Sunday, 28 May 2017

Whether husband can get divorce on ground of desertion if he fails to visit flat taken on rent by wife?

 If one fine morning the appellant/husband took the decision not to
visit his wife and daughter at the flat where they were staying which in fact
became their matrimonial home, then how he can be rewarded with a decree
of divorce on the ground of desertion when he himself has deserted his wife.

Dated: August 29, 2016
 MAT.APP.(F.C.) 49/2014
Citation: AIR 2017 Delhi 3

1. The appellant/husband Anil Kumar Sharma is aggrieved by the order
dated February 04, 2014 whereby his petition seeking dissolution of
marriage on the ground of cruelty and desertion has been dismissed by the
learned Judge, Family Court, Rohini.
2. The marriage between the appellant/husband and the respondent/wife
was solemnized on April 26, 1999 as per Hindu rites and ceremonies at
Delhi. The marriage was consummated. The parties were blessed with a
daughter on February 25, 2000 who was nine years old at the time of filing
the divorce petition.
3. The act of cruelty alleged against the respondent/wife are as under:
(i) Her stubborn and non-cooperative nature.
(ii) Humiliation to the appellant/husband and his parents due to her 
disrespectful conduct.
(iii) Frequent visits to her parental house and using filthy language against
the appellant/husband and his family whenever they requested her to stay at
the matrimonial home.
(iv) Long stay by respondent/wife at her parental home from August, 1999
till October 19, 1999 and thereafter, agreeing to return to the matrimonial
home after repeated requests.
(v) Undue influence exercised by the father of the respondent/wife in the
matrimonial affairs and the threats being extended by him using his
influence being a retired police official from Delhi Police.
(vi) On August 15, 1999 father of the respondent/wife threatened the
appellant/husband to transfer the property of his father in the name of
respondent/wife or he would get him implicated in a false case. This led the
appellant/husband to file a complaint at PS Dabri.
(vii) The respondent/wife shifted all her articles to her parental home on
March 20, 2004 through Aggrawal Transport Service.
(viii) The respondent/wife finally left the matrimonial home on February
22, 2006 and deserted her husband. The parties have not cohabited
4. In the written statement the respondent/wife denied all the accusations
and took the plea that her husband and in-laws were not satisfied with the
dowry given and used to taunt her saying that her father being in Delhi
Police was accepting bribe and he (appellant/husband) had a right over that
money. She denied the incident dated August 15, 1999 i.e. of pressurising
the appellant/husband by her father to transfer his father’s property in her
name. While pleading that she was ill treated by her in-laws she had given
an explanation for leaving the matrimonial home and staying at her parental 
home for a longer duration. As per respondent/wife when she was in
family-way, her in-laws wanted to ascertain the sex of the foetus which was
resisted by her. She also developed complications during pregnancy and
was sent to her parent’s home by her in-laws where she gave birth to a
daughter on February 25, 2000. Birth of a female child was to the disliking
of her husband and in-laws.
5. It is pleaded in the written statement and not disputed by the
appellant/husband that in the year 2004 she purchased a flat in Rohini after
availing loan and her husband also stayed with her in that house. Her
husband was transferred to Kanpur in the year 2000 and whenever he visited
Delhi he used to visit and stay with her also. She also pleaded that on June
12, 2005 i.e. on the eve of marriage of her brother, her husband was gifted
with a gold chain and they were together. She has denied having committed
any act of cruelty or desertion.
6. Before learned Judge, Family Court, the appellant/husband examined
three witnesses whereas the respondent/wife has examined herself.
7. After considering the evidence adduced by the parties, the learned
Judge, Family Court dismissed the divorce petition for the following
(i) The explanation given by the respondent/wife which compelled her to
live at her parental home was accepted by the learned Judge, Family Court
for the reason that her in-laws wanted the sex determination test to be
conducted which was not acceptable to her as she did not want her
pregnancy to be terminated.
(ii) She was compelled to go to her parental home for delivery and postnatal
care which justified her stay there in her peculiar circumstances.
(iii) In the statement of the appellant/husband recorded under Section 165 
of the Indian Evidence Act he has admitted that he remained posted in
Kanpur from October, 2000 to March, 2005. When he himself was not in
Delhi due to his posting at Kanpur, there was no occasion for the
respondent/wife to leave the matrimonial home without the permission and
consent of her husband.
(iv) Statement of PW-3 Sh.A.K. Gaur was believed to record a finding
that the respondent/wife was residing at her parental home as well her
matrimonial home.
(v) Practical difficulties faced by a working woman having a small child
have been examined by the learned Judge, Family Court recording that the
wife was compelled to look for the alternative to balance her motherly
obligations as well the official duties by leaving the child with her parents to
attend her job.
(vi) In the year 2004 when the respondent/wife purchased a flat in Rohini
the appellant/husband himself assisted in shifting to the new
accommodation. The shifting by the wife to the new flat was not without
the consent of her husband. She did not take her goods to her parental home
as pleaded by the appellant/husband but shifted to her flat in Rohini with
consent of her husband and goods were transported to that flat.
(vii) The appellant/husband has admitted in his statement under Section
165 of the Indian Evidence Act that whenever he came to Delhi from
Kanpur he used to come to Rohini flat where his wife and daughter were
residing and also stayed there which shows that there was no acrimony
between the parties on that issue.
(viii) Referring to different dates given at different stages by the
appellant/husband as to when his wife deserted him, the learned Judge,
Family Court has noted the different versions given by the 
appellant/husband in para 41 of the impugned judgment as under:
‘41. Reverting back to the case in hand, the petitioner has
alleged that the respondent has deserted him in February, 2006. At
the outset, it may be mentioned that the petitioner had given separate
dates of the desertion, as in his petition itself at one point of time, the
date of desertion has been mentioned as 22.02.2005, and
subsequently, the date of desertion has been given as 22.02.2006. In
his cross examination as PW1, firstly he stated that the respondent left
the matrimonial home in June, 2010, but he again changed his stand
to June, 2000, but denied the version of the respondent that they had
last resided as husband and wife till May, 2009. Therefore, the
petitioner’s stand as to what was the actual date of their separation,
was not established, and at the same time, even the respondent was
not able to establish that they had last resided as husband and wife till
May, 2009, in order to frustrate the petition of the petitioner, on the
ground of desertion, as it has been filed in October, 2009. The
petitioner was, therefore, examined by the Court on 03.02.2014
wherein he stated that he last resided as husband and wife with the
respondent till February, 2006. Therefore, for all probabilities, this is
taken to be the version of the petitioner.’
(ix) As per statement made by the appellant/husband under Section 165 of
the Indian Evidence Act, on his visit from Kanpur to Delhi the arrangement
of his staying with his wife and daughter at Rohini flat continued till
February 22, 2006. Thereafter he did not visit that flat to live with his wife
nor he asked her to accompany him to the matrimonial home. Thus physical
desertion was on the part of the appellant/husband who stopped visiting his
wife in the flat at Rohini.
(x) It is not a case of ‘animus deserendi’ on the part of respondent/wife.
The parties were exchanging greetings on occasions like birthdays etc.
8. The learned Judge, Family Court finding it not to be a case of cruelty
and desertion being committed by the respondent/wife, declined the prayer
of the husband for dissolution of marriage.
9. The learned Judge, Family Court has also noted the contention urged 
on behalf of the appellant/husband that the marriage of the parties has
broken down irretrievably as they were residing separately for more than
seven years. As no such ground is available for seeking divorce under
Section 13 of Hindu Marriage Act, 1955, this prayer was declined.
10. On behalf of the appellant/husband Mr.Sachin Datta, Senior Advocate
has urged before us that due to excessive interference by the parental family
of the respondent/wife and her frequent long stay there, amounted to cruelty.
Father of the respondent/wife was in Delhi Police and he used to exercise his
influence in their matrimonial affairs by compelling the appellant/husband to
transfer his father’s property in the name of respondent/wife and extended
threats which was reported to the police. The respondent/wife had hardly
stayed at the matrimonial home before shifting to flat in Rohini in 2004. It
resulted in causing mental cruelty to the appellant/husband. Prior to that
also she used to stay at her parental house for a couple of months and return
to matrimonial home after great persuasions.
11. Learned Senior Advocate for the appellant/husband has submitted that
in this case the parties are residing separately for almost ten year and there is
hardly any chance of any reconciliation. Learned Senior Counsel for the
appellant has drawn the attention of this Court to the transport slip dated
March 20, 2004 Ex.PW1/4 submitting that the respondent/wife left the
matrimonial home and shifted to Flat No.204, Sector-24, Rohini, Delhi.
Thus, she deserted her husband when she started living in the newly
acquired house. The marriage has broken down irretrievably and in view of
decision of Division Bench of this Court reported as AIR 2013 Del 209 Om
Prakash Poddar vs. Rina Kumari the marriage of the parties may be
12. We have appreciated the evidence led by the appellant/husband to 
prove cruelty and desertion by the respondent/wife.
13. In the decision reported as AIR 2011 SC 114 Gurbax Singh Vs.
Harminder Kaur the Apex Court held that the matrimonial life should be
assessed as a whole and few isolated instances over a period of time cannot
be said to be amounting cruelty. It thus held that :
‘11. A Hindu marriage solemnized under the Act can only be
dissolved on any of the grounds specified therein. We have already
pointed out that in the petition for dissolution of marriage, the
appellant has merely mentioned Section 13 of the Act and in the body
of the petition he highlighted certain instances amounting to cruelty
by the respondent-wife. Cruelty has not been defined under the Act. It
is quite possible that a particular conduct may amount to cruelty in
one case but the same conduct necessarily may not amount to cruelty
due to change of various factors, in different set of circumstances.
Therefore, it is essential for the appellant, who claims relief, to prove
that a particular/part of conduct or behaviour resulted in cruelty to
him. No prior assumptions can be made in such matters. Meaning
thereby that it cannot be assumed that a particular conduct will,
under all circumstances, amount to cruelty, vis-a-vis the other party.
The aggrieved party has to make a specific case that the conduct of
which exception is taken amounts to cruelty. It is true FAO 291/96
Page 26 of 35 that even a single act of violence which is of grievous
and inexcusable nature satisfies the test of cruelty. Persistence in
inordinate sexual demands or malpractices by either spouse can be
cruelty if it injures the other spouse. There is no such complaint by the
appellant. In the case on hand, as stated earlier, the appellant has
projected few instances in which, according to him, the respondent
abused his parents. We have verified all the averments in the
petitions, reply statement, written submissions as well as the evidence
of both parties. We are satisfied that on the basis of such instances,
marriage cannot be dissolved.
12. The married life should be assessed as a whole and a few isolated
instances over certain period will not amount to cruelty. The illconduct
must be precedent for a fairly lengthy period where the
relationship has deteriorated to an extent that because of the acts and
behaviour of a spouse, one party finds it extremely difficult to live
with the other party no longer may amount to mental cruelty. Making 
certain statements on the spur of the moment and expressing certain
displeasure about the behaviour of elders may not be characterized as
cruelty. Mere trivial irritations, quarrels, normal wear and tear of
married life which happens in day to day life in all families would not
be adequate for grant of divorce on the ground of cruelty. Sustained
unjustifiable and reprehensible conduct affecting physical and mental
health of the other spouse may lead to mental cruelty.”
14. It is admitted case of the appellant/husband that after his marriage
with the respondent/wife on April 26, 1999 he remained posted out of Delhi
for five years i.e. from 2000 to 2005. After the solemnization of marriage in
April, 1999 the respondent/wife conceived in August, 1999 i.e. within four
months of her marriage. It is not disputed that the respondent/wife was
gainfully employed and had developed some complications during her
pregnancy. The real problem arose when as per respondent/wife she was
asked to subject herself to undergo sex determination test for which she
refused. The respondent/wife appears to have left the matrimonial home not
to be with her parents but to protect her own child in womb and give birth
without sex determination. We hold that as a would be mother, if she felt
more protected and secured at her parents’ home, her act of leaving the
matrimonial home at that juncture did not amount to cruelty or desertion by
any stretch of imagination.
15. To prove the accusation of humiliation caused to other family
members of the appellant/husband, we find that none of the family members
has been examined as witness with any specific act attributed to the
respondent/wife which can be termed as cruelty for purpose of seeking
divorce. While the appellant/husband has appeared as PW-1, he examined
his neighbour Sh.Om Prakash as PW-2 and Sh.A.K.Gaur – his brother-inlaw
as PW-3. None of these two witnesses deposed about any incident
which could prove any act of cruelty being committed by the 
respondent/wife till she stayed at her matrimonial home.
16. Learned Judge, Family Court has rightly appreciated the problems
being faced by the respondent/wife during her pregnancy to be the
justification behind leaving the matrimonial home frequently before and
after birth of their daughter.
17. It is an admitted fact that since 2004 the respondent/wife is living in a
separate house alongwith their only child, providing free access to the
appellant/husband to visit them. This shows that she had never deserted her
husband. May be because of not being able to live with her in-laws she had
taken a decision to live separately. Neither she was living with her parents
not with her in-laws but in an independent house acquired by her in her own
name, alongiwth her daughter. It has been admitted by the
appellant/husband that he had been visiting his wife and daughter and
staying there with them in that flat. The appellant/husband admits that they
have cohabited till 2006. Thus the act of cruelty, if any, prior to that period
stood condoned by the appellant/husband. There is no act of cruelty
attributed to her after 2006.
18. Then comes the next ground on which the appellant/husband is
seeking dissolution of marriage i.e. desertion by the respondent/wife. It has
been stated by the appellant/husband before the learned Judge, Family Court
that he had been visiting and staying with his wife in the flat purchased by
her in Rohini. It is also stated by him that this arrangement continued till
February 22, 2006 and thereafter he did not visit that flat. The statement
made by the appellant/husband on February 03, 2014 by the learned Judge,
Family Court is to the following effect:
‘I am the petitioner/husband in the instant petition. I am a graduate
and have done my PG diploma in Industrial Relations & Personnel
Management. I joined my service in Kanpur in 2000 and worked 
there till March, 2005. The respondent shifted into a flat purchased
by her in Sector-24, Rohini, in April, 2004, where she shifted and took
all her articles from the matrimonial home. I had helped her in
shifting the said articles to the flat in question. I did not object to the
respondent shifting into her own flat in 2004. From April, 2004 till
March, 2005, I visited Delhi at least approximately once a month.
During the said visits, from 2004 till 2005, I met the respondent and
my daughter, who was in her custody, five times, out of which on two
occasions, I took them out at Japanese Part etc. I also spent the night
at the said flat twice. Out of the said five meetings with the
respondent, during the said period, on one occasion we had
arguments/quarrel, but remaining four meetings were happy one.
After my return from Kanpur to Delhi in March, 2005, I used to
live with the respondent at her flat at times, and some times I used to
stay with my parents at the matrimonial home. This arrangement
continued till 22.02.2006, and since there (Sic. then) I did not ever
go to live with the respondent at her flat. I did not ever ask the
respondent to join my company, either in the matrimonial home or
any other separate accommodation.
My passport was got prepared by me at the address of the
respondent, but I do not remember the date of its issue but probably it
is of the year 2005. I am making the statement voluntarily.’
19. If it is so then where is the question of ‘animus deserendi’ by the
20. A wrong doer cannot take advantage of his own wrong as held by the
Apex Court in the decision reported as (2013) 9 SCC 1 Darshan Gupta vs.
Radhika Gupta. The relevant observations are extracted hereunder:
‘…….A perusal of the grounds on which divorce can be sought under
Section 13(1) of the Hindu Marriage Act, 1955, would reveal, that the
same are grounds based on the 'fault' of the party against whom
dissolution of marriage is sought. In matrimonial jurisprudence, such
provisions are founded on the 'matrimonial offence theory' or the
'fault theory'. Under this jurisprudential principle, it is only on the
ground of an opponent's fault, that a party may approach a Court for
seeking annulment of his/her matrimonial alliance. In other words, if 
either of the parties is guilty of committing a matrimonial offence, the
aggrieved party alone is entitled to divorce. The party seeking divorce
under the "matrimonial offence theory"/the "fault theory" must be
innocent. A party suffering "guilt" or "fault" disentitles himself/herself
from consideration. Illustratively, desertion for a specified continuous
period, is one of the grounds for annulment of marriage. But the
aforesaid ground for annulment is available only, if the desertion is
on account of the fault of the opposite party, and not fault of the party
which has approached the Court………’
21. If one fine morning the appellant/husband took the decision not to
visit his wife and daughter at the flat where they were staying which in fact
became their matrimonial home, then how he can be rewarded with a decree
of divorce on the ground of desertion when he himself has deserted his wife.
22. We are unable to find any material on record to establish that either
the respondent/wife or her father pressurised the appellant/husband to
transfer any property or his implication in false cases. There is only a carbon
copy of the criminal complaint Ex.PW1/3 available on record which is
having stamp of being received at PS Dabri on August 15, 1999. In the said
complaint, the appellant/husband has mentioned that his wife is playing in
the hands of her father who is in Delhi Police and that she had left alongwith
her father alongwith valuables, jewellery and clothes and she had been
trying to involve him in false criminal cases using the influence of her
father. While being examined as PW-1 he had narrated the incident to be of
August 15, 1999. This Court can take judicial note of the fact that the entire
Delhi Police Force and Para-Military Forces remain occupied in preindependence
arrangements days before 15th August. It appears that the
purpose of lodging the complaint was to report that his wife has left with all
valuables. The appellant/husband failed to bring on record what action was
taken on his complaint.
23. It is a matter of record that till date the respondent/wife has not made 
any complaint or initiate any litigation before any authority/Court against
her husband and in-laws either of her own or using the influence of her
father who was an officer in Delhi Police.
24. The contention raised on behalf of the appellant to grant decree of
divorce as the marriage has broken down irretrievably is not tenable in view
of the decision of Supreme Court in (2009) 6 SCC 379 Vishnu Dutt Sharma
Vs. Manju Sharma..
25. In Om Prakash Poddar’s case (Supra) [authored by one of us
(Pratibha Rani, J.)] relied upon by the appellant, the Family Court held that
ground of desertion had been proved but instead of granting a decree of
divorce passed a decree for judicial separation under Section 10 of Hindu
Marriage Act, 1955. The limited question considered was whether the
Family Court could grant a decree for judicial separation without specifying
any reason for the same. This Court granted a decree of divorce on the
ground of desertion.
26. The appeal is dismissed but without any order as to costs.
27. Trial Court Record be sent back alongwith copy of this order.

AUGUST 29, 2016

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