respondent submitted that the plea that the threshold for cruelty is lower in Special Marriage Act than in the Hindu Marriage Act is unacceptable. He submits that both Acts refer to the “solemnization of marriage” and hence marriage under both is sacrament and not contractual. Section 27(1)(d) of Special Marriage Act and Section 13(1) (ia) of Hindu Marriage Act are pari materia. It is submitted that both statutes are identical in language and hence the law laid down by the High Courts and Supreme Court of India while interpreting the respective provisions i.e. Section 27(1)(d) of the Special Marriage Act and Section 13(1) (ia) of the Hindu Marriage Act would equally apply to cases being tried under both the enactments.
18. To ascertain as to whether a different or lower threshold should be applied to a Petition seeking divorce on the ground of cruelty under the Special Marriage Act vis a vis Hindu Marriage Act, a comparative of the various provisions is required to be done.
19. A comparative of the relevant provision of the Hindu Marriage Act vis a vis the Special Marriage Act is as under: HINDU MARRIAGE ACT SPECIAL MARRIAGE ACT
5. Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party—
4. Conditions relating to solemnization of special marriages. ― Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:― valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; (a) neither party has a spouse living; b) neither party―
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity;
(c) the male has completed the age of twenty-one years and the female the age of eighteen years;
(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and (e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends]. Explanation.―In this section, “custom”, in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family: Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied—
(i) that such rule has been continuously and uniformly observed for a long time among those members;
(ii) that such rule is certain and not unreasonable or opposed to public policy; and
(iii) that such rule, if applicable only to a family, has not been discontinued by the family.
7. Ceremonies for a Hindu marriage.—(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
12. Place and form of solemnization.―(1) The marriage may be solemnized at the office of the Marriage Officer, or at such other place within a reasonable distance therefrom as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed. (2) The marriage may be solemnized in any form which the parties may choose to adopt: Provided that it shall not be complete and binding on the parties unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,―“I, (A), take the (B), to be my lawful wife (or husband)”.
9. Restitution of conjugal right.— When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the
22. Restitution of conjugal rights.―When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights Explanation.―Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of providing reasonable excuse shall be on the person who has withdrawn from the society.
10. Judicial separation.— (1) Either party to a marriage, whether solemnised before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. (2) Where a decree for judicial
23. Judicial separation.―(1) A petition for judicial separation may be presented to the district court either by the husband or the wife,― (a) on any of the grounds specified in sub-section (1) and sub-section (1A) of section 27 on which a petition for divorce might have been presented; or (b) on the ground of failure to comply with a decree for restitution of conjugal rights; separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so. and the court, on being satisfied made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation (2) Where the court grants a decree for judicial separation, it shall be no longer obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied made in such petition, rescind the decree if it considers it just and reasonable to do so.
11. Void marriages.—Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i),
(iv) and (v) of section 5.
24. Void marriages.―(1) Any marriage solemnized under this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared] by a decree of nullity if―
(i) any of the conditions specified in clauses (a), (b),
(c) and (d) of section 4 has not been fulfilled; or
(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit. (2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of section 15: Provided that no such declaration shall be made in any case where an appeal has been preferred under section 17 and the decision of the district court has become final.
12. Voidable marriages.—(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:— (a) that the marriage has not been consummated owing to the impotence of the respondent; or
25. Voidable marriages.―Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if,―
(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or
(ii) the respondent was at the time
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage— (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if— of the marriage pregnant by some person other than the petitioner; or
(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872): Provided that, in the case specified in clause (ii), the court shall not grant a decree unless it is satisfied,― (a) that the petitioner was at the time of the marriage ignorant of the facts alleged; (b) that proceedings were instituted within a year from the date of the marriage; and
(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree: Provided further that in the case specified in clause (iii), the court shall not grant a decree if,― (a) proceedings have not been instituted within one year
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied—
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such after the coercion had ceased or, as the case may discovered; or (b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may discovered. commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
13. Divorce.—(1) Any marriage solemnized, whether before or Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the
27. Divorce.―(1) Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent― (a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,— (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub— normality of intelligence) which results in abnormally aggressive or seriously the Indian Penal Code (45 of 1860);
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.―In this clause,― (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] (iv) * * * * *
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; Explanation.—In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (1A) Either party to a marriage, aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or (f) has been suffering from venereal disease in a communicable form; or (g) has been suffering from leprosy, the disease not having been contacted from the petitioner; or (h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; Explanation.―In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly; whether solemnized before or Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 9[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 9[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(i) in the case of any marriage
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
(ii) that in a suit under section
18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. (2) Subject to the provisions of solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under section
18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, this Act and to the rules made there under, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground―
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a were parties. cohabitation between the parties has not been resumed for one year or upwards;
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.—This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).] 13A. Alternate relief in divorce proceedings.—In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii),
(vi) and (vii) of sub-section (1) of
┌─────────────────────────────────────┬──────────────────────────────────────────┐ │ section 13, the court may, if it │ section 27, the court may, if it │ ├─────────────────────────────────────┼──────────────────────────────────────────┤ │ considers it just so to do having │ considers it just so to do having regard │ │ regard to the circumstances of the │ to the circumstances of the case, pass │ │ case, pass instead a decree for │ instead a decree for judicial │ │ judicial separation. 13B. Divorce │ separation. 28. Divorce by mutual │ │ by mutual │ │ └─────────────────────────────────────┴──────────────────────────────────────────┘
14. No petition for divorce to be presented within one year of marriage.—(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the
29. Restriction on petitions for divorce during first one year after marriage.―(1) No petition for divorce shall be presented to the district court unless at the date of the presentation of the petition one year has passed since the date of entering the certificate of marriage in the Marriage Certificate Book: Provided that the district court may, upon application being made to it, allow a petition to be presented before one year has passed on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the district court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the district court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition, without decree shall not have effect until after the expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year. prejudice to any petition, which may be brought after the expiration of the said one year upon the same, or substantially the same, facts as those proved in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the district court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.
15. Divorced persons when may marry again.—When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has
30. Remarriage of divorced persons.―Where a marriage has been dissolved by a decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again. been presented but has been dismissed either party to the marriage may marry again.
20. It may be noticed that nearly all the provision relating to the conditions relating to solemnizing of marriage; ceremonies/form of solemnization of a marriage; restitution of conjugal rights; judicial separation; void marriages; voidable marriages; divorce, grounds for divorce; alternative relief in divorce proceedings; divorce by mutual consent; restriction in respect of filing of a petition for divorce within one year of marriage and remarriage of divorced person are identical.
21. Further the expression used in respect of marriage is “solemnisation”. The expression solemnization implies a solemn act i.e. a formal act performed with an oath or pledge.
22. A comparative of the various provisions of the Special Marriage Act with the Hindu Marriage Act two act shows that the legislature has prescribed that even though the Hindu Marriage Act applies only to a class of persons and Special Marriage Act is not restricted to any particular class, the conditions relating to solemnizing of marriage; ceremonies/form of solemnization of a marriage; restitution of conjugal rights; judicial separation; void marriages; voidable marriages; divorce, grounds for divorce; alternative relief in divorce proceedings; divorce by mutual consent; restriction in respect of filing of a petition for divorce within one year of marriage and remarriage of divorced person apply equally in an identical sphere.
23. In respect of grant of divorce on the ground of cruelty, the Hindu Marriage Act prescribes “has, after the solemnization of the marriage, treated the petitioner with cruelty” and the Special Marriage Act prescribes “has since the solemnization of the marriage treated the petitioner with cruelty”. Both the acts use identical expression while providing for a ground for divorce on the ground of cruelty. Since both the Acts have similar provision in respect of nearly all the incidences of marriage and divorce and identical provision in respect of ground for divorce on the ground of cruelty, there is no basis to hold that lower threshold should apply while considering a petition for divorce on the ground of cruelty under the Special Marriage Act.
24. Reliance placed by learned counsel for the Appellant on the decision of Sandhya Kumari v. Manish Kumar (supra) to contend that irretrievable breakdown of marriage blended with cruelty would entitle a petitioner to divorce is misplaced.
25. In Sandhya Kumari v. Manish Kumar (supra) the bench held that “Though irretrievable breakdown of marriage is not a ground for divorce but in the judgments reported as 2006 (2) Mh.L.J. 307 Madhvi Ramesh Dudani v. Ramesh K. Dudani, 2007 (4) KHC 807 Shrikumar
V. Unnithan v. Manju K. Nair, (1994) 1 SCC 337 V. Bhagat v. D.
Bhagat and (2006) 4 SCC 558 Navin Kohli v. Neelu Kohli the concept of cruelty has been blended by the Courts with irretrievable breakdown of marriage. The ratio of law which emerged from said decisions is that where there is evidence that the husband and wife indulged in mutual bickering leading to remonstration and therefrom to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be a relevant factor to decide on the issue of cruelty, for the reason the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatized each other.”
26. It may be noted that irretrievable breakdown of marriage is not a ground for grant of divorce under either the Hindu Marriage Act or the Special marriage Act. All the cases referred to are where the Supreme Court of India has exercised powers under Article 142 of the Constitution of India.
27. With regard to the powers of the Supreme Court under Article 142 of the Constitution of India, the Constitution Bench of the Supreme Court in Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544 has held as under:
28. In terms of the Judgment of the Constitution Bench of the Supreme Court in Shilpa Sailesh (supra), the power to grant divorce on the ground of irretrievable breakdown of marriage is exercised by the Supreme Court under Article 142 of the Constitution of India to do complete justice to both the parties. Such a power is not vested in the High Courts leave alone the Family Courts.
29. Further, the contention on behalf of the Appellant that Special Marriage Act has a lower threshold of proof, given the fact that marriage under the said Act is not a "sacrament" in the way it is under Hindu and Christian personal laws and this could be inferred from the fact that Special Marriage Act provided for divorce from its inception in 1954 while the Hindu Marriage Act, 1955 did not provide for divorce till 1976 also does not have any merit. Divorce was contemplated by the Hindu Marriage Act from 1955 itself, however the ground of cruelty was added by the 1976 amendment. The fact that cruelty was added as a ground for divorce by the 1976 amendment, does not take away the concept of marriage being a sacrament.
30. Furthermore, post the 1976 amendment in the Hindu Marriage Act, both the Special Marriage Act and Hindu Marriage Act have identical provisions as noticed hereinabove. Consequently the expression “treated the petitioner with cruelty” used in both the Acts has to be given the same meaning.
31. The question that is now left for determination is as to whether the Appellant has been able to prove that he has been treated with cruelty by the respondent as is sufficient to constitute a ground for divorce.
32. The case set up by the Appellant before the Family Court was that parties had not enjoyed conjugal relations since 2007 and though from 2007 to 2009, they stayed under the same roof but only communicated through text messages. In his evidence Appellant has deposed that the marriage has broken down irretrievably between the parties and that they have not had a regular conjugal relationship for a number of years. Since 2009, Appellant has been living in Srinagar and serving as the Chief Minister of the State. Respondent has chosen to live in Delhi with the children, in the government accommodation allotted to the Appellant.
33. Respondent on the other hand has deposed that parties stayed together till 2011 and even right before the filing of the petition, the Appellant came to Delhi and stayed at 7, Akbar Road with the Respondent and their children. She deposed that the parties had a good and healthy relationship right up until the Appellant approached the Mediation Centre of the Delhi High Court, in 2013. She also deposed that the Appellant abandoned her and the children in mid
2011. Respondent was cross examined on this aspect and she deposed that abandonment alleged in mid 2011 was more mental than physical. She further deposed that she spent considerable time in Jammu and Kashmir campaigning for her father-in-law and she also spent 6 consecutive months from May to October 2010 in Jammu and Kashmir for renovation of the Appellant’s official residence in Jammu.
34. On the issue of Absence of Intimacy, the family Court has held as under:
39. The Family Court has held and rightly so that Appellant and respondent were in Delhi till 2002 on account of the exigencies of Appellant’s own work and not on account of the insistence or preference of respondent to be In Delhi. Further that it was natural for the children to have been admitted in a school In Delhi, as Appellant and respondent were residing in Delhi. The claim of Appellant that it was respondent's adamancy in getting children admitted in Delhi school was thus held to be not tenable. Respondent in her testimony had deposed that Appellant had been attacked twice while he was in Jammu and Kashmir along with the respondent and the children. Further keeping the children’s education in mind they both took a conscious decision of putting the children in a school in Delhi. The Family Court has held that Appellant may have had to frequently travel to Srinagar on account of his political compulsions, but such travel could not be termed to be on account of the matrimonial discord between the parties. Parties continued to have interactions as a family and frequently travelled together for vacations and the Appellant as per his own testimony regularly visited the respondent and the children in Delhi. This arrangement of respondent and children residing in Delhi while Appellant commuting to Srinagar on account of his work, cannot be termed as an act of mental cruelty towards the Appellant.
40. Another allegation raised by the Appellant was that Respondent was never comfortable with the family of the Appellant and he was forced to distance himself from his family in order to keep peace in his marriage. He was forced to have no contact with his sisters because of the Respondent. The Respondent on the other hand contended that Appellant never had good relations with his sister and hence they never gave any respect to the Respondent. She stated that she never stopped Appellant from meeting anyone he wanted. She also denied all allegations of discord with the family of the Appellant.
41. The Family Court has held as under:
42. The family Court has held that the allegation that Appellant was forced by the Respondent to distance himself from his family has not been substantiated. The Family Court has held that no specific incident was narrated by the Appellant to explain how and when he was prevented from meeting or interacting with his own family members on the other hand the Family Court has found that there were various incidents to show that the respondent had been a part of the family and had been interacting with them on various occasions. The testimony of the Appellant was found to be completely vague and un-acceptable.
43. Further material witnesses to depose about certain averments were not examined by the Appellant. Appellant was found to be silent about certain incidents about which his sister had deposed, though he also should have specific knowledge about them. The Family Court further held that from the testimony, it could be inferred that mother and sisters of the Appellant had been frequently visiting the house of the respondent and they were always invited inside, which showed that respondent did not have any inimical attitude towards the family members of the Appellant and that they were free to visit their house.
44. Further, With regard to the allegation of the Appellant that his sister had not been invited to the Gala Charity Dinner in April 2010 organized on behalf of NGO Rahat Charitable Foundation, the Family Court has referred to the testimony of the Appellant and noted that he had not deposed about this dinner in his examination in chief however, in his cross examination, he explained that he as well as his parents were very keen that his sister should also be invited to this dinner, but because of the unreasonable and violent hatred that the respondent had for his sisters, they were singled out and not invited to this event. His request was categorically refused, thereby causing him and his parents’ great avoidable mental anguish. He personally made lot of efforts to make the dinner a success but received no gratitude. Denial of invitation to his sisters made this otherwise pleasant evening, an extremely unpleasant one because of the guilt of not being able to invite his sisters. The Family Court has held that the explanation of the Appellant was totally contrary to that of PW[2] Sara Pilot. She has admitted that invitation had been given though it was received belatedly only on previous night. The Family Court has held that from the testimony of the Appellant it emerged that he was actively involved in organizing this dinner and there was nothing which prevented him to invite any person or his sisters to the said function. Further, the Family Court has held that Appellant has also not claimed that this was an incident which caused him mental cruelty.
45. The Appellant’s allegation that Respondent did not support the Appellant in his Political career has also not been found to be substantiated. The Family Court has held that Appellant in his crossexamination had admitted that respondent had joined him various occasions from 2009 till 2011. Appellant had tried to explain that as wife of a Chief Minister she would have necessarily been expected to perform numerous political duties including hosting of dinners for visiting dignatories, Prime Minister, President and other VVIPs hosting visitors on festivals participating in public events. The Family Court relied upon various admission made by the Appellant in his cross examination to hold that respondent had nowhere failed in her responsibilities as wife of the petitioner.
46. The Family Court has further held that Appellant had admitted to taking vacations with the Respondent and their sons. He admitted to taking holidays to Dubai in April 2009, along with the Respondent, their children, and Respondent’s parents. He also admits that they went on holiday to Samod, Rajasthan on 30.05.2009, to Italy in November, 2009, to Singapore in December 2009, to Udaipur in March 2010, to Shimla in October 2010 and to London in December
2010. Respondent on the other had deposed that in 2011 they went to Italy and in March 2012, they went to London.
47. With regard to the allegation of the Appellant that the Respondent was using the children as pawns to accomplish her own ulterior means, appellant has relied upon alleged text messages.
48. The Family Court has held as under:
49. The Family Court has thus held that the allegation of tutoring of children has not been established. Appellant had access to his children and had been meeting them and spending time with them. Even this allegation has not been established by the Appellant.
50. Learned counsel for the Appellant referred to a letter dated 27.06.2016 allegedly written by the Respondent to the Prime Minister of India as also an interview allegedly given to ABP News to contend that the same also amount to cruelty.
51. It may be noticed that alleged letter is dated 27.06.2016 and the argument were concluded before the Family Court on 22.08.2016. Said letter does not appear to have been produced before the family court. The interview appears to have been given after the judgment was pronounced by the Family Court dismissing the Petition for grant of divorce.
52. Copy of the letter and the video clip have been filed in these proceedings merely with an index. Neither of the two were placed before the Family Court at the time of the pendency of the Divorce Petition. No application has been filed under Order 41 rule 27 of the Code of Civil Procedure
53. Order 41 rule 27 reads as under:
54. Order 41 rule 27 CPC disentitles a party to produce additional evidence whether oral or documentary that was not produced before the concerned trial court except in certain circumstances.
55. In the present case, Appellant has merely filed the said documents on record without seeking any leave to produce additional evidence. Respondent has not been given any opportunity to explain the documents or the circumstances under which the alleged letter was written and the interview given to the news channel. Consequently, appellant is not entitled to rely upon the said documents in support of his appeal.
56. In the letter dated 27.06.2016, the Respondent is alleged to be complaining to the Prime Minister about him deserting her, filing for divorce and her being harassed in a number of ways including arrest warrants being issued from his constituency. In the interview the Respondent is alleged to be complaining about the Appellant not paying any maintenance; having been evicted from her house; education of children and her filing a claim before a court of law.
57. Even if one were to examine the documents and accept them at their face value, in our view the same still do not meet the threshold of cruelty as required for grant of divorce under the Special Marriage Act.
58. In view of the above, we find no infirmity in the view taken by the Family Court that the allegations of cruelty were vague and unacceptable and that Appellant failed to prove any act which could be termed as an act of cruelty, whether physical or mental, towards him.
59. Consequently, we find no merit in the appeal. The appeal is accordingly dismissed.
SANJEEV SACHDEVA, J VIKAS MAHAJAN, J DECEMBER 12, 2023