R v. M V

1. This is an appeal under Section 19 of the Family Court Act read with Section 28 of the Hindu Marriage Act for setting aside the judgment and decree dated 23.12.2016 (hereinafter referred to as „the impugned order‟) by which a petition filed by the respondent/husband under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 for dissolution of the marriage on the ground of cruelty and desertion has been allowed on the ground of desertion alone. 2019:DHC:513-DB

2. The marriage between the parties was solemnized as far back as on 28.01.1999 at Delhi as per Hindu Rites and Ceremonies. No child was born out of the wedlock. It is an admitted position between the parties that they separated on 19.09.2003. A decree of divorce was sought on two grounds being ‘cruelty’ and ‘desertion’. While the Family Court has rejected the ground of cruelty, divorce was granted on the ground of desertion.

3. Mr.Jha, learned counsel appearing on behalf of the appellant has submitted that the appellant did not voluntarily leave the house of the respondent. He contends that soon after marriage the appellant was treated with cruelty, she was harassed both physically and mentally, demands of dowry were made from parents of the appellant. It is submitted that the atmosphere in the marital home was such that she apprehended danger to her life and liberty, and thus left the matrimonial home in September, 2003. It is contended that the respondent had no intention of bringing the appellant back to the matrimonial home. Learned counsel has highlighted the fact that on account of the hardships suffered by the appellant and the torture inflicted upon her by the respondent and his family members, she was forced to approach CAW Cell Kirti Nagar in the year 2005. Consequent to a complaint, an FIR was registered bearing FIR No.359/2005 at Police Station-Uttam Nagar under Sections 406/498A/34 of Indian Penal Code, 1860 (IPC) on 29.04.2005. It is fairly admitted that the respondent and his family members were acquitted by the Trial Court on 31.03.2015 as prosecution had failed to prove its case beyond reasonable doubt. Learned counsel also contends that the appellant had filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act on 03.03.2011, which was listed before Metropolitan Magistrate, Dwarka Courts, Delhi. The complaint was dismissed. Learned counsel further contends that harsh attitude of the respondent is also evident from the fact that he did not make any payment towards the maintenance forcing the appellant to file a complaint under Section 125 of Code of Criminal Procedure, 1973 (Cr.P.C) on 25.07.2011 and a sum of Rs.2,000/- per month was granted towards the maintenance. Mr.Jha, learned counsel submits that the object of highlighting the filing of the FIR, making of a complaint under Section 12 of Domestic Violence Act (D.V.Act) and initiating proceedings under Section 125 Cr.P.C is to highlight the plight of the appellant and to show that the respondent and his family members were torturing and harassing her and, thus, she was forced to stay away from the matrimonial home and not that she voluntarily deserted the respondent/husband. Learned counsel also contends that the Family Court has exceeded his jurisdiction by passing the impugned order and granting divorce on the ground of desertion. Learned counsel further submits that the Family Court has lost track of the fact that a lady who was being tortured at her matrimonial home would not be able to stay and not that she left the home voluntarily. Mr.Jha, learned counsel has also highlighted the fact that the appellant is an illiterate woman and only studied up-to class-X and she has no support except her old parents and thus, to say that she deserted the respondent/husband is incorrect as her family circumstances would not permit her to leave the matrimonial home. Learned counsel also contends that the appellant has all along been ready and willing to reside in the matrimonial home and perform the duties of a wife.

4. Per contra, learned counsel for respondent submits that there is no illegality or infirmity in the order passed by the Family Court. Learned counsel further submits that the respondent has been taking every step and every measure possible to resume his matrimonial life, which is evident from the fact that he also instituted proceedings against his wife under Section 9 of the Hindu Marriage Act (HMA) seeking restitution of conjugal rights. He submits that in case there was any truth or merit in the submission which has been made by learned counsel for appellant, the appellant would have returned back between the period 2003 and 2012, when the respondent was forced to file a petition seeking divorce under Section 13(1) (ia) and (ib) of the Hindu Marriage Act. He submits that the respondent and his family members made every effort to bring back the appellant who had left the matrimonial home on her own. Learned counsel submits that the appellant was adamant and hell-bent in not resuming her marital life. He submits that the Family Court has correctly analyzed the facts, examined the evidence and applied the law to the facts of the present case and thus, the same does not require any interference. Both the learned counsels have relied upon the evidence placed on record in support of their submissions and contentions.

5. We may note that the following issues were framed in this case: “1. Whether the respondent after solemnization of the marriage has treated the petitioner with cruelty ?OPP

2. Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of this petition? OPP

3. Relief.”

6. While issue no.1 stands decided against the respondent, issue no.2 has been decided in favour of the respondent/husband. The Family Court has while relying on a judgment of Savitri Pandey vs. Prem Chandra Pandey, reported in (2002) 2 SCC 73, held that the appellant had intentionally abandoned her husband. It is useful to produce paras 24 and 25 of the impugned judgment:

25. The petitioner is therefore, entitled to divorce on the ground of desertion. Issue No.2 is decided in favour of petitioner.”

7. The Family Court has reached a conclusion of ‘desertion’ by the appellant based on the evidence on record. During cross-examination, the appellant herein RW-1 had admitted that she had left company of her husband on 15.09.2003, when her husband had accompanied her. She admits that the family members of the respondent being Chacha, Fufa, Buaji etc. had visited her on two occasions just to meet her. She also admitted that her husband had filed a petition under Section 9 of Hindu Marriage Act to bring her back. It has also been admitted in the evidence that after 2003, she never joined the company of her husband nor did she enjoy a single day at the matrimonial home. Surprisingly, she has even admitted that on 31.07.2002 she started blaming her husband and she hit herself with a kitchen belan. The appellant also admits in her evidence that her mother-in-law and bua visited her to bring her back on 29.09.2003 and also the husband’s uncle Shri Jagdish and Shri Suresh had visited her house on 01.02.2004 for compromise. The evidence would show that after separation on 15.09.2003 the parties had not resumed cohabitation thereafter. At least on two occasions, the family members of the respondent had visited the house of the appellant including close family member being mother-in-law and bua, who insisted on bringing her back. It is also admitted that family members of her husband being Chacha, Fufa and Buaji had visited her house which would also show that efforts were being made for a resolution of the matter between the parties. The respondent had also filed a petition for restitution of conjugal rights, even then the appellant did not return to the matrimonial home.

8. Although we may note that petition under Section 9 of Hindu Marriage Act was dismissed for non-prosecution, but if the respondent had made the effort of filing such a petition, it was an opportunity for the Appellant, if she desired, to have returned to her matrimonial home, but she did not do so. We also find force in submissions made by learned counsel for the Respondent that he waited from 2003 to 2012 and only thereafter filed petition for divorce. Throughout this period, the appellant did not make any effort to return back, which shows that the absence was voluntary and the intention clearly was to bring an end to matrimonial relationship permanently. We find no force in the submissions made by learned counsel for the appellant that the appellant could not reside in her matrimonial home as she was being tortured on account of demands of dowry, for the reason that admittedly, the proceeding arising out of the FIR filed under Section 498A/406 IPC as also those under Section 12 of the D.V. Act have been decided against her. In addition, her own evidence shows that she had hit herself with a belan.

9. Taking into account the evidence, we find that there is no infirmity in the judgment passed by the Family Court. Resultantly, the appeal is dismissed.

10. Application, being CM No.13882/2017, for stay also stands dismissed, accordingly. G.S.SISTANI, J. JYOTI SINGH, J. JANUARY 24, 2019 ssc