Ex parte divorce decree by foreign court invalid.

– “From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P.148/2011 % Date of Decision: April 22, 2013

PRITAM ASHOK SADAPHULE ….. Petitioner Through: Mr.Rakesh Taneja, Advocate
versus
HIMA CHUGH …. Respondent Through: Mr.Prashant Mendiratta, Adv.

CORAM: HON’BLE MS. JUSTICE VEENA BIRBAL VEENA BIRBAL, J. *

1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed. 2. Briefly the facts relevant for the disposal of the present petition are as under:-
The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order.
CRP 148/2011 Page 2 of 10
in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court.

3. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010.

4. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable. Respondent filed an appeal against the said order which was dismissed vide order dated 28.3.2011.
5. The respondent/wife also filed a petition under section 13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for dissolution of marriage with petitioner on the ground of cruelty which is pending disposal before learned Addl. District Judge, Delhi.

6. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th May, 2011 stating therein that marriage between the parties has been broken
CRP 148/2011 Page 3 of 10
down irretrievably and ordered that the said marriage be dissolved unless sufficient cause be shown within six weeks as to why the same be not made “absolute”. A copy of the said decree was placed by the petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA 15/2011. Respondent filed a detailed representation before the Ld. Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree absolute. However, the decree passed by the Ilford County Court was made „absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under section 13 of CPC was filed by the petitioner for dropping the divorce proceedings against him on the ground that marriage between the parties has already been dissolved by a decree of divorce by Ilford County Court in U.K., as such divorce petition filed by respondent/wife has become infructuous. Reply was filed by the respondent to the aforesaid application contending therein that decree of divorce passed by the foreign court is not recognised in Indian Law. It was further stated that the ground on which the foreign court had dissolved the marriage i.e., irretrievable breakdown was no ground for dissolution of marriage under the Hindu Marriage Act, as such, the said decree cannot be recognised in India.

7. After considering the contentions of the parties, the learned trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.
8. Aggrieved with the same, present petition is filed.

9. Learned counsel for the petitioner has contended that respondent-wife has not obtained any declaration from a competent court declaring the foreign decree of divorce as null and void, as such, same cannot be treated
CRP 148/2011 Page 4 of 10
as a nullity by the ld.trial court. In support of his contention, learned counsel has relied upon the judgment of this court in Harbans Lal Malik vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was served with summons issued by the Ilford County Court on 19th November, 2010 and she also made a representation there. In these circumstances, it cannot be said that she has not subjected herself to the jurisdiction of the said court. It is further contended that participating or not participating before the foreign court by the respondent is immaterial. The exceptions are given in Section 13 of CPC as to when a foreign judgment is not conclusive and binding. It is contended that in the present case none of the exceptions as stated therein exist.

10. On the other hand, learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of foreign divorce decree as null and void.

11. Learned counsel for the respondent has contended that judgment of
CRP 148/2011 Page 5 of 10
the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.

12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-

“12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.
Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court
CRP 148/2011 Page 6 of 10
should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.
Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.
The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of
CRP 148/2011 Page 7 of 10
Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.
Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.
The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign
CRP 148/2011 Page 8 of 10
judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable
CRP 148/2011 Page 9 of 10
section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.” 13. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.

14. The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.

15. Further the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the
CRP 148/2011 Page 10 of 10
divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree “absolute”. Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court.

16. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs. Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC. In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.

VEENA BIRBAL, J APRIL 22, 2013 ssb

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Meaning of  irretrievable breakdown of a marriage.

The situation that exists when either or both spouses no longer are able or willing to live with each other, thereby destroying their Husband and Wife relationship with no hope of resumption of spousal  duties.

The irretrievable breakdown of a marriage provides the ground for a no-fault divorce in many jurisdictions.

 

Is the ground for  irretrievable breakdown of a marriage is valid in India for Hindus?

 

“In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli’s case (supra):

 

Sanghamitra Ghosh vs Kajal Kumar Ghosh on 20 November, 2006

Author: D Bhandari

Bench: G Mathur, D Bhandari

CASE NO.:

Transfer Petition (civil) 228 of 2004

PETITIONER:

Sanghamitra Ghosh

RESPONDENT:

Kajal Kumar Ghosh

DATE OF JUDGMENT: 20/11/2006

BENCH:

G.P. MATHUR & DALVEER BHANDARI

JUDGMENT:

J U D G M E N T

WITH

TP (CRL.) NOS.105 & 171 OF 2004, TP (CIVIL) NO.727 OF 2004 AND TP (CIVIL) NO.168 OF 2006.

Dalveer Bhandari, J.

The marriage of the petitioner was solemnized on 8.11.1999 with the respondent as per Hindu rites and customs and was duly registered with the Registrar of Marriage. The parties have closely known each other before marriage and the marriage was solemnized according to the wishes of the petitioner and the respondent.

A male child was born out of the wedlock but, unfortunately, the parties did not have a smooth marital life. According to the allegations of the petitioner, Sanghamitra Ghosh, she was physically and mentally tortured by the respondent and his parents. According to her, the degree of torture increased day by day and eventually on 14.1.2001 she was driven out of the marital home along with her minor child. Thereafter, the petitioner moved to her parents and started with them from 15.1.2001. The respondent never cared to inquire about the petitioner and her child and has never sent any money either for the maintenance of the petitioner or her child.

In these circumstances, she was forced to file a criminal complaint on 4.8.2002 under Section 498A of the Indian Penal Code read with Sections 3 & 4 of Dowry Prohibition Act.

According to the version of the petitioner, she was totally dependant on her father, who himself was very old and was suffering from cancer and a considerable amount had to be spent for his treatment. In these circumstances, the petitioner became an additional burden on her parents. In order to maintain herself and her child, she took up a petty job in the ICICI bank on a meagre salary. The petitioner now has been transferred to Bangalore, as a result of which it had become extremely difficult for her to attend the court proceedings in West Bengal. It is very expensive and time consuming. In these circumstances, the petitioner had filed a transfer petition praying that matrimonial suit no.437 of 2002 titled as “Kajal Kumar Ghosh versus Sanghamitra Ghosh” filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and pending in the court of District Judge, Barasat be transferred to the court of competent jurisdiction at Bangalore.

This Court on 26.3.2004 issued a show-cause notice on the transfer petition. Reply to the transfer petition was filed by the respondent. The datewise sequence of events given by the respondent are contrary to what had been averred by the petitioner. According to the respondent, the petitioner was not driven out of the matrimonial home. In fact, she had walked out of the matrimonial home. The respondent further submitted that their marriage broke down due to the basic difference in their social status, educational and cultural background, lack of tolerance and inability to adopt and adjust to a life of a middle class family.

During the pendency of this petition, the parties have explored the possibility of an amicable settlement. The matter was adjourned from time to time to give the parties adequate time to mutually and amicably settle their differences. The parties, despite persuasion of the Court, have not been able to sort out their differences and decided to live separately. According to the parties, their marriage has been irretrievably broken down and reconciliation is out of question.

Learned counsel for the parties have prayed that in the peculiar facts and circumstances of this case, this Court may grant a decree of divorce by mutual consent. On 15.9.2006, the parties have jointly filed a petition where they have spelt out the Terms of Compromise. The Terms of Compromise read as under: “1. Shri Kajal Ghosh/husband agrees to pay a sum of Rs.10 lacs (Rupees ten lacs) as full and final settlement to his wife Smt. Sanghamitra Ghosh. This amount shall be paid by Shri Kajal Kumar Ghosh in the Court by way of Demand Draft in favour of the petitioner.

2. Both the parties further agree to let the mother/Smt. Sanghamitra Ghosh have the permanent custody of the minor son.

3. However, the father, Kajal Ghosh will be entitled to have visitation rights to the child at the residence of the petitioner at a mutually convenient date with prior permission.

4. Both the parties also agree to forthwith withdraw/close all cases filed against each other and pending before the various courts in Kolkata and Bangalore. These cases are:

(i) Reference Case No.210/2002

pending before the learned

SDM Court, Burrackpore,

West Bengal.

(ii) MC No.713/2004 pending

before the Principal Family

Judge, Bangalore.

(iii) Reference Case No.M-313 of

2003 pending before the

learned 5th Judicial

Magistrate Court,

Burrackpore, West Bengal.

(iv) Matrimonial Suit

No.437/2002 pending before

the District Judge, Barasat,

West Bengal.

(v) Guardianship Case

No.66/2004 pending before

the District Judge, Barasat,

West Bengal.

5. Both the parties undertake that they shall adhere to the terms of

compromise/settlement and that they shall not litigate in future and have no claim against each other whatsoever in future.”

It may be relevant to mention that on 16.10.2006, respondent Kajal Kumar Ghosh had filed additional affidavit in which detailed particulars of the matters pending inter se between the parties have been enumerated. On the same day, the parties had also filed comprehensive terms of their compromise. The said terms are set out as under:

“Both the parties viz. the petitioner and the respondent have voluntarily and with their free will, arrived at a compromise/settlement, which has been reduced into writing and which reads as under:

1. Shri Kajal Ghosh/husband agrees to pay a sum of Rs.10 lacs (Rupees ten lacs) as full and final settlement to his wife, Smt. Sanghamitra Ghosh. This amount shall be paid by Shri Kajal Ghosh in Court by way of the following Demand Drafts drawn on Allahabad Bank payable in her favour at Bangalore:-

a) DD No.634519 dated 11.9.2006 for Rs.2,50,000/-

b) DD No.634520 dated 11.9.2006 for Rs.2,50,000/-.

c) DD No.634521 dated 11.9.2006 for Rs.2,50,000/-

d) DD No.634522 dated 11.9.2006 for Rs.2,50,000/-.

2. Both the parties further agree to let the mother/Sanghamitra Ghosh have the permanent custody of the minor son.

3. However, the father/Kajal Ghosh will be entitled to have visitation rights to the child at the residence of his wife at a mutually convenient date with prior permission.

4. The following cases are pending between the parties before the various courts. These cases are:

i) REFERENCE CASE NO.210/2002

pending before the Learned SDM

Court, Burrackpore, West Bengal

filed by the wife/Sanghamitra under Section 498A IPC read with Sections 3 and 4 of the Dowry Prohibition

Act.

TP (CRIMINAL) NO.171/2004 which has been filed by the wife before this Hon’ble Court arises out of these proceedings.

ii) MC NO.713/2004 pending before the Principal Family Judge,

Bangalore filed by the wife under Section 13(1)(a) and (b) of the Hindu Marriage Act for grant of divorce.

TP (CIVIL) NO.727/2004 which has been filed by the husband before this Hon’ble Court arises out of these proceedings.

iii) REFERENCE CASE NO.M-313 OF

2003 pending before the Learned 5th Judicial Magistrate Court,

Burrackpore, West Bengal filed by wife under Section 125 CrPC for

maintenance.

TP (CRIMINAL) NO.105/2004 which has been filed by the wife before this Hon’ble Court arises out of these proceedings.

iv) MATRIMONIAL SUIT NO.437/2002

pending before the District Judge, Barasat, West Bengal filed by the husband under Section 9 of the

Hindu Marriage Act for restitution of conjugal rights.

TP (CIVIL) NO.228/2004 which has been filed by the husband before this Court arises out of these proceedings.

v) GUARDIANSHIP CASE NO.66/2004

pending before the District Judge, Barasat, West Bengal filed by the husband under Section 25 of the

Guardians and Wards Act for

custody.

TP (CIVIL) NO.168/2006 which has been filed by the wife before this Court arises out of these proceedings.

5. Both the parties humbly request this Court in exercise of its powers to do complete justice to the parties,

quash/close all the above pending proceedings in view of this settlement as the parties do not intend pursuing the litigation any further.

6. Both the parties humbly request that all the transfer petitions pending in this Court (as mentioned earlier in para 4) to be dismissed as infructuous.

7. Both the parties submit that their marriage has broken down irretrievably and that there is no possibility of the parties living together. In these circumstances, both parties would humbly request this Court in exercise of its powers to grant a decree of divorce by mutual consent.

8. Both the parties undertake that they shall adhere to the terms of

compromise/settlement and that they shall not litigate any further and will have no claim against each other hereafter.”

Learned counsel appearing for the parties have prayed that in the peculiar facts and circumstances and in the interest of justice, this Court, in exercise of its jurisdiction under Article 142 of the Constitution, may grant a decree of divorce by mutual consent.

Learned counsel for the parties have also drawn the attention of this Court to the decision of Harpit Singh Anand v. State of West Bengal reported in (2004) 10 SCC 505. In this case, in almost similar circumstances, this Court in order to put a quietus to all litigations between the parties and not to leave any room for future litigation and on the request of the said parties, exercising the power vested under Article 142 of the Constitution, dissolved the marriage and granted a decree of divorce by mutual consent.

In the case of Kanchan Devi v. Promod Kumar Mittan & Another reported in (1996) 8 SCC 90, where the marriage of the parties was irretrievably broken down, this Court exercised the power under Article 142 of the Constitution of India and passed the following order: “6. In view of the peculiar facts and circumstances of the case and being satisfied that the marriage between the appellant and the respondent has irretrievably broken down and that there is no possibility of reconciliation, we in exercise of our powers under Article 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce. All pending cases arising out of the matrimonial proceedings and the maintenance

proceedings under Section 125 Cr. PC pending between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement. This appeal is disposed of in the above terms.”

In the case of Ashok Hurra v. Rupa Bipin Zaveri etc. reported in (1997) 4 SCC 226, this Court while dealing with a matrimonial matter quoted few excerpts from the Seventy-first Report of the Law Commission of India on the Hindu Marriage Act, 1955  “Irretrievable Breakdown of Marriage”  dated 7.4.1978. We deem it appropriate to reproduce some excerpts from the said report as under:

“Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce.

* * *

Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage.

* * * The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

* * * Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage –“breakdown”- and if it continues for a fairly long period, it would indicate destruction of the essence of marriage  “irretrievable breakdown”.”

In order to do complete justice in the matrimonial matters, this Court has been less hesitant in exercising its extra-ordinary jurisdiction under Article 142 of the Constitution. To illustrate this fact, reference of some decided matrimonial cases is given hereinbelow.

In Swati Verma v. Rajan Verma & Others reported in (2004) 1 SCC 123, this Court came to a definite conclusion that the marriage between the parties has irretrievably broken down and with a view to restore good relationship and to put quietus to all litigations between the parties and not to leave any room for future litigation, so that they may live peacefully hereafter, this Court granted a decree of divorce by mutual consent while exercising its power under Article 142 of the Constitution.

This Court while exercising its unique power vested under Article 142 of the Constitution in a transfer petition in the case of Madhuri Mehta v. Meet Verma reported in (1997) 11 SCC 81, observed as under: “During the course of hearing of this transfer petition, parties have jointly made an application under Section 13-B of the Hindu Marriage Act, 1955 before us praying for dissolution of their marriage by mutual consent and in the body of the application a provision has been made for their only child. Though the child has been conferred the right to visit his father as and when he likes, there is no corresponding right with the father to visit his child. That state of affairs would be violating the rights of the child and the father. The husband will, thus, have a right of visitation to see his child but after giving due intimation to the mother. The parties have been estranged and have kept apart since January 1996. Earlier to the present status, the parties had their earlier marriages broken or disrupted. The husband lost his wife in a vehicular accident and the wife had divorced her earlier husband. In this background their differences can well be appreciated when both of them are highly educated doctors. Keeping that in view, we entertain this application and grant them divorce by mutual consent in exercise of our powers under Article 142 of the Constitution, for which there is ample authority reflective from past decisions of this Court. The divorce petition pending in the Family Court at Patna, shall stand disposed of automatically by this order.

The transfer petition and the divorce petitions are disposed of accordingly.”

In another transfer petition in the matrimonial matter, in Anita Sabharwal v. Anil Sabharwal reported in (1997) 11 SCC 490, this Court was of the view that there was no hope for the parties to live together and passed the following order: “A divorce petition being HMA Case No.863 of 1994 preferred by the respondent- husband was pending in the Court of Shri A.K. Pathak, Additional District Judge, Delhi. The instant transfer petition was moved by the petitioner-wife seeking transfer of the said case to the Family Court, Mumbai. During the pendency of the transfer petition, parties as well as their counsel had on 9.9.1996 put on record a compromise deed wherein they have agreed to get divorce by mutual consent. Strictly speaking, the preconditions of such claim have not been laid inasmuch as a petition to that effect has not been filed under Section 13-B of the Hindu Marriage Act, 1955 (the Act) before the first matrimonial court, and that the statutory period of 6 months has not even commenced. Be that as it may, it stands established beyond doubt on our summoning of the original file  HMA Case No.863 of 1994  that the parties were married about 14 years ago, have spent the prime of their life in acrimony and litigating and that it is time that their mutuality bears some fruit in putting them apart. Therefore, we take the divorce petition HMA Case No.863 of 1994 on our own file and import thereto the compromise deed put on record by the parties jointly. In terms therewith, a sum of Rs.7 lakhs stands paid to the wife by means of 3 separate bank drafts of Rs.2 lakhs, Rs.2 lakhs and Rs.3 lakhs. Recurring provision has been made therein for their children’s education and visitation rights of the father. We have questioned the parties and they are eager to dissolve the matrimonial tie so that they can rearrange their lives well in time. We, therefore, in the spirit of Section 13-B of the Act, and in view of the fact that all hopes to unite them together have gone, hereby grant to the parties divorce by a decree of dissolution by mutual consent to end their prolonged unhappiness. Ordered accordingly. The transfer petition stands disposed of.”

We have heard learned counsel for the parties. This Court adjourned the proceedings from time to time to ensure that the parties may reconcile the differences and live together again, but this has not happened. It is indeed the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained. But as aptly observed by this Court, in a recent decision in Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC 558, that when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist.

In the instant case, we are fully convinced that the marriage between the parties has irretrievably broken down because of incompatibility of temperament. In fact there has been total disappearance of emotional substratum in the marriage. The matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, therefore, the public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto as observed in Naveen Kohli’s case (supra).

In view of peculiar facts and circumstances of this case, we consider it appropriate to exercise the jurisdiction of this Court under Article 142 of the Constitution.

In order to ensure that the parties may live peacefully in future, it has become imperative that all the cases pending between the parties are directed to be disposed of. According to our considered view, unless all the pending cases are disposed of and we put a quietus to litigation between the parties, it is unlikely that they would live happily and peacefully in future. In our view, this will not only help the parties, but it would be conducive in the interest of the minor son of the parties.

On consideration of the totality of the facts and circumstances of the case, we deem it appropriate to pass the order in the following terms: a) The parties are directed to strictly adhere to the Terms of Compromise filed before this Court and also the orders and directions passed by this Court;

b) We direct that the cases pending between the parties, as enumerated in the preceding paragraphs, are disposed of in view of the settlement between the parties; and

c) All pending cases arising out of the matrimonial proceedings including the case of restitution of conjugal rights and guardianship case between the parties shall stand disposed of and consigned to the records in the respective courts on being moved by either of the parties by providing a copy of this order, which has settled all those disputes in terms of the settlement.

These transfer petitions are accordingly disposed of. In the facts and circumstances of the case, we direct the parties to bear their own costs.

 

 

ex-parte divorce granted by Foreign Court Invalid: Delhi High Court

 

The Delhi high court has held that divorce granted by a foreign court on the ground of “irretrievable break down of marriage” is not valid in India.

The court said this was because the Hindu Marriage Act did not recognize this ground valid for dissolution of marriage.

“Both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and both are governed by the Hindu Marriage Act (HMA). Their marriage has been dissolved by a court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the HMA…” Justice Veena Birbal said citing a supreme court judgment.

The court said this while rejecting the plea of an Indian-origin UK resident to drop the divorce proceedings initiated by his wife in Delhi on the ground that he had already secured a divorce decree from a UK court in 2011.

From the records the judge found that the UK court’s was an ex-parte decree (without hearing the wife) and she had not submitted herself to the jurisdiction of the foreign court.

“She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the UK court not to make the divorce decree ‘absolute’…… In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court,” the court said.

They couple fell in love after meeting each other in UK in 2004 and got married in Delhi in March 2005. With the passage of time, disputes arose between them as a result of which they could not live together.

She came back to Delhi in 2009 and filed a divorce petition in a court here leveling charges of  domestic violence, cruelty and assault against her husband.

Thanks to Hindustan Times for this articles and resources:

False complaint by wife is a valid ground for divorce.

“From the above discussions and circumstances it is clear that the appellant was never willing and ready to live with the respondent and to discharge her marital obligations without the consent of the respondent and any reasonable cause. The suit for restitution of conjugal rights was filed by her only to create evidence, and when the suit was not contested and decreed on consent by the respondent, the appellant cleverly found out a way of lodging false F.I.R. for offences under Sections 498A, 323, 506, I.P.C. so that she may have an excuse not to comply with the decree. The circumstances discussed above clearly show that the F.I.R. was not only false but was also malicious and without any reasonable ground and was to make out the defence.”

—————————————————————————————————————————————————————————————————————-

 

Smt. Archana vs Dr. P.K. Tomar on 4 February, 2003

Equivalent citations: AIR 2003 All 214, 2003 (2) AWC 1119

Author: B Rathi

Bench: B Rathi

JUDGMENT

B.K. Rathi, J.

1. This is an appeal under Section 96 of the C.P.C. against the judgment and order dated 7.2.2002 passed by District Judge, Ghaziabad by which he allowed the petition of the respondent and decreed the petition for dissolution of marriage by the decree of divorce.

2. The respondent who is resident of C-538 Sarojini Nagar, New Delhi filed the petition against the appellant alleging that the appellant is resident of 453/5 Brahampuri, Meerut and is in service as social worker in L.L.R. Medical College, Meerut. The marriage between the parties was solemnized on 13.12.1996 at Meerut according to Hindu rites and ceremonies. That at the time of the marriage it was agreed that the appellant will resign from the job at Meerut and Join the company of the respondent at Delhi and discharge her marital obligations. However, the appellant did not resign from the job as agreed and on the other hand, her behaviour became intolerable and cruel. She several times humiliated the respondent and his parents saying that they are persons of low standard and did not know as to how to live in style. The appellant refused to stay with the respondent and also to resign from the job and, therefore, it was agreed that she will continue in job but will reach the house of the respondent on every Saturday, stay for Sunday and discharge her marital obligations and will return back to Meerut to join the duties on Monday. That the appellant also abuses the mother of the respondent on the ground of wearing jeans or salwar suit and hurled abuses on the respondent and his parents. She stopped coming to Delhi on week ends and started living exclusively with her parents since July, 1997.

3. That the appellant became pregnant and she gave birth to a male child on 19.11.1997 in Medical College, Meerut. The respondent and his parents came to see the child on the next day but they were ill-treated and abused and were not permitted to have access to the newly born baby. The appellant completely deserted the respondents from July, 1997.

4. It is further alleged that the respondent filed a petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights at Delhi which has been stayed. The appellant also filed a petition under Section 9 of the Hindu Marriage Act before Judge, Family Court, Meerut for restitution of conjugal rights against the respondent being Suit No. 378 of 1998. The respondent appeared in the case and denied the allegations made by the appellant in the petition. However, he moved an application before the Judge, Family Court, Meerut to decree the suit of the respondent for restitution of conjugal rights and she may be directed to go with the appellant to his house so that they may start family life afresh. The suit was accordingly decreed on 24.7.1999. He also paid a sum of Rs. 2.500 awarded against the appellant under Sections 24 and 26 of the Hindu Marriage Act. Immediately thereafter, on that day the appellant moved an application that the respondent be directed to go directly from the Court to his house on which the respondent endorsed that she requires one week time to arrange for leave regarding her service and to make other arrangements. Accordingly, one week time was granted and, therefore, the respondent on 1.8.1999, went to the house of the appellant along with his brother and other relatives to take her, but the appellant refused to accompany him and insulted the respondent and his relatives. Then the respondent came to know that a false F.I.R. for offences under Sections 498A, 323, 506, I.P.C. on 28.7.1999 has been lodged at police station Manila Thana, Meerut by the appellant against the respondent and his other family members. Therefore, the decree for dissolution of marriage by divorce was sought by the respondent under Clauses (i-a) and (i-b) of Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) on the ground of cruelty and desertion.

5. The appellant contested the suit and filed written statement denying the entire allegations. She alleged misbehaviour with her and also made allegations of demand of dowry and cruelty against the respondent. She further alleged that she and her father were beaten by the respondent and his companions on 24.7.1999 in the Court itself and again on 26.7.1999 at her house in Brahampuri, Meerut in connection with demand for dowry, regarding which the case was got registered by her for offences under Sections 498A, 323, 506, I.P.C. at police station Mahila Thana, Meerut. She further alleged that after the birth of the male child, the parents of respondent started demanding Rs. 1 lac and a Maruti Car in dowry. She further alleged that she never went to Delhi and never stayed at the house of the respondent in Sarojini Nagar, New Delhi.

6. That the respondent is resident of town Baraut of District Meerut and she lived with the respondent at Baraut only. She further alleged that attempt was made to murder her by putting fire after sprinkling kerosene oil and also to murder her by poisoning. That inspite of the same, the appellant wants to keep the matrimonial tie and is ready to live with the respondent and to perform her matrimonial obligations for which she also filed the suit which was decreed on 24.7.1998, That the petition is, therefore, liable to be dismissed.

7. The District Judge, Ghaziabad framed necessary issues and recorded the findings of cruelty and desertion in favour of respondent and held that the respondent is entitled to the decree of divorce under Clauses (i-a) and (i-b) of Section 13 of the Act. He accordingly decreed the suit. Aggrieved by it, the present appeal has been preferred.

8. I have heard Sri Vijay Prakash, learned counsel for the appellant and Sri D. N. Wall, learned counsel for the respondent at length and have also perused the entire evidence and record.

9. The first argument of the learned counsel for the appellant is that the District Judge, Ghazlabad has erred in decreeing the suit under Section 13(1-A)(ii) of the Act. I agree with the argument of the learned counsel. This plea was neither raised in the plaint nor any issue was framed regarding it. On the facts also, the respondent is not entitled to the decree of divorce on this ground for the reason that the decree for restitution of conjugal rights in favour of the appellant was passed on 24.7.1999 and the present suit was filed on 6.3.2000. Therefore, one year had not elapsed between the date of the decree for restitution of conjugal rights and the filing of the suit.

Therefore, this ground was not available to the respondent. It may also be mentioned that a decree for restitution of conjugal rights was in favour of the appellant and, therefore, for this reason also, this ground cannot be availed of by the respondent. It has been argued that the District Judge at his own has decreed the suit on this ground also. In view of the above, I find this part of the judgment of the trial court is not correct and the respondent is not entitled to the decree for divorce under Section 13(1-A)(ii) of the Act. The first argument of the learned counsel for the appellant, therefore, succeeds.

10. However, this finding in favour of the appellant on the first argument is not material as the respondent in the suit has sought decree for restitution of conjugal rights only on the ground of cruelty and desertion. Therefore, the question that arises for decision is whether the respondent is able to prove the same and is entitled to the decree for dissolution of marriage by divorce under Clauses (i-a) and (i-b) of Section 13 of the Act. I consider the allegations of the each clause separately.

11. Firstly, I consider whether the respondent had proved that the appellant has deserted her for a continuous period of not less than two years immediately preceding the presentation of the petition. The learned counsel for the appellant In support of the argument has referred to the decision of the Apex Court in Lachman Utamchand Kirpalani v. Meena, AIR 1964 SC 40, in which the word “desertion” has been explained. It has been held by the Apex Court that it is for the person who alleges desertion to prove it. It is for the petitioner to establish beyond reasonable doubt to the satisfaction of the Court the desertion throughout the entire period of two years before the petition was filed and that such desertion was without just cause. The meaning and impact of word desertion has also been explained by the Court in this case. It was observed :

“If the 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, (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.”

On the basts of it, it has been argued that there Is absolutely no evidence to show that there was intention of the appellant to bring cohabitation permanently to an end, and there was reasonable cause for temporary desertion. However, this fact has to be decided from the circumstances of the case. The Apex Court in the above judgment further observed that :

“Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference.”

In the light of the dictum and discussion as explained by the Apex Court in the case, it is to be seen whether the respondent who sought the relief is able to prove beyond reasonable doubt the factum of separation and desertion without his consent and the absence of the reasonable cause.

12. In this case what transpired between the parties or with the parents remained inside the close doors of the house and, therefore, there can be no evidence except the statements on oath. It can be inferred as to which version is correct for the circumstances alone. The repeated observations of the District Judge in the finding of Issue No. 1 that there is no reliable and clinching evidence in support of the allegation of the respondent are not correct. Instead of considering the evidence of the parties, the trial court should have considered the circumstances which can never lie. I also agree with the statement of the learned counsel for the appellant that the trial court has wrongly relied on the decision of Saroj v. Dashrath, II (1986) DMC

277. This decision can be of help to the trial court had there been a finding that the false F.I.R. was lodged by the appellant and the same is also malicious. I find that no such finding has been recorded by the trial court. If a correct F.I.R is lodged or for that purpose, even if some exaggeration of the incident is given, it cannot amount to cruelty. Without such a finding, the decision of Saroj v. Dashrath (supra), is of no help to the respondent.

13. Coming to the circumstances of the case, it may safely be said without considering the evidence that certain allegations of the appellant are false. The respondent no doubt is the resident of the town Baraut but is living in House No. C-538 Sarojini Nagar, New Delhi where he is also in service since before the marriage. Therefore, the allegation of the appellant that she never went to the house of respondent at Sarojini Nagar, New Delhi nor ever stayed there appears to be white lie. There is hardly a distance of 50 to 60 kms between Meerut and Delhi and It cannot be accepted that the appellant never went to the house of the respondent at Sarojini Nagar Delhi.

14. The appellant was in service at Meerut and is also resident of Meerut. The party lived together for some time may be at Meerut or Delhi which is not relevant for the consideration of the point at present. However, it Is admitted that the appellant withdrew from the company of the respondent since July, 1997 and did not go to the house of the appellant. She filed a suit for restitution of conjugal rights being suit No. 378 of 1998 in the Court of Judge, Family Court, Meerut. The question is whether the appellant was sincerely willing for the restitution of the conjugal rights or filed the above suit only to make out the defence for future litigation. At the first date, the respondent paid the entire amount awarded to the appellant in the above suit. Though he filed written statement denying the allegations but without delay, he moved an application that the suit may be decreed and he is ready to keep the appellant. The suit was decreed on 24.7.1999 and on that very day, he made a written request to the Court to direct the appellant to accompany him. It was the appellant who sought one week time in writing on the pretext such as she has to arrange for leave, etc. This request was accepted by the Court and one week time was allowed, therefore, the respondent alleged that he went on 1.8.1999 to the house of the appellant to take her, but she refused to come. The reason being that in the meantime, the appellant lodged an F.I.R. on 28.8.1999 at Mahila Thana, Meerut for offences under Sections 498A, 323, 506, I.P.C. against respondent and his family members. From the circumstances of the case, it appears that it was totally a false F.I.R. The respondent offered to take the appellant from the Court itself. If it is so, where is the question of demand of dowry before taking the appellant to house by the respondent. Apart from this in paragraph 13 of the written statement, it was pleaded by the appellant that she and her father were assaulted in the Court campus on 24.7.1999 itself by the respondent and his companions and again on 26.7.1999 at her house 453/5 Brahampuri, Meerut. It is important to mention that both these allegations also appear to be false. The reason being that in defence, the appellant examined herself and did not produce any other evidence in support of the allegation. She did not have the courage to say in the Court on oath that she and her father were assaulted in the Court on 24.7.1999 by the respondent and his parents, This allegation of para 13 of the written statement was not supported in the statement and, therefore, this allegation is certainly false.

15. Regarding the other incident of assault dated 26.7.1999, there is no reason as to why the F.I.R. of the same was lodged after two days at Mahila Thana on 28.7.1999. It may also be mentioned that it is not alleged that any injury was caused to the appellant or any other member of her family. It is important to mention that the respondent along with his family members could not have reached and assaulted the appellant and her family members at her house in Brahampuri, Meerut for the reason that they could not have escaped from there after assaulting her as he had no place to hide in Meerut and is living in Delhi. The respondent could not have escaped from the house of the appellant after assaulting her and her father on 26.7.1999 and therefore, the reason of assault is also unnatural.

16. It has been argued by the learned counsel for the appellant that the police on investigation found the case to be correct and submitted charge-sheet in the Court. It is contended that the Court of Magistrate will decide regarding the correctness of the allegations. I am unable to agree with the argument of the learned counsel. The copy of the charge-sheet has been filed and is on the record of the trial court. This shows that the charge-sheet has been submitted for offences under Section 323 and 504, I.P.C. only and no charge-sheet has been submitted under Section 498A, I.P.C. thereby showing the allegations of demand of dowry and cruelty was found to be incorrect even by the police. No doubt, the criminal court alone is competent to decide whether any offence has been committed by the respondent or not, but that decision is not relevant for the civil court and judgment is not admissible as provided under Sections 40 to 44 of the Indian Evidence Act. The question whether the F.I.R. was false or correct being relevant for decision of this petition, it has to be decided on the basis of the evidence adduced in this petition. The civil Court cannot look forward or is dependent for a finding of the criminal court on this point to assist the civil court. Therefore, whatever is decided by the criminal court is irrelevant, and it has to be decided independently by the civil court whether the F.I.R. was false or not as this question arises for decision in this petition.

17. There are also other false allegations of the appellant. In para 36 of the written statement, she has mentioned that attempt was made to give her poison in the food. In para 33, she further alleged that attempt was made to burn her by putting fire to her. This is the bald statement made for the first time in the written statement of this case which has not been corroborated by any evidence. No F.I.R. was lodged earlier regarding any such incident nor any injury was caused. The date, time and place of these incidents have not been disclosed. It may also be mentioned that had it been so and repeated attempt on her life would have been made, she could have never agreed to go and live with the respondent. However, she has also offered to go and live with the respondent. The allegation that she never went to the house of respondent in Sarojini Nagar, Delhi ts also incorrect. The respondent examined herself as P.W. 1, his elder brother Dilawar Singh Tomar P.W. 2, brother-in-law Mahabir Singh P.W. 3 and father Ikbal Singh as P.W,

4. All of them have denied the allegations of the appellant. They have also stated that they want to keep the appellant and never treated her with cruelty. On the other hand, the appellant misbehaved and Insulted them and left the house without any reasonable cause. They have also denied the allegations of demand for dowry and assault.

18. From the above discussions and circumstances it is clear that the appellant was never willing and ready to live with the respondent and to discharge her marital obligations without the consent of the respondent and any reasonable cause. The suit for restitution of conjugal rights was filed by her only to create evidence, and when the suit was not contested and decreed on consent by the respondent, the appellant cleverly found out a way of lodging false F.I.R. for offences under Sections 498A, 323, 506, I.P.C. so that she may have an excuse not to comply with the decree. The circumstances discussed above clearly show that the F.I.R. was not only false but was also malicious and without any reasonable ground and was to make out the defence.

19. From the above discussions, it is, therefore, apparent that the appellant deserted the respondent for a continuous period of more than two years before the presentation of the petition. Therefore, the respondent is entitled to the decree for divorce under Clause (ib) of Section 13 of the Act.

20. As regards the allegations of cruelty and the decree of divorce under Clause (i-a) of Section 13 of Act, it does not require a long discussion as facts and evidence have already been narrated. As already said, there can be no corroborative evidence of what happened between the parties inside the four walls of the house and the matter has to be decided from the circumstances of the case. The marriage took place on 13.12.1996 and a male child was born to the appellant on 19.11.1997. The respondent was living in Sarojini Nagar, Delhi since before the marriage and according to the plaint allegations, he is in service at Delhi from 9.9.1991. The appellant in para 22 of the written statement has alleged that she never went to the house of the respondent in Sarojini Nagar, Delhi. This house was very near to Meerut and would have hardly taken one or two hours to her to reach from Meerut to the house of the respondent. But she never went to the house of the respondent who is her husband. Whether this act of the appellant does not amount to cruelty? The natural answer should be that it is certainly a cruelty as the wife never visited the house of her husband who is living at a distance which may be covered in less than two hours.

21. The lodging of the false F.I.R. for offences under Sections 498A, 323, 506, I.P.C. without any reasonable cause and maliciously also amounts to the mental cruelty.

22. It has also been argued by the learned counsel for the appellant that there is no finding of the trial court that act of cruelty of the appellant has not been condoned by the respondent. That this finding is required to be recorded under Section 23(1)(b) of the Act and in its absence, the suit cannot be decreed. The learned counsel has relied on the decision of Dr. N. G. Dastane v. Mr. S. Dastane. AIR 1975 SC 1534. It was observed by the Apex Court :

“Even though condonation is not pleaded as a defence by the respondent it is Court’s duty, in view of the provisions of Section 23(1)(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on the Court to consider the question of condonation, an obligation which has to be discharged even in undefended cases. The relief prayed for can be decreed only if the Court is satisfied “but not otherwise”, that the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should be evidence on the record of the case to show that the appellant had condoned the cruelty.”

23. In view of the decision of the Apex Court and the argument of the learned counsel for the appellant, I agree that the trial court should have recorded a finding that the act of cruelty has not been condoned by the respondent before granting the decree, I find that no such finding has been recorded. However, for this reason, the decree of the trial court cannot be set aside. This is the first appeal and this Court is required to consider the facts as well as the law. If the trial court ignored or neglected to record a finding on the point of fact, it can be examined by this Court and a finding can be recorded.

24. The circumstances of this case do not show that the act of cruelty was ever condoned by the respondent. He has not condoned the act of the appellant in lodging false F.I.R. for demand of dowry, cruelty and assault. That matter has not been compromised and he and other members of his family are still facing trial. It cannot be accepted that the said cruelty has been condoned by the respondent. The appellant does not say that she was permitted by the respondent to live at Meerut permanently and not to come to his house. Therefore, this act of cruelty has also not been condoned.

25. I accordingly find that the act of cruelty has not been condoned by the respondent, therefore, the decree of divorce granted by the trial Judge cannot be disturbed.

26. The appeal fails and is hereby dismissed. However, in the circumstances of this case, the parties are directed to bear their own costs of this appeal.

False comaplaint is a ground for divorce

 

“Wife filed  false complaint u/s 498a Ipc, and that the fact itself of

filing  a  false  complaint  constitutes   cruelty  within  the

meaning of section 13(i) (a) of the Hindu Marriage Act,1956.”

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.118 OF 2006

Nitin Ramesh Dhiwar )

Adult, Occupation Service, )

R/o. SHBA, Monika Housing Society, )

D-Building, Flat No. F-9, Near )

Pimple Kale Road, Pimpri, Pune-411 017 )…Appellant

(Org. Petitioner)

Versus

Sou. Roopali Nitin Dhiwar )

Adult, Occ: Service, R/o. Ratnakar )

Ghorpade, Near Ravi Complex, )

Pimpri, Pune- 411 017 )..Respondent

(Org. Respondent)

****

Mrs. Madhavi Tavanandi for Appellant

None for the Respondent

****

CORAM: V.M. KANADE  &

P.D. KODE, JJ.

DATE:    16

th

August, 2012

1/42

( FCA 118 of 2006)

ORAL JUDGMENT [PER: V.M.KANADE J.]

1. Heard the learned counsel appearing on behalf of

the Appellant. None appears on behalf of the Respondent,

though she was served.

2. The Appellant is aggrieved  by the judgment and

order passed by the District Judge-4, Pune on 7.9.2006, who

was pleased to dismiss the petition for divorce filed by the

Appellant herein.

3. Brief facts are as under:

The Appellant is the husband and the Respondent

is the wife (hereinafter the Appellant shall be referred to as

“husband” and Respondent shall be referred to as “wife”).

They got married on 12.11.2001.  However, soon thereafter,

there were disputes and differences between the husband

and wife.    A complaint was registered by the Pimpri Police

Station  for  the offences punishable under  sections 498A,

323, 504, r/w. 34 of the Indian Penal Code.  I  The husband

filed a petition for divorce in the District Court, Pune on the

ground of cruelty, inter alia, it was urged in the trial court

that a false complaint was filed by the wife  against the

husband and his family members for the offence punishable

2/43

( FCA 118 of 2006)

under section 498A, 323, 504, r/w. 34 of the Indian Penal

Code.

4. It is submitted submitted that the Trial Court after

perusing  the  evidence  which  was  adduced  by  the

prosecution,  was pleased to dismiss the criminal complaint.

5. The learned counsel appearing on behalf of the

Appellant,  inter  alia,  submitted  that   this  Court  has

consistently held that in the event a criminal complaint is

filed by the wife for the offence punishable under section

498A  and the said complaint has been dismissed,  then in

that event, an  inference can be drawn by the Court that the

said complaint is a false complaint and that the fact itself of

filing  a  false  complaint  constitutes   cruelty  within  the

meaning of section 13(i) (a) of the Hindu Marriage Act,1956.

In support of the said submission, the learned counsel for

the Appellant has relied on the judgment of this Court in

Family Court Appeal No. 158 of 2008 dated 6

th

May, 2010

decided by the Division Bench  of this Court [Coram: A.P.

Deshpande & Smt. R.P. Sondurbaldota, J.J.]

6. We have perused the judgment and order of the

Judicial Magistrate, First Class, Pimpri at Pune -18 in C.C. No.

1175  of  2003.   We  are  satisfied   after  reading  the  said

judgment and order  that the said complaint which was filed

by the Respondent is  a false complaint and that is  the only

inference which can be drawn  from the judgment and order

3/44

( FCA 118 of 2006)

of the Trial Court.

7. In  our  view,  filing of a false criminal complaint

itself amounts to  cruelty within the meaning of section 13(i)

(a) of the Hindu Marriage Act.   A similar view was taken by

the Division Bench of this Court in Family Court Appeal No.

158  of  2008.   The  Division  Bench   had  taken  into

consideration the judgment and order passed by the Trial

Court  of acquitting the Appellant therein for the offence

punishable under section 498A r/w. 34 of the Indian Penal

Code and also the deposition of the Appellant in the Trial

Court.   Taking our over all view,  the impugned judgment

and  order  passed  by  the  Family  Court  will  have  to  be

quashed and set aside and the appeal filed by the Appellant

will have to be allowed.

8. The Family Court Appeal is, accordingly, allowed

and the judgment and order passed by the District Court,

Pune in Marriage Petition No. 12 of 2004 dated 7.9.2006 is

quashed and set aside and a decree and divorce is granted

to the Appellant as prayed by him in the Petition for Divorce

filed by him in the Family Court.  Family Court Appeal is

disposed of.

(P.D.KODE J.) (V.M. KANADE J.)

V.A. Tikam

4/4

No maintenance is allowed under Domestic violence act to wife, if wife already claimed under section 125 of Crpc. Its a misuse of law.

————————————————————————————————————————-

see the judgement passed by Delhi High court.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+  Crl.M.C.No. 130/2010 & Crl.M.A.No. 504/2010

Rachna Kathuria       … Petitioner

Through: Mr. P.Narula, Advocate

Versus

Ramesh Kathuria      … Respondent

Through:Mr. S.S.Saluja, Advocate

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

By this petition under Section 482 Cr.P.C. the petitioner

has assailed an order dated 22

nd

October 2009 of learned Additional

Sessions Judge  passed in appeal whereby the appeal of the

petitioner was dismissed.

2. The petitioner filed an application under Section 12 of

the Protection of Women from Domestic Violence Act, 2005 (in short

the Act) and along with it she filed an application under Section 29

of the Act seeking maintenance.   The learned Court of MM observed

that petitioner was living separate from her husband  since 3

rd

January, 1996.  She had filed a Civil Suit under Hindu Adoption and

Maintenance Act and an application under Section 125 Cr.P.C. and Crl.M.C.No. 130/2010  Page 2 of 3

she was getting a total maintenance of ` 4000/- per month from the

respondent.  In case the petitioner felt that maintenance awarded to

her was not sufficient, the proper  course  for her  was to approach

the concerned Court for modification of the order as  already

observed by the High Court in a petition filed by her earlier and the

application was dismissed.  Against this petitioner preferred an

appeal.  The learned Additional District Judge dismissed the appeal

and the petitioner has preferred this petition.

3. It must be understood that the Protection of Women

from Domestic Violence Act, 2005 does not create any additional

right to claim maintenance on the part of the aggrieved person.  It

only puts the enforcement of existing right of maintenance available

to an aggrieved person on fast track.  If a woman living separate

from her husband had already filed a suit claiming maintenance and

after adjudication maintenance has been determined by a

competent court either in Civil Suit or by Court of MM in an

application under Section 125 Cr.P.C. she does not have a right to

claim additional maintenance under the Act.  The Court of MM under

the Act has power to grant maintenance and monetary reliefs on an

interim basis in a fast track manner only in those cases where

woman has not exercised her right of claiming maintenance either

under Civil Court or under Section 125 Cr.P.C.    If the woman has

already moved Court and her right  of  maintenance has been

adjudicated by a competent Civil Court or by a competent Court of

MM under Section 125 Cr.P.C., for any enhancement of maintenance Crl.M.C.No. 130/2010  Page 3 of 3

already granted, she will have to move the same Court and she

cannot approach MM under the Protection of Women from Domestic

Violence Act by way of an application of interim or final nature to

grant additional maintenance.  This petition is not maintainable and

is hereby dismissed.

August 30,  2010      SHIV NARAYAN DHINGRA, J.

vn

No alimony to a women who deserted her husband.

N THE HIGH COURT OF STATE OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.M-24684 of 2008 (O&M)

POONAM   …PETITIONER

VERSUS

MAHENDER KUMAR   …RESPONDENt

Criminal Misc. No.M-24684 of 2008 (O&M)

Present:           Mr.P.L. Goyal,  Advocate,  for the  petitioner.

Mr. S.D. Bansal,  Advocate, for the  respondent.

Marriage of Poonam (petitioner) with Mohinder Kumar (respondent) took place on 23.1.1998. Two sons were born out of the wedlock, who are residing with the respondent. The petitioner is residing with her parents. A case under Sections 406/ 498-A/ 149/ 506 of the Indian Penal Code was registered at the instance of the petitioner against the respondent and others vide F.I.R. No.52 dated 17.2.2000 at Police Station City, Jind. The petitioner filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as vthe Code’) claiming maintenance from the respondent alleging that he was running wholesale business of sale and purchase of utensils in the name and style of M/s. Laxmi Metal Store and was earning Rs. 10,000/- per month. This petition was contested by the respondent on the ground that the petitioner left her matrimonial house on her own accord and that she was earning about Rs.10,000/- per month as she was M.A.B.Ed. The Judicial Magistrate 1st Class, Jind, vide order dated 9.6.2007 dismissed the petition filed by the petitioner under Section 125 of the Code. The petitioner went in revision against the order passed by the trial Magistrate. The same was also dismissed vide judgment dated 5.8.2008 passed by the Sessions Judge, Jind, although holding that the husband has not been able to prove that the wife has sufficient means to maintain herself and, at the  same  time,   affirming  the  finding    recorded    by  the     trial Magistrate that the petitioner-wife left the company of the respondent on her own accord. Hence this petition under Section 482 of the Code by the petitioner seeking reversal of the orders passed by both the Courts below.

I have heard Mr.P.L. Goyal, Advocate, appearing for the petitioner and Mr. S.D. Bansal, Advocate, appearing for the respondent and  have gone through the records of the case.

The trial Magistrate, after framing issues, recording evidence, both oral and documentary, and hearing the learned counsel for the parties, came to the conclusion that the petitioner has not been able to prove on record that she was ill-treated by the respondent or he was cruel towards her in any manner. Except her statement, the petitioner failed to examine any other witness in support of her case to prove ill-treatment, dowry demand and other allegations made in the petition. Even the parents of the petitioner did not come forward to support her case. The petitioner failed to join her husband even after the petition filed by him for restitution of conjugal rights was accepted by the Court of competent jurisdiction. Petition filed under Section 13 of the Hindu Marriage Act, which was filed by the petitioner, was declined by the Court by holding that there was no desertion on the part of the respondent, rather the petitioner deserted her husband due to her own personal reasons. The petitioner did not take care of her sons, who are residing with the respondent. There is no allegation in the petition that she had ever asked the respondent for giving her the custody of the sons. The petitioner appears to be interested only  in  getting maintenance allowance and  taking divorce from the respondent. The respondent is solely taking care of the children. To bring up two children single handedly is an onerous duty, which the respondent is performing and the petitioner is shirking. The petitioner, in her cross-examination, stated that after she left her matrimonial house, she never tried to contact the respondent or her kids. In the case of Smt.Rohtash Singh v. Ramendri (Smt.), 2000 (2) R.C.R (Criminal) 286, it was held by the Hon’ble Supreme Court that a wife is not entitled to maintenance who has deserted her husband, but a wife who has divorced on account of her desertion is entitled to maintenance from decree of divorce. Failure of the petitioner-wife to prove sufficient grounds justifying her staying away from the respondent-husband and two kids shows that she had left the society of the respondent on her own accord. In these circumstances, both the Courts below were justified in declining the petition filed by the petitioner under Section 125 of the Code.

In view of the  above,    the present petition   is  dismissed being  without any merit.

March  19  , 2009.

(   MOHINDER  PAL )

ak    JUDGE