Whether a husband can seek divorce against his wife on the ground of cruelty if he had filed a petition for restitution of conjugal rights?

We are not impressed by the submissions made on behalf of the appellant/husband. On the correct appreciation of the evidence on record, the learned Family Court has concluded that except for making some generalised allegations against the respondent/wife, the appellant/husband had not been able to establish that the respondent/wife had ever threatened him with cruelty. It is also worthy of note that according to the appellant/husband, sometime in August 2012, he had filed a petition under Section 9 of the Act for restitution of conjugal rights. In other words, if there was any misconduct or misbehaviour on the part of the respondent/wife till then, the appellant/husband had condoned the same when he approached the court for issuing directions to the respondent/wife to join the matrimonial home. According to the respondent/wife, when she had expressed her readiness and willingness to return to the matrimonial home to continue the relationship with the appellant/husband, he had promptly withdrawn the petition filed under Section 9, on 18.08.2012.

IN THE HIGH COURT OF DELHI

M.A.T. App. (F.C.) 65/2020 and C.M. No. 7957-58/2020

Decided On: 01.05.2020

Jitender Kumar Vs. Kamlesh

Hon'ble Judges/Coram:

Hima Kohli and Asha Menon, JJ.

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Leading Supreme court judgment on condonation of cruelty in matrimonial matters

 Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration. The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy Sixth Ed., p. 75. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not D consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of accrual act, the other spouse must leave the matrimonial home lest the continued co-habitation be construed as condonation. Such a construction will hinder reconciliation and there- E by frustrate the benign purpose of marriage laws.

57. The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent's -acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than F one explanation. But if during co-habitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex" plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2224 of 1970

Decided On: 19.03.1975

Dr. N.G. Dastane Vs. Mrs. S. Dastane

Hon'ble Judges/Coram:

N.L. Untwalia, P.K. Goswami and Y.V. Chandrachud, JJ.

Citation:1975 AIR 1534 1975 SCR (3) 967,1975 SCC (2) 326

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What amounts to condonation of cruelty in divorce proceeding?

Section 23 of the Act provides that where a divorce has been sought on the ground of cruelty, the petitioner has to prove that he has not in any manner condoned the alleged cruelty. Another requirement of Section 23 is that there should not be unnecessary or improper delay in instituting the proceedings. As the parties resided together till the year 2008 and it was the husband who walked out of the matrimonial home, long cohabitation of the parties as husband and wife for a period of about 12 years since 1996 would suffice to conclude that the appellant has condoned the alleged acts of cruelty purpotedly occurred in the year 1989, 1991, 1993 and 1996. In this view of the matter, we do not find any error much less illegality in the impugned judgment.

Punjab-Haryana High Court

Vishesh Malhotra vs Alka Malhotra on 17 February, 2016

Citation:2016 (5) ALLMR(JOURNAL)37

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Whether divorce can be claimed on the basis of past cruelty which was condoned?

 It is admitted case of the appellant/husband that after his wife left on
April 06, 2008 he had not met them. He did not even know in which
standard his son was studying. This shows his indifferent attitude towards
his wife and child. The admitted fact that the respondent/wife till date had
been taking care of her son single handedly without even asking for
maintenance shows that she never had any intention to break the
matrimonial ties.
28. It is a matter of common knowledge that after leaving the matrimonial
home all kinds of civil and criminal proceedings are initiated against the
husband and in laws but in this case we find that after leaving the
matrimonial home the wife did not take recourse to any legal remedy. In the
given circumstances there was hardly any material available to the
appellant/husband to claim dissolution of marriage on account of the mental
cruelty.
29. In view of the above we are of the considered view that learned Judge 
Family Court correctly appreciated the evidence or arrive at the conclusion
that it was not a case of dissolution of marriage on the ground of cruelty
being caused to the appellant/husband. Even if there was any act of mental
cruelty, the same was condoned by the appellant/husband by cohabiting till
she left on April 06, 2008. There is no instance of cruelty being committed
by the respondent/wife thereafter.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment Delivered on: August 19, 2016
MAT.APP. 08/2012
NEERAJ KUMAR .
versus
POOJA VERMA ....
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI

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Whether court can condone delay on the ground of sympathy?

 The courts should not adopt an injustice-oriented approach in
rejecting the application for condonation of delay. However the court
while allowing such application has to draw a distinction between
delay and inordinate delay for want of bona fides of an inaction or
negligence would deprive a party of the protection of Section 5 of the
Limitation Act, 1963. Sufficient cause is a condition precedent for
exercise of discretion by the Court for condoning the delay. This
Court has time and again held that when mandatory provision is not
complied with and that delay is not properly, satisfactorily and
convincingly explained, the court cannot condone the delay on
sympathetic grounds alone.
12. It is also a well settled principle of law that if some person has
taken a relief approaching the Court just or immediately after the
cause of action had arisen, other persons cannot take benefit thereof
approaching the court at a belated stage for the reason that they cannot
be permitted to take the impetus of the order passed at the behest of
some diligent person.


Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NOS.6609-6613 OF 2014

Brijesh Kumar   Vs  State of Haryana 

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